Symposium on Fairness, Equality, and Diversity in Open Source Investigations: Out in the Open: Fair Trial Rights and Open Source Evidence at the ICC

[Sarah Zarmsky is an Assistant Lecturer and PhD Candidate at the University of Essex Human Rights Centre with a focus on the intersections between new and emerging technologies, human rights, and international criminal law. She is also a Visiting Scholar at the Human Rights Center at the University of California, Berkeley. (Twitter: @SZarmsky) 

Judy Mionki is an International Criminal and Human Rights Lawyer practising as defence counsel at the International Criminal Court; Prosecutor v Ruto and Sang and Prosecutor v Ntaganda. She is also the Africa Region Liaison Officer with the International Bar Association’s Human Rights Law Committee. (Twitter: @JudyMionki).]

Introduction 

Digital open source evidence is becoming widely used in international criminal trials – for instance, videos posted to social media helped form the basis for the arrest warrant in the Al-Werfalli case in the context of the Libya situation at the International Criminal Court (ICC), and open source photos and satellite imagery were used to create the evidentiary platform used by the Office of the Prosecutor (OTP) in the Mali cases. Further, given the proliferation of open source photos and videos posted online in the context of the conflict in Ukraine, it is likely that open source evidence will only become more abundant in international criminal trials.

Though digital open source information is extremely valuable in pursuing accountability for international crimes and violations of human rights, its ever increasing use as evidence in international trials has implications for the rights of the accused. As provided in Article 54(1)(a) of the Rome Statute of the International Criminal Court (ICC), the legal burden of proof lies on the Prosecutor to uncover the truth and investigate incriminating and exonerating circumstances equally. While defence are therefore not required to investigate alleged international crimes, they still do and should especially in the context of digital evidence, which comes with certain weaknesses that require it to be queried independently by defence teams. This is in relation to difficulties in determining the authenticity of the evidence, issues with how evidence is preserved, or biases that could arise from how digital evidence is presented. When digital evidence is also open source evidence, the risks are even greater– for instance, misidentification of individuals depicted in social media imagery could lead to wrongful convictions, and the increased accessibility and believability of ‘deepfake’ technology can make it more difficult to determine when videos found online are real or fake. Given these considerations, it is essential that in order to uphold the universally-protected right to a fair trial, defence counsel are able to properly question the digital open source evidence used against the accused. 

This piece will discuss three challenges that arise for the defence at the ICC in the face of digital open source evidence; (i) issues with access to evidence, (ii) a lack of resources to process and counter such evidence, and (iii) concerns pertaining to bias (both in regard to biases that are inherent to open source investigations and the potential prejudicial effect open source imagery could have on the right to a fair trial). It concludes with a general plea for greater equality of arms between the Defence and OTP, along with some recommendations for ensuring greater fairness in the specific context of using digital open source evidence. 

Access 

A first major challenge faced by defence teams with regard to open source evidence is gaining access to the content. A main source of open source evidence is social media, such as Facebook, Twitter, TikTok, or YouTube, and each platform has its own approach to content moderation. In general, it can be difficult even for the OTP to gain access to content that has been removed by social media platforms for violating their terms of use, which happens often in the case of graphic photos and videos associated with international crimes. However, social media platforms may have greater reluctance to provide information to the defence as opposed to those prosecuting potential war crimes or violations of human rights. The ICC Prosecutor undoubtedly has greater standing to approach social media companies and ask for their cooperation than independent defence counsel (who hold external contractor status), as corporations would plausibly be more willing to aid in an investigation led by a known international institution than individual lawyers. It is therefore more likely to be difficult for defence teams to get access to the same evidence as the OTP and to conduct their own independent inquiries. 

This challenge is well-documented at the domestic level. For example, public defence attorneys in the United States have been known to face difficulties interacting with big tech companies such as Meta, due to the fact that public defenders are held to the same standard as the prosecution but lack the same power of obtaining a warrant and must rely on subpoenas to request information. In such cases, social media companies typically refuse to disclose the content in the face of a subpoena with reference to the Stored Communications Act. Moreover, even when held in contempt by a court for not disclosing information, companies have simply paid the daily contempt fine for the duration of the trial without ever handing over the requested materials. In one specific case reported by The Washington Post in relation to Facebook and Twitter, a young man was convicted to life imprisonment without ever having the chance to access potentially exonerating content.  Thus, at the domestic level, it seems nearly impossible for defence teams to gain access to open source evidence, which could be even more challenging for defence counsel at the ICC who do not have the same access to subpoena powers. 

In addition, though counsel at the ICC do not have subpoena powers such as in domestic courts, they do have the possibility of obtaining information through requests for cooperation via the Registry in accordance with their Strategic Plan (paragraph 2). Yet, requests for cooperation do not always succeed, especially not in the case of those issued by the Defence – the Registry has previously reported an only 24.3% execution rate for defence team requests, in contrast with a 100% execution rate for requests by legal representatives for victims and 88.8% for support to judicial proceedings’ requests. Therefore, any possibility that defence counsel could obtain information from social media platforms through the Registry of the Court is weak, given the track record. 

Resources 

A second issue raised by the use of open source evidence in international criminal trials is the lack of resources faced by defence teams to analyse the evidence enough to build an adequate defence. As mentioned previously, the nature of digital open source evidence makes it even more important that the defence is able to evaluate it for themselves. However, the budget for defence teams is incredibly low in comparison with other organs of the Court, especially the OTP. For instance, in 2016, the legal aid budget for defence was only 3.25% of the total ICC budget, and constituted less than 10% of the budget of the OTP. Yet, the OTP receives much more assistance from other organisations, including those who collect, process, and prepare open source evidence for presentation. An example of this is the digital platform created by SITU Research for the Mali cases, which was made specifically for the OTP. In order for the Defence to counter a digital evidence platform of this kind (or most other digital open source evidence), they would likely need adequate training to increase their own technological literacy, and/or hire experts to assess the evidence, which are both expensive endeavours in terms of time and cost. Due to significantly lower legal aid funds than in other tribunals, defence teams have considerably less manpower than their OTP counterparts. So, in addition to lower funds for counsel and core team members, a lower budget for investigations and experts means that it is also improbable that defence counsel would have the capacity to carry out necessary vetting of digital evidence on their own. 

Moreover, as reported by Alexa Koenig, during a workshop between the OTP and social media companies in 2014, the companies seemed reluctant to establish a framework for sharing information with the ICC, emphasising that information did not need to come from them directly, since ‘all the OTP needed was researchers who knew how to use the platforms’ advanced search functionalities to comb for relevant content’. While this method may not be as problematic for the OTP, who can afford to hire open source investigators and experts (in addition to its Forensic Science Section, Scientific Advisory Board, and Technology Advisory Board), it poses a great difficulty to the underfunded defence, who will be left at a disadvantage unless the current approach changes.

Bias and Prejudice

A final set of challenges faced by the defence are related to bias and prejudice. First, bias can occur at any stage of the open source investigatory process at both the technical and cognitive level, which has implications for the reliability and authenticity of open source evidence. For example, open source investigations can be technically biased, as algorithms that fuel online search engines will prioritise showing content that matches the profile of the person searching. At the cognitive level, investigators may fall victim to confirmation bias, meaning that they believe a photo or video depicts something because that was their initial hypothesis regardless of available counter-information. If these potential biases are not adequately assessed once open source information enters the courtroom as evidence, then there is increased potential for unreliable evidence being presented against an accused.  

In addition, the manner in which open source evidence is presented – perhaps through virtual reality or an impressive digital platform – could have a prejudicial effect on the trial if defence counsel are not able to properly query the evidence due to previously-mentioned time and resource constraints, or if judges place undue reliance on visual evidence that is often times conflated with being an exact representation of the events in question (otherwise known as the ‘seeing is believing effect’). It is important to note that just as in some domestic courts, where evidence may be omitted from the trial for being too prejudicial on the right to a fair trial, Article 69(4) of the Rome Statute requires the Court to take into account ‘any prejudice that such evidence may cause to a fair trial’ (amongst other factors) when assessing admissibility and probative value. As was similarly argued by the Defence in the Ongwen case in relation to intercepted radio communications submitted as evidence by the OTP, and as observed by Marchesi, digital evidence can carry particular weaknesses and biases that may be prejudicial on the rights of the accused if not carefully accounted for. 

Conclusion 

This piece discussed three challenges faced by Defence at the ICC when presented with digital open source evidence, including issues with access to information, a lack of resources to appropriately query such evidence, and the potential for bias and prejudice. Though these are separate issues, they are very intertwined – for instance, due to a lack of resources, Defence counsel may not be able to afford the necessary training or experts to assess for and counter bias within the evidence. Generally, many of the challenges discussed could be alleviated by greater equality of arms between the Defence and the OTP, as even if the Defence face issues with cooperation when trying to access open source content, having enough manpower and financial resources could allow them to spend the longer amount of time needed to understand and evaluate digital open source evidence. A specific solution (though unfortunately likely a stretch) could be the development of a Defence Office, similar to the Special Tribunal for Lebanon (STL). In the case of the STL, having its own Office allowed for the Defence to sign memoranda of understanding (MOU) for cooperation. This could potentially be used for social media companies if the ICC had its own Defence Office. 

In addition, training on how to deal with digital open source evidence for ICC staff (including Defence counsel) could be offered to all interested parties, though with independent trainers. For example, if the OTP were to hold such a training and offer participation to Defence counsel, this training should not be conducted by individuals who work for the OTP or have any other conflict of interest with the case material. This could help to increase equality of arms while also ensuring that all staff are trained in a completely neutral manner. 

On a final note, it is important to stress that even though digital open source evidence can bring more challenges to the right to a fair trial, it remains an invaluable tool for ending impunity for international crimes, which is a key goal of the ICC. However, in addition to this goal, the ICC also possesses an arguably equally important truth-telling function. This truth-telling function can only succeed when the rights of the accused are respected, which requires greater effort in the face of open source evidence.