by Isabella Regan

It’s Thursday, 24 February, 2022. While most of the world is processing the reality of Russia’s invasion of Ukraine, a small group of online investigators are meticulously studying published footage of attacks. By now, these investigators know: any video posted on social media may hold possible clues about what is happening on the ground during the armed conflict; clues that are necessary for finding out which battalions are entering Ukraine, where they are coming from, and what the impact of their military action is on civilians. These clues may be of crucial importance for future accountability efforts.

In order to reflect on the role online investigations by private actors may have on possible future legal proceedings, it is necessary to consider what has been done by private actors in similar investigations. Why are private actors so heavily involved in these processes? And what are examples of such private actors, in other words: who are they? How and can these private actors be trusted and what is the evidentiary value of their investigations? What can we thus generally say about the ways in which private online investigations may possibly contribute to the documentation of the war in Ukraine?

This blogpost introduces the concept of private online investigations related to conflict settings and considers what may be relevant issues for the current conflict in Ukraine. I first briefly discuss the emergence of private online investigations. Specific attention is given to journalism platform Bellingcat due to its influence on how online investigations are conducted. Second, I touch upon what is currently happening online with regard to the conflict in Ukraine, and by taking a forward-looking approach I consider what issues may be relevant for practice as well as academic research.

Private online investigations and Bellingcat’s legacy

Over the past years, private actors have turned to social media footage, satellite imagery and other freely available sources on the internet to document and analyse ongoing conflicts. This development roughly started during the Arab Spring in 2010, due to the overabundance of footage posted by citizens on the ground and a lack of official public investigations. To give some indication of the magnitude of online documentation since this period; ten years into the Syrian conflict, non-governmental organisation (NGO) the Syrian Archive has preserved approximately 40 years’ worth of video evidence of international crimes.[1]  Consequently, the Syrian conflict is the most well-documented conflict to date.

As information about conflicts is generally easily accessible, private actors’ involvement in online investigations has increased. Among these, Bellingcat is perhaps the most well-known and widely acclaimed. Bellingcat is an independent international collective that conducts so-called ‘online open-source investigations’ (or OSINT for short) often focusing on conflict related violence and severe crime.

Partly based in The Hague, Bellingcat became renowned within the Netherlands and internationally for its role in the investigation of the downing of flight MH17 in eastern Ukraine in 2014. Voluntary Bellingcat researchers used videos posted on YouTube and satellite imagery to establish Russia’s role in supplying the Buk missile system to pro-Russian separatist groups, which was used to attack the plane. Through other investigative means, they eventually also managed to identify those responsible. The most astonishing fact: they did this all before official investigations by the international Joint Investigation Team had even begun.

Ever since the investigations into MH17, Bellingcat has expanded and professionalised the private use of OSINT tremendously, even securing funding through the Dutch postcode lottery. They have an international following and have recruited voluntary citizens from all over the globe to participate in investigations. Each piece of documentation is thoroughly checked and verified by these volunteers and in-house experts and this process is often published in detail on their website.[2] Due to the transparency of their OSINT-methodology and their leading role in the field, their results are widely published in the media.

Inspired by Bellingcat’s success, an increasing number of individuals, networks and organisations now use online open-source investigation methods to document human rights violations, crimes and other social issues. Not only do these private actors currently have a wide range of tools and methods to collect, document, analyse and store crucial information on conflict, their work has also led academics and legal practitioners to explore the legal framework in which they operate. For example, academic research projects (such as those at the University of Swansea, U.C. Berkeley), have delved into questions regarding the legal use of Bellingcat’s reports specifically and the role of online open-source information in official investigations generally. As a result of efforts by U.C. Berkeley’s School of Law, a protocol on the use of open-source investigation for international criminal investigations was  published. Moreover, recent examples show that online research carried out by private individuals and organisations can be used and referred to in official legal proceedings. For example, in the MH17 case, the military court in Cameroon, and war crimes proceedings in Germany, social media information derived from private investigations has been used in court proceedings.

Despite this apparent success, academics have raised numerous challenges related to private online investigations. Generally, these challenges relate to the legal, ethical and practical implications of private involvement herein. Relevant legal questions include those concerning reliability, verifiability, evidentiary value, chain of custody and privacy risks.[3] Mentioned ethical and practical questions relate to, inter alia: misidentification and the trustworthiness of online information, especially with the rise of deep fakes[4]; the digital and physical security of investigators or depicted witnesses; risks to investigators, including that of secondary trauma[5]; and the risks of human or machine bias in private online investigations[6].

Current research on the Ukrainian conflict

From a brief search on social media platforms, it becomes clear that private online documentation of the world’s latest conflict has already taken off. More specifically, different types of initiatives by a variety of private actors have emerged, varying from (citizen) journalists, forum users and OSINT professionals. These initiatives are mainly focused on collecting, verifying and documenting videos and photographs of the Ukrainian conflict. This section gives a brief overview of the types of private online documentation that are currently being carried out.[7]

First, new Reddit forums in which posts and videos about what is happening on the ground have appeared.[8] On these pages, general information about the conflict is shared, as well as witness accounts, video footage and the stories of those fleeing attacks. Users also share links with each other on how to verify video footage and warn about increasing misinformation.

Secondly, users on Twitter are alerting those active in the online investigation community of newly published videos. Users with experience and expertise undertake a selection of verification methods to verify where and when incidents took place. Usually, the information used to verify the authenticity of videos are shared in subsequent Threads, which are responses to the original Tweet, allowing for transparency of their actions.

Thirdly, various journalists and investigative journalism networks are engaged in fact-checking mis- and disinformation about the conflict in Ukraine. For example, a group of European fact-checkers has been tackling disinformation since early February and now focus on verifying footage of the newly started conflict. Many other international newsrooms, such as USA Today, are conducting similar investigations.[9]

Fourthly, in addition to journalists and users of online forums, NGOs are playing their part in documenting what is happening on the ground. For example, international human rights NGOs Human Rights Watch and Amnesty International have (partly) used online information to report on cluster munition attacks on a hospital and a school, which resulted in civilian casualties. Moreover, organisations aimed at countering disinformation, including the Centre for Information Resilience, are actively using OSINT and geographical research using satellite images to pinpoint exact locations of airstrikes and counter misinformation about casualties and attacks. To support individuals smaller NGOs and individuals in documenting crimes and violations, pro bono international law firm Public International Law and Policy Group (PILPG) has launched an online portal with links to documentation handbooks, amongst other information.

Finally, and notably, journalism platform Bellingcat has shared numerous Tweets that provide instruction to those wanting to assist in documenting and verifying online footage. Among other things, they insist on saving crucial information attached to viral videos of the conflict, such as the URL or metadata. In addition, social media users wanting to help pinpoint the location of videos and verify information are urged to use tags such as #geolocated to make it easier to find geographical information and verify what has happened and where. Bellingcat explicitly mentions that social media footage may be useful for accountability purposes, which illustrates the fact that private organisations may be aiming to use information in future legal proceedings:

If you’re sharing videos and photographs from Ukraine with accountability in mind, please make an effort to share them with links to the source you’re using, it greatly assists organisations who are verifying conflict incidents.[10]

The relevance of private online investigations of the Ukrainian conflict

As has already become evident in the Ukrainian conflict, verification efforts by the private actors mentioned above are crucial in tackling mis- and disinformation about military attacks. A mere five days into the conflict, many examples of ‘fake news’ about attacks and (civilian) casualties have been debunked due to the collective efforts of organisations and individuals. Most often videos from past or other conflicts, military exercises or unrelated events are shared along with claims that they depict current events in Ukraine. For example, the ‘Ghost of Kyiv’ legend that a Ukrainian pilot single-handedly downed several Russian fighters was debunked after it became clear that the footage shared was actually from the game Digital Combat Simulator World. 

The ease in which this type of disinformation spreads on the internet is problematic. Ukrainian president Zelenskyy and the Ukrainian Ministry of Defence even shared footage of ‘the Ghost of Kyiv’ before the video was debunked. The rise of popular apps in which deep fake videos can be made, endless video editing possibilities and the ignorance of internet-users who share edited footage means that identifying misinformation is easier said than done.

Russia’s online misinformation war worsens this problem, as by doing so Russia aims to increase tensions and foster divisions between Western countries and legitimise its own actions in Ukraine. In conflict situations particularly, chaotic situations on the ground and an overload of (mis)information, means that reporting on the truth is challenging. For possible accountability efforts, reliable, accurate and verified information of the conflict is, however, crucial.

Due to the flood of misinformation about the conflict – whether intentionally spread as propaganda, or shared by those oblivious to its fake content – it’s a welcome development that private actors assist in verifying conflict information. The way in which private actors have quickly mobilised over the past few days also illustrates the surge of private involvement in online investigations and how this has professionalised. However, these changes in who is investigating and how they are doing it should still be approached with caution and the legal, ethical and practical implications mentioned above should be considered when doing so.

Previous and current academic and legal research has mainly focused on a selection of legal and ethical implications of private online investigations, as well as OSINT-methodologies used. This makes the impact of this development on public and private relations a relevant issue to follow. Questions can be raised to what extent these organisations cooperate and complement each other’s work, or whether efforts by both are counter-productive. In the case of Ukraine, it will be interesting to see whether private organisations willingly hand over information to official investigators and how public actors relate to private ones.

To do so, it is necessary to look further than the legal and ethical questions that have been raised in current academic work. Rather, what this development means for shifting power balances within international criminal justice should be considered. Particularly the experiences of those working in public and private organisations that conduct online investigations into conflict situations, their interaction and way of working should be studied. Over the next four years of my PhD research, I aim to do just that and to add to the academic debate on private online investigations, as well as explore the potentials and downfalls of such for (legal) practice.

 


[1] See also on the Syrian Archive: Deutch, J. & Habal, H. (2018). The Syrian Archive: A Methodological Case Study of Open-Source Investigation of State Crime Using Video Evidence from Social Media Platforms, State Crime Journal, 7(1), 46-76.

[2] See for a recent example https://www.bellingcat.com/news/2022/02/27/ukraine-conflict-tracking-use-of-cluster-munitions-in-civilian-areas/

[3] See e.g. Hiatt, K. (2016). Open Source Evidence on Trial. Yale LJF, 125(2015-16), 323. https://www.yalelawjournal.org/forum/open-source-evidence-on-trial

[4] Koenig, A. (2019). “Half the Truth is Often a Great Lie”: Deep Fakes, Open Source Information, and International Criminal Law. AJIL Unbound, 113, 250-255. doi:10.1017/aju.2019.47 and Gregory, S. (2021). Deepfakes, misinformation and disinformation and authenticity infrastructure responses. Impacts on frontline witnessing, distant witnessing and civic journalism. Journalism, 0(0), 1-22. doi: 10.1177/1464884921 1060644

[5] Baker, E. & Stover, E. & Haar, R. & Lampros, A. & Koenig, A. (2020). Safer Viewing: A Study of Secondary Trauma Mitigation Techniques in Open Source Investigations. Health and Human Rights, 22, 293-304.

[6] McDermott, Y., Koenig, A., & Murray, D. (2021). Open Source Information’s Blind Spots.

Human and Machine Bias in International Criminal Investigations. Journal of International Criminal Justice, 19(1), 85-105, doi: https://doi.org/10.1093/jicj/mqab006

[7] Unfortunately, this blog cannot discuss every single online documentation initiative currently being carried out. I am very much aware that many individuals and organisations are heavily involved in this process. If you feel an important category, organisation, network or project is missing from this overview, please do not hesitate to contact me.

[8] See an overview of related threads here: https://www.reddit.com/r/UkrainianConflict/

[9] Not only journalists and activists are involved in fact-checking (mis)information; tech giants, including Facebook, Google, Twitter and YouTube, have started taking measures countering misinformation about the conflict.

[10] Tweet shared by @bellingcat on 24 February 2022, available through https://twitter.com/bellingcat/status/1496776435901644800 

In this blogpost, PhD candidate Isabella Regan discusses the role of private online investigations in conflict settings. Paying specific attention to its use in the current conflict in Ukraine, she touches upon challenges related to legal, ethical and practical implications. The next four years, she will conduct a critical analysis of public and private power (im)balances within online open-source investigations of (transnational) crimes.
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