Background Materials — Cyber Evidence

  • Relevant Treaties (in reverse chronological order)

  • ICC Documents (reverse chronological order)

  • Governments and Intergovernmental Organizations (alphabetical by organization, then reverse chronological order)

    • European Informatics Data Exchange Framework for Courts and Evidence, Final Report Summary (Apr. 10, 2017). Available online.

      EVIDENCE is a project, supported by the EU, that creates a roadmap to regulate cross-border electronic evidence in Europe, developing a common European legal framework for the use, collection, and exchange of electronic evidence. The Roadmap includes guidelines, best practices, recommendations, and technical standards that should serve as a resource for various actors to lay the groundwork for a common European electronic evidence framework. The project outcomes included an electronic evidence categorization tool, an electronic evidence map of actors, and a digital forensics tool catalogue, as well as a proposal for electronic evidence exchange.

    • Johann Hershensohn, I.T. Forensics: The Collection and Presentation of Digital Evidence, ISSA (2005). Available online, archived online.

      references the challenges to forensic digital evidence and that of evidence discovery. The South African Courts have a large influence on the international arena and this article pinpoints some of their approaches under their criminal law.

  • Non-Governmental Organizations (NGOs) (alphabetical by organization, then reverse chronological order)

    • Alexa Koenig, Andrea Lampros & Eric Stover, UC Berkeley HRC, The New Forensics: Using Open Source Information to Investigate Grave Crimes (Jul. 9, 2018). Available online.

      reports on a workshop focused on exploring how online open source investigations can be strengthened to improve investigations and prosecutions by uncovering critical evidence of serious international crimes, including genocide, crimes against humanity, and war crimes.

    • UC Berkeley Human Rights Center, Digital Fingerprints: Using Electronic Evidence to Advance Prosecutions at the International Criminal Court (Feb. 2014). Available online.

      discusses the uses of electronic evidence, its major issues, and recommendations on ways that new technologies could advance ICC prosecutions.

    • Home Page, Witness. Available online (last visited May 17, 2020).

      Witness launched an online platform to make human rights crimes visible. They established a human rights media lab dedicated to exploring solutions for eyewitness footage to serve as an effective tool for justice and accountability. And they created the first global video-as-evidence guide, teaching activists how to shoot video that meets the standards of legal proof, ensuring that perpetrators can be more than merely exposed—they can also be prosecuted.

    • Ethical Guidelines for Using Videos in Human Rights Reporting and Advocacy, Witness. Available online (last visited May 17, 2020).

      guidelines cover the principles of human rights documentation, discuss how those principles can be used to assess the various risks involved in sharing online videos of abuse, and provide ways to minimize those risks. It addresses the following topics: [LIST] (i) principles of ethical documentation, (ii) professional judgment, (iii) how to minimize harm while exposing abuse, (iv) perpetrator videos, (v) credit and context, (vi) at-risk sources, and (vii) graphic footage.

  • Articles (alphabetical by author, then reverse chronological order)

    • Philipp Amann & Joshua I. James, Designing Robustness and Resilience in Digital Investigation Laboratories, 12 Digital Investigation 111 (Supp., Mar. 2015). Available online, doi.

      surveys and analyzes the state of digital investigation capacities of various law enforcement agencies and then compares those agencies’ practices to those of the ICC.

    • Jay D. Aronson, Preserving Human Rights Media for Justice, Accountability, and Historical Clarification, 11 Genocide Stud. & Prevention 82 (May 2017). Available online, doi.

      examines the preservation of digital images and video that provide information about human rights abuses and war crimes and highlights the technical, legal, and ethical issues that must be taken into consideration when preserving human rights media.

    • Aida Ashouri, Caleb Bowers & Cherrie Warden, The 2013 Salzburg Workshop on Cyber Investigations: An Overview of the Use of Digital Evidence in International Criminal Courts, 11 DEESLR 115 (2014). Available online, doi.

      reviews some leading international criminal cases involving digital evidence, with a particular focus on the ICC. It identifies four types of evidentiary considerations specific to digital evidence: [LIST] (1) authentication, (2) hearsay, (3) provenance (chain of custody), and (4) preservation of evidence.

    • Emerson T. Brooking & P.W. Singer, War Goes Viral: How Social Media is Being Weaponized Across the World, The Atlantic (Nov. 2016). Available online.

    • Ewan Brown & William H. Wiley, What Can and Should the Next ICC Prosecutor do to Improve the ICC’s Investigative Techniques?, Just. in Conflict (Apr. 13, 2020). Available online.

    • William A. Carter & Jennifer C. Daskal, CSIS, Low-Hanging Fruit: Evidence-based Solutions to the Digital Evidence Challenge (Jul. 2018). Available online.

      “[…] focuses on challenges and opportunities faced by law enforcement as they seek to access and use digital evidence in their cases.”

    • Bobby Chesney & Danielle Keats Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. 1753 (2019). Available online, doi.

    • Alison Cole, Technology for Truth: The Next Generation of Evidence, Int’l Just. Monitor (Mar. 18, 2015). Available online.

    • Róisín Á Costello, International Criminal Law and the Role of Non-State Actors in Preserving Open Source Evidence, 7 Cambridge Int’l L.J. 268 (Dec. 1, 2018). Paywall, doi.

      focuses on the responsibilities and issues associated with the third-party, non-state actors that control access to open source evidence in international criminal cases. The article illustrates the shortcomings of current legal mechanisms both at an international and national level by which such duties to preserve and/or report are imposed and proposes solutions which countenance a more developed role for the ICC in collecting and preserving open source evidence independent of Non-State Actor co-operation.

    • Lindsay Freeman, Law in Conflict: The Technological Transformation of War and its Consequences for the International Criminal Court, 51 N.Y.U. J. Int’l L. & Pol. 807 (2019). Available online.

      discusses the challenges involving digital evidence and the ICC given a lack of a supra-national governing structure over data and the need to acknowledge the internationally-recognized human right to privacy.

    • Lindsay Freeman, Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials, 41 Fordham Int’l L.J. 283 (2018). Available online.

      surveys recent international criminal cases where digital evidence was used and how the ICC has largely avoided ruling on authenticity, bias, and privacy issues.

    • Rebecca J. Hamilton, User-Generated Evidence, 57 Colum. J. Transnat’l L. 1 (Nov. 7, 2018). Available online.

      identifies three categories of concern related to its use: [LIST] (i) user security, (ii) evidentiary bias, and (iii) fair trial rights, and suggests two ways to mitigate these concerns: [LIST] (1) regaining accountability through contract design, and (2) assess the degree to which the ICC’s Guidelines on the Use of Intermediaries and the International Committee of the Red Cross’s Guidelines for Protection Actors could be adapted to the user-generated evidence context.

    • Keith Hiatt, Open-Source Evidence on Trial, 125 Yale L.J. F. 323 (Mar. 3, 2016). Available online.

      provides a short overview of challenges that arise through the use of open-source evidence by the ICC, namely the security of witnesses, the availability of the material, and the reliability. The author then explains why, despite the challenges, the ICC should embrace open-source evidence.

    • Alexa Koenig, “Half the Truth Is Often a Great Lie”: Deep Fakes, Open Source Information, and International Criminal Law, 113 Am. J. Int’l L. Unbound 250 (Aug. 19, 2019). Available online, doi.

      focuses on one specific danger that is tied to the use of open-source evidence: “Deep Fakes”, videos that are generated by algorithms and that depict an event that never occurred. The article also proposes strategies on how to deal with “Deep Fakes” by focusing on legal, technological, and pedagogical responses.

    • Alexa Koenig, Keith Hiatt & Khaled Alrabe, Access Denied? The International Criminal Court, Transnational Discovery, and The American Members Protection Act, 36 Berkeley J. Int’l L. 1 (May 2018). Available online.

      discusses how international criminal tribunals can better utilize digital evidence and overcome barriers to obtaining data evidence stored by American companies.

    • Natalia Krapiva, The United Nations Mechanism on Syria: Will the Syrian Crimes Evidence Be Admissible in European Courts?, 107 Cal. L. Rev. 1101 (Jun. 2019). Available online, doi.

      considers issues admissibility issues of evidence collected by the International Impartial and Independent Mechanism for Syria (IIIM) and future mechanisms. It looks at admissibility rules of the Netherlands, France, Germany, and Sweden, specifically considering the status of evidence that was obtained from illegal searches and seizures, and evidence collected by private groups which cooperate with prosecutors and the IIIM. These questions may be equally relevant for admissibility at the ICC.

    • Nikita Mehandru & Alexa Koenig, ICTS, Social Media, & the Future of Human Rights, 17 Duke L. & Tech. Rev. 129 (2019). Available online.

      discusses the impact of internet-based open source investigations on international criminal processes, as well as challenges related to their use including witness identification, witness safety, and authentication/verification of evidence. The article also offers best practices for lawyers, activists, and other individuals seeking to admit open source information—including information from social media—into courts.

    • Nikita Mehandru & Alexa Koenig, Open Source Evidence and the International Criminal Court, 32 Harv. Hum. Rts. J. (Apr. 15, 2019). Available online.

      discusses how the ICC has recently incorporated open-source practices into its investigations and how this emerging process can advance the use of open-source evidence in regional and national courts.

    • Marta Poblet & Jonathan Kolieb, Responding to Human Rights Abuses in the Digital Era: New Tools, Old Challenges, 54 Stan. J. Int’l L. 259 (Jul. 2018). Available online.

      considers a wide range of issues that big data and social media raise on accountability, generally. Briefly considers issues of veracity, authentication, and verification of these sources for use in international criminal tribunals.

    • Megha Rajagopalan, The Histories of Today’s Wars Are Being Written on Facebook and YouTube. But What Happens When They Get Taken Down?, Buzzfeed, Dec. 22, 2018. Available online.

    • Makhdoom Syed Muhammad Baqir Shah, Shahzad Saleem & Roha Zulqarnain, Protecting Digital Evidence Integrity and Preserving Chain of Custody, 12 JDFSL 121 (Jun. 30, 2017). Available online, doi.

      examines two tools that claim to protect the integrity of evidence, detail problems with the techniques the tools employ, and proposes solutions t these problems.

    • Marlise Simons, Investigators in Syria Seek Paper Trails That Could Prove War Crimes, N.Y. Times, Oct. 7, 2014. Available online.

    • Elies van Sliedregt, Command Responsibility and Cyberattacks, 21 J. Conflict & Security L. 505 (Sep. 22, 2016). Paywall, paywall, doi.

      explores the attribution potential of command responsibility in the cyber realm. The author discusses the three most common scenarios that create command responsibility through cyber attacks and cyber communications. Command responsibility is most likely to trigger liability when cyber units are integrated into the army and are part of regular operations. Outsourcing cyber operations, however, can trigger liability, even when hackers remain anonymous. This would, however, require proof of link between a commander’s subordinates and (anonymous) hackers. When there is no such link there can be no command responsibility.

    • Beth Van Schaack, Innovations in International Criminal Law Documentation Methodologies and Institutions (Feb. 5, 2019). Paywall, doi.

      focuses on the positive aspects of electronic and real time documentation of the atrocities or human rights violations. The author argues that this not only helps the international forum to act with proper information but also helps in trials and other translational justice mechanisms.

    • Erica Frances Williams, Using Citizen Media and Open Source Investigations to Promote Human Rights: UC Berkeley’s Human Rights Investigations Lab (2017) (Master’s thesis, University of San Francisco). Available online.

      reviews the literature on human rights fact finding and open source investigations to understand the work of the Investigation Lab of the Human Rights Center at the UC Berkeley School of Law and to address the issue of whether it is possible to create investigative and evidentiary standards for using open source investigations and citizen media to promote human rights. The report argues that the Human Rights Center has the potential and duty to take a more central role in open source investigations.

  • Books (alphabetical by author)

    • Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability (Sam Dubberley, Alexa Koenig & Daragh Murray eds., Feb. 19, 2020). Paywall.

    • Commentary on the Law of the International Criminal Court (Mark Klamberg, ed., Apr. 29, 2017). Available online, archived, interactive version.

    • Alexa Koenig & Lindsay Freeman, Open Source Investigations for Legal Accountability: Challenges and Best Practices, in Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability (Sam Dubberley, Alexa Koenig & Daragh Murray, eds., Feb. 19, 2020). Paywall, paywall.

    • Patrick Philippe Meier, Digital Humanitarians: How Big Data Is Changing the Face of Humanitarian Response (Jan. 22, 2015). Paywall.