Practical aspects of gathering digital evidence in investigations concerning the aggression on Ukraine

This presentation will explore the practice of gathering digital evidence in the procedural activities undertaken by the Polish, EU and other states’ authorities (e.g. Ukraine, Slovakia) in investigations concerning the current war in Ukraine. Such evidence is also gathered in cooperation with the ICC. In the frames of so many involved states and authorities the key question is to create a common network in order to gather digital evidence and cooperate effectively. The works concern i.a. the need to create and administer a mutual pattern for gathering of such evidence and a safe server in order to store it. The presentation will also try to assess the practical use and importance of new technologies and professionalization that could be seen in the field of international criminal justice on the Polish authorities’ activities in this case.

Three considerations that render the integration of Big Tech into the regulation of international justice inevitable.

The ongoing international armed conflict in Ukraine, following the aggression by Russia and Belarus, has re-evaluated the importance of new technologies at a dizzying pace. Overnight, every smartphone owner became a direct observer of the fighting in Ukraine, a volunteer in grassroots refugee aid, a founder of equipment for the Ukrainian armed forces, and a target in the information war. In my paper, I would like to elaborate on three modalities of new technologies that cannot be ignored in nowadays reality: digital evidence in criminal proceedings of war criminals, mean and method of warfare, and humanitarian aid facilitator. In discussing these issues, I would like to focus on some challenges regarding the conduct of Big tech companies as to their factual and legal cooperation with state and international authorities, and their role in providing international justice.

Digital Age in the ICC

For many decades open source intelligence have been a source of information about states, technical inventions or some political events. These days this provides information from war front with pictures and films presenting committment of international crimes for example in Ukraine. In the ICC the evidence needs to be assessed as admissible to be applied during criminal trial and it has to fulfill certain legal rigor of reliability and credibility. This discussion will aim at presenting the usefulness of such evidence in practice of the ICC in the light of the demands of the Berkeley Protocol on digital and open source investigations, and will attempt to answer the question of how the Protocol will professionalize the field of international criminal justice, and whether it will be the useful tool in the context of crimes committed in Ukraine?

Prosecution of digital war criminals

Current war in Ukraine proves that hostilities are not only streamed online but they are also conducted online, that is why prosecutors need to take into account the ongoing process of broadening the notion of direct participation in hostilities, in order to include cyber hostilities which can be undertaken from a great distance from the traditional battlefields and by groups not linked with any state’s armed forces, vide Anonymous Group. The aim of the presentation is to focus on the impact of the cyberoperations on the scope and content of the notion of war crimes, it will also show examples of the deliberate use of social media to commit such war crimes like spreading terror among civilians or committing outrages upon personal dignity, in particular humiliating and degrading treatment.