How to Prepare the International Criminal Court for Our Digital Future

[Lindsay Freeman is the Law and Policy Director of the Technology and Human Rights Program at the Human Rights Center, UC Berkeley School of Law. Raquel Vazquez Llorente is the Permanent Representative to the International Criminal Court for FIDH (International Federation for Human Rights).]

Digital evidence is playing an increasingly central role in trials at the International Criminal Court (ICC). The growing use of digital technologies in armed conflicts, by civilians and combatants alike, is producing potentially relevant data at an exponentially rapid rate. However, the ever-increasing volume of digital information creates challenges for ICC investigators, who need to identify, collect, and preserve relevant evidence hidden in a sea of information that is vulnerable to alteration or destruction, while navigating an environment filled with mis and disinformation. This volume and vulnerability of digital information also creates challenges for the judges, who must assess the admissibility and weight of digital evidence. Focusing on the procedures and practices at the ICC, we recently published an article in a Special Volume of the Journal of International Criminal Justice that considers whether the Rome Statute and ICC Rules of Procedure and Evidence maintain their appropriateness and effectiveness in the face of technological change.

The constituent documents of the ICC were formulated in the 1990s, at a time when the internet was still relatively new. In the four years between the signing of the Rome Statute in 1998 and its entry into force in 2002, there was a surge in technological development. The replacement of dial-up connections by home broadband and wireless internet, the commercial launch of 3G, and the introduction of camera phones all took place during that period, followed only a few years later by the founding of Google, YouTube and Facebook. In national jurisdictions, digital evidence is now introduced in the majority of criminal cases, and there have been major reforms in domestic statutes on evidentiary and procedural rules, from admissibility to e-discovery. However, such reforms have not yet materialized at the ICC. Our analysis shows that deep reflection and action are unquestionably needed. This does not necessarily require amending the Statute or the Rules, which can be a difficult feat. Rather, many of the coming challenges could be addressed by updating interpretations of existing rules and adopting new practices and technologies. Here, we summarise some of the areas we believe require action, but the full paper provides additional recommendations on other key topics that merit further discussion.

Allow for Digital Preservation During Preliminary Examinations and Investigations

The fleeting nature of digital evidence raises the question of what kind of preservation-related interventions are appropriate, or even possible, under the current Statute. While the prosecutor’s powers are limited before an investigation opens, the borderless nature of the internet and spread of digital communications may require relaxing these limitations during preliminary examinations. Valuable digital information available during the buildup or the early stages of a conflict might be lost if the prosecutor cannot intervene and preserve that information in a forensically sound manner until an investigation is opened. For example, the prosecutor should be able to use the cooperation framework provided for in the Rome Statute, which is designed to ensure State assistance to the Court, to make requests to communications service providers to preserve user data beyond their usual retention periods. While state cooperation is voluntary during the preliminary examination stage, state parties should see making information requests to service providers as part of their duty to support the Court. In addition, the prosecutor should utilize automated tools for bulk collection and analysis of internet data relevant to preliminary examinations, and even consider playing a role in securing digital devices and data in high-risk environments as early on as possible.

Article 56 of the Rome Statute allows for the collection of evidence that may not be available subsequently for the purposes of a trial. During the investigation phase, Article 56 could be applied to preserve digital information in countries where the prosecutor is not allowed to enter the physical territory. There is no reason why this provision should be limited to testimonial evidence. Digital evidence may be stored in multiple locations, and its collection may not require physical access to the territory of a state. This is a crucial development for ICC investigators, who rely on the cooperation of state authorities to be able to access and seize evidence. Lack of international assistance has hampered investigations in the past, but with data being stored across borders and traveling through servers hosted in many different countries, the prosecutor should think creatively about how state parties can facilitate the preservation of digital evidence in transit or in servers that can be accessed in territories within the Court’s jurisdiction. While the prosecutor may still need judicial cooperation to avoid breaking cybersecurity and privacy laws, the internet facilitates a range of remote investigative practices that may not require the assistance of unwilling states. It is out of the scope of this post to delve into the options that could be used to access, examine, or preserve digital evidence — some of which would undoubtedly be controversial. Our suggestion is that the use of Article 56 for these purposes is poised for legal and investigative creativity, and this area requires further attention.

Create Guidelines for Online Investigations in Compliance with Article 54 (1)(a) of the Rome Statute

Article 54 (1) (a) of the Rome Statute provides for the duties and powers of the prosecutor with respect to investigations. In order to establish the truth, the prosecutor shall investigate incriminating and exonerating circumstances equally. The prosecutor’s duty to establish the truth is unquestionable, but the interpretation of Article 54(1)(a) and what it means to “investigate…equally” is still developing. In a ‘post-truth world’, establishing facts is a complex affair. The magnitude of potential evidence related to mass atrocities in the Information Age, paired with the limited budget and resources upon which the ICC operates, requires a delicate balancing act between the prosecutor’s duty to investigate all circumstances and the efficiency of the proceedings. Technology has created vastly more information available than ever before, but most of it is not relevant to criminal investigations. While prima facie irrelevant material, such as cat videos, can be easily discarded, there remains a large volume of information for which its relevance is not immediately apparent. In addition, what is relevant might change during the course of an investigation as the case hypothesis evolves. If the Article 54(1)(a) duty is interpreted too broadly, the volume of potentially relevant digital data will make this duty impracticable. While online evidence gathering is less costly than collecting physical evidence and interviewing witnesses across countries, internet-based investigations can be deceptively resource intensive and costly when factoring in data processing and storage. With an overwhelming and constantly changing amount of digital data on the web, there is no obvious end point to an online investigation. Investigators will have to make difficult decisions about what to review and collect. When they are faced with millions of potentially relevant tweets and TikTok videos related to a single incident, investigators will need clear guidance on their duty to review and collect digital information, and direction from lawyers on what is relevant given the case hypothesis. Hence, a narrow and reasonable interpretation of Article 54(1)(a) by the judges, acknowledging the challenges of the online information environment, in combination with more pre-planning on the part of the prosecutor to better guide investigators, could go a long way in addressing these issues.

Invest in IT Infrastructure and Regular Updates to e-Court Protocol

In order to keep pace with technological change, the e-Court Protocol should be reviewed and updated regularly by a committee with representatives of all organs of the Court and external stakeholders. The ICC can look to domestic jurisdictions for solutions on how to adapt. In the face of similar challenges, the United States, Canada, and the United Kingdom have developed new e-discovery guidelines, which can serve as a reference point for reforms to the Rules and e-Court Protocol.

However, the challenges raised by digital evidence cannot be solved through legal and policy changes only; they will also require the adoption of new technologies that can be used to improve the collection, preservation, review, and analysis of digital information. Technology changes faster than the law, in contrast to procurement processes within international organizations like the ICC, which are slow and bureaucratic. The IT infrastructure, including hardware and software, used for the processing, storage, and management of digital evidence must be robust, up to date, and available to all parties who need it, including defence and the legal representatives of the victims. Cultivating relationships with academia and the private sector to keep abreast of the latest developments on technologies, such as machine learning and artificial intelligence, and exploring how they can be applied to the work of the Court, is essential. This will require a sustainable financial commitment from the Assembly of States Parties, which approves the ICC’s budget.

Educate All Parties, from First Responders to the Judges

The ability of the Judges to exercise their adjudication power will increasingly depend on their capacity to interrogate technology systems, enhance their familiarity with digital evidence, and increase their understanding of new sources of information. The role of expert witnesses will be crucial, and the Registry will play an important part in making sure their roster of experts can help the Judges comprehend the intricacies of highly technical evidence. However, a reliance on experts will be insufficient. Defence, prosecution, victims’ representatives and judges should be open to specialized training that gives them the foundation they need to investigate or adjudicate crimes that will involve a significant amount of technology. This training can be of different degrees of complexity and depth depending on the recipient, but it should also include first responders and civil society groups — which play an active role in collecting and preserving information available online. Building the technological knowledge of all actors involved across the life cycle of evidence, from capture to assessment, will improve investigative and judicial practice. Additionally, members of the Assembly of States Parties must also understand the importance of investing in training and infrastructure that will be increasingly critical for the operations of the Court. There have been notable attempts at translating complex science and technical jargon into understandable guidelines or tools, such as the Berkeley Protocol on Digital Open Source Investigations. However, these initiatives will be of little value if there is not a concerted effort to prepare all parties for the courtrooms of the future.

Almost 20 years since the entry into force of the Rome Statute, it is worth examining how the operational environment of the ICC has changed and evolved. The increased adoption of new technologies and the digitization of data presents exciting investigative opportunities, as well as significant challenges due to the volume, vulnerability, and volatility of digital information. In order to address these challenges, the Court should take immediate measures—and establish long-term processes—to ensure that investigators can find the signal in the noise.