Finding the Signal in the Noise: International Criminal Evidence and Procedure in the Digital Age

Abstract

The constituent documents of the International Criminal Court (ICC) were formulated in the 1990s, at a time when the internet was still relatively new to most of society. 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. This trend has only continued. Advanced technologies have changed the way in which societies create information and share it, generating an ever-growing volume of data. The availability and accessibility to new sources of information open up opportunities for international criminal investigators, but the task of using them effectively is not without its challenges. Recent cases before the ICC indicate that digital evidence will play an increasingly central role in investigations and prosecutions. In national jurisdictions, digital evidence is now introduced in the majority of criminal cases, and there have been significant reforms in domestic statutes on evidentiary and procedural rules from admissibility to e-discovery. However, such reforms have not yet materialized at the ICC. This article assesses whether the Rome Statute and Rules of Procedure and Evidence, and their current interpretation, remain effective and appropriate in the face of technological change. The authors examine the emerging challenges related to the use and handling of digital evidence, as well as the unique nature of the internet and other dissemination channels. By drawing attention to the main issues with the existing rules and practices, and raising unresolved questions, the authors highlight the importance of reassessing rules based on obsolete assumptions and expectations as we move towards the future.

Keywords: digital evidence, international criminal court, international criminal law, international criminal procedure, international criminal evidence, rome statute, ICC rules of procedure and evidence