War Crime Prosecutions Enter a New Digital Age

In 2012, the al-Qaeda–linked jihadist group Ansar Eddine swept through Timbuktu, taking control of the Malian city. As part of the group’s imposition of sharia law over the residents, it created an Islamic police force, led by Al Hassan Ag Abdoul Aziz. Ansar Eddine controlled the city until 2013, when a military campaign led by France drove the group out.

During his tenure with the police force, Al Hassan helped carry out a campaign of “forced marriages” and floggings of those accused of violating the strict religious rules imposed by Ansar Eddine. He faced 13 counts of crimes against humanity before the International Criminal Court at the Hague. Earlier today, the ICC convicted Al Hassan of war crimes and crimes against humanity, including torture and cruel treatment, for which he could face life in prison.

As part of the case, prosecutors employed a unique strategy of presenting evidence—a bespoke immersive replica of the city that includes visual evidence of where the alleged crimes took place. Created by SITU Research, a visual investigations firm, the platform used to prosecute Al Hassan represents a watershed moment in how evidence of war crimes is presented and the kinds of evidence the ICC might consider in future rulings.

Established in 2002, the ICC is relatively young. Alexa Koenig, a law professor at UC Berkeley, who helped set up the Technology Advisory Board at the ICC, says that the impetus for incorporating new technologies into evidence came as a response to an evaluation from the court that cases relied too heavily on witness testimony.

“Judges were saying that the prosecution had a problem,” says Koenig. “That essentially they were over-relying on the stories of survivors without bringing in the corroborating information needed to meet the evidentiary standards to allow these cases to go forward.”

As more and more evidence of war crimes became digital—through social media content or videos and photos uploaded online—Koenig says, the court has allowed this material to be submitted as evidence, but other tools, like the platform created by SITU Research, are still a nascent way to present evidence. And because cases can take much longer to move through the ICC than another kind of court, Koenig says, the ICC has only begun to reckon with these kinds of questions.

“As people are preserving evidence on places like Facebook or WhatsApp or YouTube, we’re going, How do we preserve this in a way that preserves its values for our purposes?” Koenig says. “But also how do we make the content more impactful?”

SITU Research created a similar platform for the ICC prosecution of Ahmad Al Faqi Al Mahdi, also a part of Ansar Eddine, who was accused of destroying sites of cultural heritage in Timbuktu. But al Mahdi pleaded guilty, so the court never had the opportunity to evaluate the platform as a piece of evidence. Al Mahdi was sentenced to nine years in prison in 2016.

“It’s kind of challenging to get new tech integrated and admitted as evidence,” says Brad Samuels, founding partner at SITU Research. “And often the technology that’s in the world isn’t necessarily finding its way into the courtroom quickly.”

The platform allows users to virtually walk through the city of Timbuktu, as well as see it from above. Nested within the virtual re-creation of the city are pieces of video, photo, and audio evidence, showing where and when an event allegedly occurred. For instance, users can explore down a street and encounter an item labeled to a corresponding piece of evidence, click on it, and see a video of a particular moment that shows who was allegedly present and what occurred.

SITU’s platform combines drone footage, satellite imagery, laser scans, and other forms of visual evidence that, Samuels says, allows the judges to see the evidence over time and space in a way that would not otherwise be possible. This is particularly important in cases of crimes against humanity, which require the crimes to be systematic and widespread as opposed to a single, isolated incident. And he says there’s more value to the platform than just helping the judges organize visual evidence that supports witness testimony.

“In the case of Timbuktu, the security situation in Mali has sort of gotten worse and worse. And the judges definitely were not able to go there in person,” Samuels says. For instance, the platform includes the interior of a former bank that functioned as the headquarters of Islamic Police, and another site where someone was flogged.

“It can also become a tool for interviewing witnesses about what they experienced,” Koenig says of SITU’s platform. “If you think about some of the language barriers and cultural barriers, not having a touchpoint like that, have them walk you through what happened to them can be almost guesswork at times of trying to piece together their story, particularly when there’s a lot of trauma involved and memories are fragmented or recollections are fragmented.”

Sarah Zarmsky, assistant lecturer at Essex Law School, says, however, that often the defense teams for the accused lack the same resources offered to the prosecution.

“This platform was designed for the prosecution,” she says. “So, while SITU Research does great work, the defense also isn’t coming in with that same expertise. And so there are a lot of fair-trial implications there.”

In an article published in 2023, ICC chief prosecutor Karim Khan noted that “the defense sought full access to the virtual platform, and required (and were provided) training and guidance on its use, so that they could also deploy it as needed.”

In the case of the ICC, where the court allows almost all evidence to be submitted and then decides afterward how much weight to assign each piece of evidence, that can mean an overburdened defense team may not have the time to sift through each piece of evidence. For something novel like the platform created by SITU, Zarmsky says, it’s unclear how much weight the court might put on it when it comes down to making a ruling.

But Khan asserted that the “Trial Chamber’s acceptance of the platform shows that the law and procedure of the ICC is ready to accommodate forward-thinking approaches to the presentation of evidence.”