War Crimes Evidence: Nuremberg, Yugoslavia, and YouTube

Jaya Scott is a second year International Relations and Scholar’s Electives student at the University of Western Ontario. She has been serving as one of the Editors-at-large for The General Assembly since its start in October 2017. Her interests centre on the history of international criminal prosecutions, crimes against humanity and war crimes, global justice, and war theory. She can be reached at jscot63@uwo.ca

The changing nature of war crimes evidence and why we can’t let facts be censored away

In its most recent attempt to censor violent and disturbing content from its site, YouTube removed thousands of videos which documented atrocities in Syria. While trying to control the dissemination of this material and take extremist propaganda off the internet, Google’s algorithms destroyed a record of war crimes and crimes against humanity; wiping away an important body of evidence that could have been used to achieve international justice.

If anything, the horrific nature of these videos makes them more important than most things on YouTube. In Syria – where the Assad regime is hostile to journalists through its censorship and fabrication of information – YouTube’s open platform makes it a critical source relaying what is really going on. The best available evidence of chemical weapon attacks on civilians in Syria comes from videos posted to YouTube and Facebook. Recognizing its mistake, YouTube is restoring the videos of some Non-Governmental Organizations (NGOs) and advocacy groups. Unfortunately, organizations and individuals without connections with Google have no such opportunity. Individuals who have died since posting what they experienced aren’t alive to otherwise share the footage. YouTube’s greater censorship of this content is a grave issue: when these videos cannot be recovered, the truth they record is erased along with their potential to serve as evidence.

As international justice institutions express interest in using footage posted online in future court proceedings to hold perpetrators accountable, its evidentiary value is reinforced. It is largely because of these videos that we know of the Assad regime’s use of Sarin gas, and without them the history is incomplete. War crimes evidence has proven to be a powerful record of legitimized fact, as demonstrated first by Nuremberg and later by the tribunals for both the former Yugoslavia and Rwanda. Robert Jackson, chief prosecutor for the Nuremberg war crimes tribunal at the end of World War Two, built his case on an enormous amount of infallible evidence. Even before the tribunal was established, Jackson had investigators scouring Europe gathering data.

Records of Nazi war crimes and crimes against humanity are uniquely comprehensive. Two key circumstances made Jackson’s investigation particularly effective: first, the absolute surrender of Germany, and second, the meticulous documentation the Nazis kept of their own actions. The terms of surrender meant that the Allies could access records, uncover classified information, and visit sites without risk or opposition – there were no barriers to collecting evidence. Additionally, the Nazis left records of everything, from the planning and execution of genocide to the infamous Hossbach Memorandum detailing conspiracy to wage war. The circumstances at the end of the Second World War meant the allies had access to a wealth of information. Now, when the Holocaust is challenged, the record stands; every detail having been proven to the standards of a criminal court of law.

The following war crimes prosecutions have not had the same ease of access to information, but also established an invaluable historical record. Investigators for the International Criminal Tribunal for the Former Yugoslavia (ICTY) conducted investigations in the middle of a war zone, without peacekeeping protection. To collect evidence, they combed fields rigged with landmines, slept beside mass graves, and at the site of the Srebrenica massacre, were surrounded by antagonistic Serbian forces while doing their work. Though chronically underfunded, (their physical headquarters only had one landline), the Office of the Prosecutor used a combination of sophisticated detective work as well as comparatively crude techniques to gather data. Rough locations would be identified using testimony and satellites, and actual grave sites found by driving a probe into the ground and checking for the smell of rotting corpses. Although a dangerous and difficult process, the evidence collected has not only been used to prosecute war crimes, but proven indispensable in establishing fact and uncovering disturbing truths of a modern genocide.

Today, International justice efforts face evidence challenges. Cases are being postponed, withdrawn, and dismissed due to insufficient evidence with alarming regularity. As a prevalent example, the International Criminal Court (ICC), postponed the confirmation decision against former Cote D’Ivoire president Laurent Gbagbo due to insufficient evidence. Difficulty collecting field data and issues with witnesses are the greatest challenges for current prosecution attempts. Videos posted to YouTube provide an opportunity to overcome these obstacles. More credible than eyewitness testimony, footage can be recorded and posted by anyone – adding to the sheer volume of data and making it easily available.

From WWII, to Yugoslavia, to Syria, the characteristics of modern warfare have made field investigation and evidence collection increasingly difficult, to a point at which international justice mechanisms – descendent of Nuremberg and the ICTY – now struggle to build on precedent, serve justice, and establish the truth. However, new technologies are offering alternative ways to pursue the facts. YouTube and open source platforms allow information to be shared when it would have otherwise been lost or covered up. By tapping into these resources, prosecution techniques can modernize just as warfare has. The opportunity technology now offers should not be thrown away.

Internet censorship, whether done by governments or companies, has profound and far-reaching consequences. In this case, it erases a record of the past and undermines the possibility of future justice. Although the problematic implications of a censorship policy are beyond the scope of this article, I affirm that this evidence cannot ethically be removed from the internet. Its value to the victims of these acts and to humanity as a whole more than overrides any issue of graphic content. If Google plans to continue taking down violent video from public viewing, at a minimum it must be archived and accessible to the institutions and organizations reporting on it or using it in as evidence. The path to justice follows truth, and truth – however horrific – must be preserved.