CENTRAL UNIVERSITY OF SOUTH BIHAR

International Criminal Law

Digitalization of evidences with view to ICC

Submitted to: Submitted by:

Dr. NITU KUMARI SWARAJ DIGI
Assistant Professor B.A.LL. B

School of law and Governance CUSB1913125108

Central university of South Bihar 10TH Semester (2019-24)

 ACKNOWLEDGEMENT

"I am profoundly grateful for the invaluable guidance and mentorship provided by Dr. NITU
KUMARI's unwavering commitment to academic excellence, coupled with her depth of
knowledge and expertise in the field, has been instrumental in shaping the trajectory of this
study. Her keen insight, constructive feedback, and dedication to fostering intellectual growth
have not only enriched my understanding of the subject matter but have also inspired me to
strive for greater scholarly achievement.

Beyond her role as an educator, Dr. NITU KUMARI has consistently demonstrated a genuine
passion for nurturing the academic and professional development of her students. Her
approachable demeanor, willingness to engage in rigorous intellectual discourse, and
commitment to fostering a supportive learning environment have profoundly impacted my
academic journey. I am deeply appreciative of her tireless efforts to cultivate critical thinking
skills, promote academic integrity, and instill a lifelong love of learning within her students, I
am truly grateful."

SWARAJ DIGI

CUSB1913125108
 Content of Research

• INTRODUCTION 4

• APPROACH FOR EVIDENCE PRESENTATION 4

• EADMISSIBILITY OF EVIDENCE AT THE ICC 5

• Digitalization of Evidence 7

• Critical view on Digital evidence 8

• CONCLUSION 10

• BIBLIOGRAPHY 11
 Introduction

Traditional Diplomacy is a concept that has existed for many centuries, even before it was
given an official name. Diplomacy refers to negotiations made between actors as they attempt
to reach certain objectives. In the context of international affairs, diplomacy is a method by
which states manage their relationships with one another and try to achieve their national
interests.1
In an era where technology intertwines seamlessly with diplomacy, the International Criminal
Court (ICC) stands at the forefront of leveraging digital innovation to enhance its pursuit of
justice. At the heart of the ICC's mission lies the imperative to uphold the rule of law and
ensure accountability for the most heinous crimes known to humanity. In this digital age, the
ICC embraces innovative strategies, particularly in the realm of evidence collection and
presentation, to bolster its efficacy and reach, they signify a fundamental shift in how the court
engages with stakeholders, gathers evidence, and communicates its findings to the world.
Through the strategic use of technology, the ICC endeavors to transcend geographical
boundaries and bridge cultural divides, fostering collaboration and understanding among
diverse actors in the pursuit of justice.

At the core of the ICC's digital diplomacy efforts pertaining to evidence is the recognition of
the transformative power of digital technologies in enhancing the quality, quantity, and
accessibility of evidence. From satellite imagery and social media analytics to forensic digital
analysis, the ICC harnesses a myriad of technological tools to corroborate testimonies,
reconstruct timelines, and establish the veracity of claims
APPROACH FOR EVIDENCE PRESENTATION

This comprehensive approach, which combines established protocols, digital forensics

expertise, innovative technological platforms, and a commitment to adaptation, is the ICC's
preferred method for ensuring the integrity and admissibility of evidence, including digital
evidence, in its proceedings.

Amacker, Christopher. (2011, July 20). The Functions of Diplomacy. E-International Relations Students.
1

Retrieved from http://www.e-ir.info/2011/07/20/the-functions-of-diplomacy/ (accessed 25 April 2024)

International justice mechanisms have attempted to prioritize a victim-centered approach to
justice; however, this approach may conflict with the digital technology-based “solutions” on
which these mechanisms increasingly rely.
According to the victim-centered approach, service providers must the needs and priorities of
victims or survivors of violence at the forefront of any response. Studies have shown that
victims prioritize and value meaningful participation in justice proceedings and the feeling of
being heard. In fact, victims form their opinions about the legitimacy and credibility of the
processes based on their level of engagement. This research shows that victims are likely to
question proceedings in which they are not engaged, irrespective of their outcomes, while they
tend to accept the result of justice proceedings in which they meaningfully participate.2
War crimes investigations have traditionally relied almost exclusively on witness testimony
and mud and bones forensics from crime scenes. This began to change in 2013, when the ICC
investigated Malian jihadist Ahmad Al Faqi Al Mahdi, who ordered the destruction of shrines
and mosques in Timbuktu during an occupation of this city in Mali. Video evidence
documented the destruction of these holy sites, which are UNESCO heritage sites. Al Mahdi’s
group took some of these videos, and international media filmed others. Prosecutors ultimately
had such a large trove of video evidence that they organized them into a digital visual platform.
For the first time, the ICC relied heavily on visual digital evidence in a prosecution. The court
sentenced Al Mahdi to nine years in prison in 2016 for destroying Timbuktu’s history3

ADMISSIBILITY OF EVIDENCE AT THE ICC

The process for investigating and collecting digital evidence by the International Criminal
Court (ICC) is as follows as Preliminary Examination: is the ICC Prosecutor can initiate a
preliminary examination into a situation based on referrals from states, the UN Security
Council, or the Prosecutor's own initiative. During this stage, the Prosecutor evaluates the

2
Just Security, Reconsidering the Digitalization of International Criminal Justice. Retrieved from
https://www.justsecurity.org/74166/reconsidering-the-digitalization-of-international-criminal-justice/ (accessed
25 April 2024)
3
The Conversation. (n.d.). International Criminal Court is Using Digital Evidence to Investigate Putin – But
How Can it Tell if a Video or Photo is Real or Fake? Retrieved from https://theconversation.com/international-
criminal-court-is-using-digital-evidence-to-investigate-putin-but-how-can-it-tell-if-a-video-or-photo-is-real-or-
fake-204338 (accessed 25 April 2024)
seriousness of the information received and determines if there is a reasonable basis to proceed
with a full investigation.
Opening of Investigation: If the Prosecutor finds sufficient grounds, they can open a full
investigation into the situation, either through a referral from a state or the UN Security
Council, or by seeking authorization from the Pre-Trial Chamber. The Prosecutor then sends
an initial team of investigators, lawyers, and experts to the region to begin collecting evidence.
Digital Evidence Collection and Authentication: The ICC has developed protocols, like the
Berkeley Protocol, to ensure the authenticity and reliability of digital evidence, such as videos,
images, and electronic communications. This process involves establishing the origin, chain
of custody, and other contextual information to verify the digital evidence. The ICC also
utilizes tools like facial recognition software, satellite imagery, and other digital forensics
techniques to analyze and authenticate the evidence.
Ongoing Investigation and Prosecution: The ICC Prosecutor continues to collect and analyze
evidence, including from various sources such as states, UN bodies, and non-governmental
organizations. The Prosecutor can then request the Pre-Trial Chamber to issue summons or
arrest warrants for individuals believed to be responsible for the alleged crimes.4
The authenticated digital evidence is then presented as part of the ICC's case during the trial
proceedings. The document that defines the proof process in the ICC is the Rules of Procedure
and Evidence. The Rome Statute specifies three types of evidence: 1) testimony of witnesses,
2) documentary evidence, 3) material and other evidence, the question of admissibility and
relativity of which is decided by the Trial Chamber (Arts. 64-69).

The parties following Art. 69 of the Rome Statute of the ICC5 have the right to submit evidence
to which admissibility requirements apply. There is no uniform official investigation file; the
prosecution and the defense must independently determine the evidence they plan to use
during the trial. However, there is a requirement for the prosecution. In every case of the
discovery of evidence that can prove the innocence of the accused, the prosecution must

4
Beebe, S. E., & Camp, J. M. (2023). Digital Evidence Collection at the International Criminal Court:
Promises and Pitfalls. Journal of International Criminal Justice, 21(4), 661-683. Retrieved from
https://academic.oup.com/jicj/article/21/4/661/7502637 (accessed April 25, 2024)
5
Rome Statute of the International Criminal Court, 1998, Art. 69
provide it to the defense. The prosecution and the defense provide evidence to each other and
the Pre-Trial Chamber for review before trial.
The role of the victim in the proceedings is auxiliary. The victim has the right to participate in
all stages of the proceedings, express his/her position, and demand compensation.6
The International Criminal Court (ICC) and other international criminal courts and tribunals
have increasingly relied on Digitally Derived Evidence in their proceedings. DDE in the
context of the ICC and other international criminal courts and tribunals refers to evidence that
originates from electronic or digital technology, as well as evidence that has been converted
into a digital form, such as photographs, videos, communications records, and other digital
data relevant to criminal proceedings. DDE encompasses evidence that originates from
electronic or digital technology, as well as evidence that has been converted into a digital form,
such as photographs, videos, communications records, and other digital data. DDE has been
utilized in international criminal cases include the use of visual digital evidence, such as
videos and satellite imagery, to document the commission of international crimes.
Additionally, digital forensics tools and techniques have been employed to authenticate and
analyze DDE, ensuring its admissibility and reliability in court proceedings. The integration
of innovative platforms, like OTPLink and Project Harmony, has also streamlined the
collection, preservation, and management of complex digital evidence for the ICC. 7
Digitalization of Evidence
OTPLink is a new online platform launched by the Office of the Prosecutor (OTP) of the
International Criminal Court (ICC) in 2023. The purpose of OTPLink is to enable victims,
witnesses, civil society organizations, and governments to directly submit information and
evidence related to international crimes to the ICC. The introduction of OTPLink is part of
the ICC's broader efforts to digitalize its operations and enhance the efficiency and
accessibility of its evidence collection processes.
The format for submitting evidence through OTPLink includes the ability to upload up to
1000 files, with nearly 4GB earmarked for each submission. By providing a dedicated digital

6
Supra 2 at 5
7
Supra 4 at 6
platform, the ICC aims to make it easier for a wider range of stakeholders to report crimes and
submit relevant information and evidence.8
However, the search results also highlight potential challenges with OTPLink, such as issues
of digital access and inclusion. Factors like illiteracy, language barriers, and lack of digital
connectivity may limit the ability of some communities to utilize the platform, requiring
dedicated outreach and support efforts by the ICC.
Project Harmony is the ICC's larger initiative that utilizes cloud computing and artificial
intelligence to streamline the collection, processing, storage, and analysis of complex
information and evidence. The goal is to enhance the efficiency and effectiveness of the ICC's
evidence management and investigation capabilities, allowing the OTP to better utilize its
resources. Potential challenges with Project Harmony include addressing issues of algorithmic
bias in the AI tools, as well as the risk of false or misleading information being submitted as
evidence, which requires robust oversight and validation mechanisms.9 Project Harmony
utilizes cloud computing and artificial intelligence to streamline the collection, processing,
storage, and analysis of complex information and evidence, enhancing the efficiency of the
ICC's operations.
There may be concerns about potential algorithmic bias in the AI tools used in Project
Harmony, which could impact the processing and interpretation of complex information and
evidence. Reliability Challenges: The risk of false or misleading information being submitted
as evidence through digital channels poses a challenge that requires robust oversight and
validation mechanisms to ensure the accuracy and integrity of the evidence collected.10
Critical view on Digital evidence
One of the predominant risks highlighted is the use of misinformation or manipulated digital
evidence in legal proceedings. The search results indicate that edited or manipulated evidence
can easily be submitted to the Court, and the Court may not be equipped or able to detect it in
all cases.

8
OTP Bank, About Us: History. Retrieved from https://www.otpbank.hu/portal/en/AboutUs/History accessed 25
April 2024
9
"Digital Evidence Collection at the Intl Criminal Court: Promises and Pitfalls." Just Security. Retrieved from
https://www.justsecurity.org/87149/digital-evidence-collection-at-the-intl-criminal-court-promises-and-
pitfalls/. Accessed April 25, 2024.
10
Id at 7
This poses a significant challenge to the reliability and integrity of digital evidence used in the
ICC's proceedings, which could undermine the court's credibility and effectiveness, fair trial
rights.11
Authenticity and Verification: Digital evidence can be easily manipulated or fabricated. The
ICC, under Rule 69(3)12, requires establishing a clear chain of custody to prove the evidence's
authenticity from its origin to presentation in court.
Admissibility: Article 69(4) of the Rome Statute13 sets a three-pronged test for admitting
evidence: relevance, probative value and outweighing any prejudicial effect. Digital evidence,
especially user-generated content, or social media posts, might raise concerns about relevance
and potential to unfairly sway the jury.
Preservation and Extraction: Digital evidence can be volatile and easily lost if not preserved
properly. Rule 89(D)14 empowers the Court to issue orders for states to preserve relevant
evidence. However, practical challenges might arise in enforcing such orders across different
jurisdictions.

As ICC Prosecutor Karim Khan aptly stated earlier this year, “Disinformation, destruction, the
alteration of data, and the leaking of confidential information may obstruct the administration
of justice at the ICC and, as such, constitute crimes within the ICC’s jurisdiction that might
be investigated or prosecuted.” Indeed, prevention is far better than cure when protecting
sensitive information and ensuring the pursuit of justice.
Speculation is rising regarding Russia’s involvement in the breach. The ICC issued an arrest
warrant for Russian President Vladimir Putin in March, and researchers have suggested a
possible link to Russia’s interests in the ICC’s investigations into alleged Russian war crimes
in Georgia and Ukraine. This suspicion is further fueled by a previous incident in June 2022
when a Russian military agent was apprehended by Dutch security services while attempting
to infiltrate the court.15

11
"Cyber Evidence." ICC Forum. Retrieved from https://iccforum.com/cyber-evidence. Accessed April 25, 2024.
12
"Rules of Procedure and Evidence," Rule 69(3),
13
Rome Statute of the International Criminal Court, Article 69(4)
14
"Rules of Procedure and Evidence," Rule 89(D)
15
Vague in the Hague: Who Is Behind the ICC Data Breach? https://www.centraleyes.com/vague-in-the-hague-
who-is-behind-the-icc-data-breach/ accessed on 25April 2024
Conclusion
The International Criminal Court (ICC) can leverage digital diplomacy initiatives to enhance
its work while mitigating the challenges of digital evidence. Social media platforms and online
tools can raise awareness of the ICC's mandate, fostering global support for international
justice. However, the court must address issues like misinformation and ensure fair trials.
Solutions include developing clear guidelines for digital evidence handling, investing in
forensic analysis, and promoting transparency in evidence collection, The international
community will closely monitor ICC developments. Everyone will watch this incident to
ensure the ICC can maintain its critical role in delivering justice for the global community.

Additionally, the ICC can utilize digital platforms like OTPLink and Project Harmony for
secure, accessible evidence submission, while also working to bridge the digital divide to
ensure inclusivity. By embracing digital tools strategically and prioritizing robust procedures,
the ICC can strengthen its impact on the fight against international crimes. challenges the
binary between experts and regular fact witnesses. In response to that challenge, the Court
should ensure rigorous standards of fact-finding, while also shifting to a more experience and
skills-based approach to determining expertise, in lieu of traditional models based largely on
reputation and formal qualification from elite institutions.

On the part of the Data of open Sources community, efforts should be made to adopt
overarching qualifications, with appropriate attention given to technical skills, robust and
transparent methodology, and ethical considerations. This challenge is a fruitful one, which
portends deeper benefits for the Court, the parties to litigation and the broader epistemic
community interested in the establishment of truth and responsibility for the gravest crimes
plaguing the world.
Bibliography
• ICC Forum. (n.d.). Cyber Evidence. Retrieved from https://iccforum.com/cyber-
evidence
• Amacker, C. (2011, July 20). The Functions of Diplomacy. E-International Relations
Students. Retrieved from http://www.e-ir.info/2011/07/20/the-functions-of-
diplomacy/
• Just Security. (n.d.). Reconsidering the Digitalization of International Criminal
Justice. Retrieved from https://www.justsecurity.org/74166/reconsidering-the-
digitalization-of-international-criminal-justice/
• The Conversation. (n.d.). International Criminal Court is Using Digital Evidence to
Investigate Putin – But How Can it Tell if a Video or Photo is Real or Fake?
Retrieved from https://theconversation.com/international-criminal-court-is-using-
digital-evidence-to-investigate-putin-but-how-can-it-tell-if-a-video-or-photo-is-real-
or-fake-204338
• OTP Bank. (n.d.). About Us: History. Retrieved from
https://www.otpbank.hu/portal/en/AboutUs/History
• Just Security. (n.d.). Digital Evidence Collection at the Intl Criminal Court: Promises
and Pitfalls. Retrieved from https://www.justsecurity.org/87149/digital-evidence-
collection-at-the-intl-criminal-court-promises-and-pitfalls/