Problems from Hell, Solution in the Heavens?: Identifying Obstacles and Opportunities for Employing Geospatial Technologies to Document and Mitigate Mass Atrocities

Wang, B et al 2013 Problems from Hell, Solution in the Heavens?: Identifying Obstacles and Opportunities for Employing Geospatial Technologies to Document and Mitigate Mass Atrocities. Stability: stability International Journal of Security & Development, 2(3): 53, pp. 1-18, DOI: http://dx.doi.org/10.5334/sta.cn

PRACTICE NOTE Problems from Hell, Solution in the Heavens?: Identifying Obstacles and Opportunities for Employing Geospatial Technologies to Document and Mitigate Mass Atrocities Ben Yunmo Wang*, Nathaniel A. Raymond†, Gabrielle Gould‡ and Isaac Baker††

At the evolving frontier of modern humanitarianism, non-governmental organizations are using satellite technology to monitor mass atrocities. As a documentation tool, satellites have the potential to collect important real-time evidence for alleged war crimes and crimes against humanity. However, the field remains experimental and ill-defined, while useful court evidence cannot be produced without a standard methodology and code of ethics. Members of the groundbreaking Satellite Sentinel Project review the historical development of satellite documentation and some of its landmark projects, and propose necessary measures to advance the field forward.

Introduction For governments, the first entities who have Satellite imagery, as a type of remote sens- had access to this asset, satellite imagery has ing technology, can provide accurate and traditionally been employed for intelligence detailed information of a specific geographic gathering and military planning purposes. region anywhere on Earth in a relatively Changes to US laws and policies in the short period of time. Traditional uses of sat- 1990s allowed private companies to pro- ellite imagery include development plan- vide satellite imagery to a broader range of ning and modeling, environmental conser- actors. This development enabled non-gov- vation, oil and gas exploration, agriculture ernmental actors (i.e. non-profit organiza- management, and meteorological modeling. tions, media, academia, etc.) to acquire previously classified geospatial imagery and task * Student at Tufts University, United States private satellites to collect new imagery. The [email protected] humanitarian and human rights community † Director, Signal Program, Harvard Humanitar- soon began exploring the application of ian Initiative, United States this technology to its unique advocacy and [email protected] operational objectives. This trend has rap- ‡ Student at Georgetown University Law Center, idly changed the longstanding paradigm for United States how satellite imagery has most often been [email protected] employed. Once the sole province of militar- †† Imagery Analysis Manager, Signal Program, Harvard Humanitarian Initiative, United States ies and intelligence services, this tool is now [email protected] being used by non-governmental organisa- Art. 53, page 2 of 18 Wang et al: Problems from Hell, Solution in the Heavens? tions (NGOs) to support international jus- als of members of the Bosnian Serb Army tice mechanisms for holding perpetrators of including Radislav Krstic and, most recently, crimes against humanity to account. the ongoing case against Ratko Mladic. These In order for satellite imagery analysis to images were used to corroborate witness become a more effective tool for these means, accounts of war crimes and crimes against however, a currently absent framework of humanity carried out in 1995 by identify- procedures and methodologies needs to be ing areas of disturbed earth indicating the established to standardize and scale-up the presence of mass graves and by noting the efforts of non-governmental actors. This presence of large groups of people and the paper identifies operational feasibility, data vehicles witnesses described as those used reliability, and legal admissibility as the three to transport the victims. Satellite imagery key criteria that should be used to deter- has also been submitted to the PCA by both mine whether and how satellite imagery Eritrea and Ethiopia as evidence of human can be employed to document alleged war rights violations carried out by both sides crimes and crimes against humanity. Three between 1998 and 2000 during a war over past landmark projects of remote sensing by their disputed border. These images corrob- NGOs are reviewed in context to the three orated the alleged intentional destruction criteria identified above. of public structures carried out by Ethiopian forces (AAAS 2007). History of Remote Sensing a) Legality b) The industry Satellite imagery has already been admitted Government commercialization of remote in cases at the International Criminal Court sensing technology began in the 1970s. At (ICC), International Court of Justice (ICJ), the time, the introduction of once exclu- International Criminal Tribunal for the For- sively military technology to civilian applica- mer Yugoslavia (ICTY), and the Permanent tions had begun in earnest, yielding several Court of Arbitration (PCA) at The Hague. notable products. The most well-known of In one instance, in Prosecutor v. Germain these products is what is now known as the Katanga and Mathieu Ngudjolo Chui brought internet, which began as a project called by the ICC, satellite imagery was analyzed ARPANET. The US government also devel- to establish the ‘geographic configuration’ oped the initial Global Positioning System of an area in which war crimes and crimes (GPS) in 1973 as a military navigation sys- against humanity perpetrated by Germain tem. Since being made public, it has become Katanga and Mathieu Ngudjolo Chui alleg- a commonplace tool for individual and com- edly took place during violence that broke mercial navigation all over the world. out in the Democratic Republic of the The US first attempted to privatize its Congo (DRC) beginning July 1, 2002 (ICC ‘Landsat’ remote sensing program in 1972. 2010). In another example, an ICJ case con- Soon thereafter, the French government cerning the application of the International launched a rival program called ‘Satellite pour Convention on the Elimination of All Forms l’Observation de la Terre’ (SPOT) in 1978. Pri- of Racial Discrimination (Georgia v. Rus- vatization of the Landsat program ultimately sian Federation) admitted a Human Rights failed due to high prices creating a barrier to Watch report into evidence; UNOSAT satel- private sector use, and it was returned to the lite imagery documenting villages destroyed government in the 1990s (Williamson 2001: by intentional burnings carried out by Rus- 37). SPOT took advantage of Landsat’s fail- sian forces could thus be considered by the ure, marketing itself as a cheaper and more court (ICC 2008). Aerial imagery released by reliable alternative, eventually ‘making the United States military intelligence has now United States the largest national market for also been used at the ICTY in criminal tri- SPOT products’ (Sourbès-Verger 2001: 195). Wang et al: Problems from Hell, Solution in the Heavens? Art. 53, page 3 of 18

The watershed moments in the commer- Resolution (VHR) satellites with resolutions cialization of remote sensing, however, did of 1 meter or higher, a level which makes not come until the post-Cold War period single elements such as buildings and trees of the 1990s. In 1992, Congress passed the distinguishable, is crucially important as it Land Remote Sensing Policy Act and Presi- allows for the individualized study of these dent Clinton issued a presidential directive components. Although the commercial sat- to ‘permit US firms to sell high-resolution ellite industry is calling for lower resolution satellite imagery’ (Baker 2001: 5). The two restrictions, such policy changes are depend- US-based commercial remote sensing com- ent on a major change in the shared consen- panies that dominate the industry today sus among governments supporting certain were founded in response to this policy resolution restrictions. change. GeoEye (formerly Space Imaging) launched IKONOS, ‘the world’s first high- c) The work flow resolution earth imaging satellite’ in 1999, Remote sensing operations by non-govern- quickly followed by the QuickBird satellite mental actors so far have established a ‘gen- from DigitalGlobe in 2001 (Ward 2010). eral approach [that] involves using publicly Over the next decade, GeoEye expanded its or commercially accessible high-resolution fleet to include the OrbView-2, OrbView-3, satellite imagery to document the scale and GeoEye-1, and GeoEye-2 satellites, while method of human rights abuses and the areas DigitalGlobe launched the WorldView-1 and affected by such abuses’ (Kreps 2010: 179). In WorldView-2 satellites. Though most of their an April 2012 interview with CBC Radio, the business has been conducted with the US co-author of this article and then-Director government, these two firms have provided of Operations for the Satellite Sentinel Pro- imagery for many humanitarian projects. In ject (SSP) Nathaniel Raymond outlined three January 2013, DigitalGlobe purchased Geo- ‘postures’ in which satellite projects like Eye and became the most prominent Ameri- SSP can monitor an international conflict. can company in the industry. The ‘detection posture’ can occur before an A ‘resolution gap’ exists between the reso- alleged atrocity happens, with analysts work- lution level of imagery available to civilians ing to predict whether and where threats to and that available to government intelli- civilians exist by identifying signs indicating gence agencies. The US federal government the build-up of forces and related infrastruc- employs a policy of ‘shutter control’, regu- ture. During the early stage of alleged atroci- lating the resolution of imagery available to ties, analysts assume a ‘deterrence posture’, NGOs and private corporations. In particu- working to warn civilians of pending attacks lar, the Kyl-Bingaman Amendment, in Sec. and denying potential perpetrators the twin 1064 of the National Defense Authorization elements of surprise and impunity. Finally, Act for Fiscal Year 1997 (104th US Congress after an atrocity has already occurred, ana- 1997), was introduced to prohibit non-fed- lysts assume a ‘documentation posture’ by eral entities from acquiring high-resolution retrospectively recording evidence consist- imagery ‘more detailed or precise than satel- ent with alleged crimes and gross violations lite imagery of Israel that is available from of human rights, such as mass graves and commercial sources’. As more countries are intentionally burned structures (Raymond launching commercial satellites each year, 2012). This paper focuses on what is required governments are likely to introduce simi- for projects in the third posture, ‘documenta- lar policies that limit the maximum resolution’, to effectively gather evidence for inter- tion in which civilians are allowed to view national justice proceedings. imagery of certain areas. As humanitarian Table 1 provides a list of major humanitar- aid professionals working in fields such ian non-governmental efforts to use commer- as Darfur have noted, access to Very High cial satellite imagery to collect evidence of Art. 53, page 4 of 18 Wang et al: Problems from Hell, Solution in the Heavens?

- http://www.hrw.org/news/2012/10/26/burma- new-violence-arakan-state http://www.hrw.org/news/2012/11/17/burma- satellite-images-show-widespread-attacks-rohingya http://www.hrw.org/news/2013/04/01/burma- satellite-images-detail-destruction-meiktila Website/Report link Website/Report http://srhrl.aaas.org/geotech/index.shtml http://www.eyesondarfur.org/ http://srhrl.aaas.org/geotech/darfur/darfur.shtml (separate reports from AAAS) http://www.ushmm.org/maps/projects/darfur/ http://www.satsentinel.org/ http://standbytaskforce.ning.com/group/satellite http://blog.standbytaskforce.com/2011/11/02/ crowdsourcing-satellite-imagery-tagging-to-sup port-unhcr-in-somalia/ http://www.hrw.org/news/2012/03/02/syria-new- satellite-images-show-homs-shelling - - - - Human Rights Watch Information Distributor Amnesty Interna tional USA/Eyes on Pakistan/Human Rights Watch/Physi cians for Human Rights Amnesty Interna tional USA Google Earth Enough Project/Not On Our Watch Amnesty Interna tional USA UNHCR Human Rights Watch - Human Rights Watch Information Analysis American Association for the Advancement of Science American Association for the Advancement of Science States Holocaust United Memorial Museum Harvard Humanitarian Initiative (2010-2012)/ (2011)/ UNITAR-UNOSAT Enough Project with Digi talGlobe (2012-present) crowd- Force Standby Task sourced data crowd- Force Standby Task sourced data Human Rights Watch Astrium/DigitalGlobe Satellite Imagery Provider DigitalGlobe/GeoEye/ ImageSat International ImageSat International, GeoEye, DigitalGlobe, Orbimage Google Earth DigitalGlobe DigitalGlobe DigitalGlobe DigitalGlobe

2012- 2013 Active Date 2006- Present 2007- 2009 2007- 2009 2010- Present 2011 2011 2012 - Burma Location Afghanistan, Burma, Chad, DR Congo, Ethiopia, Kyrgyzstan, Lebanon, Libya, Nigeria, Paki stan, Somalia, South Ossetia, Sri Lanka, Syria, and Zimbabwe Sudan Darfur, Sudan Darfur, and Blue South Kordofan Nile, Sudan Syria Somalia Homs, Syria - - Selected Humanitarian Projects of Commercial Satellite Imagery Human Rights in Burma Project Geospatial Tech nologies and Human Rights Project Eyes on Darfur Crisis in Darfur* Satellite Sentinel Project* Syria Satellite Crowd sourcing Project* Somalia Satellite Crowdsourcing Project Baba Amr report *Projects examined as case studies in this article 1: Table Wang et al: Problems from Hell, Solution in the Heavens? Art. 53, page 5 of 18 alleged human rights crimes. These human- ate over complex and volatile environments, itarian and human rights remote sensing ‘because the satellites must be programmed initiatives have so far had a few common to acquire previously unplanned images’ components: (2001: 423). While since then technological advancements in satellite programming pro- 1. They tend to involve a coalition of cedures have made this process more man- actors, typically including an imagery ageable, in a crisis situation analysts would provider (i.e. commercial satellite need multiple shots to be taken over a single firms such as DigitalGlobe); location in a short period of time to detect 2. They involve an imagery analysis change in the area’s baseline data as events expert or experts working in partner- evolve. This would still put strains over the ship with an advocacy organization; project’s cost-management, and requires the 3. Lastly, they also often include the direct satellite company to prioritize those imme- involvement of the initiative’s funder. diate shots over other prior commitments. Non-governmental actors must therefore Criterion A: Practical Applicability find sufficient funding, receive donations, or When commercial satellite imagery proves identify other ways to overcome the cost bar- useful in practice for non-governmental rier to capture evidence of an alleged atrocity actors, it must yield a sufficient volume of in near real-time. actionable intelligence at a sustainable cost. The often extremely high cost of imagery and b) Cloud cover sometimes limited availability due to compet- Another major limitation to documenting a ing priorities for commercial providers and crisis situation in near real-time is weather cloud cover are some of the barriers to entry conditions. The geographic location of the human rights and humanitarian actors face crisis plays a crucial role. Since satellite when employing remote sensing analysis. shots cannot penetrate cloud-cover, ‘the area of interest must be cloud free, [which] a) Costs severely limits the ability to use such images The major obstacle preventing widespread in humanitarian relief operations’ (Bjorgo use of satellite imagery by civilian organiza- 2001: 423). In equatorial regions or regions tions is the high cost of proactively acquir- with persistent rainy seasons, satellite collec- ing near real-time imagery. This means, tion operations are often very difficult. Cloud simply, submitting a request (or tasking) cover limited the use of satellite technology to the satellite imagery provider to collect in Kosovo (Bjorgo 2001: 418), and allowed a current image of your preferred area of Indian nuclear testing to occur during the observation. The retail price for priority rainy season despite persistent satellite cov- tasking DigitalGlobe’s QuickBird, World- erage by US spy satellites. On the other hand, View-1, or WorldView-2 satellite can aver- in certain areas such as Sudan, vast open age as much as US$40 per square kilometer. areas are optimal for extracting the maxi- The SSP operated by regularly ordering mum amount of information. multiple shots averaging130 x 80 kilom- ‘Dense ground cover’, such as jungles and eters, which was donated by DigitalGlobe. thick vegetation, can have a similarly obscur- If consumers were to purchase such tasking ing effect (Kreps 2010: 185). In certain cases, at retail prices, its cost would be in excess of significant observations were extracted US$400,000 per shot. despite both cloud cover and heavy foresta- Cost is particularly problematic for non- tion. Regardless, the successful tasking of governmental and relief organizations, which satellites involves identifying specific time generally do not have funding for testing windows for the vehicle to attempt a collec- technology. In 2001, Bjorgo wrote that prices tion of imagery, especially during a region’s could be further hiked when tasked to oper- rainy season. Art. 53, page 6 of 18 Wang et al: Problems from Hell, Solution in the Heavens?

c) Timelines of case processing are developed between NGOs, court inves- In March 2012, the ICC issued its first ver- tigators, and the satellite imagery provid- dict since the signing of the Rome Statute ers themselves, unique, potentially crucial on July 1, 2002, convicting Congolese war- evidence is being routinely lost on a regular lord Lubanga Dyilo of conscripting child sol- basis because it is never collected. diers (UN News Center 2012). The timeline of a court proceeding is the exact opposite Criterion B: Data Reliability of the extremely time-sensitive and time- In an international humanitarian conflict, dependent tempo of satellite surveillance. As satellite imagery is primarily able to offer two analysts have pointed out, ‘the main problem types of potential evidence: the identifica- with assessing court cases…from a geospatial tion of observable objects and changes in the perspective is they can drag on for years’ position, behavior, and condition of those (Bromley 2012). Because of the aforemen- observable objects over a period of time. tioned cost restraints of satellite imagery, projects often cannot afford to take timely a) Identifying observables images that could later be used as evidence An observable is a term for anything con- when alleged crimes are occurring, continue tained in the imagery with a distinctive shape those operations for the full length of a pro- and size which may be of interest to the ana- tracted conflict, or even purchase archived lyst. Examples of these points of interest may images retrospectively. Because the satellite include aircraft, ships, tanks, artillery, camps imagery providers either did not have the for displaced persons or armed actors, and actionable intelligence to know to collect shelling craters or other evidence of damage. certain images and/or financial incentive to After detecting an observable in the imagery, do so, imagery that could have captured evi- analysts consider its attributes in order to dence of alleged mass atrocities is often not identify it as a specific point of interest. collected in time to catch a potential crimi- These attributes include: tone or hue, shape, nal act in progress. size, texture, pattern, shadow, site, scale, its Thus, by the time court investigators begin association with other observables, and over- to look for evidence, the monitoring efforts of all context (Baker et al 2001: 536–37). In a NGOs are likely to have expended their lim- humanitarian crisis situation, identification ited budgets and concluded their operations. of these observables can provide significant, This significant limitation also highlights the timely, and unique forms of information. For necessity for establishing crosscutting strat- example, satellite imagery can be used to egies for prospective planning of satellite detect ‘tire tracks that might indicate troop imagery tasking and methodical record keep- movements or convoys of displaced people; ing of the resulting shots. Ideally, monitoring burned or burning villages…; possible refu- operations should proactively coordinate gee camps…; and recently overturned soil, with satellite imagery providers to consider which could indicate the location of mass collecting imagery that may contain poten- graves’ (Litfin 2001: 477). tial legal evidence, even if the NGOs con- There are limitations to the information ducting the operations cannot afford them satellite imagery can yield. As Litfin points at the moment. Additionally, monitoring out, satellite imagery can only be used to operations must have an extensive archive of detect ‘a relatively small portion of possible the shots they take throughout the conflict human rights violations’, typically including and the potential evidence they contain to ‘the large-scale violation of human rights allow court investigators the ability to access that accompanies campaigns of genocide’ those archival shots in the future. Until these (2001: 476). Unlike military and government procedures and operational infrastructure agencies, who have had decades to train their Wang et al: Problems from Hell, Solution in the Heavens? Art. 53, page 7 of 18 analysts and construct detailed processes for Yale used MODIS and SPOT satellites as well pattern identification, trade craft of humani- as the remote sensing application ‘normal- tarian remote sensing analysts is still in its ized difference vegetation index’ (NDVI) to earliest infancy, currently lacking the type document the ‘return of natural vegetation of agreed pedagogy and technical standards coverage...in formerly agrarian and livestock necessary for reliably categorizing observa- grazing ranges’ in the Darfur region of Sudan bles and identifying repeating patterns. between 2003 and 2007 (Schimmer 2008). Moreover, ground collaboration is essential The authors concluded through before- for satellite analysis, as eyewitnesses can tell and-after comparisons that this phenom- analysts where to look and where to direct enon corresponded to, and is a result of, the satellite tasking, as well as confirm and iden- human displacements caused by systematic tify the observables that analysts find. Even violence perpetrated in the region. if analysts can independently make con- Long-term, persistent monitoring of a situ- fident claims on certain observables, they ation can also lead to an inevitable interac- cannot often be used to explain causality or tion between the monitor and the perpe- directly point fingers on the agents culpable. trator. As Litfin cautions, there exists ‘the Support from eyewitnesses thus also plays possibility that perpetrators, knowing the the crucial role of placing the investigation sun-synchronous orbit of imaging satellites, in proper context. However, while ground could camouflage their actions’ (2001: 479). reporting has been used by several groups Kreps also underlines ‘the predictable timing to corroborate satellite imagery collection, of [satellite]…revisit rates’ as a key challenge, the procedure lacks commonly accepted as ‘perpetrators could easily time particular ethical and operational standards to protect atrocities for a time when a satellite is not potential witnesses, ensure chain of custody overhead’ (2010: 185). Therefore, a success- of evidence, and improve the accuracy and ful analysis project will have to adapt to the usability of field-derived data from relatively actions of the perpetrator in real-time by non-permissive environments. adopting a dynamic strategy to surmount any counter-monitoring strategies used by b) Temporality those being surveyed. In addition to identifying points of interest, satellite imagery is capable of providing c) Expert opinion a timeline narrative of the situation. Even Analyses by NGOs have often also been prone though context and causality cannot be con- to human and mechanical error, which leads fidently established without information to misidentifying and under-identifying from the ground, repeated shots of troop observables. In 2001, Baker observed that movements and maneuvers in an area over NGO analysts ‘generally lack the training, a long period of time can reveal some clues experience, and resources required to make about intent. Through repeatedly tasking the consistently accurate interpretations of over- satellite to take pictures of the same loca- head images, particularly when compared tion and then comparing new and archived with more-experienced imagery analysts images to one another, analysts are able found at government agencies, commercial to produce before-and-after comparisons remote sensing firms, and some university of specific points of interest. The ability to departments’ (Baker et al 2001: 534). Imagery describe a location before and after a certain analysts, or even the image data provider event creates a narrative of change, a record themselves, could be motivated to deliber- of the changing conditions of a location ately distort image data in order to produce that can be used to explain how an event findings consistent with their conjectures. may have transpired. For example, a study at Moreover, errors of judgment and time con- Art. 53, page 8 of 18 Wang et al: Problems from Hell, Solution in the Heavens? straints in a crisis situation could lead inexpe- but it remains a problem that the industry rienced analysts to make inadvertent errors.1 should remain keenly aware of and continue Since then, steps have been taken to mitigate to try to avoid. this credibility issue. For example, the Ameri- can Association for the Advancement of Sci- Criterion C: Legal Admissibility ence (AAAS) has employed university-trained Currently, there is no international body with analysts who produce separate reports that a mandate to regulate the use and explora- are then provided to advocacy and human tion of space, nor are there binding and rights organizations, while the SSP’s analysis unambiguous standards for the admissibil- team is operated out of Harvard University. ity of remote sensing data in international Nevertheless, the numbers of trained NGO courts and tribunals. analysts who have actually acquired experi- While satellite imagery has been admitted ence working on humanitarian crises are still as evidence at the ICC to corroborate witness limited. Moreover, the changing terrains and testimony of human rights abuses, it has not characteristics in different locations require yet been admitted as dispositive evidence a larger pool of experienced analysts to be of mass atrocities. Recognizing the com- adequately prepared for all contingencies. To plex nature of various crimes and conflicts, avoid deliberate errors, non-governmental international criminal law tends to be more actors should operate under a strict code of lenient towards evidence admission. Both ethics and acquire imagery from reputable the ICC and international criminal tribunals commercial satellite providers with expert allow for ‘the admission of all relevant and analytic support and training. There are a necessary evidence’, bypassing the ‘complex limited number of providers currently on and technical rules of evidence’ of the com- the market and the few reliable partners mon law system (Schabas 2007: 294). are easy to identify. To mitigate inadvertent Rather than specific and unambiguous errors, analysts employed by non-govern- procedural rules, admissibility requirements mental actors should closely engage with for evidence in international criminal courts experienced remote sensing experts. Ideally, and tribunals are guided by more general they should work together to revise findings principles. The Rome Statute, which governs before they are released to the media. Finally, procedures at the ICC, includes Article 69 there is a third type of error: contextual over- concerning rules of evidence: ‘The parties extrapolation. There exists a high potential may submit evidence relevant to the case.... for organizations motivated by achieving The Court shall have the authority to request public policy advocacy objectives to over- the submission of all evidence that it consid- extrapolate what can be shown through anal- ers necessary for the determination of the ysis of satellite-derived data. Because analysts truth’ (Rome Statute 1998). Therefore, two are trying to find as many observables as pos- relevant questions regarding the admissibil- sible, with the belief that their efforts may ity of remote sensing data are (a) whether prevent atrocities and save lives, they are there is a legal basis for denying admission predisposed to discover more data than may of this evidence, and (b) whether this type of actually be present in an image. This unique evidence could be treated as dispositive of problem for mass atrocity-focused imagery human rights abuses. analysts can be mitigated by separating the analysis and advocacy of a monitoring a) Legal basis for denying admission of operation, and through using independent evidence third-party analysts to check public facing Remote sensing data must pass the standard products for accuracy and objectivity. The for inadmissibility under Article 69(7) of the independent work of AAAS represents a pos- Rome Statute which precludes the admis- itive shift towards addressing this concern, sion of evidence obtained ‘in violation of [the Wang et al: Problems from Hell, Solution in the Heavens? Art. 53, page 9 of 18

Rome] Statute or internationally recognized Furthermore, the history of regulating human rights’ if ‘the violation casts substan- space law has its roots in preserving the free tial doubt on the reliability of the evidence’ and non-appropriable nature of space itself, or if admission ‘would be antithetical to and monitoring countries to avoid an impending would seriously damage the integrity of the attack, cooperating with developing states proceedings’ (Rome Statute 1998). without space programs (Ito 2011), and eval- While there is no binding international law uating land use and risks to the environment that speaks directly to whether or not collect- (UNGA 1986). ing remote sensing data of a territory within These interpretations of existing space another country would constitute a violation law legislation suggest that remote sensing of internationally recognized human rights, data collected to monitor mass human rights there are principles contained in three UN violations would fall within the admissibil- General Assembly resolutions and one treaty ity requirement of Article 69(7) of the Rome that bear some authority on this issue. Provi- Statute because this data was obtained with sions of the UN Treaty on Principles Governing the peaceful purpose of protecting human the Activities of the States in the Exploration rights and does not undermine any other and Use of Outer Space, including the Moon goals of these pieces of legislation. and Other Celestial Bodies state that activities in space must be carried out ‘exclusively b) Remote sensing data as dispositive for peaceful purposes’. ‘Peaceful purposes’ evidence is also generally accepted today to include Remote sensing evidence then must also non-aggressive military uses (Ito 2011: 24). be ‘necessary for the determination of the Such activities must endeavor to foster inter- truth’ (Rome Statute 1998: Article 69(3)) national cooperation and to benefit all states and relevant based on its ‘probative value’, ‘irrespective of their degree of economic or taking into consideration ‘any prejudice that scientific development’ (UN - Outer Space such evidence may cause to a fair trial or to Treaty 1967: 207–210). Additionally, remote a fair evaluation of the testimony of a wit- sensing data should be collected according ness’ (UNGA 1998: Article 69(4)). William to the licensing procedures and regulations Schabas presents standards for interpreting of the member state authorizing the activity; Article 69(4) that were used in Trial Chamber that member state is responsible for enforc- 1 in Lubanga and in the Pre-Trial Chamber in ing regulations to comply with the treaty (Ito Katanga. There, the courts decided that evi- 2011: 27–28). dence must be ‘prima facie relevant…in that The UN Remote Sensing Principles (Sens- it relates to the matters that are properly to ing Principles) are not binding, but they are be considered by the Chamber’, reliable in authoritative and are given influential weight that it is ‘voluntary, truthful, and trustwor- because they were unanimously adopted in thy’ (2010: 843), and have probative value the General Assembly (Ito 2011: 55). The Sens- in that it has ‘intrinsic coherence’ that is not ing Principles articulate with greater specific- ‘prima facie absent’ and therefore inadmissi- ity how states should cooperate with respect ble. Schabas posits with respect to the preju- to sharing data and, while it is not stated so dicial effect of evidence that courts use this explicitly, Atsiyu Ito argues that the language standard mainly to prevent prejudicial infor- suggests that collecting remote sensing data mation from being disclosed to a jury and is of another state’s territory is not subject ‘of doubtful importance in the case of profes- to the consent or demands of the sensed sional judges’ (2010: 844). state (2011: 63). In fact, more explicit terms With respect to reliability, Hettling points regarding prior consent by sensed states were out that ‘[a] judge is only able to verify the proposed but ultimately not included in the authenticity of a satellite image if a scientific final document (Ito 2011: 53). expert analyzes and interprets the data for Art. 53, page 10 of 18 Wang et al: Problems from Hell, Solution in the Heavens? him’ (2008: 146). Therefore, the reliability indicated the presence of mass graves and of satellite imagery as evidence would be by noting the presence of vehicles that wit- greatly enhanced when it is submitted with nesses described as those used to transport expert witness testimony. Hettling further victims (ICTY ‘Rules of Procedure and Evi- argues that the expert should ideally be dence’). Satellite imagery has also been sub- independent from the party submitting mitted to the Permanent Court of Arbitration the evidence, either ‘chosen and appointed by both Eritrea and Ethiopia as evidence of by the Court’ or agreed upon by ‘both human rights violations carried out between parties’ (2008: 166). Art. 64(6)(d) of the 1998 and 2000 during a war over a border Rome Statute, which allows the chambers to dispute. These images indicated the inten- ‘[o]rder the production of evidence in addi- tional destruction of public structures that tion to that already collected prior to the were bombed or razed by Ethiopian forces trial or presented during the trial by the (AAAS 2007). parties’, legally enables the introduction of These examples suggest that the relevance court-appointed witnesses at the ICC. The and probative value of satellite imagery is court then does not have to be concerned generally recognized by these courts. There- that their witness testimony may end up fore, while the extent to which satellite favoring one party at trial. evidence may be considered dispositive of Regarding the relevance and probative human rights violations is yet to be deter- value of satellite imagery, imagery has already mined more definitively, there is a solid basis been admitted in cases at the ICC, ICJ, ICTY, for anticipating that satellite imagery will and the Permanent Court of Arbitration at play a significant role in the future of hold- The Hague. In the ICC case Prosecutor v. Ger- ing perpetrators of gross violations of human main Katanga and Mathieu Ngudjolo Chui, rights accountable. satellite imagery was analyzed to establish the ‘geographic configuration’ of an area in Case Study 1: Crisis in Darfur which war crimes and crimes against human- On April 10, 2007, Google and the United ity perpetrated by the defendants allegedly States Holocaust Memorial Museum took place during the violence in the DRC (USHMM) announced a partnership to beginning July 1, 2002. launch the Crisis in Darfur project, to be Another example comes from the ICJ in embedded in a new ‘Global Awareness’ layer the case Application of the International in Google Earth. Dedicated to ‘draw attention Convention on the Elimination of All Forms to a serious crisis underway…[and] highlight of Racial Discrimination (Georgia v. Russian the humanitarian potentials of new infor- Federation) in which a Human Rights Watch mation technologies’, the project pursued report was admitted into evidence; as such, an advocacy objective from the outset. The UNOSAT satellite imagery documenting vil- USHMM ‘approached Google after learning lages destroyed by intentional burnings [that] Google Earth software had been down- carried out by Russian forces could be con- loaded by 200 million people worldwide’ sidered by the court. Satellite aerial imagery (Parks 2009: 535–6). The insertion of Crisis released by US military intelligence has now in Darfur images into standard Google Earth also been used at the ICTY in criminal trials of downloads, shown in figure 1, proved an members of the Bosnian Serb Army including effective means of introducing the issue to Radislav Krstic and, most recently, the ongo- a much wider audience. However, because ing case against Ratko Mladic. These images the partnership was oriented towards raising were used to corroborate witness accounts public awareness, it failed to actually provide of war crimes and crimes against human- intelligence to actors on the ground and help ity by showing areas of disturbed earth that prevent the progression of violence. As such, Wang et al: Problems from Hell, Solution in the Heavens? Art. 53, page 11 of 18

Figure 1: USHMM report overlaying Google Earth satellite imagery. The caption reads: ‘In the tiny medical facility in Goz Beide, three men lay side by side, their eyes gouged out by Janjaweed knives.’ the advocacy perspective of Crisis in Darfur its utility on the ground. Parks laments the damages its legal reliability. retrospective nature of Crisis in Darfur as Parks points out that Crisis in Darfur ‘sat- ‘an archive of violent conflict that unfolded ellite images are traversed in favor of closer while being observed but without interven- views and representations of humans, many tion’ (2009: 540). Moreover, without con- of which feature injured bodies and/or dis- ducting analysis through before-and-after placed women and children’ (2009: 538). shots and monitoring the conflict over the While such presentation may be useful in an period of time when it was actually happen- advocacy setting, it undermines the scientific ing, Crisis in Darfur loses its documenta- legitimacy of the project when attempting tion value in court. The dataset the project to use these materials as evidence. In court, provides records factual information such this methodology would likely encounter as which villages were attacked and where questioning regarding its neutrality and reli- those villages are located. However, it does ability. The dilemma that some projects face, not support forensic sense-making in the as showcased here, is that they must rely sense of helping investigators determine the upon an advocacy organization to garner intent of the perpetrators, which would be media attention and funds to run the pro- crucial for a court conviction. gram. However, the political agenda of these Crisis in Darfur is a crucial project in that organizations have the potential to influ- it was, along with the Eyes on Darfur project, ence and undermine the credibility of the one of the first projects that garnered sig- analysis produced. nificant media attention and showcased the In addition, Crisis in Darfur cannot take on potential of satellite imagery in a humanitar- a ‘detection posture’. Its inability to conduct ian setting. However, the analysis it provides the forward analysis of predicting where the is more suited for a media campaign rather next attack may happen is a major limit to than as evidence in a court of law. Art. 53, page 12 of 18 Wang et al: Problems from Hell, Solution in the Heavens?

Case Study 2: Satellite Sentinel ing observables for documentation, SSP’s Project reports provide a narrative of intent. The pro- In 2010, actor George Clooney and Enough ject claims to have uncovered evidence that Project co-founder John Prendergast con- demonstrates the systematic and indiscrimi- ceived the Satellite Sentinel Project (SSP), a nate targeting of civilians by the Sudanese collaboration of Clooney’s Not On Our Watch Armed Forces (SAF). In Report 20, as shown organization (funding), the Enough Project in figure ,2 SSP published before-and-after (advocacy), DigitalGlobe (imagery provider/ imagery showing a compound allegedly analysis), and the Harvard Humanitarian belonging to the Sudanese Central Reserve Initiative (analysis). Initially, SSP was estab- Police (CRP), claiming that they ‘significantly lished as a warning system for possible con- built up the fortifications and reinforced the flicts along the border of Sudan and soon-to- vehicles and personnel present at that facil- be independent South Sudan. When South ity during the time period that CRP forces Sudan gained independence in the summer were allegedly abducting, detaining, tortur- of 2011 and conflicts erupted, SSP began to ing, and killing internally displaced persons identify IDP camps and burned villages in seeking refuge there.’ Having received eye- near real-time and documented evidence of witness accounts suggesting the killing of war crimes and crimes against humanity.2 civilian SPLM-N supporters, SSP analysts The work of SSP is notable because it offered a map depicting satellite imagery of overcomes the shortcoming cited in criteria the area prior to the reinforcement to the B(b) that satellite imagery cannot be used to witness who then ‘independently identified establish intent. Instead of simply identify- the CRP training center’ on the map (SSP

Figure 2: SSP-17 Imagery on fortification of the CRP over time. Wang et al: Problems from Hell, Solution in the Heavens? Art. 53, page 13 of 18

Figure 3: SSP-18 Imagery of SAF Checkpoints around Kadugli.

2011c). Once the map was returned with the roads in and around Kadugli’, the capital of witness identification, SSP was then able to Sudan’s South Kordofan (SSP 2011a). positively confirm the build-up of the identi- In this case, observables from several dif- fied location by analyzing both archival and ferent shots were combined and collaborated then-current imagery of the area. with contextual information obtained from This method of analyzing before-and-after field reports of a third organization. As a imagery was also instrumental in identify- result, SSP again established a dynamic nar- ing a likely intent to conceal reported mass rative establishing intent to cut off outside graves. Rather than the traditional method assistance and ‘prevent…ambulances from of identifying observables, SSP continually reaching wounded civilians in need of medi- monitored the area by repeatedly collecting cal care’ (Special Report 2011). Analysis which up-to-date satellite imagery of the same loca- combined information derived from different tion, which allowed for the construction of observables therefore enhanced the docu- a thorough narrative. This documentation of mentation power of the satellite imagery. intent will likely be much more convincing in court (SSP 2011b). Case Study 3: Standby Task Force In figure 3, SSP identified ‘six [military] Satellite Imagery Project checkpoints’ on DigitalGlobe imagery, which The Standby Task Force (SBTF) was founded was consistent with information from a in 2010 as a network of volunteers avail- report released from the United Nations High able ‘to provide dedicated live mapping Commissioner for Human Rights (UNHCHR) support to…organizations in the humani- suggesting that the ‘SAF blocked all major tarian, human rights, election monitoring, Art. 53, page 14 of 18 Wang et al: Problems from Hell, Solution in the Heavens?

Figure 4: SBTF Micro-tasking of Syria Imagery. and media space’ (The Standby Task Force between’. SBTF addresses this issue by apply- 2012). In September 2011, the SBTF Satel- ing the concept of crowdsourcing, slicing lite Imagery Team launched an ‘experimen- up imagery into small sections and micro- tal pilot project’, which analyzed imagery tasking them to its network of volunteers on Syria made available by DigitalGlobe as a who divide up the work usually tackled by part of a report produced by Amnesty Inter- single analysts and collectively ‘scan and tag national-USA (AI-USA). vast volumes of satellite imagery data’ (Meier While the SBTF project is much smaller in 2011). Figure 4 shows a cloud of yellow tri- size and scope than the other case studies in angles, representing sliced images given to this paper, it has pioneered the integration individual volunteers at SBTF. of crisis mapping and crowd-sourced data The SBTF crowd-sourcing system is useful into satellite imagery analysis. The concept in greatly increasing the speed of analysis. of crowdsourcing, according to a defini- However, this model also faces a series of tion proposed by Estellés and González, is ‘a challenges regarding reliability. One poten- type of participative online activity in which tial issue is the lack of expertise of the volun- an individual, an institution, a non-profit teers. Untrained volunteers are much more organization, or a company proposes to a likely to make inadvertent errors, as outlined group of individuals…the voluntary under- in criterion B(c), and could seriously under- taking of a task...[that] entails mutual ben- mine the reliability of the analysis. SBTF efit’ (2012: 197). According to Patrick Meier, attempts to mitigate this disadvantage by co-founder of the SBTF, the intelligence con- asking experienced analysts to filter their tained in massive amounts of satellite data work. The inexperienced volunteers are ‘pro- produced everyday lacks the corresponding vided with documentation that explains how analytical human capital, as ‘professional to spot military vehicles, troop movements, satellite imagery experts who have plenty of checkpoints, and aircraft’, and are responsi- time to volunteer their skills are far and few ble for simply identifying observables. Then, Wang et al: Problems from Hell, Solution in the Heavens? Art. 53, page 15 of 18 a team from AI-USA will ‘analyze images that ment of a procedure or guideline for sense- have been tagged by at least three volun- making, which all similar projects could fol- teers’ (Ungerleider 2011). While this proce- low, would maximize efficiency and increase dure certainly lowers the likelihood of false reliability. The procedures should include identifications, it cannot prevent volunteers elements of technical analysis often used from omitting certain observables that may by professional government-employed ana- only be obvious to more experienced analysts, such as the use of GIS software for lysts. SBTF volunteers will also be unable to infrared analysis. This would help mitigate perform analyses that require more advanced the issue of inadvertent errors in criterion GIS skills and software technology, such as B(c). Moreover, these procedures should infrared and multispectral analysis. Moreo- also concentrate on the specific application ver, micro-tasking and slicing imagery may of satellite imagery analysis for crisis moni- prevent analysts from being able to ‘connect toring and documentation. This includes the dots’ between various observables and addressing methods of ground confirma- forming a greater contextual understand- tion and communication with eyewitnesses ing of the situation. Since the volunteer as mentioned in criterion B(a). It would also looking at each slice of imagery is different include establishing research capacities each time, they could also miss out impor- and considering context and establishing tant changes in before-and-after shots which long-term monitoring, as mentioned in cri- would help construct the timeline narrative terion B(b). Ideally, organizations that have in criterion B(b). gained experience from successful projects would then set up training and certifica- Implications tion programs for new analysts and other The commercialization of satellite imagery is organizations interested in starting their leading humanitarianism toward a historic own projects. In this manner, humanitar- and momentous occasion: the application ian applications of satellite imagery can of satellite imagery to international crimi- be transformed from independent projects nal justice, as a tool of evidence collection, attached to a wide variety of academic, gov- could permanently transform how the inter- ernmental, and non-governmental institu- national community allocates accountabil- tions of varying credibility into a coherent, ity to perpetrators of mass atrocities. This reputable, scientific discipline. paper established three criteria for the construction of useful, reliable, and admissible b) Neutrality evidence for international criminal courts. Thus far, non-profit human rights groups By following these criteria, humanitarian have been the instigators of commercial sat- satellite imagery projects could take a great ellite projects. Their participation is often step towards producing quality output, but necessary to secure funding, raise awareness, the industry still faces some significant chal- or obtain human capital. However, these lenges. As such, some significant improve- groups sometimes already carry an agenda ments will be necessary for the above criteria regarding the policy issue before the project to be met and create useful intelligence for is assembled, or feel pressured to overstate the courts. data or produce information in certain man- ners and time intervals in order to maintain a) Building a system media attention. As such, the evidence pro- The techniques of analysis and compila- duced in this process could lose credibility in tion of satellite data for documentation of court if the defense attorney can prove that humanitarian crises should be developed the scientific process of analysis had been into a structured discipline. The establish- influenced or undermined. As mentioned in Art. 53, page 16 of 18 Wang et al: Problems from Hell, Solution in the Heavens? criterion C(a), it would then be necessary for better funded and greater in scope. Existing the court to call on an outside expert witness projects and analysts will also likely devote to re-analyze the evidence. Therefore, if such more time toward documenting evidence of projects were to be employed in greater num- war crimes and violations. bers and their work submitted to interna- The advent of civilian-analyzed satellite tional criminal courts, the establishment of imagery changes the way in which non- a third-party verifying organization would be military actors and bystanders can actively necessary. This organization should be com- participate to help prevent atrocities and posed of analysts with experience in human- help convict those responsible for them. itarian applications of satellite imagery, but The current conflict in Syria, for example, at the same time remain non-partisan and comes to mind as an area where effective unaffiliated with any organization with an satellite technology could be immediately explicit issue-agenda. The establishment deployed to aid humanitarian efforts, as well of such a credible organization from which as to increase accountability of the massive the court could call expert witnesses would human rights violations that are taking place greatly enhance the credibility of satellite there. Eventually, the development and wide- imagery evidence produced by non-govern- range employment of this new form of war ment projects. photography in international criminal justice may be a game-changer in setting up a c) Establishing legal precedence system of accountability in an increasingly Although satellite imagery has been sub- unstable modern world. mitted and considered by the ICC and ICTY, none have so far been formally admitted as Notes evidence. The industry came close in 2011 1 Baker provides a more in-depth discus- when, according to TIME Magazine, the ICC sion of possible errors in his article. reviewed and based ‘a significant portion’ 2 The authors of this article were all previ- of their new investigation against Sudanese ously affiliated with this project. Defense Minister Abdelrahim Mohamed Hus- sein for possible war crimes on data collected References by the SSP (Benjamin 2011). Being used by 104th US Congress 1997 National Defense the prosecution does not create legal prec- Authorization Act for Fiscal Year 1997. edence for the evidence since it was never Congress Public Law. Available at: www.gpo. officially submitted in court. Nevertheless, it gov/fdsys/pkg/PLAW-104publ201/html/ demonstrates the validity and usefulness of PLAW-104publ201.htm [Last accessed Sep- such products for international criminal jus- tember 9, 2013]. tice. A first ICC case where satellite imagery, AAAS 2007 Ethiopian Occupation of the created for the type of projects described in Border Region of Eritrea: Case Study Sum- this article, is accepted as evidence would mary. Advancing Science, Serving Society. establish crucial legal precedence. As a September 25. Available at: http://srhrl. result, not only would the admittance of sat- aaas.org/geotech/eritrea/eritrea.shtml ellite imagery in the future be much more [Last accessed July 29, 2013]. feasible and streamlined in the legal sense, Baker, J, O’Connell, K M and Williamson, it would also encourage current chief pros- R 2001 Commercial Observation Satel- ecutor Fatou Bensouda and her successors to lites: At the Leading Edge of Global Trans- add satellite imagery to their investigation parency. Santa Monica, CA: RAND. toolkit and look toward satellite projects for Baker, J 2001 New Users and Established useful evidence. In turn, this would encour- Experts: Bridging the Knowledge Gap in age the formation of more projects that are Interpreting Commercial Satellite Imagery. Wang et al: Problems from Hell, Solution in the Heavens? Art. 53, page 17 of 18

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How to cite this article: Wang, B, Raymond, N, Gould, G and Baker, I 2013 Problems from Hell, Solution in the Heavens?: Identifying Obstacles and Opportunities for Employing Geospatial Technologies to Document and Mitigate Mass Atrocities. Stability: International Journal of Security & Development, 2(3): 53, pp. 1-18, DOI: http://dx.doi.org/10.5334/sta.cn

Published: 22 October 2013

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