Can The International Criminal Court differentiate between real and fake digital evidence while investigating Putin?

The Russian invasion of Ukraine in February 2022 was reminiscent of wars long past, in which one country invades another without any provocation.

But there are many parts of this conflict that are uniquely modern – including how ordinary Ukrainians take and share videos and photos documenting the mass murder of citizens, that is considered a war crime under international law.

The International Criminal Court – an international tribunal in The Hague, Netherlands, designed to investigate and prosecute war crimes – is trying to keep pace with this trend.

The ICC, a common acronym for court, arrest warrants issued in front of Russian President Vladimir Putin and Russia’s Children’s Rights Commissioner, Maria Lvova-Belova in March 2023. They are charged with alleged kidnapping and deportation Ukrainian children to Russia.

It is not clear what specific evidence ICC prosecutors have collected to support these allegations, but ICC prosecutor Karim Khan has spoken of the “sophisticated technological tools” used by the court in her ongoing research. This could be, for example, satellite images or video images from mobile phones, filmed by witnesses.

I’m a scholar of international human rights who has studied the ICC’s investigations into war crimes in Mali, West Africa, and how the court’s use of such digital evidence has progressed over the past decade.

The current ICC investigation in Ukraine could further reinforce this shift towards using digital evidence to investigate war crimes – and raises new challenges in verifying the authenticity of these photos and videos.

An emergence of digital forensics

War crimes investigations have traditionally relied almost exclusively on witnesses testimonials and mud and bone forensics of crime scene.

This began to change in 2013, when the ICC investigated Malian jihadist Ahmad Al Faqi Al Mahdi, who ordered the destruction of shrines and mosques in Timbuktu during an occupation of this city in Mali.

Video evidence documented the destruction of these sacred sites, which are UNESCO heritage sites. Al Mahdi’s group made some of these videos and others were filmed by international media.

Prosecutors eventually had such a large amount of video evidence that they put them in a digital visual platform.

For the first time, the ICC leaned heavily on visual digital evidence in a prosecution.

The court sentenced Al Mahdi to nine years in prison in 2016 for destruction The History of Timbuktu.

Since then different international tribunals have accepted digital videos and images as legitimate evidence. Satellite imagesvideos from mobile phones and other sources digital data can provide powerful additions to eyewitness reports of war crimes.

Is it real or fake?

With the rise of advanced video editing tools and artificial intelligence, it can be challenging to distinguish real videos or images from fake ones. If researchers can’t guarantee that the evidence they’re downloading is real, they can’t continue their work.

The Human Rights Center at the University of California Berkeley School of Law raised this point in 2022 when it released a guide to digital evidence intended for international judicial investigators, lawyers and judges.

This guide, known as the Berkeley Protocol, sets standards for legal relevance, security and handling of digital evidence. This includes guidelines for investigators, such as protecting the identities of witnesses providing digital evidence and awareness of the psychological effects of viewing disruptive content.

There are several stages in a digital investigation, as the guide explains.

The first concerns obtaining the evidence. Researchers sometimes find themselves in a race to download and preserve digital content before a content moderator — a person or an AI tool — delete it and it disappears.

Once a video is securely in their possession, analysts must verify it. This complicated process includes identifying where the evidence came from and where else it may have been, from when and where the video was shot to when investigators obtained it.

In their analysis, researchers look for things like distinctive buildings or trees that are easy to spot in other images. Satellite imagery can also help determine exactly where a video was shot and which direction the camera is pointing. Researchers can also use tools such as facial recognition software.

Video footage often contains other clues about the time and location of an incident. Things like street signs or sticker graffiti on lampposts can help determine where and when an image was filmed and what can be seen in it.

The ICC now uses the Berkeley Protocol in its investigations into Ukraine. If and when the time comes for prosecutors to present digital evidence of Russian war crimes in court, it will take few lawyers to argue over its validity.

The digital proof so far for Ukraine

It is unlikely that Putin or Lvova-Belova will be arrested – at least not in the short term. For now, they are safe by staying within Russia’s borders, as Russia is not complying with ICC arrest warrants or prosecutions.

But the court’s investigation into Russian war crimes is ongoing and will rely on the thick trail of digital evidence that journalists, ordinary citizens and even perpetrators themselves have documented over the course of the war in Ukraine.

The Associated Press published photos and videos of Ukrainian children in March 2023 – who whether or not to be – being loaded onto buses in the Donetsk region of Ukraine, and other Ukrainian children eating together in Russia.

Two research firms that previously consulted for the ICC have also released their own visual surveys war crimes in Ukraineshowing digital evidence that Russian artillery attacked for example, a theater in Mariupol where citizens sought shelter in March 2022.

Perpetrators also post evidence of their alleged crimes. Russian state media reportedly showed Russian soldiers taking Ukrainian children from a group home into Russian territory.

International tribunals are adapting to the new landscape of digital documentation. There are scenes in Ukraine that are eerily similar to the conflicts of the 20th century, but the current war crimes investigation is unlike anything we’ve seen before.