Skip to content

C. Aerial and Satellite Images

Definition

Although Courts and Tribunals do not provide a standardised definition of this type of DDE, the term 'satellite images' has been used to describe digitally transmitted images taken by artificial satellites orbiting the Earth1 and the term 'aerial images' has been used to describe images taken from the sky by aircrafts or drones (also known as Unmanned Aerial Vehicles (UAVs).2

C1. Where forensic evidence including aerial and satellite images is voluminous, it may be entered into evidence via expert reports summarising the forensic evidence.

Keywords

procedure; experts; forensic evidence; summary report

Pursuant to Rule 92 bis (A) of the ICTY Rules of Procedure and Evidence, evidence of a witness in the form of a written statement may be admitted in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of an accused as charged in the indictment. An example of the rule's application would be if evidence in question is of a cumulative nature in that other witnesses will give, or have given, oral testimony of similar facts. This allows investigators to produce summary reports which are derived from multiple sources and aims to give background evidence to the forensic examinations, thereby contextualising and reducing the apparent complexity of their findings.3 'To facilitate matters and to speed up the process',4 the ICTY in Krstić authorised an investigator with the Office of the Prosecutor to testify in a summary form about the findings of forensic experts who had conducted examinations of various grave sites in 1996, 1998 and 1999 'associated with the take-over of Srebrenica'.5

C2. Aerial and satellite images admitted during former witness testimony are admissible if they form an inseparable and indispensable part of that testimony.

Keywords

procedure; former testimony; experts; witnesses

Pursuant to Rule 92 bis (D) of the ICTY Rules of Procedure and Evidence,6 'a Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused'. Although Rule 92 bis (D) does not explicitly provide for the admission of exhibits admitted during former testimony, these exhibits are admissible pursuant to this rule so long as they form an inseparable and indispensable part of the testimony (whether expert or not).7 Aerial and satellite images are an inseparable and indispensable part of the testimony if the witness discusses them 'in his or her written statement or transcript and if that written statement would become incomprehensible or have lesser probative value without [the] admission' of such images.8

Indexes. Aerial and satellite images admitted during former witness testimony should be tendered with an index. The index should indicate the exact title or exhibit number for each former exhibit to identify the exact exhibits from the previous case.9 The ICTY in Blagojević and Jokić postponed the admission of aerial images that had been previously tendered and admitted at the ICTY during related witness testimony of previous ICTY trials until an index of proposed exhibits could be provided.10

Former Expert Testimony. Further considerations apply to former expert testimony: aerial and satellite images attached to former expert testimony are admissible if such testimony is also highly relevant to the case and is open to cross-examination by the Defence. Pursuant to Rule 94 bis of the ICTY Rules of Procedure and Evidence,11 it should be determined whether the expert was a live witness whose report is highly relevant to the case and admissible under Rule 89 and its Guidelines on the Standards Governing the Admission of Evidence, and who the Defence would be able to cross-examine.12 Once it is shown that the authors of all reports qualify as experts, that the evidence has probative value and relevance, and that the evidence helps provide a complete picture, former expert evidence can be admitted (including the images attached to the reports).13 The ICTY in Blagojević and Jokić applied Rule 94 bis and, once satisfied that the report's author, D. Manning, was an expert fulfilling all the aforementioned requirements, admitted the expert evidence (including the aerial images attached to it).14

C3. Aerial and satellite images should be contemporaneous to the events they purport to be showing.

Keywords

relevance; contemporaneity

Where there exists an extensive period of time between when the images were taken and when the events occurred, and where testimony of a witness acknowledges that changes could have arisen between the occurrence of the event and the time at which the aerial images were taken,15 the ICC Trial Chamber in Ntaganda found that it is 'not in a position to establish beyond reasonable doubt' that what is shown on the image occurred as a result of the event under consideration.16 The Trial Chamber determined that images taken more than a month after an attack are 'of limited use to establish whether, and if so how, any destruction took place during the events that are subject to the charges'.17

C4. Aerial and satellite images can be used to corroborate other evidence.

Keywords

relevance; corroboration

Aerial and satellite images can be used to corroborate other evidence such as forensic evidence,18 witness testimony,19 and the reliability of intercept communications.20 The ICTY in Krstić found that aerial images of a purported grave site corroborated real evidence and a forensic report showing disturbances in the grave soil demonstrated that the bodies of those massacred had been exhumed and moved to secondary grave sites.21

C5. Insufficient authentication goes to the weight of aerial and satellite images rather than their admissibility.

Keywords

probative value; admissibility; relevance; authentication; chain of custody

Manipulation and distortion of aerial and satellite images do not necessarily affect their admissibility.22 The ICTY in Popović disagreed with the Defence's argument that the aerial images in that case could not be admitted because their dates had been removed, they 'were misrepresented to the United Nations, the Security Council, and the public' as proving the purported existence of weapons of mass destruction was unrelated to the case, and there were differences in corroborating testimony:23 such reasons go to weight (i.e., probative value) rather than the criteria necessary for admission.24

Method of Creation. Lack of information regarding the method of creation of aerial and satellite images does not necessarily impair their probative value. Pursuant to Rule 70 of the ICTY Rules of Procedure and Evidence,25 a party may provide information to the Prosecutor on a confidential basis. Where evidence is lacking as to the origin of aerial and satellite images, 'the method of their creation, the manner of their editing, how to interpret them or whether they were delivered to the Prosecution in their original form or previously modified', their credibility is safeguarded if accompanied by expert reports locating the places/individuals depicted.26

Errors. The overall weight of aerial and satellite images is not adversely affected by technical errors or the markings and removal of certain data such as site code or coordinates, particularly when authenticated by witness/expert corroboration.27 The ICTY in Popović found that the erasure of certain dates, marked initially in white and subsequently with a coloured pen, did not deprive aerial images depicting an alleged burial and reburial operation of their weight, particularly in light of extensive expert evidence.28

C6. With adequate witness/expert corroboration, aerial and satellite images should be considered authentic and reliable and due weight should be accorded to them.

Keywords

probative value; relevance; testimony; corroboration; experts

Witness testimony can corroborate the interpretation or authenticity of aerial and satellite images.29 Witness/expert corroboration is adequate if, for example, it establishes that the aerial and satellite images concerned could not be altered by anyone or it explains why dates have been added to or removed from them.30 Adequate witness/expert corroboration also includes the testimonies of the investigators about the use of such images, or complementary forensic and anthropological reports.31 As a result of expert identification and forensic analysis, the aerial images of the graves dug following the Srebrenica massacre were relied upon by the ICTY in Blagojević and Jokić to find that there had been attempts to move the graves to secondary sites.32

  1. Sean Kotz, 'What is the Difference between Satellite Imagery and Aerial Photography?' (Sciencing, 13 March 2018) \<https://sciencing.com/up-date-satellite-pictures-look-at-13825.html> accessed 13 January 2022. ↩

  2. Johnson M Houston and Piehler G Kurt, Encyclopedia of Military Science (SAGE Publications 2013). ↩

  3. Prosecutor v Krstić (Judgement) IT-98-33-T (2 August 2001) (TC) [71]-[79]; Dean Manning, Srebrenica Investigation: Summary of Forensic Evidence - Execution Points and Mass Graves (16 May 2000) 00950901-00951041. ↩

  4. Prosecutor v Krstić (Transcript) IT-98-33-T (26 May 2000) (TC) 3542. ↩

  5. Prosecutor v Krstić (Transcript) IT-98-33-T (26 May 2000) (TC) 3541; Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [71]. ↩

  6. cf Rule 68(2) of the ICC Rules of Procedure and Evidence. ↩

  7. Prosecutor v Blagojević and Jokić (First Decision on Prosecution's Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis) IT-02-60-T (12 June 2003) (TC I) [30]. ↩

  8. Prosecutor v Hadžić (Decision on Prosecution Omnibus Motion for Admission of Evidence pursuant to Rule 92bis and Prosecution Motion to Admit Gh-139's Evidence pursuant to Rule 92 bis) IT-04-75-T (24 January 2013) (TC) [21]. ↩

  9. Prosecutor v Blagojević and Jokić (First Decision on Prosecution's Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis) IT-02-60-T (12 June 2003) (TC I) [31]. ↩

  10. Prosecutor v Blagojević and Jokić (First Decision on Prosecution's Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis) IT-02-60-T (12 June 2003) (TC I) [32]. ↩

  11. cf Rule 68(3) of the ICC Rules of Procedure and Evidence. ↩

  12. Prosecutor v Blagojević and Jokić (Decision on Prosecution's Motions for admission of expert statements) IT-02-60-T (7 November 2003) (TC I) [30]. ↩

  13. Prosecutor v Blagojević and Jokić (Decision on Prosecution's Motions for admission of expert statements) IT-02-60-T (7 November 2003) (TC I) [35]. ↩

  14. Prosecutor v Blagojević and Jokić (Decision on Prosecution's Motions for admission of expert statements) IT-02-60-T (7 November 2003) (TC I) [35]. ↩

  15. Prosecutor v Ntaganda (Judgment) ICC-01/04-02/06-2359 (8 July 2019) (TC VI) [454]. ↩

  16. Prosecutor v Ntaganda (Judgment) ICC-01/04-02/06-2359 (8 July 2019) (TC VI) [454], fn 1293. ↩

  17. Prosecutor v Ntaganda (Judgment) ICC-01/04-02/06-2359 (8 July 2019) (TC VI) [569], fn 1748. ↩

  18. Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [223]. ↩

  19. Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [222]. ↩

  20. Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [114]. ↩

  21. Prosecutor v Krstić (Judgment) IT-98-33-T (2 August 2001) (TC) [223]. ↩

  22. Prosecutor v Popović et al (Transcript) IT-05-88-T (TC II) (6 February 2008) 21095. ↩

  23. Prosecutor v Popović et al (Transcript) IT-05-88-T (TC II) (6 February 2008) 21171. ↩

  24. Prosecutor v Popović et al (Transcript) IT-05-88-T (TC II) (7 February 2008) 21187. ↩

  25. cf Rule 81 of the ICC Rules of Procedure and Evidence. ↩

  26. Prosecutor v Tolimir (Judgement) IT-05-88/2-T (12 December 2012) (TC II) [69]-[70]. ↩

  27. Prosecutor v Popović et al (Judgement Volume I) IT-05-88-T (10 June 2010) (TC II) [75]. ↩

  28. Prosecutor v Popović et al (Judgement Volume I) IT-05-88-T (10 June 2010) (TC II) [72]-[75]. ↩

  29. Prosecutor v Tolimir (Judgement) IT-05-88/2-T (12 December 2012) (TC II) [70]. ↩

  30. Prosecutor v Popović et al (Judgement Volume I) IT-05-88-T (10 June 2010) (TC II) [73]; Prosecutor v Popović et al (Transcript) IT-05-88-T (7 February 2008) (TC II) 21187. ↩

  31. Prosecutor v Tolimir (Judgement) IT-05-88/2-T (12 December 2012) (TC II) [70]. In Case 09/748004-09 Prosecutor v Basebya ECLI:NL:RBDHA:2013:8710 [7], the Dutch District Court in The Hague relied on aerial photographs depicting the Defendant's neighbourhood which experts used to determine the nature of the Defendant's living environment. ↩

  32. Prosecutor v Blagojević and Jokić (Judgment) IT-02-60-T (17 January 2005) (TC I Section A) [382]. ↩