The Admissibility and Authenticity of Social Media Evidence in International War Crime Investigations

Abstract 

Social media and technology have changed the way international crimes are investigated and  proven in court. This article explores how digital evidence found on social media can be used  by the International Criminal Court alongside other international courts by explaining how  judges decide whether this type of evidence is genuine and fair to use based on the 

• Rome Statue 
• The Rules of Procedure and Evidence 
• International Covenant on Civil and Political Rights (ICCPR) 

Real cases like Prosecutor v Al Mahdi and Prosecutor v Ongwen have shown how digital  evidence can support war crime investigations. This article also highlights the challenges that  come with using digital content found on social media as evidence due to the difficulties verifying online material, protecting the user’s privacy while also keeping the trial fair. The article concludes by suggesting that the ICC and international courts should adopt clear rules  and policies for handling digital evidence to improve fairness, reliability and justice. 

Keywords: 

• Digital Evidence 
• Admissibility 
• Authenticity 
• War Crimes 
• International Criminal Law 
• Social media 
• International Criminal Court (ICC) 
• Verification 
• Human rights  
• Fair trial 

Introduction  

The increase in digital communication through social media has profoundly transformed the  way evidence is collected and presented in international criminal trials, from videos to  pictures shared on social media to satellite imagery, online communications, and other digital  materials. This now plays a specific role in documenting war crimes as well as other serious  violations of international law.  

Although the Rome Statute of the International Criminal Court (1998) and the ICC Rules of  Procedure and Evidence provide a broad framework for the evaluation and collection of  evidence and were drafted alongside the upcoming notion of “digital evidence”. For that  reason, questions regarding the authenticity and admissibility of electronically sourced  materials (evidence) that was gathered specifically from social media remains a complex  matter. With context of investigations in Ukraine, Syria, and Myanmar that increasingly  depend on online data creates more challenges that the international legal community is  facing when it comes to adapting to existing evidentiary standards to the rest of the digital  age.  

The admissibility of digital evidence is often decided under Article 69 of the Rome statute,  which authorises the court to rule on the relevance and supportive value of the evidence  presented. However, without detailed procedures for verifying the source, integrity and the  chain of custody of the digital evidence are required otherwise this could create room for  potential inconsistencies when it comes to assessing whether the evidence meets the  requirements of reliability.  

This is the same case with the authenticity of digital evidence found on social media, the  assurance that the evidence has not been tampered with or altered in any way, shape or form  creates such serious challenges that are not just legal but technical as well especially when  the data originates from an anonymous source or an unverifiable online source.  

This article touches on how international criminal law addresses these issues through  analysing the connection between admissibility and authenticity when it comes to the collection of digital evidence found on social media. It highlights the existing legal  frameworks under the Rome Statute, the ICC’s procedural rules, and human rights obligations  under Article 14 of the ICCPR as interpreted by General Comment No.32, which underlines  the right to a fair trial and equality before courts. By using case law examples and academic  discussions, this article argues that the International Criminal Court’s flexibility with their  evidentiary regime needs to evolve to ensure reliability, fairness and transparency when  handling digital evidence.  

Legal frameworks governing digital evidence in international criminal law: 1. The Rome Statute and the Evidentiary Framework 

The Rome Statute of the International Criminal Court (1998) is the international legal system  that governs evidence collected in war crimes prosecutions and accompanies the Rules of  Procedure and Evidence, these instruments collectively create the procedural and substantive  standards necessary to the collection, preservation, and the presentation of evidence in front  of the ICC even if the instruments are neither referred to as “digital” or “electronic” evidence  there should be broad evidentiary provisions flexible enough to include such material. Part 5 of the Rome Statue addresses the foundation for the admissibility and evaluation of evidence in investigations and prosecutions.  

Article 53 strengthens the prosecutors’ power to initiate investigations where there is  reasonable basis to believe that a crime within the jurisdiction of the court has been  committed, and in context to digital evidence the authority is extended to the collecting of  online materials (images, videos, social media posts etc). On the other hand, though the  prosecutor has authority in this matter their freedom to act under Article 53 should be used  consistently alongside the principles of impartiality and evidentiary integrity.  

Article 69 provides the key guidelines regulating how evidence is presented at trial to assure  that the court authorises its “rule on the relevance or admissibility of any evidence” and  requires that the evidentiary value be weighed against any negative influence that may impact  a fair trial. This broad standard allows the ICC to add a wide range of evidentiary materials if the evidence can be authenticated and shown reliable, however the absence of clear  guidelines when it comes to handling digital evidence leaves plenty of leeway to judges and  parties which could sometimes lead to inconsistencies in evidentiary assessments.  

The ICC Rules of Procedure and Evidence 

These rules provide more information on the requirements made in the Statute by creating  procedures for  

– Collection 

– Disclosure 

– Examination of materials  

Rules that are directly relevant to digital evidence, for example rule 63(2) states that “the  Chambers shall have authority to assess freely all evidence submitted,” which further emphasises the flexibility of the ICC’s evidentiary regime. Rule 64(1) allows that both parties may challenge the admissibility or the relevancy of the evidence to and has a safeguard to  preserve the scrutiny of material that’s authenticity is uncertain.  

As a whole, these provisions provide the ICC with the procedural tools to not only admit  digital material as evidence but also highlight the requirement for clear guidelines and  policies to prevent  

• Tampering 
• Alteration 
• Misinterpretation of online data 

Human Rights Standards and the Fair Trial Principles: 

From a human rights perspective, Article 14 of the ICCPR (International covenant on civil  and political rights) protects the right to a fair trial and equality before the law, the United  nation’s Human Rights Committee’s General Comment no 32(2007) touches fairness which  includes the right to  

• Challenge  
• Check the evidence used in court 

This would mean that digital evidence can be used by international courts however they have  a duty to ensure that its  

• Fair  
• Verified 
• Does not infringe on anyone’s rights 

Through academic research on digital evidence in international criminal proceedings, I can argue that even though the ICC’s evidentiary framework may be broad enough to include  digital material, its practical implementation of these guidelines and frameworks remain  inconsistent. This inconsistency of regularised protocols needed for digital authentication  further undermines the consistency between cases.  

Admissibility, Verification and Authenticity: 

In order for digital evidence to be accepted in court, it is required to be authentic and verified.  In context to this, authenticity means that the evidence must be real and not undergone any  changes or edits, and verification means confirming the source (who created it, where it came  from, whether or not it has been altered.  

Since the ICC does not have a set rulebook for checking the authenticity of digital material,  the judges mainly rely on  

• Expert reports 
• Technical information 
• Metadata  

During Prosecutor v Al Mahdi, the digital photos and videos displaying the destruction of  cultural sites were accepted because of their consistency and match to other evidence  provided.  

In Prosecutor v Ongwen, the court once again used evidence found on social media in the  form of messages and recordings to support the prosecution’s case which is impactful when  showing how digital evidence can be strong especially when supported by other reliable evidence. That being said, the courts should always exercise a great level of caution when  handling evidence found on social media because it poses the risk of being altered, edited or  shared to the public without contextual background.  

According to Anagnostakis (2023), the judge’s discretion is heavily depended on rather than  clear standards and to improve this, the Berkeley Protocol on Digital Open-Source investigations (2020) suggests that the investigators are required to record each step of their  evidentiary collection process to help courts trust that the evidence provided has been verified  and authenticated.  

Challenges in using evidence found on social media:  

The use of digital evidence found on social media in international Criminal cases creates  several challenges, such as  

1. Verification 

A majority of the posts made on social media platforms tend to be posted by unknown or  anonymous users using alias names, which creates an issue when its time to verify who  posted the content and whether it is true or edited.  

2. Authenticity 

The creation of fake images or videos has become quite easy nowadays because of modern  technology inventions such as artificial intelligence, which makes the courts job harder  because they must prove that the evidence presented is authentic otherwise the defence may  argue that the evidence is unreliable.  

3. Privacy 

Sometimes investigators end up using social media data without the permission of the user which can violate the users right to privacy. The ICCPR strongly emphasizes fairness which include allowing both sides an equal chance to question the evidence presented and if it is  found that the defence is unable to verify the source, they received their material from then  the trial may not be fair.

4. Jurisdiction 

There may be some jurisdiction issues that could arise because social media companies mainly operate from different countries and may refuse to share their data for legal or  political reasons which can slow down an investigation or label it as incomplete. 

The (2028) UN Fact-Finding mission on Myanmar showed how social media can help  uncover crimes, however it also highlighted the requirement for international standards to  ensure the accurate and responsible use of digital evidence. 

Case Law, studies, journals and academic articles:  

The ICC and other international organisations have already incorporated digital evidence in  multiple important criminal cases such as,  

• Prosecutor v Al Mahdi – photos and videos proving that the cultural sites in Timbuktu  were deliberately destroyed, further proving how digital files can confirm that a crime  took place 
• Prosecuto v Ongwen – investigators used online posts, digital communication and  radio messages to prove the accused’s role in the Lord’s Resistance Army 

Academic researchers like Alexa Koenig and Kevin Jon Heller have written investigations  using online material (open-source investigations) are starting to become more common in  international justice.  

The Berkeley Protocol (2020) and the Amnesty International’s Digital Verification Corps  Report (2022) both propose ways to improve how digital evidence is collected and verified. Groups like Bellingcat have also use open-source tools to document war crimes in Ukraine  and Syria, these examples show how online investigations can shed light on the truth while  also underling the need for clear rules to protect fairness and accuracy when it comes to  international law. 

Proposal:  

To ensure that digital evidence is more reliable in international criminal law, the international courts need to create a clear set of rules that explain how to ensure that the material is  

• Real  
• How to store it safely 
• How to protect people’s privacy 

As a suggestion, the ICC could include guidelines from the Berkeley Protocol in its own  Rules of Procedure and Evidence while also implementing training to judges, lawyers, and  investigators to ensure that they understand how digital evidence is created, verified and  distributed.

The ICC and other international legal entities could also partner with social media companies with the agreement of helping the courts obtain the data at a faster rate while still remaining  within the bounds of the law. This helps investigations and trial fair on both sides. 

Conclusion  

Digital evidence has become an important part of international criminal investigations,  through using social media to help expose crimes and support justices it also comes with its  own set of challenges and the courts need to be careful when collecting, authenticating and  verifying digital material to ensure that it is not fake or edited. 

The ICC has already show how useful evidence found on social media can be in cases like Al  Mahdi and Ongwen, but the lack of structured rules and policies surrounding the collection,  use and verification of digital evidence may cause confusion. It is important that clear  international guidelines are put in place to ensure that digital evidence is handled the same  way as other forms of evidence.  

With technology’s continuous evolution, the law is required to keep up to ensure that digital  evidence can strengthen cases, bring justice and help truth and fairness remain the centre if  international criminal investigations. 

Bibliography 

OSCOLA Reference List 

Primary Sources 

1. Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into  force 1 July 2002) 2187 UNTS 90, arts 53, 67, 69. 
2. Rules of Procedure and Evidence of the International Criminal Court (adopted 9  September 2002) ICC-ASP/1/3. 
3. UN Human Rights Committee, General Comment No 32: Article 14: Right to  Equality Before Courts and Tribunals and to a Fair Trial (23 August 2007)  CCPR/C/GC/32 https://humanrts.umn.edu/gencomm/hrcom32.html accessed 9  November 2025. 
4. Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) ICC-01/12-01/15 (27  September 2016). 
5. Prosecutor v Dominic Ongwen (Judgment) ICC-02/04-01/15 (4 February 2021). 
6. United Nations Human Rights Council, Report of the Independent International Fact Finding Mission on Myanmar (12 September 2018) UN Doc A/HRC/39/64. 

Secondary Sources 

7. Andreas Anagnostakis, ‘Social Media Evidence in International Criminal Law: Case  Studies and Practical Applications’ (Anagnostakis Law, 2023)  https://anagnostakislaw.com/social-media-evidence-in-international-criminal-law/  accessed 9 November 2025. 
8. DDE in ICL.pdf (Digital Evidence in International Criminal Law) (2022)  [unpublished internal report, on file with author]. 
9. DIGITAL_EVIDENCE_IN_INTERNATIONAL_CRIMINAL_PROCEED.pdf (2022)  [research article, author unknown]. 
10. Social Media Platforms in International Criminal Investigations (2023) [research  briefing, on file with author]. 
11. RulesProcedureEvidenceEng.pdf (International Criminal Court, 2002) [official rules  document].