User Generated Evidence

REBECCA J. HAMILTON*

“Photographs furnish evidence. Something we hear about, but doubt, seems proven when we’re shown a photograph of it. . . . [T]he camera record incriminates.”

—Susan Sontag1

Around the world, people are increasingly using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user- generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security, (ii) evidentiary bias, and (iii) fair trial rights. Without adequate safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional support, to individual users without such protections.

* Assistant Professor of Law, American University, Washington College of Law. I served from 2007 to 2009 in the Office of the Prosecutor at the International Criminal Court. The views expressed here are my own and do not necessarily reflect the views of the Court. Thanks for thoughtful editing by the CJTL team. My gratitude for stellar research assistance goes to Deyaa Alrwishdi and James Purce. This Article has benefited from insightful comments from Kal Raustiala, Andrew Woods, Molly Land, Maggie Gardner, Alexa Koenig, Elena Baylis, Janie Chuang, Mark Drumbl, Nancy Combs, Saira Mohamed, Rachel Lopez, Jen Daskal, Meg deGuzman, and from feedback received at the 2017 Mid-Atlantic Junior Faculty Forum at Richmond Law School, the 2017 Women in International Law Workshop at Duke Law School, the 2017 AALS Criminal Law Roundtable in Washington, D.C., the 2017 American Society of International Law Midyear Research Forum in St. Louis, and the 2018 Junior International Law Scholars Association Workshop at Washington College of Law. All errors are my own. Particular thanks to Drs. Syzmanski, Miller, Baschat, and the staff on the Zayed 8W Maternity Ward at Johns Hopkins Hospital for the humor and humanity that got me through the three-month inpatient stay during which this Article was drafted, beating the odds to secure the safe delivery of my twins.

1. SUSAN SONTAG, ON PHOTOGRAPHY 5 (1978).