Friday, October 3, 2008

Of International Crimes and Memory Sticks

Perhaps my favorite news story of late (apart from the pirate spokesperson that Diane blogged about here) is the Colombian government's seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, "I KNOW I had that memory stick around here somewhere." And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.
While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for war criminals but also for those interested in prosecuting international crimes.
Of course, the Evidence professor in me is skeptical about the admissibility of such data without proper authentication. While the authentication of computerized data is very much a live question before American courts, the evidentiary rules applied in international criminal tribunals are generally derived from civil law jurisdictions and therefore allow broad admissibility under the assumption that the judge can determine whether the evidence is reliable and weigh it accordingly. While this approach may be sensible in its inclusiveness, judges should trace the chain of custody carefully and rely on techie experts to ensure that nobody has tampered with computerized data. Particularly in the complex political situations that give rise to international crimes, it would be all too tempting for political foes to create a memory stick full of false information . . .
Cross-posted at Concurring Opinions

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