THE LAW OF DIGITAL EVIDENCE IN INTERNATIONAL CRIMINAL PROCEEDINGS

INTRODUCTION

Digital evidence has not simply augmented international criminal investigations; it has completely transformed the way these investigations operate. Modern wars produce vast amounts of electronic content, most of which has not been documented by investigators but by civilians with smartphones.[1] This change poses an immediate legal issue. Courts are now left with a choice of whether to accept mass, unverified digital content as sufficient to meet the high standards of evidentiary standards needed in the prosecution of core international crimes.[2]

The 2022 siege of Mariupol demonstrates this change in a very graphic way.[3]Journalists even smuggled memory cards with digital footage that revealed grave atrocities even when it was under the information blackout.This becomes a paradox of the law.The evidence to support this has never been better, but the credibility of the evidence is now more questionable than at any time in the history of international criminal law.

Meanwhile, state actors are increasingly crushing online information by blocking the internet and automatically deleting content.This brings about structural imbalance.Digital evidence plays a crucial role in the prosecution, whereas access to it is frequently manipulated by the same actors involved in the crime.The main legal issue of concern does not thus lie in the use of digital evidence, but rather in the ability of the existing evidentiary structure of the International Criminal Court (ICC) to handle it without jeopardizing the fairness of the proceedings.

THE EVOLUTION OF EVIDENCE IN INTERNATIONAL CRIMINAL LAW

International criminal law has never adhered to a single evidentiary model. Rather, it has evolved out of necessity. The trials at Nuremberg and Tokyo did not use documentary evidence mainly because it was theoretically better than any other evidence, but simply because huge amounts of captured documents were available during the post-World War II period.Prosecutions were based on written documents and liability was frequently determined by means of official correspondence and state documents.

The Rwanda and former Yugoslavia tribunals took a significantly different strategy. These courts were also dependent on witness testimony due to the destruction of documentary evidence or the lack of such evidence at all.[4]This dependence on the oral testimony testimony posed a new challenge.Trials were too long and the reliability of witnesses was often challenged.The replacement of documents by testimony solved one issue but created another.

The recent dependence on digital evidence is an evolutionary move at the third stage.Digital material is plentiful but volatile unlike other previous types of evidence.It is possible to duplicate it immediately, edit it easily and delete it without leaving any evidence.This poses an important legal issue.Considering that the evidentiary structure was created to support tangible documents and in-person testimony, is it applicable in a digital-intensive universe?This question is even more acute when the case of the prosecution is based on digital evidence.

FORENSIC CHALLENGES OF DIGITAL EVIDENCE

The most significant flaw of digital evidence is that it can be manipulated. The development of artificial intelligence has created the possibility of creating much realistic and completely fabricated videos.[5]This risk is even graver in conflict situations because the digital manipulation is frequently applied intentionally as a component of a more comprehensive disinformation plan.The presence of a video is no longer a demonstration of the fact that something took place.It just shows that somebody wants people to think that it has happened.

Deepfakes are not the only problem.Misleading digital evidence may also be the case whereby the context is manipulated as opposed to the content itself.In the recent wars, people shared the same footage several times and made it look new.In other instances, video game footage was extensively distributed as actual combat footage.Such instances reveal a critical mistake in the belief that digital material can be trusted.As a matter of fact, digital evidence can be convincing exactly due to its authenticity.

The case of the investigation of downing of the Malaysian aircraft, MH17,[6] shows that even digital evidence can be doctored by the state actors.Investigators in open-source found discrepancies in official satellite images, which had been modified to hide the existence of military equipment.The case demonstrates that the issue of authentication is not only technical but very political.When the manipulation of digital material is carried out by states, the evidentiary load on the prosecution is much more serious.

Metadata used to be regarded as the safest authentication mechanism.[7]Nonetheless, metadata is regularly deleted by social media sites when uploading files.This is a very grave legal dilemma.The same platforms that render digital evidence available also undermine the evidentiary value of digital evidence.Consequently, investigators are turning to other methods like geolocation and chronolocation.These are advanced mechanisms that are subject to error especially in complicated conflict settings.

The chain of custody creates an additional difficulty.[8]In the conventional criminal process, evidence is well documented once it has been collected. Digital evidence seldom takes such a visible route. A video captured on a smartphone can be uploaded, downloaded, edited and re-uploaded a number of times before it is accessed by investigators.Every phase undermines the accuracy of the evidence.It is not a small technical problem.It has a direct influence on the justness of the trial, as the defence has a valid point to claim that the material has been compromised.

The Berkeley Protocol on Digital Open-Source Investigations tries to resolve these issues by setting a minimum of standards of verification and preservation.[9] Nevertheless, guidelines do not ensure compliance. The institutional challenge is the actual one. Digital evidence is prone to be persuasive and not reliable unless the courts put up stringent authentication measures. That danger is more evident when considering the jurisprudence of the ICC.

DIGITAL EVIDENCE IN ICC PRACTICE: BEMBA AND AL-WERFALLI

The Rome Statute dictates admissibility through a strict three-tiered test. Under Article 69(4), Chambers must assess a piece of evidence for prima facie relevance, its probative value, and any potential prejudice it may cause to a fair trial.[10] The ICC’s approach to digital evidence can be characterized by one thing: the Court admits it with reservation and under the condition of its valid verification. A good example is the trial of Prosecutor v. Bemba.[11] The prosecution also provided some photographs taken on Facebook so as to prove the relationships between the people who committed the alleged crimes. The strategy looked convincing at first sight. The impact of visual material is usually stronger than the written testimony.

This strategy was weakened by the defence. It claimed that the photographs were not duly authenticated since the initial metadata had been deleted. In the absence of trusted metadata, the prosecution was not able to prove who photographed what and when. The judges believed this argument. The photos were not taken as conclusive evidence. The case illustrates a very basic yet significant fact. The Court does not discredit digital evidence, but does not give it automatic credit either.

This is not so in the Al-Werfalli case.[12] The ICC in this case was very much dependent on social media videos in making an arrest warrant. Not the nature of the evidence but its verification was the difference. The videos were very viral, and some of them seemed to show the same events in different perspectives. This triangulation increased their validity. The Chamber found that the material was reliable enough to have reasonable grounds to believe that the crimes had been committed.

There is a significant contradiction in these two cases. The digital evidence may either make or break a prosecution based on the manner in which it is managed. It can be central to the case when it is rightly verified. It is a liability when it is not authenticated properly. The success of digital evidence is thus not as much of a technological issue as the legal standards of digital evidence are.

THE ICC’S TECHNOLOGICAL RESPONSE

The ICC has become more and more aware of the fact that the old means of investigation are not enough any longer. Consequently, it has started establishing technological systems that are specifically used to handle digital evidence.[13] The introduction of OTPLink, which was introduced in May 2023, is one of the most important developments.[14] The site enables the witnesses and investigators to upload digital material via a secure web portal. More to the point, it leaves a trail behind since the time the file is uploaded. This directly deals with the issue of chain of custody.

OTPLink is used together with Project Harmony, a centralised digital evidence management system.[15] This project is not only aimed at storing digital files but also to arrange and analyse them. Forensic investigators have to work with thousands of videos, photographs, and web posts. In the absence of sophisticated data-processing software it becomes virtually impossible to know what material is legally relevant. Project Harmony tries to address this issue by classifying and analysing large amounts of digital data with the help of machine-learning tools.

The Court has also started applying digital technology in recreating crime scenes that are impossible to reach physically. This approach is exemplified in the Al Mahdi and Al Hassan cases.[16] The Court instead of doing site visits only, employed satellite images and spatial information to digitize a recreation of Timbuktu. This trend is indicative of a greater change. The physical evidence is no longer the limit in international criminal investigations. They are increasingly relying on technological expertise.

Nonetheless, technological solutions will not solve the legal issue. Digital evidence is not necessarily reliable due to the use of a secure platform. The question is whether the Court can come up with a uniform standard in authentication. In the absence of such standards, the technological innovation would become a way of enhancing efficiency without determining the fairness of the trial.

CONCLUSION

The digital evidence has revolutionized the criminal process in the international sphere, yet it has revealed severe flaws in the current evidentiary paradigm. The ICC is currently in a setting where evidence is abundant yet in most cases unreliable. This creates a difficult balance. The Court has no option, but to use digital material since in most instances, other types of evidence may not be available, but overuse of unproven digital evidence may lead to compromising the integrity of the process.

This is a more serious challenge with the growing sophistication of artificial intelligence. Deepfakes and misrepresented videos are getting increasingly realistic and harder to identify. This is to state that the legal standards that apply in digital evidence need to be tightened and not weakened. Without the Court adapting, the digital evidence can undermine prosecutions instead of making them strong.

The future effectiveness of the international criminal justice will thus be determined by one factor only, the skill of courts in differentiating between persuasive evidence and reliable evidence. Electronic material has the power to reinforce the quest of accountability but only when it is backed by stringent forensic principles. In the absence of these safeguards, the increasing use of digital evidence poses the threat of making international criminal proceedings a battle of perception and not a tool of justice.

Reference(S):

[1] Lindsay Freeman, ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials’ (2018) 41 Fordham International Law Journal 283.

[2] Rafael Braga da Silva, ‘Updating the Authentication of Digital Evidence in the International Criminal Court’ (2022) 22 International Criminal Law Review 941, 961–962.

[3] Hanna Kuczyńska, ‘The ICC Enters into the Future: The Digital-Evidence Revolution or Evolution?’ (2024) 10(3) Revista Brasileira de Direito Processual Penal e1073, 24–25.

[4] Karolina Aksamitowska, ‘Digital Evidence in Domestic Core International Crimes Prosecutions: Lessons Learned from Germany, Sweden, Finland and the Netherlands’ (2021) 19(1) Journal of International Criminal Justice.

[5] Tal Mimran and Lior Weinstein, ‘Digitalize It: Digital Evidence at the ICC’ Lieber Institute West Point (14 August 2023) https://lieber.westpoint.edu/digitalize-it-digital-evidence-icc/ accessed 31 March 2026.

[6] Bellingcat, MH17 – The Open Source Evidence https://www.bellingcat.com accessed 31 March 2026.

[7] Y Ng, ‘How to Preserve Open Source Information Effectively’ in Sam Dubberley, Alexa Koenig and Daragh Murray (eds), Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation and Accountability (Oxford University Press 2020) 146, 147.

[8] Karim Khan, ‘Innovation and Technology in Building Modern Investigations and Prosecutions at the ICC’ in Carsten Stahn and Rafael Braga da Silva (eds), The International Criminal Court in Its Third Decade: Reflecting on Law and Practices (Brill 2023).

[9] Human Rights Center, UC Berkeley School of Law, Digital Lockers: Archiving Social Media Evidence of Atrocity Crimes (2021) 10 https://humanrights.berkeley.edu/sites/default/files/digital_lockers_report5.pdf accessed 1 April 2026.

[10] Rome Statute of the International Criminal Court 1998, art 69; Rules of Procedure and Evidence 2002, rr 63–64.

[11] Prosecutor v Jean-Pierre Bemba Gombo (Judgment) ICC-01/05-01/08 (Trial Chamber III, 21 March 2016).

[12] Prosecutor v Mahmoud Mustafa Busayf Al-Werfalli (Second Warrant of Arrest) ICC-01/11-01/17-13 (Pre-Trial Chamber I, 4 July 2018).

[13] Tareq Al-Billeh and others, ‘Digital Evidence in Human Rights Violations and International Criminal Justice’ (2024) 4(3) Journal of Human Rights, Culture and Legal System 842, 845.

[14] Hayley Evans and Mahir Hazim, ‘Digital Evidence Collection at the International Criminal Court: Promises and Pitfalls – OTPLink, Project Harmony, and Digitalization Efforts’ Just Security (5 July 2023) https://www.justsecurity.org/87149/digital-evidence-collection-at-the-intl-criminal-court-promises-and-pitfalls/ accessed 31 March 2026.

[15] F Guariglia, ‘“Admission” v “Submission” of Evidence at the International Criminal Court: Lost in Translation?’ (2018) 16 Journal of International Criminal Justice 315, 339.

[16] Prosecutor v Ahmad Al Faqi Al Mahdi ICC-01/12-01/15-171 (Judgment, Trial Chamber VIII); Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Trial Judgment) ICC-01/12-01/18 (26 June 2024).