David M. Crane, founding chief prosecutor of the Special Court for Sierra Leone, discusses the need for centralized control of all data coming from Ukraine…
Over the past ten years, the world of international investigations has changed. With the advent of a larger web with Google, the global reach of social media, the private use of a variety of highly technical equipment ranging from satellites to terrestrial and infrared sensors, among many data collection methods, to include the ‘data mining and even the crowd supply; the ability to collect data is, frankly, beyond our comprehension and out of control.
We have had a glimpse of this with the conflict and the atrocities committed in Syria. Governmental and non-governmental organizations, civil societies and individuals have begun collecting data on alleged atrocities committed in Syria. Petabytes of data were collected in an uncoordinated and even unprofessional manner. Well-meaning human rights defenders and organizations swarmed the scene of the crime, damaging the ability of the international community to mount a war crimes case against President Assad and his henchmen.
The situation has deteriorated so badly that the United Nations General Assembly has taken an extraordinary, but correct, step and created a mechanism for Syria to take all this data and make sense of it all. The intention of creating this mechanism was to take criminal information that could be turned into evidence for a case against Assad and his henchmen by a local, regional or international prosecutor. The International, Independent and Impartial Mechanism for Syria is headquartered in Geneva and carries out its important work.
The data is useless as evidence in local, state or international court. The rules of evidence require that only relevant data/information with proper foundation and authenticity be admitted into the record as evidence. This is a high standard and the data swirling around us in Syria, and now in Ukraine, is not admissible in court. Ensuring we have data that can be turned into evidence is like looking for a needle in a haystack in today’s investigations.
Now, like in Syria, there is a flood of dozens of organizations from around the world pouring into Ukraine – gathering what they may think is evidence in an uncoordinated way, which is problematic. Important information can be lost, misplaced, misused and even manipulated, which will cause a future prosecutor problems in his investigation to prove beyond a reasonable doubt each element of the criminal charges brought against those who commit national crimes and international in Ukraine.
National prosecutors and an international prosecutor are investigating alleged crimes against the armed forces of the Russian Federation. The Prosecutor General of Ukraine and various European Union national prosecutors initiated proceedings under their national laws, and the prosecutor of the International Criminal Court opened a preliminary investigation. He correctly stated that the whole of Ukraine is a crime scene. There are also various other international and regional organizations, which also investigate under their charters and mandates.
In addition to these official efforts, we have countless non-governmental organizations stumbling around Ukraine and the internet collecting their data, without coordination or data sharing. Where does all this data go? Who has access? How is it stored? Is there a chain of custody required or used? Is it stored professionally? Questions and concerns are mounting about the proper collection and preservation of evidence.
This clearly poses a problem. There must be centralized control of all data coming from Ukraine, although unlikely. At this point, there are too many irons in the fire, but this should be a noted concern and awareness is a step in the right direction. As events progress, some of these concerns should be addressed, but it must be done. The two most likely areas of interest should be the Prosecutor General of Ukraine and the Prosecutor of the International Criminal Court.
Their efforts should take precedence over the myriad of data and information gathered or already available. After all, it is for and about the victims of the atrocities committed by President Vladimir Putin and his commanders. If we lose this focus, we are going in the wrong direction. Accountability rests on well-researched and accurately drafted indictments based on properly gathered and reliable evidence. This is the legal norm, there is no other.
David M. Crane is the founding Chief Prosecutor of the United Nations Special Court for Sierra Leone; Distinguished Scholar in Residence, Syracuse University School of Law; Founder, Global Accountability Network.
Suggested quote: David M. Crane, A Tsunami of Data—Stepping All Over the Crime Scene in Ukraine, JURIST – Academic Commentary, April 26, 2022, https://www.jurist.org/commentary/2022/04/david-crane-tsunami – data-stepping-crime-scene-ukraine/.
This article was prepared for publication by Nandini Dwivedi, JURIST Associate Editor. Please direct any questions or comments to him at [email protected]
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