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Ukraine, Open-Source Investigations, and the Future of International Legal Discourse

Published online by Cambridge University Press:  27 October 2022

Henning Lahmann Open the ORCID record for Henning Lahmann [Opens in a new window]
Henning Lahmann*
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Assistant professor at the Center for Law and Digital Technologies at Leiden University Law School, Leiden, Netherlands.
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Abstract

Russia's aggression against Ukraine has brought into focus the growing significance of open-source information for international legal processes. Enabled by novel digital technologies, civil society actors have seized the opportunity provided by the vast amount of publicly available evidence to counter-narrate Russia's pretexts to justify its invasion within the deliberative bodies of the United Nations. This Essay explains the potential of this emerging practice to influence international legal discourse by increasing the costs for actors who base their conduct on false factual claims.

Information

Type
Agora Essays: The War in Ukraine and the Future of the International Legal Order
Information
American Journal of International Law , Volume 116 , Issue 4 , October 2022 , pp. 810 - 820
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press for The American Society of International Law

The still relatively new practice of open-source investigations by civil society actors has begun to have a discernible effect on how states rationalize their own conduct, and on how other international actors respond to justificatory narratives based on factual manipulations. Open-source investigations are enabled by the ubiquity of publicly available digital information and the development of new technological tools. While the growing significance of this investigative approach has been addressed in a number of recent scholarly publications, they focus mainly on international criminal justice and other accountability mechanisms.Footnote 1 Many groups active in the field view individual accountability as the main purpose of their work.Footnote 2 This Essay argues that open-source investigations have also begun to shift how legal discourse in international fora unfolds more generally, as demonstrated by the example of deliberative processes at the UN prior to and after the onset of Russia's aggression against Ukraine in 2022.

I. International Legal Discourse on Russia's Invasion of Ukraine

Despite Russia's blatant disregard for the most fundamental rules of the international legal order, legal scholarship has made much of the fact that Russia obviously felt compelled to offer a justificatory narrative for its invasion, one that adhered to the doctrinal framework of international law.Footnote 3 This rhetorical maneuvering has generally been interpreted as a reconfirmation of the international legal order and the existing jus ad bellum regime in particular.Footnote 4 The basis for the purported relevance of Russia's legal justification is what Marxsen calls the “confirmation hypothesis.”Footnote 5 First articulated by the International Court of Justice (ICJ) in Nicaragua, it provides that in cases in which a state prima facie violates a rule but “defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.”Footnote 6 Accordingly, the language of the jus ad bellum creates a “universal benchmark”Footnote 7 that limits the number of possible arguments a state has at its disposal to justify its behavior;Footnote 8 which demonstrates in turn a “normative commitment to . . . the [UN] Charter's use of force regime”Footnote 9 and ultimately “validate[s] its normative power.”Footnote 10 This discursive process of applying and interpreting the rules relating to the lawful use of force thus has stabilizing effects on the legal regime.Footnote 11

Other scholars, however, object that such justificatory legal discourse cannot make any contribution at all to the confirmation of the rule in question if the invocation of the law is purely cynical and based on a blatant manipulation of the facts.Footnote 12 In such cases, to prevent norm erosion over the long term,Footnote 13 it is up to the rest of the international community to not “let it go unanswered”Footnote 14 and refute the state's justification to reconfirm the violated norm.Footnote 15 When the justificatory narrative relies on an entanglement of manipulated law and manipulated facts—as in the case of Russia's aggression,Footnote 16 but also for example in the case of the 2003 invasion of Iraq by the United States—the necessary response requires countering the false factual narrative, especially in the case of actors who have taken recourse to similar legal arguments—such as humanitarian intervention or preemptive self-defense—to justify the use of force in past situations, as rejecting Russia's legal constructions alone would render them vulnerable to accusations of hypocrisy.Footnote 17

II. Establishing Facts in the Decentralized International Order

This leads to the question of how to create the “mutually acknowledged baseline of facts”Footnote 18 necessary for a meaningful international legal discourse, particularly within the deliberative fora of the UN Security Council and General Assembly. International law as a process of communication “implicitly demands an evaluation of evidence supporting opposable positions,”Footnote 19 yet in the absence of general compulsory jurisdiction of an international judiciary the acquisition and assessment of the relevant information is by default decentralized.Footnote 20 Suggestions to equip the Security Council with a formalized fact-finding mechanism to evaluate a state's self-defense claims were never taken up by the UN member community.Footnote 21 Earlier attempts to set up official Security Council inquiries into disputed situations were blocked by permanent members whose conduct was under scrutiny.Footnote 22

While the number of UN fact-finding missions has been rising steadily over the past two decades,Footnote 23 most focus on alleged violations of human rights or international humanitarian law while rarely touching on factual issues concerning a state's use of force per se. After the start of the invasion, the UN Human Rights Council on March 4, 2022, established an independent international commission of inquiry to investigate any violations of human rights and international humanitarian law committed by the Russian Federation following from its aggression.Footnote 24 Although the Council's mandate explicitly extends to an examination of the “root causes” of the war, results are not to be expected any time soon and will at any rate cover only some aspects of Moscow's justificatory narrative. Due to jurisdictional constraints, Ukraine's case against Russia before the ICJ will likely suffer from similar limitations. Because Ukraine invokes the Court's jurisdiction based on Article IX of the Genocide Convention, the Court may well conclude that as a matter of law, the duty to prevent or punish an alleged genocide cannot serve as the legal basis for a party's unilateral use of force—as it indicated in its decision on provisional measuresFootnote 25—without issuing any finding on Russia's broader self-defense claims.Footnote 26

The structurally decentralized information ecosystem leaves largely to states the establishment of the facts that form the basis of their legally relevant decision making vis-à-vis other international actors. An obvious problem is that there are vast disparities between states when it comes to available resources and therefore intelligence capacities,Footnote 27 which results in significant information asymmetries that affect the ability to make decisions based on a shared perception of reality. States that do have detailed intelligence may be willing to communicate their own assessment of the facts on the ground but will often be reluctant to disclose how they know what they purport to know, because doing so would risk exposing the sources and methods of intelligence collection.Footnote 28 Other states thus have ample reason to remain skeptical about the value of the shared information, whether the information is offered to expose another state's wrongdoingFootnote 29 or to justify a state's own conduct.Footnote 30 As long as the shared information remains unverifiable, “a reasonable response of the recipient is to suspect that they are being manipulated.”Footnote 31 This predicament came to the fore in the weeks leading up to the invasion. Despite claiming in the Security Council that “[f]rom the beginning, our strategy to counter Russia's tactics has been to share what we know with the world transparently,”Footnote 32 when the United States attempted to convince other Council members on February 17 that “Russia plans to manufacture a pretext for its attack”Footnote 33 by purportedly laying out its false factual narrative “in great detail,”Footnote 34 it did so without disclosing any supporting evidence.

In light of these “communicative gaps”Footnote 35 in the international legal system, civil society actors such as the media and non-governmental organizations have traditionally assumed a complementary function by informing diplomats and other foreign policy decisionmakers on the national level about relevant facts.Footnote 36 However, because “[r]eporters and non-governmental organizations must work with the information made available to them,”Footnote 37 often through witness testimony, leaks, or undisclosed government sources, up to now their reports have been facing similar problems as intelligence assessments—they often suffer from a complete lack of transparency. When the U.S. government informed reporters that it had obtained intelligence that Russia was planning on using a faked video to fabricate a justification to invade,Footnote 38 there was no way to independently verify whether the source was reliable, and the information correct.Footnote 39 For this reason, the evidentiary value of media reports has historically been treated with caution in international legal proceedings.Footnote 40

III. The Emergence of Open-Source Investigations and the Principle of “Open Verification”

Due to the increasing accessibility and use of publicly available digital information, such as photos, videos, and audio published on social media platforms, geospatial data, or freely available high-resolution satellite imagery, this situation has recently started to change. While the leveraging of such open-source information may not be new in itself, the digital transformation and the emergence of social media have vastly expanded the volume and types of data circulated through online platforms and other digital infrastructures.Footnote 41 Today, novel tools exist to sift, parse, and analyze the aggregated information for evidentiary clues and patterns to poke holes into states’ narratives.Footnote 42 Widely available and freely accessible digital means of communication can be used to distribute, amplify, and present the findings and conclusions in ways previously unimaginable.

The practice of open-source counter-narration by civil society actors first came to prominence in the aftermath of the downing of Malaysia Air MH17 over eastern Ukraine on July 17, 2014, when the organization Bellingcat used a vast quantity of digital information to establish the responsibility of Russian separatists in the Donbas as well as Russia's complicity.Footnote 43 More recently, legacy media organizations have begun to devote considerable resources to the practice as well.Footnote 44 Despite such earlier investigative achievements, it is Russia's aggressive war against Ukraine that has proven to be the “coming-out party” for the practice.Footnote 45 The reports showing war crimes committed by Russian soldiers in Bucha and other Kiev suburbs may have received the most attention,Footnote 46 but just as remarkable were the numerous inquiries by Bellingcat and other groups aimed at disproving Russia's pretexts for the invasion more or less in real time.

For example, after Russia claimed that Ukrainian forces had shelled a kindergarten in the Donbas on February 17, a team of online investigators collaboratively analyzed available photos and video footage to assess the direction of the attack by examining pictures of the crater and spray pattern left by the projectile, demonstrating a separatist-held area as the most likely point of origin.Footnote 47 The investigation was subsequently introduced as evidence by the counsel for Ukraine during the ICJ proceedings concerning the request for the indication of provisional measures by way of a Human Rights Watch report,Footnote 48 which had cited the Bellingcat investigation to support its own inquiry of the incident that otherwise mainly relied on witness interviews as a more traditional method of fact-finding.Footnote 49 Compare Bellingcat's approach with efforts by other actors from around the same time, such as a report by the Organization for Security and Co-operation in Europe Special Monitoring Mission to Ukraine from February 18, which had experts on the ground, but could merely state that it “assessed the damage as recent but was unable to determine the weapon used or the direction of fire.”Footnote 50 A New York Times news article also pointed to separatist fabrications but only cited unnamed sources in the U.S. and Ukrainian governments.Footnote 51 At a UN Security Council meeting four days after the shelling, the UN under-secretary-general for political and peacebuilding affairs acknowledged that “the United Nations is not in a position to verify the numerous claims and allegations made by various actors.”Footnote 52 Further revelations about Russia's factual manipulations ensued. On February 20, for instance, a group of open-source investigators discounted a video ostensibly showing a sabotage operation targeting chlorine tanks in the Donbas using an analysis of its metadata and matching the audio with an older YouTube video of military exercises in Finland.Footnote 53 A few days later, Bellingcat published an entire online spreadsheet compiling various “dubious” and “debunked” factual claims made by Russia.Footnote 54

What is genuinely novel about this emerging practice of open-source counter-narration and potentially transformative for international legal discourse is the idea of “open verification,”Footnote 55 meaning that individual pieces of raw information, to the greatest extent possible, ought to remain in the open and accessible so that any interested person can independently check and verify their accuracy and authenticity.Footnote 56 In direct response to the opaqueness of organizations such as WikiLeaks that rely on leaks and undisclosed sources, making them entirely dependent on the trust of their audience,Footnote 57 “open verification” presumes that anyone should be able to track and comprehend how the different components came about and “understand how facts are made”Footnote 58 without expert knowledge or privileged access to information. In this regard, its advocates tout this new evidentiary paradigm as a possible remedy for the growing distrust toward authority and official expertise in today's “post-truth” environment. As opposed to unsupported intelligence assessments or more traditional methods of reporting, counter-narrating a state's justifications thus turns into a social and collective practice of “assembling credibility,”Footnote 59 ultimately leading to more robust and credible investigatory outcomes.

IV. The Impact of Open-Source Investigations on International Legal Discourse

The increased attention on publicly available information by civil society actors does not by itself demonstrate whether and how the practice has begun to inform state behavior or to change international legal discourse. Nonetheless, the available evidence in the context of Russia's aggression allows for three preliminary observations.

First, the counternarratives to Russia's justifications constructed by Bellingcat and other actors were picked up and further disseminated by leading international media, including Time Magazine, The Guardian, The Washington Post, and France 24. They thus became part of the wider public discourse on the war in Ukraine and reached diplomats and foreign policy decisionmakers on the state level, assuming that media reporting is one of their primary means to seek information about unfolding situations affecting international security.

Second, a close examination of the deliberations in the Security Council and General Assembly prior to and after the start of the invasion shows—at the very least—that Russia was aware of the actors’ efforts to debunk its attempts to manipulate the factual basis for its justificatory narrative. In response, Russia continuously dismissed digital open-source information as nothing more than “dubious or openly mendacious material from social networks”Footnote 60 as part of an “information war on social media against Russia” that allegedly even involved “tutorials . . . on how to create fake news items.”Footnote 61 More insidiously, Russia's representative repeatedly invoked the state's own “findings” about the activities of Ukraine and its allies ostensibly obtained through the same method of open-source research in an obvious attempt to cast doubt on the validity of the investigative approach itselfFootnote 62 and to “pollute the information space regarding the war in Ukraine.”Footnote 63 Russia also kept shifting its justificatory narrative, most notably by taking on an earlier online conspiracy theory alleging the existence of U.S.-led chemical weapons laboratories in Ukraine to claim a “threat to international peace and security.” The shift in justifications can also be interpreted as an implicit reaction to the debunking of Russia's previous factual claims.Footnote 64 To argue that Russia's communicative tactics were only aimed at domestic audiencesFootnote 65 falls short. The deliberations reveal at least that the fabrications provided other states the opportunity to refuse to condemn Russia's actions, whether or not they in fact bought into the lies.Footnote 66

Third, tentative evidence about the ways in which the increased distribution of open-source information by civil society groups influenced actors other than Russia is more ambiguous. In principle, it may be maintained that a state's reference to such public sources decreases the costs of making a case against a norm-violating state's justificatory factual claims because there is no need to disclose its own intelligence sources and methods.Footnote 67 Likewise, it should increase the costs for states attempting to retain an equivocal stance or to side with the aggressor as it becomes more difficult to dismiss the evidence as false or unsubstantiated. Therefore, if disclosure constraints are the main obstacle to increased transparency, one should expect more frequent invocations of publicly available evidence. The UN records from the Security Council and the General Assembly deliberations do show that many state representatives—particularly those broadly belonging to “the West”—made sure to plainly point out Russia's lies, thus corroborating the hypothesis that refutations of factual weaknesses in a state's narrative to justify force are significant for a legal discourse that seeks to reconfirm the normative power of the existing jus ad bellum regime. Although they resolutely refuted Moscow's fabrications and disinformation, however, the representatives mostly did so in very general terms and without being explicit about their sources—aside from occasional references to official and public reports from the UN and other international organizations.Footnote 68 Other than a few clues suggesting that states have started to take open-source information into account,Footnote 69 more empirical fieldwork needs to be done to conduct process-tracing that can support causal claims about the impact of open-source investigations.Footnote 70

At the same time, the behavior of states from the Global South hints at some of the limits inherent in any attempts to counter-narrate factually false justifications for the use of force in UN fora. The structural information asymmetries described above suggest that states with weaker intelligence capacities would have strong incentives to embrace public sources to inform their decision making vis-à-vis another state's disputed conduct. Yet despite the overall overwhelming condemnation of the invasion in the General Assembly,Footnote 71 many states from the Global South remained reluctant toward the West's counternarrative of unprovoked Russian aggression even though the facts supporting that narrative had been laid out in great detail by civil society actors.Footnote 72 Instead, a number of representatives even approvingly alluded to Russia's claims regarding NATO's eastward expansion as one of the principal causes of the war.Footnote 73 Whatever the merits and future prospects of open-source counter-narration, then, such reservations only reconfirm the essentially interest-driven, political nature of deliberations in UN fora that do not adhere to principles of pure legal reasoning, irrespective of the amount and quality of incriminating evidence presented to the participating actors.

V. Conclusion

The emerging practice of leveraging digital open-source information to counter states’ factual manipulations will not end lying and secrecy by states that expect a negative external response to their justificatory narratives. But the availability and accessible presentation of such investigations by civil society actors, if adhering to the principle of “open verification,” makes these evasive communicative strategies potentially more costly and, by contributing to the establishment of narrative coherence in international fora, helps to enable other actors to engage in an informed and transparent legal discourse in response to a norm violation. Another possible consequence of the growing focus on this work since the onset of the Ukraine crisis: it might incentivize states to become less secretive about information gathering methods and more willing to resort to public sources as to share intelligence more transparently than before.Footnote 74

To be sure, further challenges remain. Most importantly, we should not naïvely take civil society actors engaging in open-source investigations as neutral arbiters of truth by default. The principle of “open verification” seeks to ensure that a narrative's individual evidentiary components can always undergo peer review; yet the narrator's own biases and preconceptions might still be introduced in manifold ways, not least through the investigation's larger framing.Footnote 75 Moreover, not all types of evidence are accessible to open-source methods. Finally, any type of publicly available digital information is in principle vulnerable to manipulation and tampering.Footnote 76 But if safeguards and best practices can be established, open-source counter-narration has the potential to fundamentally shift the ways we expect international legal discourse to unfold in the future.

Illustrative map of the apparent geographic extents of Dongsha Qundao, Xisha Qundao, Zhongsha Qundao, and Nansha Qundao, from which the PRC claims its maritime zones. Source: U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas, No. 150, People's Republic of China: Maritime Claims in the South China Sea (Jan. 2022).

Footnotes

The research for the Article was conducted while in residence as a Post-Doctoral Global Fellow at the Hauser Global Law School Program at New York University with additional support from a research grant by the German Academic Exchange Service. I am grateful to Mariana Velasco-Rivera, Pola Cebulak, Francesca Episcopo, Thiago Amparo, Thomas Streinz, Angelina Fisher, Christian Marxsen, Gráinne de Búrca, Philip Alston, Benedict Kingsbury, and the participants of the 2022 International Law and Technological Progress Conference at the University of Aberdeen School of Law, Scotland for their invaluable critical feedback and input.

References

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16 See Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), Request for the Indication of Provisional Measures, Verbatim Record of March 7, 2022, at 58 (Int'l Ct. Justice), available at https://www.icj-cij.org/public/files/case-related/182/182-20220307-ORA-01-00-BI.pdf.

17 See on this predicament for states such as the United States or the United Kingdom, John Reid, Putin, Pretext, and the Dark Side of the “Responsibility to Protect,” War on the Rocks (May 27, 2022), at https://warontherocks.com/2022/05/putin-pretext-and-the-dark-side-of-the-responsibility-to-protect. During the Security Council deliberations on Russia's invasion, the representative of Kenya clearly alluded to this fact. See UN Doc. S/PV.8979, at 11 (Feb. 25, 2022).

18 Andris Banka & Adam Quinn, Killing Norms Softly: US Targeted Killing, Quasi-secrecy and the Assassination Ban, 27 Security Stud. 665, 672 (2018). During the Security Council deliberations on Russia's invasion, Kenya's permanent representative recalled the 1994 genocide in Rwanda as one example of devastating consequences of the Council members’ inability to agree on a shared factual basis of a situation. UN Doc. S/PV.9011, at 19 (Apr. 5, 2022).

19 Thérèse O'Donnell, Security Council Resolution 1530, Evidence and the United Nations Security Council, 100 ASIL Proc. 47, 51 (2006).

20 Antonios Tzanakopoulos, Transparency in the Security Council, in Transparency in International Law 367, 380 (Andrea Bianchi & Anne Peters eds., 2013).

21 See Richard N. Gardner, Commentary on the Law of Self-Defense, in Law and Force in the New International Order 49, 52–53 (Lori Fisler Damrosch & David J. Scheffer eds., 1991).

22 Jules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 Yale J. Int'l L. 537, 537–38 (1999).

23 Shiri Krebs, Experiments in International Law and the Efficacy of International Fact-Finding: Evidence from the U.S. and Israel, in Research Methods in International Law: A Handbook 244, 244 (Rossana Deplano & Nicholas Tsagourias eds., 2021).

24 UN Doc. A/HRC/RES/49/1, at para. 11(a) (Mar. 7, 2022).

25 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), Order, para. 59 (Int'l Ct. Just. Mar. 16, 2022).

26 Deepak Raju, Ukraine v. Russia: A “Reverse Compliance” Case on Genocide, EJIL:Talk! (Mar. 15, 2022), at https://www.ejiltalk.org/ukraine-v-russia-a-reverse-compliance-case-on-genocide. Regarding Russia's factual claims, the Court merely determined that it “is not in possession of evidence substantiating the allegation . . . that genocide has been committed on Ukrainian territory.” Allegations of Genocide, Order, supra note 25, para. 59.

27 Thomas M. Franck, Reflections on Force and Evidence, 100 ASIL Proc. 51, 52 (2006).

28 Allison Carnegie & Austin Carson, Secrets in Global Governance: Disclosure Dilemmas and the Challenge of International Cooperation 28–33 (2020); Marie Jacobsson, Evidence as an Issue in International Legal Practice, 100 ASIL Proc. 40, 42 (2006); Amy McKinnon, Bellingcat Can Say What U.S. Intelligence Can't, For. Pol'y (Dec. 17, 2020), at https://foreignpolicy.com/2020/12/17/bellingcat-can-say-what-u-s-intelligence-cant.

29 Ruth Wedgwood describes the 1996 situation in which the United States disclosed high-resolution satellite images as evidence of India's violation of the Treaty on the Non-Proliferation of Nuclear Weapons only for India to subsequently improve the secrecy of its program. Ruth Wedgwood, Responding to Terrorism: The Strikes Against bin Laden, 24 Yale J. Int'l L. 559, 567 (1999).

30 For example, both Ghana and Madagascar rejected the Unites States’ offered justification for its 1986 air strikes against Libya since the evidence presented in the UN Security Council relied on undisclosed intelligence. See UN Doc. S/PV.2677, at 13 (Apr. 16, 1986) (Madagascar); UN Doc. S/PV.2680, at 32–33 (Apr. 18, 1986) (Ghana).

31 Simon Chesterman, Shared Secrets. Intelligence and Collective Security 21 (2006).

32 UN Doc. S/PV.8991, at 9 (Mar. 11, 2022) (United States).

33 UN Doc. S/PV.8968, at 12 (Feb. 17, 2022) (United States).

34 Id. at 13.

35 Monica Hakimi, The Media as Participants in the International Legal Process, 16 Duke J. Comp. Int'l L. 1, 4 (2006).

36 Id.; Marxsen, supra note 5, at 217. See, e.g., in the context of UN Security Council deliberations during the genocide in Rwanda, UN Doc. S/PV.3377, at 14 (Spain), at 15 (Czech Republic) (May 16, 1994).

37 Perina, supra note 13, at 549 (emphasis added); likewise Oona A. Hathaway, National Security Lawyering in the Post-War Era: Can Law Constrain Power?, 68 UCLA L. Rev. 2, 30 (2021).

38 See Julian E. Barnes, U.S. Exposes What It Says Is Russian Effort to Fabricate Pretext for Invasion, N.Y. Times (Feb. 3, 2022), at https://www.nytimes.com/2022/02/03/us/politics/russia-ukraine-invasion-pretext.html.

39 See Shawna Chen, AP Reporter Confronts Biden Spokesperson Over Russia Allegations, Axios (Feb. 3, 2022), at https://www.axios.com/russia-ukraine-ned-price-b5f16863-d495-46c1-ba3b-6bb43193fce6.html.

40 See, e.g., Military and Paramilitary Activities in and Against Nicaragua, supra note 6, paras. 62–65.

41 Matthew Fuller & Eyal Weizman, Investigative Aesthetics: Conflicts and Commons in the Politics of Truth 5 (2021).

42 Eyal Weizman, Introduction: Forensis, in Forensis: The Architecture of Public Truth 9, 12 (Forensic Architecture ed., 2014).

43 Bellingcat Investigation Team, MH17 – The Open Source Investigation, Three Years Later, Bellingcat (July 17, 2017), at https://www.bellingcat.com/news/uk-and-europe/2017/07/17/mh17-open-source-investigation-three-years-later.

44 See Christoph Koettl, et al., How a U.S. Drone Strike Killed the Wrong Person, N.Y. Times (Sept. 10, 2021), at https://www.nytimes.com/video/world/asia/100000007963596/us-drone-attack-kabul-investigation.html.

45 A New Era of Transparent Warfare Beckons: Russia's Manoeuvres Are a Coming-Out Party for Open-Source Intelligence, Economist (Feb. 18, 2022), at https://www.economist.com/briefing/2022/02/18/a-new-era-of-transparent-warfare-beckons.

46 See Yousur Al-Hlou, Masha Froliak, Evan Hill, Malachy Browne & David Botti, New Evidence Shows How Russian Soldiers Executed Men in Bucha, N.Y. Times (May 19, 2022), at https://www.nytimes.com/2022/05/19/world/europe/russia-bucha-ukraine-executions.html; Eliot Higgins, Russia's Bucha “Facts” Versus the Evidence, Bellingcat (Apr. 4, 2022), at https://www.bellingcat.com/news/2022/04/04/russias-bucha-facts-versus-the-evidence.

47 Eliot Higgins, @EliotHiggins, Twitter (Feb. 17, 2022, 3:53 a.m.), at https://twitter.com/EliotHiggins/status/1494233592913879041?s=20&t=PFPxI7rGTMOcH6uudXlgEw.

48 Allegations of Genocide, Request, supra note 16, at 36.

49 Human Rights Watch, Shelling Residential Areas Puts Civilians at Risk (Feb. 18, 2022), at https://www.hrw.org/news/2022/02/18/ukraine-shelling-residential-areas-puts-civilians-risk.

50 OSCE, Special Monitoring Mission to Ukraine, Daily Report 38/2022, at 3 (Feb. 18, 2022), at https://www.osce.org/files/2022-02-18%20Daily%20Report_ENG.pdf?itok=23379.

51 Valerie Hopkins, Poised on Border, Russia May Be Seeking Pretext for Ukraine Invasion, Officials Say, N.Y. Times (Feb. 20, 2022), at https://www.nytimes.com/2022/02/20/world/europe/ukraine-russia-belarus-putin.html.

52 UN Doc. S/PV.8970, at 2 (Feb. 21, 2022).

53 See Eliot Higgins, @EliotHiggins, Twitter (Feb. 20, 2022, 6:11 a.m.), at https://twitter.com/EliotHiggins/status/1495355366141534208.

54 Bellingcat Investigation Team, Documenting and Debunking Dubious Footage from Ukraine's Frontlines, Bellingcat (Feb. 23, 2022), at https://www.bellingcat.com/news/2022/02/23/documenting-and-debunking-dubious-footage-from-ukraines-frontlines.

55 Eyal Weizman, Open Verification, E-Flux Architecture (June 2019), at https://www.e-flux.com/architecture/becoming-digital/248062/open-verification.

56 As an example, see the link to the original “saboteur” video of above example with the explicit invitation to validate the findings. Eliot Higgins, @EliotHiggins, Twitter (Feb. 20, 2022, 6:26 a.m.), at https://twitter.com/EliotHiggins/status/1495359103673188355.

57 Eliot Higgins, We Are Bellingcat: An Intelligence Agency for the People 58 (2021).

58 Weizman, supra note 55.

59 Claudia Aradau & Jef Huysmans, Assembling Credibility: Knowledge, Method and Critique in Times of “Post-Truth,” 50 Security Dialogue 40, 50–54 (2019).

60 UN Doc. S/PV.8988, at 9 (Mar. 7, 2022) (Russian Federation); see also UN Doc. S/PV.9011, at 28 (Apr. 5, 2022) (Russian Federation) (“Of course, they are not interested in the fact that modern technologies today make it possible to create any video.”).

61 UN Doc. A/ES-11/PV.1, at 10 (Feb. 28, 2022) (Russian Federation). Note the veiled reference to the shelling of the kindergarten. Id.

62 See, e.g., UN Doc. S/PV.8991, at 17 (Mar. 11, 2022) (Russian Federation).

63 Ingrid Dickinson, How Russia Employs Fake Fact-Checking in Its Disinformation Arsenal, DFRLab (May 4, 2022), at https://medium.com/dfrlab/how-russia-emplo , ys-fake-fact-checking-in-its-disinformation-arsenal-b1790d5f5442.

64 UN Doc. S/PV.8991, at 7 (Mar. 11, 2022) (Russian Federation). Not incidentally, the Russian representative closely mimicked the language used by then-U.S. Secretary of State Colin Powell in the UN Security Council in his attempt to justify the invasion of Iraq. See UN Doc. S/PV.4701, at 17 (Feb. 5, 2003) (United States).

65 Steven Lee Myers & Stuart A. Thompson, Truth Is Another Front in Putin's War, N.Y. Times (Mar. 20, 2022), at https://www.nytimes.com/2022/03/20/world/asia/russia-putin-propaganda-media.html. That does not mean that Russia's false narratives were not aimed at the public in Russia at all, as the banning of Bellingcat in Russia on March 16, 2022, indicates. See Bellingcat Investigative Tech Team, Bellingcat Is Banned in Russia. Here's How to Beat the Block, Bellingcat (Apr. 22, 2022), at https://www.bellingcat.com/resources/2022/04/22/how-to-beat-russias-block-on-bellingcat.

66 See, most explicitly, UN Doc. A/ES-11/PV.2, at 20 (Feb. 28, 2022) (Syria); UN Doc. A/ES-11/PV.3, at 17 (Mar. 1, 2022) (Cuba).

67 Carnegie and Carson, supra note 28, at 33.

68 See, e.g., UN Doc. S/PV.8968, at 29 (Feb. 17, 2022) (Germany); UN Doc. A/ES-11/PV.1, at 27 (Feb. 28, 2022) (Canada).

69 See especially Albania's invocation of Bellingcat's investigations of Russia's attempts to assassinate Sergei Skripal and Alexei Navalny during Security Council deliberations on Russia's allegations of chemical weapons research labs in Ukraine. UN Doc. S/PV.8991, at 7 (Mar. 11, 2022).

70 A survey of UN state representatives’ information-gathering practices and attitudes toward open-source material initiated by the author indicates tentative acknowledgment of the work of civil society actors in this regard; however, the preliminary results do not yet allow for any further conclusions.

71 GA Res. ES-11/1 (Mar. 2, 2022).

72 See Joel Shannon, “We Do Not Want to Be Involved”: As Horror Unfolds in Ukraine, Most of the World Isn't Punishing Putin, USA Today (Apr. 28, 2022), at https://eu.usatoday.com/story/news/world/2022/04/28/russia-ukraine-world-leaders-wont-punish-putin/9516853002.

73 See, e.g., UN Doc. A/ES-11/PV.1, at 25 (Feb. 28, 2022) (Brazil); UN Doc. A/ES-11/PV.3, at 12 (Mar. 1, 2022) (Saint Vincent and the Grenadines).

74 See Ardi Janjeva, Alexander Harris & Joe Byrne, The Future of Open Source Intelligence for UK National Security (June 2022), available at https://static.rusi.org/330_OP_FutureOfOpenSourceIntelligence_FinalWeb.pdf.

75 See Shiri Krebs, The Invisible Frames Affecting Wartime Investigations: Legal Epistemology, Metaphors, and Cognitive Biases, in International Law's Invisible Frames 124 (Andrea Bianchi & Moshe Hirsch eds., 2021).

76 See Giancarlo Fiorella, Charlotte Godart & Nick Waters, Digital Integrity: Exploring Digital Evidence Vulnerabilities and Mitigation Strategies for Open Source Researchers, 19 J. Int'l Crim. Just. 147 (2021).