Artificial Sanctions: Potential Implications of US Sanctions on the ICC’s use of AI and Digital Evidence

[Benjamin Thorne is a Lecturer (Assistant Professor) in Criminal Law at the University of Reading]

Almost 3 weeks into Donald Trump’s second term as US President and one could have been forgiven for becoming somewhat numb to the seemingly never ending conveyor belt of Executive Orders (EO) being announced. However, one particular EO jolted many from their numbness, not because it was unexpected, rather because of its predictability. Indeed, the international justice community had been providing riveting festive family dinner time conversations about the US’s inevitable sanctions against the ICC, and then on the 6^th February there it was. The riveting speculation had turned into reality. 

There has been a recent flurry of comments/analysis on the announced US sanctions against the International Criminal Court (ICC), and whilst this post is another addition to the growing cascade, it does take the conversation into a slightly different and specific direction. This direction is led by the question, what are possible implications for the court if its use of AI and evidence submission platform (OTP Link), and wider investigation process, was directly and indirectly targeted by sanctions from the US government on US companies, particularly Microsoft who is a key technology partner of the OTP?  

Sanctions

Obviously this is not US president Donald Trump’s first endeavour in bringing sanctions against the ICC. During his first term in office he sanctioned senior ICC officials including then Chief Prosecutor Fatou Bensouda. Since returning to the Oval Office Republicans initially attempted to implement sanctions via congress, however when Democratic collegiality had a somewhat rare moment of particular strength and voted down the sanctions, Trump reverted to his current favourite toy of EO’s to implement his sanctions which this time are more ambitious and potentially far reaching and problematic for the ICC. The driving catalyst of sanctions is the recent ICC issuing of arrest warrants against Benjamin Netanyahu and Yoav Gallant which Trump vehemently opposes and the sanctions have the intended outcome of the court withdrawing the warrants.

Whilst the EO sanctions have generated a lot of noise and attention, the Republican led Bill is still with Congress, and the sanctions may yet find a legislative articulation, depending on Senate Democrats yielding, if amendments are made to the Bill. Specifically their central concern around the impact of sanctions on US companies and their subsidiaries. If eventually the Bill passes, it may add a sense of additional authority and intention to aggressively challenge and delegitimise the work of the ICC. The legislative and EO versions are overall similar, and present potential significant risks to both US and non-US companies who engage with the court. 

The EO sanctions make reference to US persons and foreign persons. Under the EO sanction Sec. 8. (a) ‘persons’ (individual or entity) includes, a “corporation, group, subgroup, or other organization”. US persons cannot be sanctioned, Microsoft headquarters are registered in the USA.  US persons are however not permitted to provide services to sanctioned person(s), and if a US person were to do so they risk possible severe civil and criminal penalties. Thus, for companies such as Microsoft, who are a key technology partner of the ICC, a main risk which may rapidly be brought into sharp focus is that of possible severe penalties for continuing to partner with the court. 

Harmonising Digital Evidence

Project Harmony was launched by the ICC in 2022 with the OTP’s familiar fanfare, glossy corporate style promotional videos, and choreographed public relations tone. At the centre of Project Harmony is the OTP Link (Article 15), a digital evidence management platform integrating AI and machine learning and created and developed in collaboration with Microsoft and Accenture. OTP Link, facilitates, indeed encourages, the submission of user generated digital evidence as well as evidence from key stakeholders. The platform is split into two distinct evidence submission pathways, one portal for ‘anonymous’ users and one for ‘authenticated’ users, for example State Parties. Whilst Microsoft requires no introduction, it is worth mentioning other key parts of Project Harmony’s collaboration, namely Accenture and Avanade. Accenture, a broadly defined Technology innovations business with headquarters in Dublin, and offices in several major cities including New York. Accenture has a close working partnership with Microsoft including co-founding Avanade which  Accenture currently majority owns. Avanade is directly embedded within Microsoft systems. In short the 3 main ICC partners for Project Harmony are  Microsoft and two directly connected companies. 

The current chief prosecutor does like to self-advocate the ICC as a leader and innovator of accountability technologies, as he has stated, “[to] pursue justice more effectively, we must harness the power of cutting-edge technology. In today’s world, it is not a luxury, it is a requirement”. However, what if that requirement cannot be fulfilled because of the impact of sanctions? With the court so publicly highlighting its use of technology (AI) as an increasingly key apparatus of its work, any organisation connected with the ICC in terms of its technology provisions would seem to be a possible target of US sanctions. If you shut down key operating partners, you shut down, or at least significantly limit the courts’ use of AI particularly around digital evidence and investigations.

To offer some context of the use, and ICC’s increasing engagement, with OTP Link submissions including of digital evidence. In a 12 month period (Oct 2023 – Oct 2024) the ICC’s OTP Link digital evidence platform received 74,803 submissions. These 74,803 submissions included a total of 401,488 electronic files (average 200 submissions per a day). The types of files (text, visual, audio etc…) are not disclosed in the 2024 OTP Annual Report. Around half of the submissions (just over 37,000) for this 12 month period related to either an open investigation or preliminary examination. To contrast this with submissions to OTP Link between May – October 2023, in which the platform received 10,528 submissions with a total 44,705 files. Ninety-nine submissions were categorised as evidence (total number of files submitted as evidence not stated in annual report), and 693 required further review by the Preliminary Examinations Section. Out of the total submissions, 3,959 were related to either an open situation or preliminary examination.  This gives an indication of the increasing engagement with the platform by users as well as the OTP’s engagement with digital evidence. 

It is also worth breaking down the ICC’s new evidence management platform which OTP Link is one of its components, and how this shows the potential extent of implications of sanctions in regards digital evidence and investigations. Alongside OTP Link there is (OTP) eVault and (OTP) eDiscovery, a cloud based centralised storage and evidence review and analysis platform. In 2022 the court signed a 5 year contract with RelativityOne costing $2.5 million US dollars. Relativity, who owns RelativityOne, has recently entered into a partnership with Microsoft to provide generative AI tools for e-Discovery platforms with a particular focus on legal data. ICC’s partnership with Microsoft Azure, cloud management software costing the court $1.2 million US dollars, has bound the court, including processes relating to investigations, to Microsoft products. Court staff had stated, shortly before EO sanctions were issued, that “[w]e essentially store all of our evidence in the cloud” and that if access to Azure was removed this would paralyse OTP investigations.

Potential (Dis)Harmony

If Microsoft were to withdraw from partnering with the ICC tomorrow would this immediately paralyse the courts use of digital evidence and investigations? This would likely have a rapid and substantial impact on their work, but possibly not short term paralysis. Given the large quantities of submitted digital evidence, there would be currently a lot of data for the OTP to engage with. The US sanctions have been a looming likelihood, if not certainty, since the results of the US election were announced and the court would have likely been attempting to prepare and mitigate for this as best as possible. Notwithstanding this, considering that the data is stored on a Microsoft provided cloud platform and in a more wider sense how deep reaching their software is within the heart of the ICC’s operations this may still have substantial implications. To speculate, the court’s pre-emptive responses may have included such things as mass download of submitted digital evidence although where it will be downloaded to and what reliance would still be on Microsoft software is unclear. Even if existing digital evidence could be downloaded into an autonomous digital storage, this then would remove the AI and machine learning function which OTP Link is fundamentally reliant on. Lack of access to E-discovering and eVault, which investigators are so deeply tied within, would at best mean that investigations would be substantially slowed down as investigators tried to muddle through and find possible “workarounds”.

Currently the only Person(s) included in the EO sanctions Annex is the ICC Chief Prosecutor. The court has, as of yet, not been sanctioned. If the court remains off the list of sanctioned persons then Microsoft could potentially continue to provide services to the court. It is worth noting that Accenture is a Irish company with registered headquarters in Dublin which for the purposes of the EO sanctions would not make it a US person therefore as a foreign person they could be sanctioned. Legally this is an important distinction, if Accenture were to be sanctioned then this may in principle have direct implications for Microsoft’ as a US person they would be prohibited from engaging with Accenture (foreign person). 

That all said, one possible implication of the EO sanctions is that even if the list of sanctioned persons does not expand, the mere fact sanctions existence and potential to add sanctioned persons might, with time, exhort enough pressure and/or panic on companies such as Microsoft for them to proactively remove themselves from the court. In theory, Accenture, if unsanctioned, could continue its partnership with the court although it may bend to looming pressure of possible sanctions. Beyond this, it is not fully clear to what extent Accenture tools used by the ICC could still be operative if Microsoft withdraws from the partnership. 

One of the court’s stated reasons for investing in a new evidence management platform was the court had identified they were reliant on tools that have reached end-of-life support and are no longer developed. If Microsoft did leave, could the OTP revert back to the old and somewhat clunky outdated system for evidence management as a temporary response?  This would partly depend on what of the previous infrastructure was still available/usable, so possible but perhaps unlikely. 

It does appear that the ICC will need to engage substantially with supportive State Parties and institutions to find at least short to medium term alternative workarounds for its use of digital evidence and investigation processes. Even if the current sanctions do not lead to a Microsoft withdrawal, the unpredictable and volatile nature of the current US Administration could lead to tighter, and even more extreme, sanctions if the current ones do not result in the desired outcome. It would seem necessary that the court starts to make both short and longer term plans. 

Could the ICC temporarily use evidence platforms offered by supportive countries, State Parties? Prior to the most recently announced sanctions, the court was in dialogue with some member States to explore potential legal mechanisms, such as the EU Blocking Statute which could provide some protection for individuals and organisations against the sanctions.  The Blocking Statute could protect European based companies for providing digital and AI support to the court. Indeed, in principle at least, it might be possible for a State Party to provide some access to technology from their own domestic digital evidence platforms. The Dutch government created and uses, Hansken, a digital evidence platform used within their criminal justice system and adopted by several other European countries. The Dutch authorities, as the ICC host country, could potentially consider collaborating with the OTP to explore if platforms such as Hansken could provide some kind of temporary support to the court. 

Conclusion

It is clear that the current Chief Prosecutor has fully committed the court long term to embracing AI technologies, a commitment demonstrated by including it as one of the OTP’s 2023-2025 strategic goals. As a self-styled “world leader” in accountability technologies, this has also had the potential negative effect, to create a point of vulnerability for the court to those who wish to attack and weaken it. Even if the court and/or key technology partners are not sanctioned, the current crisis for the ICC and risk that the Trump administration now poses is substantial. It seems credible to suggest that the court must reevaluate its entire digital and AI led investigation processes and to secure a long term alternative(s). 

This does put the court in a very challenging, perhaps almost impossible, position to reconcile. AI technologies is and will be an unavoidable part of our world including international criminal law and justice. At the same time, these technologies create new and possibly far reaching vulnerabilities for the ICC’s use of digital evidence and AI assisted investigations. The long term risks gesture towards the need for the ICC to proactively engage with supportive States and institutions, in Europe, to explore what existing infrastructure could be integrated within the courts investigation processes. However, an integration of existing allied technology platforms, should arguably not be seen by the court as the cure-all solution as even this does not remove the many possible vulnerabilities. Having a workable and sustainable “plan C” which perhaps is less infused with technology, albeit more rudimentary and human centric, would potentially allow the court to navigate future crisis in a way that will limit the impact on investigations and aid the continued facilitation of the core purpose of the court, which is to try and hold individuals accountable for the most serious of international crimes.