Photo: pxhere/567037
Human rights practitioners have become increasingly savvy about the ways geospatial technologies can help document violations in conflict zones.
Aerial photography and satellite images have long served human rights NGOs as important documentation tools. Since the earliest applications to document mass graves and refugee movements, human rights practitioners have become increasingly savvy about the ways geospatial technologies can help document violations in conflict zones that are difficult to reach, show chronological changes in landscapes, and corroborate witness testimony. Combining digital satellite imagery with open mapping platforms now allows innovative collaborations such as Bellingcat and the Video Verification Project, as well as documentation efforts led by frontline communities such as those facilitated by Digital Democracy. So far, only a small portion of this work has made its way into human rights litigation, but research conducted by the AAAS Scientific Responsibility, Human Rights and Law Project provides insights about the potential impact of using scientific analysis and emerging technologies in human rights courts.
For our recent report, we reviewed 26 cases heard by international courts in which geospatial technologies were used to develop evidence of human rights violations. These cases covered a range of human rights issues: disappearance, extrajudicial executions, forced eviction, genocide, destruction of cultural heritage, the right of persons displaced by conflict to return, indigenous land rights, and nonrefoulement. Regardless of the specific court or context—some of these cases were heard by criminal tribunals, others by regional human rights courts—what made the evidence persuasive was not the technology itself, but rather, the credibility of the person who explained what the images showed. Only in cases where the court found the expert witness reliable and credible did they find the geospatial evidence to have probative value. By comparison, when a prosecutor attempted to admit a satellite image through the testimony of a victim witness, the court rejected the image.
This insight is important because human rights practice sits on the cusp of the democratization of geospatial data and analysis. The largest providers of satellite imagery are now private corporations, not government agencies (although governments are still critically important public sources of geospatial data). Aggregator platforms allow individuals to combine data collected with smart phones with images from these private providers, with open source mapping platforms, with data collected by drones and airplanes that can carry increasingly tiny sensing equipment. At the same time, new tools for data visualization are also on the horizon; some human rights NGOs are already exploring new technologies such as virtual reality for communicating human rights concerns. Geospatial technologies and the tools to analyze remotely sensed data are developing so rapidly that by the time NGOs, lawyers, and judges learn one technology, another will supersede it. Human rights practitioners should understand the limits of any one specific documentation methods and resist using a new technology simply because it is new or “cool.” Because geospatial analysis results in maps or images that look like photographs rather than data visualizations, a poorly performed analysis can do much harm, as can overstating ambiguous results of research.
For this reason, practitioners using geospatial technologies should put the credibility and objectivity of the resulting analysis ahead of the specific technologies. Human rights advocates seeking to incorporate remote sensing or other emerging technologies into their work should consult with an experienced, independent analyst who understands the frameworks specific to human rights litigation, and they should anticipate that this person may become an expert witness for the court, which will scrutinize their credentials. They should have personal experience applying established research methods and the relevant ethical standards and codes of conduct. They should also be able to explain the scientific methods and knowledge on which she or he will rely in a way that human rights practitioners, investigators, and litigators can easily understand. This is especially true for practitioners who will want to incorporate the findings into human rights reports that also include stories from observers and other types of human rights evidence.
Another important consideration is the expert’s objectivity. This is not a hypothetical concern: the International Criminal Tribunal for the Former Yugoslavia (ICTY) questioned the credibility of a statistician’s testimony because that expert witness had previously made public statements supporting NGO advocacy for prosecution of war crimes. Whenever possible, scientific analysis should be conducted in a way that isolates the process of analysis from information that could prejudice the research outcomes.
Similarly, courts with jurisdiction over human rights cases should develop principles for evaluating scientific evidence rather than focusing on specific technologies. Many national courts, including those of the United States, have developed rules and procedures for assessing the weight of scientific reports and data. It is time for international human rights courts to do this as well. This makes the process more predictable for all parties in litigation, and thus helps protect due process and fairness. In addition to adopting predictable principles for assessing technical evidence, international courts could adopt several other approaches, including:
- Appointing independent scientific experts to advise the chamber on technical questions and evidence presented in a specific case;
- Appointing “special masters” to hear evidence on the chamber’s behalf and make recommendations when complex scientific evidence, such as environmental science, is critical to the outcome of a case;
- Ordering parties to the case before the chamber to jointly appoint a panel of experts to advise the judges; or
- Invite amicus briefs from relevant NGOs to inform the chamber on technical matters.
These considerations are increasingly urgent as digital data, and the means for analyzing them, become more widely accessible to human rights practitioners at the same time that human rights courts and civil society are pursuing cases involving environmental destruction, “climate crimes” and violations of economic and cultural rights. These cases will require extensive scientific evidence, including evidence acquired through remote sensing and other environmental monitoring, collected by complex networks of individuals, impacted communities, scientific researchers, government agencies, and NGOs. They offer tremendous opportunities to document and convey human rights concerns in new, compelling ways that can have a tangible impact. To realize these opportunities, NGOs should adopt appropriate working methods that can be used to verify data sources, chain of custody, and analysis methods. They should also keep scientific research and analysis as independent of advocacy goals as possible by encouraging international courts to develop predictable, transparent standards and practices for considering scientific and technological evidence.
*** This article is part of a series on technology and human rights co-sponsored with Business & Human Rights Resource Centre and University of Washington Rule of Law Initiative.