Van Schaack: Innovations in International Criminal Law Documentation Methodologies and Institutions

Beth Van Schaack (Stanford Univ. - Law) has posted Innovations in International Criminal Law Documentation Methodologies and Institutions. Here's the abstract:

The conflict in Syria has become the most documented crime base in human history. Although the outside world was largely ignorant of the 1982 Hama massacre, information about today’s events on and off the Syrian battlefield is immediately disseminated around the globe through formal and informal media and social networks. From the beginning of the uprising, and in real-time, citizen journalists wielding smartphones from the grassroots began uploading videos and photographs of the revolution, the government’s crackdown, and the ensuing armed conflict at a rate never before seen in previous conflicts. Because the current information environment is increasingly internet-based and digital, human rights advocates have had to update their collection, storage, authentication, and analytical protocols. NGOs are thus exfiltrating regime documents, taking witness/victim testimonials remotely on new communications platforms, scrubbing social media sites for potential evidence, digitizing gigabytes of data that are then subjected to big-data and statistical analytical techniques, and securing potential evidence in encrypted digital vaults. These data are supporting classic human rights advocacy tools — naming and shaming exercises and the dissemination of damning human rights reports based upon moving accounts by victims. At the same time, multiple United Nations fact-finding efforts are also underway, at times with overlapping substantive mandates and employing varying methodologies. A new U.N. investigative mechanism created (not without controversy) by the General Assembly — the International, Impartial and Independent Mechanism — is cataloging and collecting this data and rendering it increasingly useful for prosecutorial authorities.

This chapter surveys current documentation efforts devoted to Syria and the various types of information being generated, preserved, and analyzed. It then surveys the various organizations — from the multilateral to the most local of levels — that have taken up the collection mantle, employing new technologies to amass and exploit these data with an eye towards eventually seeking justice, broadly defined. Importantly, this is an activity in support of justice that can be pursued, capacitated, and realized pre-transition, while a conflict is ongoing and even without a clear path to justice. Indeed, it is crucial to collect such potential evidence as quickly as possible before it can be hidden or tampered with or before it gets deliberately or inadvertently destroyed. Given the evolution of the conflict, and the degree to which territory has changed hands and reverted to regime control, certain sources of information that were available early in the conflict are no longer accessible, the strongest argument in favor of launching a documentation effort immediately once a conflict is underway and maintaining a continuous process throughout as best as possible.

Together, these documentation projects have catalogued the commission in Syria of almost every type of war crime and crime against humanity known to humankind. The assumption is that this information will lay the groundwork for a whole range of transitional justice mechanisms — in the event that there is ever a transition. From the perspective of promoting more comprehensive criminal accountability, the challenge that awaits will be to transform these raw data into more structured information and then, ultimately, into admissible evidence. Because far-reaching justice may be years — or even decades — in the making, it is imperative that evidence of crimes being committed now is amassed in real time and preserved for when the time is ripe for justice and accountability in Syria. In the short term, all this documentation is contributing to episodic cases that are beginning to materialize extraterritorially in domestic courts around the globe. Indeed, these national efforts have emerged as the most promising avenue for justice.