Establishing the Reliability of Digital Evidence by the International Criminal Court: Some Problematic Issues and Ways to Solve Them

Abstract

The article is devoted to the study of some problematic issues of authentication of digital evidence in the course of consideration of cases by the International Criminal Court. The authors note that in the digital era, new technologies and the development of computing power have changed the nature of potentially relevant evidence which is assessed in international criminal law. The International Criminal Court is currently insufficiently prepared to address the issues of authentication of digital evidence, i.e., to determine the reliability of this type of evidence. The purpose of the article is to: (1) outline the challenges and dangers of the ICC’s current approach to establishing the reliability of digital evidence; (2) study scientific approaches to the authentication of digital evidence in criminal proceedings; and (3) establish the need to establish the most pragmatic approach to determining the reliability of digital evidence in the future. The article outlines the challenges and dangers of the ICC’s current approach to authentication and verification of digital evidence, examines the discussions among scholars on the issues outlined, and identifies recommendations for improving the Court’s work and its ability to verify the reliability of digital evidence. The general approach of the ICC to the admissibility of evidence is defined, which provides for a consistent three-part test in which each of the following criteria must be met: 1) relevance: According to Articles 64(9)(a) and 69(4) of the Rome Statute, as well as the Rules of Procedure and Admission of Evidence, evidence is considered relevant if “the evidence produced makes the existence of the fact in question more or less probable”. In other words, evidence may be considered relevant if it is “prima facie” (“at first glance”) relevant to the case; 2) sufficiency: Evidentiary value is generally understood to mean whether the evidence is sufficiently useful to prove an important part of the trial. In essence, probative value measures the extent to which the proposed evidence may affect the determination of a fact or issue. The court must balance the probative value of the item against its prejudicial effect on the accused; 3) weighing probative value and prejudicial effect: According to Rules 69(4) and 63(2), the evidence provided must be “sufficiently relevant and probative to outweigh any prejudicial impact or effect that its admission may have”. In other words, the weight given to the evidence must fully respect the rights of all parties and not be manifestly unfair to the prosecution or defense, nor prejudicial to the overall fairness of the trial. The author concludes that the ICC should seriously consider the following recommendations: (1) appoint an eCourt User Group to lead efforts to improve algorithms and continuously develop authentication issues; (2) expand the technological advisory role of the Scientific Advisory Board; (3) establish regular trainings and seminars to enhance the technical competence of judges; and (4) increase the transparency of the Scientific Advisory Board and the eCourt User Group.