Journalists regularly observe events, collect information and speak with sources while on the job. What if, without detracting from core reporting, they also knew how to conserve vital evidence gathered in reporting so it passes muster in legal proceedings? This can be especially consequential in conflict and crisis zones where international crimes are being committed, such as during Russia’s invasion of Ukraine and the internal conflict in Myanmar.
A new guide from the Centre for Law and Democracy offers practical steps journalists can take to ensure information they gather around international crimes can stand up as evidence in the eyes of the law — in doing so helping courts establish what crimes have been committed, how, and by whom.
“You can't just treat that information as you would a news story because courts have very particular rules about evidence,” explained Toby Mendel, the Centre’s executive director.
The Guide focuses its recommendations on three “serious international crimes” defined by the Rome Statute of the International Criminal Court. It’s not essential that journalists become experts in these types of crimes, but rather that they understand what defines them:
- Genocide, defined as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” This may include mass killing of group members, inflicting serious bodily or mental harm on them, preventing births within the group, and other actions taken with the systemic intent of the group’s destruction.
- Crimes against humanity, or “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population.” These crimes include murder, torture, rape, enslavement, and more. In certain cases, hate speech can also be considered a crime against humanity if it calls for crimes against civilians.
- War crimes are “serious” or “grave” violations of the Geneva conventions and the laws of armed conflicts, both between states and in internal conflicts. These may include instances of murder, torture and rape, as well as attacks against religious or educational buildings, employing prohibited forms of warfare such as chemical warfare, and using civilians as shields.
Evidence of these three categories is assessed in courts on its relevance to potential crimes committed, how reliably it demonstrates the crimes, and its “absence of prejudicial effect.” To avoid evidence being excluded on this last component, the Guide recommends compiling evidence in several different formats when possible.
The Guide also advises collecting as much metadata as possible around the information being gathered. Date, time and location information behind your photographs, video and audio recordings helps verify their authenticity to courts. Capturing corroborating images such as clocks or street signs in your multimedia is helpful, too, as are written, signed accounts providing more context and details about the information collected.
When interviewing victims and witnesses, make sure to get “informed consent,” ideally through a signed form or recorded audio or video. “Normally, this means that the person understands who you are, where the interview will be shown/used and who will see it, and any potential risks associated with giving the interview,” reads the Guide. The more credible the subject the better, and anonymous evidence is not admissible in court. During your interviews, don’t ask leading questions, which have the potential to be rendered inadmissible in court.
Given the heightened sensitivity of documenting evidence about international crimes, journalists should take extra precautions to safeguard the physical and digital information they’ve gathered. “Security risks can be particularly elevated when the government in power is either complicit in the crimes or has a structural interest in hiding them,” the resource notes.
Store information in encrypted format; delete or hide information stored on your devices; encrypt, anonymize or conceal the identities of your sources, are all good first steps to protect this information. The app eyeWitness, which will automatically delete information uploaded to their server from your phone, is also valuable, especially as eyeWitness is camouflaged on the phone’s home screen and therefore less likely to be discovered by security.
As journalists incorporate these steps into their work, Mendel reiterated that the guidance is meant to supplement the critical reporting journalists are already conducting in conflict zones — not pull them away from core tasks: “Our goal is not to divert journalists from their core newsgathering and news relaying task, but to take advantage of what they happen to observe if they’re in those places and contribute to this very important global effort,” he explained. “Even though it's not a reporting activity, it is an information gathering activity so it falls within the broad remit of the work that journalists do as information professionals.”
Nor should journalists allow any of these recommendations to compromise their reporting ethics. For instance, while you may rely on confidential sources of information to aid your work, the use of this information in court may require identities to be disclosed. In these cases, prioritize your journalism, the Guide urges: “When faced with a choice between protecting a confidential source and supporting an international criminal investigation, journalists should almost invariably opt for the former, including to protect the editorial integrity of journalistic work.”
Mendel hopes that journalists take from the Guide an ability to recognize what an international crime is — not everything that’s wrong rises to this level — and incorporate the practical steps presented to verify information so it holds up in court.
“Bringing the perpetrators to justice is part of the way to reduce the level of international crime,” he said. “As with every crime, prosecuting people is an important part of the way of controlling the level of crime in society.”
The Guide is currently available in English, Russian and Burmese, with a Ukrainian translation on its way.
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