Fact-Finding Online – A Fair Trial Offline?

Abstract

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) faces massive
evidentiary problems due to flawed state-cooperation, limited access to sites of atrocity and
an insufficient budget. Meanwhile, potentially relevant digital open-source information
abounds, as citizens increasingly turn to social media to spread awareness of human rights
violations and possible international crimes. Using YouTube videos, Facebook posts, and
other publicly available digital content as evidence at the ICC may mitigate the limitations
inherent in the OTP’s traditional dependence on state-cooperation to obtain evidence, hence
increasing the efficiency of international criminal justice and furthering the objective of crime
control. However, using digital open-source information as evidence presents new challenges
of its own, with particular implications for the accused’s right to a fair and expeditious trial,
which is an equally important objective of the ICC procedural framework.
The OTP has long made use of evidence from open sources, and the ICC chambers have
often allowed for the admission of reports from United Nations (UN) missions, nongovernmental organisations (NGOs), and news agencies in the past. However, establishing
facts in our “post-truth” times is an increasingly complex affair. The spread of fakes, forgery
and misattributed content online, coupled with unresolved questions relating to the
authentication and verification of such materials, suggest that there are reasons for the ICC
bench to be cautious about admitting Instagram photos, Tweets and other online content into
evidence. Furthermore, there is an ever-increasing number of private stakeholders engaged in
online fact-finding, which raises questions of bias and exacerbates already existing concerns
as to the equality of arms between the Prosecutor and the defence. It must therefore be
assessed whether the ICC procedural framework remains effective, appropriate and capable
of guaranteeing the fair-trial rights of the accused in the face of the particular challenges
posed by the acquisition and use of the newest forms of evidence available online. Decisions
on admissibility – i.e. on what evidence the ICC judges may base their findings – assume
particular importance in this regard. The present study thus sets out to analyse the
admissibility of digital open-source evidence in relation to trial fairness at the ICC. More
specifically, the purpose of the thesis is to analyse what impact that the admission of digital
open-source evidence may have on the accused’s right to a fair trial, and to explore whether
the ICC chambers can guarantee fairness through their current approach to admissibility, that
is, if the OTP increasingly relies on online content to substantiate criminal allegations.
The thesis concludes that the ICC’s rules on the admissibility of evidence allow for
considerable judicial discretion. Thus far the ICC judges have adopted a permissive approach,
allowing for unauthenticated materials and information from unknown sources to be admitted
into trial. This may not sufficiently protect the accused’s right to a fair trial when digital
open-source evidence start flooding the court rooms in The Hague, but may deprive the
defendant of his or her right to adequately test the evidence at trial, and have grave
implication for his or her right to be tried without undue delay. In view of the increased
spread of fakes and misattributed online materials, the large number of private parties
engaged in fact-finding, risks of bias and an exacerbated substantial inequality between the
parties, the present study submits that the ICC chambers must update their approach to the
admissibility of evidence as far as digital open-source materials are concerned. The
unfettered admission of unreliable or unauthenticated digital open-source evidence would, at
best, result in a considerable loss of time and may, as a worst-case scenario, result in an
unsafe verdict.

• author: Janfalk, Disa
• supervisor: Christoffer Wong
• organization: Department of Law; Faculty of Law
• alternative title: An Analysis of the Admissibility of Digital Open-Source Evidence in Relation to Trial Fairness at the International Criminal Court
• course: LAGM01 20211
• year: 2021
• type: H2 - Master's Degree (Two Years)
• subject: Law and Political Science
• language: English
• id: 9048327
• date added to LUP: 2021-06-08 15:17:37
• date last changed: 2021-06-08 15:17:37