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Untapped Potential: Examining the Role of Open Source Intelligence Through the Lens of Sexual and Gender-Based Cases at the International Criminal Court

Updated: Feb 18

Our world is rapidly embracing digital platforms, with a constant evolution of online data and information. The legal community is currently engaged in a conversation about the impact of this digital shift on investigating criminal and human rights violations.

While the use of open source intelligence (OSINT) in investigations is not new. What makes this conversation different in recent years, is the unprecedented abundance of information on digital platforms (inclusive of social media, satellite imagery, websites, etc). The introduction of using digital open sources quickly became an attractive option for human rights investigators and generated a lot of buzz in the international law community, promising new avenues for accessing information and helping to break down more traditional barriers of evidence collection.

Many prominent organizations made great efforts to try and tame this so-called ‘Wild West’ of digital investigations by bringing new digital protocols to life; NATO, the International Criminal Court (ICC), and the United Nations Office of the United Nations High Commissioner for Human Rights (OHCHR) which collaborated with the Human Rights Center at UC Berkeley, are accredited with the most extensive guidelines for OSINT to date.

The ICC has increasingly utilized OSINT to support its investigative and prosecutorial functions. The court has since gone on to issue arrest warrants solely on evidence derived from digital open sources (see the case of Al-Werfalli, in which all evidence cited in the arrest warrant came from videos that were publicly posted on Facebook). With both promising potential and international acclaim, investigating international human rights violations with digital open sources was (and continues to be) marketed as a shiny new toy that can help to combat some of the traditional issues associated with gathering corroborating evidence.

Regardless of the success accredited to OSINT in recent cases at the ICC, to date, there have been just two final convictions of sexual or gender-based violence (SGBV) in the history of the court. Despite the attention given to digital open source investigations, there seems to be less of a dialogue pertaining to addressing how this methodology is specifically impacting SGBV cases. The following points are derived from interviews with a variety of backgrounds from international lawyers, legal researchers, digital investigators, and gender specialists alike, to uncover the practical obstacles in prosecuting SGBV using digital open source investigation methods.

Evidentiary Standards

In successful cases of OSINT being used to help prosecute human rights violations, the evidence derived from digital open sources were often clear and succinct - the digital ‘smoking gun.’ As digital open source investigation methods continue to build a reputation for itself in the legal field, many interviewees cautioned the reliance on digital evidence as a main source of corroboration for a crime.

“In general, I would not go as far as to say that we certainly are accustomed to this type of succinct evidence from digital open sources. Of course that level of certainty is the best possible scenario when you are compiling evidence...but I do see the trend of the legal community looking towards that, and I think it is unfair especially for SGBV cases. Because these types of cases yield evidence that tends to be more nuanced and discreet.”

With the sensitivity and stigma surrounding SGBV crimes, survivors of SGBV may feel the need to use high levels of discretion when discussing and connecting with one another. For example potentially using a coded language or words with double meanings to avoid explicit terms, disguising the conversation to protect their safety and privacy, especially online.

Specialized Attention to Compensate Gaps in Technology and Screening Bias

Interviewees stress the importance of investigators being cautious and thorough when examining digital open sources for evidence of SGBV to prevent screening bias. Lack of specialized training and attention to detail can result in overlooking codes that could serve as crucial evidence.

“Coded language we see commonly being used by survivors of sexual crimes. From an investigator’s point of view, it is difficult to pick up on at first glance. What we believe is best, is to have a deep understanding of both the language being used and the context in which it is presented. Familiarity with online platforms where these discussions might occur is also crucial.”

Beyond digital open sources and the protocols themselves, there is an increased need for a more diverse investigator profile in hopes to yield a diverse analysis of digital evidence. This would better aid in recognition of subtle contextual clues of SGBV, and the ability to interact with survivors more effectively. Technology, software, and other digital tools can not be expected to be suitable for every case. In fact, most of the technology available was not originally tailored to accommodate SGBV at all.

For example, in 2010 the most commonly used software for digital investigation crime analysis, the i2 Analyst’s Notebook, did not have an option for “rape” in the menu of crimes that a researcher could select to be analysed. In the most recent version, this software has since included such an option. But this underscores the importance of diverse researchers - this only enriches the investigative process by enabling a more nuanced understanding of the issues at hand, the ability to recognize subtle contextual clues, and the capacity to engage with affected communities more effectively.

“Software is only as good as the people who are using it. When two people use the same digital tools to analyze a situation, their findings may not be the same. Different perspectives ultimately help to strengthen the quality of an investigation.”

Addressing the Digital Divide

Despite the available evidence on digital open sources, it's crucial to assess the source and online circulation. While technology access has increased globally, not everyone, especially women, can share information on human rights violations due to limited access to digital platforms. Socioeconomic factors impact access to technology, creating what is commonly known as the ‘digital divide.

Human rights investigators must be mindful of these disparities and not solely rely on OSINT as the primary means of evidence collection, especially in cases where certain communities are digitally marginalized to begin with.

“This is why it's crucial to adopt a multifaceted approach that involves other forms of evidence gathering, like on-the-ground interviews or collaboration with local organizations for survivors that can provide insights into human rights abuses.”

Integrating a Gender-Sensitive Approach

In any digital investigation there is the need for timely evidence collection. This is a particular challenge for SGBV crimes for many factors such as underreporting, a narrow window for physical evidence documentation, and linking high-level officers to lower-level perpetrators. By

examining evidence with a gender-sensitive approach, the court revealed that these crimes were both severe human rights violations and indicative of the intricate link between gender inequality, power dynamics, and armed conflict.

For example, in Prosecutor v. Momina Fofana and Allieu Kondewa, the court acknowledged that SGBV was part of a larger pattern of gender-specific violence during the Sierra Leonean conflict. This approach not only improves legal accuracy and fairness but also helps address the underlying causes of gender-based violence and inequality.

“If something is repeatedly struggling compared to other things, it would not make sense to repeatedly treat it the same way and expect different results. The same goes for sexual and gender-based crimes.”

Ethical Concerns and Minimizing Additional Traumatization

Interviewees emphasized the sensitivity of SGBV investigations, involving survivors and witnesses who often share traumatic experiences. Approaching the process with care and respect for privacy and dignity is crucial. Key ethical considerations include obtaining informed consent, ensuring data security, preventing retraumatization, and avoiding the unnecessary spreading of explicit content.

The lack of standardized regulations for ethical OSINT practices in SGBV cases complicates the process, but existing protocols address ethical concerns and guide OSINT investigators in integrating ethics and duty of care to survivors. However, challenges still arise from the need to strike a balance between collecting essential evidence and safeguarding the well-being of those involved in a digital open source investigation of SGBV.

“Sexual and gender-based cases are always sensitive, always nuanced, and always so personal. We must keep this in mind as we investigate such crimes with digital methods.”

Digital open source intelligence holds potential for advancing justice, requiring ongoing attention from the ICC and the legal community. Looking ahead, it is imperative that the international criminal law community continues to harness the potential of OSINT as an investigative tool, while at the same time, trying to bridge the gaps created by the disparities that this technique has on crimes of a sexual and gender-based nature.

This article is written by Jenna Birnbohm-Kaminski.

Thank you Jenna!

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