Standing before a computer monitor in a courtroom in The Hague in 2020, a prosecutor with the International Criminal Court zoomed in and out on a detailed 3D digital reconstruction of the city of Timbuktu. She moved around the interactive map through squares and markets, zooming past renderings of city buildings, eventually descending to street level. There, she played a video that showed a Malian rebel holding a whip and escorting two cuffed men to an open area, then ordering the men to kneel and whipping them before a crowd of bystanders, including several children.
It was a vivid opening to the war crimes and crimes against humanity trial of Al Hassan Ag Abdoul Aziz, a member of the Ansar Dine Islamist group, which took over swaths of northern Mali in a 2012 coup. Al Hassan stands accused of leading the Islamic police and committing widespread crimes, including torture, rape, sexual slavery, and forced marriages.
“Mr. Al Hassan’s work was not confined within the four walls of his office,” the prosecutor, Sarah Coquillaud, said in her opening statement, as Al Hassan watched quietly, his reactions hidden behind a face mask. “His work did not only consist in dispatching men and writing reports at his desk; he took it outside in open places and preferably places where his idea of justice could be seen and taught to everyone.”
The trial against Al Hassan ended late last month, with a verdict expected in the coming weeks. It will not only determine the fate of a man whom prosecutors accused of being an “enthusiastic” war crimes perpetrator, but will also answer a key question facing human rights advocates: Can sophisticated digital evidence platforms, part of a rapidly growing arsenal of technology deployed in the documentation of human rights abuses, help secure convictions?
“Many of us are watching to see how visual and other forms of digital evidence become useful or are challenged, what the judges think,” said Alexa Koenig, a co-director of the University of California, Berkeley’s Human Rights Center and a leading expert on the use of emerging technologies in human rights practice.
The Al Hassan case marks the first use of an immersive virtual environment — or IVE, in the court’s lingo — in an international criminal trial. (SITU, the visual investigations team that built the model, developed a simpler platform for a 2016 war crimes prosecution that was resolved with a guilty plea before trial.) Yet these types of tools — which are increasingly being used by human rights groups and media organizations, and have even contributed to landmark settlements in cases involving police violence in the U.S. — are likely to become a critical part of international justice efforts moving forward.
Take Ukraine, where scores of alleged crimes have been documented almost in real time by an unprecedented number of actors. As prosecutors increasingly rely on digital evidence and reconstructions in their work, they will face the challenge of sorting through massive amounts of data efficiently, a process that experts say will inevitably need to become automated in some way. Earlier this year, the International Criminal Court’s prosecutor’s office launched what it called “the most ambitious technical modernization initiative in its history,” including a new evidence management platform to handle the influx of large amounts of digital evidence.
The proliferation of such tools and their expected contribution to criminal accountability efforts raises a number of pressing questions, human rights experts caution, like issues of fairness in judicial proceedings, particularly as prosecutors’ teams in international criminal tribunals are often better resourced than the defense. It also raises ethical questions, for instance about the re-traumatization of victims.
“Will this be in any way prejudicial to the accused and violate some fair trial norms that are so important to the effectuation of justice? What does it mean for the psychosocial well-being of the people in the courtroom, let alone the survivors of something so horrific, if you are able to immerse yourself in the scene of an atrocity?” asked Koenig.
“They can be really helpful for people to situate themselves at the scene of a series of atrocities and be able to explore what that atrocity means to the surrounding community,” she added. “But there are a lot of unknowns still in the field about how we control to give ourselves the best that can come from these digital platforms while at the same time minimizing the risks and the harm.”
Is Seeing Believing?
SITU researchers assembled the Timbuktu reconstruction through a combination of satellite imagery, drone footage, and other materials. They populated the reconstruction with evidentiary videos, some that witnesses provided directly to prosecutors and others that prosecutors collected from the internet. During the trial, prosecutors used the platform to show some instances of violence — like the floggings of a couple accused of adultery and of two young men accused of drinking alcohol, both of which Al Hassan allegedly participated in — as well as the places where other alleged crimes, which were not caught on video, took place.
In exchanges with the court, Al Hassan’s defense team raised concerns about the platform. “Unfair prejudice arises from the inherently persuasive and unduly demonstrative nature of the material,” they wrote in one email. They cited research that argues that “at first glance, these graphical reconstructions may be seen as potentially useful in many courtroom situations,” but cautioned against “the undue reliance that the viewer may place on the evidence presented through a visualisation medium, this is often referred to as the ‘seeing is believing’ tendency.” The court overruled the defense team’s objections. Al Hassan’s lawyers did not respond to The Intercept’s request for comment. Gilles Dutertre, the lead prosecutor in the case, referred questions to the ICC’s office of the prosecutor, which did not respond to The Intercept’s questions.
The team at SITU — with which The Intercept has collaborated in the past — said that while they worked with evidence provided by the prosecution, the platforms are designed to be used by all parties to the proceedings, including the defense. “It’s not a linear narrative that walks a viewer through specific sets of events, tries to make an argument and to thread a line through all of the pieces of evidence,” Bora Erden, a senior researcher and technical lead at SITU, told The Intercept. “Instead, it allows any user to query the platform for their own purposes.”
Koenig, who advised the former ICC prosecutor’s office on the use of emerging technologies, told The Intercept that the office’s interest in such tools was inspired in part by the realization, a decade after the court first started operating in 2002, that many of its cases were falling apart early on because prosecutors were not bringing enough corroborating evidence to support what witnesses were saying. The growing availability of a range of digital evidence sources — from geospatial imagery and drone footage to the spread of the smartphone and the rise of social media — offered not only new ways to corroborate witness testimony, but also ways to link evidence of crimes on the ground to the higher-level perpetrators the court was tasked with pursuing. “All of these were tools that the prosecutor needed to become more effective and efficient,” she said.
Still, the new tools were met with some resistance, in part because those developing them worked in fields — from architecture and design to computer programming — that fell outside the disciplines more traditionally associated with forensic work. “When you’ve been doing your job for decades, and you have a set methodology for how you find the evidence, verify the evidence, introduce it into court … there’s a very healthy skepticism that comes with introducing new ways of working with evidence,” Koenig added. “I have definitely seen some reticence to engage with these newer methodologies.”
More Accessible Courtrooms
The immersive nature of these platforms can make them a more effective way to engage survivors and eyewitnesses, proponents say.
Anjli Parrin, a Kenyan human rights advocate and lawyer and director of the University of Chicago Law School’s Global Human Rights Clinic, told The Intercept that in many countries, courtrooms are elitist settings, “not an environment where victims groups, survivors, and impacted communities are going to feel welcome.”
But when they can see a recreation of places they know and experiences they lived through, “it helps make the courtroom accessible,” she added, drawing a contrast to technical reports that can be difficult for the layperson to understand.
“What is actually exciting and revolutionary about this is how it can simplify the problem, not how it’s an exciting, shiny new thing that looks cool.”
Yet these tools are not a panacea, cautioned Parrin, who has investigated mass atrocities and served as an expert witness in international criminal proceedings, especially when it comes to communities without access to certain technology. She cited a recent visit to a Central African Republic village where she interviewed witnesses after 30 people were massacred. “Not one person had a smartphone,” she said.
“What is actually exciting and revolutionary about this is how it can simplify the problem, not how it’s an exciting, shiny new thing that looks cool,” Parrin said. “It’s about how you actually make this meaningful to the people who are affected.”
Update: June 14, 2023
This article has been updated to clarify the accusations against Al Hassan.