Aparajitha Narayanan, Leiden University, The Netherlands
Aparajitha Narayanan has a Bachelor of Laws degree from I.L.S. Law College, India, 2015. She has worked in a corporate law firm for a period of three years, after which she pursued her LLM in Public International Law, with a Specialisation in International Criminal Law, from Leiden University. Her LLM thesis entitled ‘Command Responsibility: A Contemporary Exposition’ was supervised by Professor William Schabas. Her areas of interest include International Criminal Law (specifically, defence rights), Public International Law and International Humanitarian Law. She currently works as a Lecturer at Jindal Global Law School on the course Global South and International Law, taught by Prof. Dr. B.S. Chimni.
Modern international criminal justice, and particularly the evolution of digital evidence, owe their exposition to the war crimes trials of World War II. During the time of establishment of such tribunals and their functioning systems, many felt that international criminal law (ICL) did not possess the legal finesse necessary to reprobate the atrocities committed then. While certain crimes were ostensibly considered to be morally wrong by the international community as a whole, legal sanctions against such actions were not entirely present. International criminal law thus had to develop and draw level with the expectations of the world, against the backdrop of the acts of savagery that took place at the time. Contemporary times also dictate that as technology becomes more and more boundary-less, it tends to take crimes in its stride, thereby enhancing their outreach as well. This paper will trace the history of evidence collection in ICL and will highlight the linkage between digital evidence and contemporary times. While delving into specific cases, the paper will elaborate on the present and future use of digital technology in international crimes. It will also deal with the confluence of digital technology and open source evidence. This paper will argue that digital evidence in ICL may be disadvantageous to defence teams, owing to lack of resources, and certain solutions will be discussed to address the above problem. In conclusion, the positive and negative aspects of technology’s influence on ICL will be espoused, while underscoring the need to take a cautious approach.
Law is an evolutive paradigm; its development is directly affected by changes in society and politics. We live in a digital age, the effects of which also trickle down to the legal field. Evidence collection is a specific facet of law that has taken technology in its stride.
International Criminal Law (ICL) is multifaceted in both its yield and its outreach, since grave international crimes are typically rife with factual complexities (Ford, 2014, p. 5; Ford, 2015, pp. 151-152). During the investigation of a crime of murder, it will not suffice if the elements of actus reus (the constituent element of a crime, the physical ‘act’ of the commission of crime) and mens rea (the mental element of the crime, the ‘intention’ to commit the crime) are proven (simultaneously). Apart from the specific elements of a crime, the contextual elements, the individual criminal responsibility of the perpetrator (linkage evidence) are also required to be established. Failing at this, the charge falls flat (Dörmann, 2003, pp. 241, 357). For instance, in order to prove the crime against humanity of sexual slavery, it is also necessary to establish that the perpetrator engaged in purchasing, selling, bartering etc. the victim or deprived his/her liberty, made the victim participate or carry out acts of sexual nature, or that the conduct was committed as a “widespread or systematic attack against a civilian population,” among other elements (Article 8, Elements of Crime, 2002). From the above, we can clearly comprehend that the complexity of an international crime is enormous, and therefore, that its adjudication is also trammelled by composite intricacies.
International criminal courts and tribunals are ideal platforms that can use and showcase advancements in digital technology in an elucidatory manner. They may even set a good example for domestic processes provided they achieve high evidentiary thresholds. Courtroom evidence is now focused on new tools, which have changed the very identity of the said field. The high connectivity, easy availability, and expansive capabilities of internet enabled devices and cameras have successfully made their way into the realm of evidence gathering (Bergasmo and Webb, 2007). They have proved to be instrumental in devising updated methodologies for investigators to follow. International criminal trials require prosecutors to collect a wide array of evidence and present a diverse body of proofs to establish multiple crimes. Advanced digital technology is capable of storing copious amounts of information about any ‘case’ or even a ‘situation;’ it also assists lawyers and prosecutors to strengthen evidence by way of introducing time stamps etc.
Currently, in ICL, there are no rules of procedure that may be exclusively applied to digital technology related evidence, indicating that it is perhaps not keeping up with the changing times. The ‘best evidence rule’ followed in most criminal trials requires investigators to collect and present only evidence that is best suitable for establishing the factual circumstances (Freeman, 2018). However, extrapolating the said rule to evidence gathered via digital technology is difficult, since there is a barrage of information that may become available, thereby flooding the evidence table with superfluous information.
This paper will argue that digital technology and its influence on the functioning of international criminal law have complex nuances. It is imperative to first understand the import of advancement of new technologies before relying on them for evidentiary purposes. In order to develop this argument, this paper will firstly discuss the types of evidence (including the three-prong test in ICL) and the applicable provisions of the Rome Statute of the International Criminal Court (hereinafter called the Rome Statute) in relation to digital evidence. Then, the paper will trace the history of collection of evidence in ICL. Further, an examination of the evidence-gathering and submission methodologies used in some recent cases brought before international criminal courts and tribunals will be done, highlighting some of the contemporary nuances of international crimes and their linkages with the digital age. Moving on, the paper will elaborate on the applicable law of evidence and the practical changes carried out by investigators owing to advancements in technology, thereby filtering it further and understanding whether there is any ‘tunnel vision’ approach. Certain specific cases that throw distinctive light on the present and plausible future use of digital technology in evidence gathering concerning international crimes will then be discussed. The paper also attempts to comprehend the disadvantages faced by defendants when trials focus on digital evidence. Therefore, the paper will also discuss some suggestions on how to address the said problems. Finally, the present-day challenges of new advancements in the international criminal law sphere will be evaluated, while leaning principally towards its ambivalent potentialities.
2 Collection of evidence in international criminal law
There are different types of evidence: testimonial (where written or oral evidence is offered as truth in a court of law), documentary (where documents are submitted to a court of law as evidence), physical (material evidence used to prove the fact in issue) and forensic (evidence obtained via scientific methods, submitted in a court of law). Article 69(2) of the Rome Statute deals with giving testimonies via audio or video conferencing (Rome Statute, 1998). Rule 67 of the Rules of Procedure and Evidence (RPE) of the ICC concerns itself with the procedural requirements of such testimonies (RPE, 2004). It is relevant to note that Regulation 26(4) of the Regulations of the ICC (2004) states that “in court proceedings, evidence shall be presented in electronic form whenever possible, however, the original form shall be authoritative” (Regulations of the ICC, 2004).
Further, Article 69(4) of the Rome Statute enumerates a three-prong test for admission of evidence, structured around the following elements:
(i) “relevance” (whether it relates to the circumstances of the case), (ii) “probative value” (whether it contributes to proving the issue at hand) and (iii) “relevance to outweigh any potential prejudicial effect that may be caused by its admission” (Rome Statute, 1998).
It is pertinent to keep in mind that the above conditions must be met even while presenting digital or electronic evidence. Digital evidence may be defined as “data that is created, manipulated, stored or communicated by any device, computer or computer system or transmitted over a communication system, that is relevant to the proceeding” (Mason, 2008, p. 35).Digital evidence was first used by national jurisdictions, before its extrapolation to ICL. While witness testimony generally forms the focal point of international criminal trials (Article 69(2), Rome Statute, 1998; Prosecutor v. Bemba, Trial Chamber, 2011, para. 76), other forms of evidence also contribute to the smooth functioning of the trial process. They may include photographs, aerial imagery, recordings (audio and video), forensic evidence, ballistic reports, DNA etc.
With the advent of technology, nowadays any digital/electronic device is capable of being used as evidence, be it a mobile phone, a laptop, or a camera. While it is true that an eyewitness account is essentially the person’s rendition of a recollected memory of the incident, it may not be as all-encompassing as an electronic device. For instance, a satellite image may be capable of pinpointing an inaccessible spot, and mobile call records could enable one to identify the exact communications which may in turn assist in identifying the accused’s activities. Such information may potentially help courts in ascertaining the truth about the incident and further provide much-needed support in the proper execution of the investigation and its appropriate adjudication. Even so, while Rule 68 of the RPE provides that prior recorded testimony can be used as an alternative to viva voce testimony, it comes ridden with restrictions (RPE, 2004).
3 History of collection of evidence in international criminal law
3.1 The Nuremberg International Military Tribunal
The International Military Tribunal (IMT) at Nuremberg was unique in a plethora of ways. It was set up just about six months after the surrender of Germany post World-War II (US Holocaust Memorial Museum, IMT at Nuremberg) and was lauded for its quick prosecutions. Prior to the establishment of the IMT, trials used to heavily rely on witness testimonies. However, for the first time, the IMT emphasised documentary evidence rather than live witness testimonies. The widespread and systematic persecution of the Jewish population by the Nazis was diligently documented (including registration forms for Jewish people, containing their names and other details, inventory lists for Jewish properties etc.) by official government and military records, thereby strongly assisting in proving genocidal intent, among other elements (Boender and Wichert, 2012, p. 10). Films and photographs were also widely prevalent since World-War II was an infamously important conflict (Freeman, 2018, p. 299). Reporting of crimes was done through the use of photography, and films also played the role of an educational and informative tool in spreading the news about war crime efforts in different parts of the world. Not only were whispers regarding the atrocities committed during the biggest war in history heard by one and all: actual footage of the heinous crimes committed were also virtually witnessed by many. Thus began the reliance on digital technology for the prosecution of international crimes.
Ad-hoc tribunals like the International Criminal Tribunal at Rwanda (ICTR), the International Criminal Tribunal of the former Yugoslavia (ICTY), Special Court for Sierra Leone (SCSL), Special Tribunal for Lebanon (STL) and the Extraordinary Chambers of the Courts at Cambodia (ECCC) also depended on digital evidence, in a direct or indirect manner, which will be discussed in the sub-sections below.
3.2 International Criminal Tribunal at Rwanda
In proceedings before the ICTR, the Office of the Prosecution (OTP) relied on a video recording of a rally to prove that the accused had attended the rally (where the Interahamwe were present) and given a speech inciting violence against the Tutsis, and had also submitted a radio transcript of the same (Prosecutor v. Karamera et al., ICTR, Trial Chamber, 2012, para. 508). The ICTR, based on this information, held that the radio transcript effectively authenticated the video’s date, thereby proving conclusively that the defendant had indeed attended the rally (Prosecutor v. Karamera et al., ICTR, Trial Chamber, 2012, para. 598).
More radio announcements were submitted by the OTP wherein it was stated clearly that Tutsis were to be pursued and harmed (Prosecutor v. Rutaganda et al., ICTR, Trial Chamber, 1999, para. 358). The ICTR held that the recordings were authentic, when combined with an expert witness’ testimony (among two other testimonies) (Prosecutor v. Rutaganda et al., ICTR, Trial Chamber, 1999, para. 363). Additionally, to prove ‘control,’ video footage along with a transcript was submitted by the OTP. This was used by the ICTR to establish that the person in the video, the defendant, was indeed the Minister of Defence at the time of the conflict, thereby exercising effective control over the military forces (Prosecutor v. Bagosara et al., ICTR, Trial Chamber, 2008, para. 493, 494). Although the ICTR blatantly refused to admit any evidence without the author’s testimony (supporting the digital evidence), it was considered a laudable effort at the time (Prosecutor v. Renzaho, ICTR, 2007, pp. 1, 2).
3.3 International Criminal Tribunal for the former Yugoslavia
Upon obtaining the testimonies of intercept operators, the ICTY admitted into evidence certain intercepted communications produced by Bosnian Muslims (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 63). In the same instance, the intercepts’ printouts were corroborated with the original notebooks of the intercepted communications. Furthermore, the evidence was seconded via notes of UN officials, increasing its probative value, by way of telephone books, aerial imagery and witness statements (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 64). The Tolimir decision, wherein the accused was held guilty of having committed the crimes of genocide and other crimes against humanity, is particularly significant. In the case of Prosecution v. Tolimir, the OTP submitted aerial imagery evidence obtained from the United States of America, which came embedded with instructions not to discuss the methods used to obtain such evidence (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 68). Such evidence was found to be reliable regardless of the absence of direct evidence tracing its origin and collection methods since witnesses and investigators from the OTP gave testimonies authenticating the said aerial images (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 70). The ICTY was also imperative in establishing that upon the authentication of digital evidence, contrary testimonial evidence may be impeached (Prosecutor v. Krstić, ICTY, 2001, Trial Chamber, para. 278). The OTP also submitted video and other scientific evidence for authentication and the ICTY categorically held that since the digital evidence was separately corroborated by other pieces of evidence, its veracity could not be challenged (Prosecutor v. Galić, ICTY, 2003, Trial Chamber, para. 549).
Chain of custody as such is generally a controversial aspect of the use of evidence in criminal trials. However, identification of a witness via voice interception proved the authenticity of a piece of digital evidence in the case of Prosecutor v. Brdanin, even though it had certain chain of custody issues (Prosecutor v. Brdanin, ICTY, 2004, Trial Chamber, para. 34). Handwritten notes converted to digital notes were permitted by the ICTY instead of audio recordings, which would have been considered ‘best evidence’ (Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39). Regarding the preservation of digital evidence, this was not a pre-requisite for it to satisfy the ‘best evidence’ rule popularly applied in international criminal trials, which was a considerable departure from earlier jurisprudence (Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39). In respect of altered evidence, the ICTY held that such alterations do not affect the credibility of the evidence (Prosecutor v. Popovic et al., ICTY, 2010, Trial Chamber, para. 73-75). In addition, even when one of OTP’s analysts stated that certain intercepts could have been tampered with, the OTP contended that the transcripts and notes (instead of the recordings) ought to be admitted, despite the defence’s objections to the transcripts being incomplete (Prosecutor v. Blagojević and Jokić, ICTY, 2005, Trial Chamber, para. 29). The ICTY chose to admit the transcripts, stating that the transcripts were authentic since their preservation procedures were in order (Prosecutor v. Blagojević and Jokić, ICTY, 2005, Trial Chamber, para. 29; Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39).
3.4 Special Tribunal for Lebanon
Trials in the Special Tribunal for Lebanon (STL) were entirely held in absentia of the defendants, in a series of firsts for the STL (apart from being the first hybrid tribunal that tried domestic cases on terrorism) (Fassbender, 2007). Telecommunication records (in this case, “call data records, cell site information and subscriber records”) were submitted as evidence by the OTP (first of its kind evidence) since it was alleged that the terrorists who killed the former Prime Minister of Lebanon Mr. Rafik Hariri had been tracking his movements using mobile networks (Public Information and Communications Section of the Special Tribunal for Lebanon, 2017). Further, video footage evidence has been submitted by the OTP, which contains surveillance cameras in the area where the attack occurred, and it is to be considered in conjunction with forensic evidence (STL Bulletin, 2018, p. 5). To understand the use of explosives and the epicentre of the detonation, the OTP submitted expert evidence that used the aid of computer programmes and mathematical algorithms to ascertain the various permutations and combinations (STL Bulletin, 2017, p. 1). The said evidence substantiates the OTP’s assertion that the explosion was above-ground and not under-ground as contended by the defence, and was the work of a suicide bomber (Prosecutor v. Ayyash, STL, Key Developments, Case Timeline). It is relevant to note that cellular signals are neither accurate nor highly reliable, and while there is no judgment on this matter yet, once the above case is adjudicated, the haziness surrounding the evidentiary value of such items will conceivably abate.
3.5 Extraordinary Chambers in the Courts of Cambodia
Film recordings of prison camps during the Khmer Rouge regime were not admitted by the Extraordinary Chambers in the Courts of Cambodia (ECCC) owing to the objections raised by the defendant about their reliability and authenticity. The ECCC, in Case 001 (regarding two sequences of film footage submitted by the co-prosecutors), held that the said films would end up intruding on the court’s valuable time (Case 001, ECCC, 2009, Trial Chamber, para. 5, 15). The OTP corroborated the said video recordings with a live witness testimony, however, the ECCC did not budge from its decision of rejecting their credibility. Further, video evidence was submitted by the OTP to the ECCC in another case as well (Case 002), but owing to its ‘low probative value,’ the ECCC did not admit it as evidence (Case 002, ECCC, 2018, Trial Chamber, para. 69).
By noting the pronouncements made by the above tribunals and courts, it becomes clear that digital evidence served as an important addition to the evidentiary procedures of international criminal trials. When combined with other corroborative evidence, its weightage multiplies two-fold and its vast potentialities may see the light of day when all the stakeholders understand the import of its influence in criminal trials. However, the above paragraphs also highlight that courts are extremely cautious (as they ought to be) before admitting digital evidence not corroborated by other pieces of evidence which they believe aid in strengthening its authenticity and veracity. Further, it is also evident that if preservation procedures are strictly followed while preserving digital evidence, courts trust that such evidence is credible.
4 The International Criminal Court and its treatment of digital evidence
The ICC, in its formative years, did not depend heavily on digital evidence during investigations. Later on, in 2008, the OTP relied on digital evidence while arresting Jean-Pierre Bemba, who had been accused of committing war crimes and crimes against humanity in the Central African Republic (CAR) (Prosecutor v. Bemba et al., ICC, 2017, Appeals Chamber, para. 5), and Callixte Mbarushimana, accused of committing war crimes and crimes against humanity in the Democratic Republic of Congo (Prosecutor v. Mbarushimana, ICC, 2011, Pre-Trial Chamber, para. 23). The investigation process produced a surfeit of digital evidence, which had to be processed by the national authorities in CAR and Congo respectively, since presumably, the OTP did not have experts who could attest to its credibility (Freeman, 2018, p. 306). After 2008, digital evidence became the norm, rather than the exception, and its usage was proportionally augmented owing to the increased use of many sources of digital evidence, like laptops, mobile phones and social media (Digital Fingerprints, 2014, p. 5).
The OTP has investigated cases where digital evidence was of paramount importance, such as in the situations in Libya and the Ivory Coast. The new trend urgently demanded preservation of digital evidence and the creation of a system governing the same. The Scientific Response Unit (SRU) in the OTP then added a sub-branch within it, that of a Forensics Science Section, consisting of Forensic, Cyber and Imagery sub-units (Ambos, 2016, p. 119). The focus was now placed on how technology and its widespread use may assist criminal investigations. For the past years, the OTP has been encouraging open-ended investigations with a view of promoting digital evidence, as a form of non-witness based evidence collection. The OTP started hiring experts in digital forensics for its SRU and also trained its investigators in cyber investigations conducted by INTERPOL (Digital Fingerprints, 2014, p. 8).
The remainder of this section will review some important cases adjudicated by the ICC, like those of Lubanga, Katanga, Al-Mahdi, Bemba and Al-Werfalli. Since the ICC is the most important court for prosecuting international trials, it is essential that we look into its treatment of digital evidence. The ICC’s handling of digital evidence could serve as a blueprint for other courts and tribunals and aid in further understanding the procedural and substantive aspects of the importance of digital evidence in the prosecution of international crimes.
The trial of Lubanga was the first trial before the ICC. Thomas Lubanga Dyilo was the founder and leader of the Union of Congolese Patriots (UPC), a rebel group responsible for committing mass atrocities in the Democratic Republic of Congo (DRC). Lubanga was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. The OTP introduced oral, written and audio-visual evidence, while physical and forensic evidence was not submitted at all (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 93), a decision which was touted to be a gamble by many. Transcripts of interviews, videos, photographs, maps etc. were also introduced, either while taking the oral evidence of witnesses, or by way of a special application made by the respective counsel (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 93). The OTP also introduced video footage showcasing the defendant inspecting and conscripting his troops, the majority of whom seemed to be children under the age of 15 years (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 793, 794). Ostensibly, the probative value of the digital evidence in this case was known to be minimal. The OTP chose to rely on such evidence as a way of corroborating the oral testimonies of witnesses. The defence, however, argued that the video footages were simply unreliable since they could not definitively conclude whether the children were 12-13 years old or 15-16 years old (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 716). The Trial Chamber then held that the defendant intended to recruit children below the age of 15 and that the video footage clearly proved that he had no genuine intention of avoiding recruiting children (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 1335).
During the proceedings in the trial of Germain Katanga, who was the commander of the rebel group Force de résistance patriotique en Ituri, was convicted of being an accessory to war crimes and a crime against humanity committed on 24 February 2003 during the attack on the village of Bogoro, in Ituri, DRC. The OTP included the following digital evidence:
(a) a 360° visual representation of the ‘Institut de Bogoro’ (where civilians would take refuge whenever an attack would occur), along with a visual technician’s report;
(b) over 200 photographs taken by the visual expert and by drone, used to produce the visual presentation;
(c) a ballistic expert report;
(d) a video showing footage of the crime scene investigation by the ballistic experts and its log;
(e) aerial photographs;
(f) videos showing the exhumation and examination of human remains (and their logs); among others
(Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 2).
The defence countered the admission of the above evidence by arguing that they were complex enough to be challenged by counter experts of the defence (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 7). Except for the ballistic report, the Trial Chamber admitted the others into evidence, while specifically stating that “the material in itself is not incriminating and has very limited evidentiary value. It is simply a tool for orientation, just like a diagram or drawing” (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 39). It is necessary to note that the OTP was severely reprimanded for not having consulted the defence while preparing such digital evidence and for taking evidentiary decisions unilaterally (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 74).
Ahmad Al Faqi Al Mahdi, an alleged member of Ansar Eddine, a movement associated with the Al Qaeda, was convicted of acting as a co-perpetrator of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012. The OTP’s evidence against the defendant included inter-alia: satellite images (showcasing the sites before and after their destruction), archive photographs, internet audio recordings from armed groups, video recordings showing destruction of the sites, geolocation and time-stamping expert reports, and 360° panoramic images (Freeman, 2018, p. 316; Prosecutor v. Al Mahdi, ICC, 2016, Transcripts, pp. 28, 29). The defence did not refute the admissibility of the above evidence, and therefore, the court did not have to rule on its admissibility. It is particularly noteworthy to mention herein that the amount of ‘open-source evidence,’ i.e. information taken from public sources for specific purposes of trials (Mehandru and Keonig, 2019, p. 130), used by the OTP in the above trial was unprecedented. The defendant had also recorded videos where he was seen writing sermons dedicated to mausoleums’ destruction and directly participating in the attacks, while also giving moral support (Prosecutor v. Al Mahdi, ICC, 2016, Trial Chamber, para 37, 38). The public had also uploaded videos of the said destruction, which inadvertently resulted in the enhancement of public participation (indirectly albeit) in the trial process. Furthermore, the use of digital evidence assisted the OTP in establishing a solid, wholesome and strong case against the defendant.
However, the treatment of digital evidence by the OTP in this case was not viewed positively by one and all. Open-source evidence is to be approached warily, since they may be doctored, fake or downright falsified. Additionally, the satellite images of Google Earth were also viewed apprehensively by some digital experts since no background check was carried out by the OTP authenticating such images. It is relevant to note that the above approach is cause for concern since meta-data issues may crop up, in light of the fact that Google Earth constantly keeps updating itself, which means that positional accuracy may keep varying (Freeman, 2018, p. 318; Mohammed et. al., 2013, pp. 6, 9). An interactive platform was also devised by the OTP, which was included as demonstrative evidence, enabling the OTP to “optimally present various videos found on the internet” (Prosecutor v. Al Mahdi, ICC, 2016, Transcripts, p. 44). It could be said that such a technologically sound and innovative approach was rightly praised by participants and onlookers alike and greatly assisted in finding the defendant guilty.
Jean Pierre Bemba was the President and Commander-in-chief of the Mouvement de libération du Congo and was charged with the commission of war crimes and crimes against humanity. The OTP introduced ten audio recordings of radio programmes, in spite of authenticity challenges made by the defence (Prosecutor v. Bemba et al., ICC, 2015, Prosecution’s request, para. 18). Telephone intercepts, call data and financial records were also extensively used during the appeals stage (Prosecutor v. Bemba et al., ICC, 2016). At the investigations’ stage, the OTP submitted as evidence emails and other electronic data belonging to the defendant, after having confiscated his laptop and mobile phone. It was, however, argued by the defence that the OTP had failed to authenticate the emails and that they must consequently be excluded. The OTP also relied on photographs found on a Facebook profile, however, the defence countered the same by contending that since Facebook does not require any authorisation prior to account-creation, attribution would not be possible (Prosecutor v. Bemba, ICC, 2015, Defence’s Response, para. 44). Even though the judgment did not rule on the admissibility of this social media evidence, it may contentiously pave the way for the OTP and the defence to make use of the wide array of digital evidence in the future. Needless to say, future jurisprudence will, in all likelihood, have to address challenges posed by admission (or rejection) of social media evidence in this growing digital age.
Other tricky issues, such as the right to privacy of the defendant, may also encumber the positive influence of digital evidence. In Bemba, it was contended by the defence that by virtue of the release and potential use (as evidence) of the financial records of the defendant, his right to privacy was being violated, since the evidence collection was done prior to the receipt of the first order by a relevant judge, thereby flouting Austrian laws (Prosecutor v. Bemba, ICC, 2016, Trial Chamber, para. 11). The defence thereby submitted that the admission of such financial records as evidence would violate the integrity of the proceedings, as per Article 69(7)(b) of the Rome Statute (Prosecutor v. Bemba, ICC, 2016, Trial Chamber, para. 14). It was then held by the Trial Chamber that although the said evidence was obtained prior to receipt of an approval from the competent domestic authorities, the nature of such information is also not particularly sensitive and will thus not violate the internationally recognised human right to privacy (Prosecutor v. Bemba, ICC, 2018, Appeals Chamber, para. 338, 348). Jurisprudentially, this was the first time the ICC recognised any international human right, which proved to be the rightful cause for celebration among the human rights’ aficionados of the criminal justice process.
The International Criminal Court’s (ICC) investigations in Libya posed many legal challenges in this respect. Citizen and victim engagement in fact-finding was unparalleled: social media platforms like Twitter, Facebook and the YouTube were inundated with potential usable evidence that documented the conflict on a real time basis (Hamilton, 2019). In 2017, a public arrest warrant was released by the ICC against Mr. Mustafa Busayf Al-Werfalli regarding the situation in Libya. Mustafa Busayf Al-Werfalli was a commander in the Al-Saiqa Brigade and is alleged to have directly committed and ordered and commission of war crimes in Benghazi and other surrounding areas in Libya. The said warrant was primarily issued based on information derived from social media, such as execution videos (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 14). In a video, the defendant is seen to be wearing a rebel uniform, carrying a weapon and shooting three people in the head (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 12). Another video also points to his raising his left hand and sweeping it down as if ordering the execution. Though the source of the video is not conclusively ascertained, the OTP did note that “the evidence supporting the application for the arrest warrant comes from social media posts by the Media Centre of the Al-Saiqa Brigade” (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 3). Notably, Article 15(3) of the Rome Statute stipulates that a ‘reasonable basis’ must be established to proceed to the investigation stage, using the available material (Article 15(3), ICC Statute, 1998). Clearly, this threshold has to be met by the OTP and time will tell whether the above arrest warrant was validly issued or not.
The above section is an important contribution to the discussion of the use of digital evidence since the ICC is the principal court as far as the prosecution of individuals committing heinous international crimes is concerned. Arguably, international criminal justice practitioners have bestowed upon it the status of ‘first responders.’ Hence, the ways of handling digital evidence by bodies of the ICC serve as a reference material for other courts and tribunals.
5 Digital evidence in international criminal law – posing a serious disadvantage to the defence?
In order to uphold the integrity of the criminal justice system, the rights of the accused must always be protected; be it the accused’s right to effective legal representation, defence independence or, chiefly, the principle of equality of arms. The defence cannot work in a dysfunctional setting, especially one that may primarily concentrate on recognising and endorsing the efforts of the prosecution. Justice cannot be meted out if one party is at an obvious advantage and the other’s hands are essentially tied in an inordinate manner (perhaps, due to budgetary constraints, lack of communication, unequal resource allocation etc.). In the Tolimir decision, for instance, the ICTY held that the defence has to prove that the digital evidence submitted by the prosecution is unreliable before admitting any challenge on such grounds. Digital evidence could be construed as that invisible tripwire which aids only the prosecution, perhaps at the cost of defence rights. For instance, when the defence team in the previously mentioned Ayyash case objected to the acceptance of certain aerial images, the STL held that such digital evidence cannot be excluded without a counter-reliability and authenticity scrutiny conducted and proven by the defence (Prosecutor v. Ayyash et al., 2012, STL). It is extremely problematic for the defence to accumulate enough expertise to put forth counter evidence challenging that of the OTP’s since, unlike the prosecution, it does not boast of budgetary leniencies.
A quintessential fair-trial requirement is that of the principle of ‘equality of arms,’ which dictates that at no point during the criminal proceedings should any party “be put in a disadvantaged position vis-à vis the other” (Tuinstra, 2009, Summary). This principle is, however, ignored in ICL trials, and while it may arguably help in achieving the goal of ending impunity, it does so at the expense of the rights of the defence. As noted in the preceding section, judges at the ICC reproached the OTP for not working with the defence during the Katanga trial, particularly in relation to evidentiary submissions (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 2). In the Ayyash case, the overwhelming amount of digital evidence submitted by the prosecution is so technologically complex that it is nearlyimpossible for the defence to refute it without expending similar resources and comprehending the true import of such evidence (Prosecutor v. Ayyash, STL, Key Developments, Case Timeline). Furthermore, due to budgetary constraints, it would not be feasible for the defence team to formulate and successfully prove its counter theories. Devoid of an abundance of resources at its disposal, defence teams cannot collate sufficient evidence favouring the defendants or debunking the OTP’s technically advanced evidence.
At various international criminal tribunals and courts, the Registry is placed at the helm of the servicing branch. Owing to the fact that it is ordained to fulfil the administrative needs of all the participants, defence interests occasionally take a hit. Setting up a separate body to address the needs of the defence teams could serve as a solution-primer for the above misgivings. A good example of equal representation would be the ICC’s Legal Aid Commission where the defence team may make its own arguments in relation to defence funds (Tuinstra, 2009, Summary). To encourage transparency for the defence and enable it to participate in the decision-making process, the proposal of establishing a separate defence body could be given some credence. While it is a known fact that members of the OTP undergo regular training in honing their prosecutorial skills for better comprehension of evidentiary methods, the defence body could conduct similar workshops for the defence teams as well. Reducing disclosure obligations only for the defence could also polemically aid in tipping the partisan imbalance scale and righting apparent wrongs, although, as a workable suggestion, it may not be altogether viable. Justice that is seen to favour the ostensibly ‘good side’ is antithetical since its very fulcrum rests on equal treatment of all parties. Nonetheless, one must tread such an unpaved path with caution, since at no point can it lead to friction among the teams or cause conflicts of interest, inadvertently harming the very integrity of the judicial process (Mercuri, 2010, p. 132). In the future, in an effort to understand and appreciate the various facets of potential digital evidence, all the organs of courts may devise a strategy (forging partnerships with technology companies, programmers, government agencies, investigatory organisations etc.) to foresee digital evidence-related complications and counter them effectually (Digital Fingerprints, 2014, p. 12).
The increased reliance on digital technology in every single aspect of our lives is an irrefutable fact and it would not be a hyperbolic prediction if one were to hypothesise that we will be inextricably woven to its clutches as time progresses. We live in an era spearheaded by technological revolutions and the universal acceptance of the unfettered dependence on digitalisation must be viewed with a certain level of apprehension. The criminal justice system is also caught up in the technological web, be it in the national or international jurisdictions. Anyone who perceives digital evidence as a good Samaritan would argue within reason that the use of digital evidence has made the justice system more efficient, rendering quick yet effective decisions (Susskind, 2010, p. 166). Remarkably, digital technology “is held by many to be if not the panacea then at least a fundamental building block in any credible attempt to reform the criminal justice system” (Susskind, 2010, p. 160). However, those who err on the side of caution would contend that the existence of an unmanageable amount of digital evidence may create a backlog (Goodison et al., 2015, p. 15) and torrentially disparage the quality of evidence submitted in international criminal trials.
Specifically, in relation to open-source evidence, which has been gathering specific momentum in ICC trials (or even during pre-trial stages), the OTP is currently collating data from various stakeholders involved in an effort to strengthen the process and comprehend whether any further assistance is required. Concomitantly, the OTP is playing an active role in the formulation of the ‘International Protocol’ that may standardise the use of open-source evidence, which is expected to be up for public viewing soon (Mehandru and Koenig, 2019). Strategic tie-ups with law enforcement agencies, non-governmental organisations and educational institutions were instrumental in ensuring that those practising international criminal trials were kept abreast of relevant technological advancements (International Bar Association, 2016, Recommendations, p. 32).
Growing concerns are being voiced out by one and all regarding the negative impacts of the admission of digital evidence and the international community cannot take shelter in its ‘tunnel vision’ of securing the interests of justice in an unfastidious manner, thereby letting inter alia, defence rights (and the right to privacy) take a backseat. Training and funding on all levels (be it for the defence or the victim representatives) may be provided to allow technology to realise its full potential in the evidentiary scheme of the criminal justice system. A structured, cautious approach needs to be taken while espousing the advantages of the ready acceptance of technological innovations within the realm of ICL, preferably resulting in the converging of divergent minds. Law must never act as an afterthought, certainly not criminal law; it must resemble a macrocosm, rather than a microcosm, the whole must always be greater than the sum of its parts.
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