II. The Need for Open Source Evidence at the ICC

The ICC is mandated with investigating and prosecuting the most serious crimes known to the global community: genocide, war crimes, and crimes against humanity.6 Since it was established in 2002, the ICC has indicted forty-four individuals.7 However, only nine have seen their cases proceed to trial, and the Trial Chamber has returned a guilty conviction for only five.8 The OTP’s struggle to advance cases to a successful outcome is due to many factors. But one of the main challenges the OTP faces is collecting and presenting compelling evidence that more definitively links the accused to the crime.9

Digital open source evidence holds a potential solution to many of the barriers that exist between the OTP and quality evidence, both at the investigative and trial stages. At the investigation stage, the emerging availability of open source evidence posted online provide researchers at the ICC an incredible and growing mine of documentary evidence. On top of that, the type of documentation posted on open source platform has the potential to be highly probative and, in some instances, it is generated by the defendant themselves. This makes open source evidence possibly very useful in a trial setting. Both of these attributes—the growing online availability and probative nature of the pieces of evidence—make the use of open source evidence by the OTP in the investigatory and trial settings a promising new source of evidence to explore.

A. Availability

Because of the wide-spread and growing availability of technology across the globe, open source information can provide courts with access to conflict zones or protected spaces that are otherwise inaccessible to the reaches of more traditional criminal investigation and evidence collection.10 This is because civilians on the ground—be they bystanders or participants in a particular event—can increasingly capture photos and videos that create a window through which the wider world can view an event, sometimes even in real-time.11 Many users are then uploading the photo and video documentation they create to online platforms, such as social media sites like Facebook or YouTube, or sending the documentation to online news sources.

In addition, a growing number of activist-lead databases are popping up that have sifted through the open source documentation specifically in search for those that capture human rights violations. For example, the Syrian Archive, an organization that preserves evidence of human rights violations in the Syrian conflict, has gathered videos and photographs from hundreds of sources that document chemical weapon attacks in Syria between 2012–2018.12 The goal of the Syrian Archive is to curate and analyze the documentation to create a tool that can be used for reporting and accountability purposes.13 Similarly, Amnesty International launched a Digital Verifications Corps in 2016, which is aimed at training researchers to verify online images for potential future accountability efforts.14 The intersection between international criminal investigations and this emerging evidence source is clear, and open source information has already been used as a tool in investigations into crimes in conflict zones across the globe.15

From the perspective of the ICC, the growing pervasiveness of this open source evidence is powerful, particularly as an investigatory mechanism. The ICC continues to face many challenges when it comes to performing thorough and timely investigations of potential human rights violations. One of the main constraints on the ICC’s investigatory ability is access. Traditional on-the-ground investigation teams typically reach sites of potential war crimes or atrocities weeks, months, or sometimes years after the events occurred.16 As a result, critical evidence is often lost or destroyed. Because open source evidence in conflict zones is largely user-generated, and the Internet enables users to share images with the world instantaneously, the traditional constraints of criminal investigation can be alleviated by open source evidence.

Moreover, the ICC relies heavily on states participation in evidence collection and has few tools in their toolbox to compel state participation if the state proves uncooperative. For instance, the OTP faced major problems with state non-cooperation while investigating post-election violence in Kenya.17 The Prosecutor was ultimately forced to withdraw the charges against Kenyan President Uhuru Kenyatta because the investigation failed to produce the evidence necessary to proceed. This failure has come to epitomize the immense investigatory challenges the OTP faces and the lack of leverage available to remediate the challenges.18 Not only does stonewalling by state actors thwart the truth-seeking and accountability efforts that the ICC was designed to create, but even more dangerously, consistent non-cooperation from states under ICC jurisdiction could undermine the legitimacy of the Court and pave the way for future non-cooperation in other conflicts.19

In light of these challenges, open source evidence made freely accessibly on the Internet provides a potential solution to some of the investigatory constraints the ICC experiences. Due to the nature of open source platforms which provide access to material from anywhere in the world, some of the roadblocks and pitfalls that the ICC is prone to with on-the-ground investigations can be circumvented. The OTP has recognized this, and in recent years has increased its capacity to conduct cyber-investigations and analyze digital evidence.20 In addition, the OTP has continuously tried to foster external partnerships with both national law enforcement and transnational organizations that have more sophisticated frameworks for collecting and analyzing digital evidence.21 This demonstrates the OTP’s awareness of the critical role that open source, digital evidence will play in ongoing and future investigations.

B. Probative Value

Moving beyond the investigation stage, open source evidence provides another significant benefit to the OTP at trial. One of the challenges that the Prosecutor faces at trial is presenting evidence that sufficiently demonstrates to the judges the criminal intent or state of mind of the accused. Much of the traditional evidence that is typically relied upon is testimonial or circumstantial, and this has led to difficulties for the Prosecutor in successfully convicting defendants at trial. For instance, the Trial Chamber recently acquitted Laurent Gbagbo, former president of Côte d’Ivoire and his close aid Charles Blé Goudé.22 The two were accused of crimes against humanity for their role in the post-election violence that erupted in the Côte d’Ivoire following the 2010 presidential election.23

The acquittal was a major blow for the OTP, which spent several years and a large amount of its resources bringing the case to trial. Critics have been quick to point out that the ICC cannot succeed at its mission if the OTP is failing to select and present successful cases. A significant evidentiary issue that the Prosecutor continues to face at trial is a heavy reliance on live witness testimony. Live witness testimony generates a host of issues and research illustrates that witness interference has been alleged in nearly every case before the ICC.24 The OTP’s 2016–2018 Strategic Plan noted that witness interference may have occurred in eight of the nine first cases heard by the ICC.25 In light of this, the Court’s over-reliance on witness testimony—especially in terms of comparative probative value to other forms of evidence—compound the concerns about witness reliability. Witness interference can undermine the truth-seeking purpose of the Court’s proceedings and lead to wrongful convictions or acquittals. On a practical level, protecting the integrity of witness testimony and ensuring the safety of those who do testify can be a resource drain on the Court and preoccupy the proceedings. From an internal perspective, the OTP has recognized the limitation of traditional bodies of evidence in international criminal proceedings. The 2016–2018 Strategic Plan recognized the need to diversify the body, and the types of evidence it collects and presents at trial, and laid out the strategic steps necessary to develop internal capacity and foster external partnerships in order to do so.26

Historically, some of the most valuable and probative types of evidence available has been the evidence that is generated by the perpetrators themselves. For instance, during the Nuremberg trials, the Chief Prosecutor was able to move away from relying on witness testimony and focus on documentary evidence that demonstrated that genocide was the modus operandi of the Nazi party.27 Because the Nazi’s were such prolific and detailed record keepers, the Chief Prosecutor was able to use those records to link defendants to specific atrocities and acts.28 In large part because there was this substantial paper trail, the Chief Prosecutor avoided victim testimony that would be open to cross-examination and criticisms as to its reliability.29 Because the records used had been created by the perpetrators themselves, the probative value of the documents was immense as it demonstrated the defendant’s state of mind and criminal intent. The choice to rely heavily on the documentary evidence, as opposed to witness testimony, led in large part to the success of the Nuremberg trials at accomplishing one of its main goals, ensuring accountability.

While not without criticism, the Nuremberg trials certainly laid the groundwork for the use of evidence in international criminal proceedings. In the following years, the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda (ICTR) continued the legacy and pioneered new mediums of evidence. While both tribunals relied far more on witness and expert testimony than the Nuremberg trials had, there were similarly also opportunities to successfully advance evidence that had been created by the perpetrators themselves.30 For instance, in one case before the ICTR, the Prosecution relied on radio broadcasts to successfully convict three influential media executives based on the executives’ role in airing broadcasts which explicitly called for violence against Tutsis during the Rwandan genocide.31 Similarly to the Nazi records in the Nuremberg trials, it was the broadcasts themselves—evidence generated by the perpetrators—which was invaluable in proving the criminal intent and purposeful behavior of the defendants.32

Continuing in this vein, open source digital material is a prime example of how a different type of evidence can be leveraged in court to corroborate, supplement, and enhance traditional evidence sources. The arrest warrant of Mahmoud Al-Werfalli, discussed in the Introduction, is an example of how the Court can use perpetrator-generated photos, videos, and other documentary evidence to advance cases against those that commit human rights violations. And, unlike a witness, a piece of video evidence “can’t be cross examined. It can’t forget. It can’t be bribed.”33

As the Al-Werfalli case has yet to proceed to trial—the suspect is currently still at large—it remains to be seen how the ICC reacts to the use of social media evidence in that case. But national courts have already had success in utilizing social media evidence to obtain convictions against Syrian war criminals. For instance, in 2016, a Swedish national court convicted a former Syrian soldier of war crimes.34 This was a landmark ruling in the wake of the Syrian civil war, as it was the first time a member of the Syrian military had been adjudicated for war crimes. The conviction also demonstrated how evidence collected from social media can (and cannot) be used in prosecutions. A key piece of evidence was a picture the defendant had posted on Facebook, showing himself standing over a pile of bodies, smiling.35 German national courts have also leveraged the abundance of social media evidence to generate convictions, paving the way for the ICC to admit similar types of evidence in the Al-Werfalli case, and potential cases yet to come.36

III. Limitations of Open Source Evidence

Despite the many benefits that open source evidence would seem to offer, the ICC and other courts have been slow to embrace the use of it. This is largely due to concerns about the potential limitations and inequities that open source evidence forces courts to consider. While scholars have advanced many concerns and criticisms of open source evidence in the context of criminal proceedings, this comment focuses primarily on those implicated in the investigative and trial procedural stages.

A. Source Integrity and Reliability

Critics of the use of open source evidence in a criminal context are generally wary of the reliability of such types of information. One major issue is that open source information that is publicly available online is often not easily traceable to an identifiable source. This impacts the ability of the investigators to authenticate the evidence and assess the sources’ reliability. A particularly potent threat emerging at the forefront of technology is that of “deepfakes”—videos that are manipulated to make it look like people said or did something they did not.37 The alarming possibility that deepfakes can and are used to potentially spread falsehoods to news sources, criminal investigators, or government officials is a scary new reality. For instance, in May 2019, a doctored video of US Congresswoman Nancy Pelosi appeared on Facebook, and quickly amassed more than 2.5 million followers and was shared to YouTube, Twitter, and other online platforms.38 The video, in which Pelosi appeared to be stammering and slurring her words during a press conference, captured national attention in the US and highlights how emerging technology can blur the lines between truth and distortion and how open source platforms can facilitate the rapid dissemination of lies.

Because photos and videos can be uploaded to open source platforms relatively anonymously and shared rapidly, verification of open source information in the process of collecting criminal evidence is of paramount importance. Clearly, the possibility of false or unreliable evidence making its way into an international criminal investigation is antithetical to the truth-seeking function of the courts. Currently, the ICC does not internally have the capacity to conduct digital forensics at the scale today’s investigations require, so the Court relies heavily on partnerships with human rights NGOs, states, and other external partners to locate, preserve, verify, and analyze digital evidence.39

Additionally, there are of course implications on the rights of the accused when the reliability of a type of evidence is at issue. Further complicating that fundamental point is the reality that the sheer amount of resources required to mine and verify pieces of open source evidence for use in a criminal investigation creates an inequality of arms based on a defendant’s inability to weaponize open source evidence to the same degree as prosecution teams.40 The inherent inequality between the use of open source evidence to incriminate rather than exculpate, as well as the deep uncertainty about the reliability of open source evidence, will likely lead to heavy challenges by defendants to its growing use by the ICC.

B. Admissibility and Evidentiary Weight

The potential promise of the growing new repositories of user generated evidence is of little value to the OTP if it cannot be used in trials. Luckily, perhaps, the evidentiary standard which the ICC is built around affords the Court a large degree of judicial discretion in admitting evidence into consideration. Rule 63(2) of the ICC’s Rules of Procedure and Evidence gives judges the authority to “assess freely all evidence submitted in order to determine its relevance or admissibility.”41 Somewhat surprisingly, the Rules do not indicate what, if any, evidence would be prima facie inadmissible. The Rules merely require the judges to consider the evidence in light of their relevance, probative value, and prejudicial impact.42 This flexible and open-ended evidentiary standard tends to suggest that the Court will continue down the path of admitting open source evidence that is presented by the OTP.

The ICC does have some protocol in place to guide the submission of pieces of digital evidence, which will apply to open source evidence as well. The Court has adopted an e-Court Protocol, which is designed to ensure authenticity, accuracy, confidentiality, and preservation of the record of ICC proceedings.43 This protocol requires that the chain of custody of a piece of evidence be established using metadata, and the identity of the source be disclosed, among other things. The development and implementation of this Protocol suggests that the Court can adapt to the ways in which technology is changing the way evidence is captured, which is a promising sign for acceptance of open source evidence.

However, although many types of open source evidence may likely be deemed admissible, that does not necessarily mean that they will be viewed by ICC judges as particularly probative. In practice, the ICC has generally admitted most evidence that it is presented with. Any remaining questions regarding the quality of the evidence has generally detracted from the weight that the judges place on the evidence to inform their decision.44 The ICC generally favors live, in-person witness testimony, although the OTP has been committed to diversifying its evidence base due to the many constraints that large scale witness testimony presents.45

Although, on one hand, the flexible evidentiary standard gives the ICC plenty of leeway, it also makes it difficult to predict how judges of the ICC will interact with open source evidence as it becomes more prevalent. One example of an evidentiary issue implicated by the use of open source evidence is exemplified by the hearsay doctrine—evidence of facts outside the personal knowledge of the testifying witness. Many national courts have common law rules that have developed a strong sense of how to deal with hearsay evidence. The ICC on the other hand has no explicit rule against hearsay evidence and lacks clear guidance on how to grapple with such evidentiary problems that hearsay evidence may provoke. This could prove challenging in the context of assessing the probative value of a piece of open source evidence, pulled from an anonymous source on an online platform. The ICC has admitted into evidence anonymous e-mails presented by the Prosecutor that would raise hearsay objections in many common law traditions, and, indeed, these generated strong objections regarding their underlying veracity from the defense team.46 Such objections to the admission of similar types of evidence will likely grow louder as the prevalence of online open sources continues to grow.

Admission of a piece of evidence is just one piece of the equation of how open source evidence will be viewed by the Trial Chamber. When it comes to questions of probative value, open source evidence seems particularly vulnerable to attack. Although it remains an open question, some insight into how judges will perceive open source evidence can be gleaned from the case against Thomas Lubanga. Lubanga, a warlord from the Democratic Republic of Congo, was tried and convicted of conscripting child soldiers. During the trial against him, the OTP relied on ten videos to demonstrate that Lubanga was aware that children were being conscripted as soldiers into his ranks.47 The videos in this case did not come from open source platform, but rather were collected by NGOs on the ground during the conflict.48 The videos were also accompanied by a witness who provided testimony as to what was occurring in the videos.49 Lubanga was ultimately convicted, but on appeal his defense team raised many challenges to the use of the videos by the OTP.50 These arguments were rejected by a majority of the judges in the Appeals Chamber—however, the opinion of dissenting Judge Anita Ušaka provides insight into reservations that still exist around the probative value of digital evidence such as video.

Judge Ušaka’s dissent argued that the Prosecutor’s use of video evidence—offered to demonstrate to the judges that the soldiers conscripted by Lubanga’s forces were children—asked the Court to make impressionistic and speculative judgments that were not based on objective criteria.51 Some of these concerns would likely be exacerbated by the presentation of digital evidence procured from open source platforms. Much open source evidence being proliferated online may not be easily traced back to a source or could be presented by the Prosecutor without corroboration from a witness testifying alongside of it, such as in the Lubanga trial. As such, in the process of evaluating the weight of such a piece of evidence, the Court may necessarily be forced to make impressionistic judgments regarding the evidence’s reliability and truthfulness. Depending on the circumstances of a case, ICC judges may find themselves more in line with Judge Ušaka’s opinion on the Lubanga decision.

The Court also must consider the prejudicial impact of open source evidence on the defendant. Scholars have been quick to point out that the use of open source evidence in courtrooms raises substantial concerns regarding the rights of the accused.52 Concerns about digital manipulation, data security, and the integrity of the investigation process, as discussed above, all provoke valid questions about whether the Court can admit evidence pulled from online sources.

In practice, the Court seems particularly wary of evidence presented from anonymous sources, which could prove problematic in the context of open source platforms. For instance, in the Gbagbo case, the Prosecutor presented evidence captured from an anonymous source.53 The judges noted that this piece of evidence was “highly problematic” and without information regarding a source, it was “impossible to determine what probative value to attribute the information.”54 It appears that the ICC is wary of relying on information from anonymous sources without an accompanying witness or expert to articulate what the evidence discloses.55 This could prove challenging as the OTP seeks to introduce evidence derived from open source platforms, which comes largely from online sources that may be difficult to trace. Ultimately, the pending case against Mahmoud Al-Werfalli is the first-time open source evidence has played such a significant role, so it is yet to be seen how the ICC will react to its use at trial.

IV. The Way Forward

Despite the challenges associated with open source evidence in international criminal proceedings, the reality is that it is likely not going away any time soon. Rather, the OTP has recently re-dedicated itself to utilizing open source and other types of digital evidence in the course of building its cases. In 2013, the OTP created a Digital Forensics Team and the growing case around Al-Werfalli is a strong indication that digital and open source evidence will continue to play a prominent part in the OTP’s investigatory and evidentiary strategy moving forward. As such, Court investigators and lawyers must strategize on how to maximize open source evidence’s potential while mitigating the inherent limitations, particularly as to its reliability and probative value.

The questions around open source evidence’s reliability and probative value in criminal investigations and trials are of course not completely distinct. A strong sense that a piece of evidence is reliable naturally engenders a greater degree of weight that it will carry in the courtroom. Reliability is not necessarily the only factor involved in assessing the probative value of a piece of evidence. But creating a culture that is confident that the most reliable evidence is being curated and advanced by the OTP will feed into the weight that the judges can place on the evidence they are presented with at trial.

One option to combat the creation and distribution of deepfakes or other types of digital misinformation is to impose legal liability on the bad actors who make them. Many legal scholars have already contemplated the usefulness of such a liability scheme. And some individual states have already begun to respond to this new landscape of digital technologies with new laws meant to discourage deepfakes. For instance, a bill passed in the UK created penalties for pornographic deepfakes.56 In the United States, similar federal legislation has been introduced in Congress, and several states are likely to follow suit in the near future.57 These legislative pushes could potentially make the creation of certain types of deepfakes a criminal offense.

However, other scholars have argued that this is approach is too piece-meal and doesn’t address the reality of our digital world which exists largely independent of state borders.58 Ultimately, criminal investigators and lawyers need to become more adept at detecting deepfakes and, conversely, verifying credible sources. This will likely involve multiple methods of information corroboration before determining that a particular piece of open source information is reliable. For instance, metadata can be used to check the time, date, and place that a digital video or photograph was created.59 This type of information is already required by the ICC in order for a piece of digital evidence to be considered admissible.60

That said, metadata can be faked and should not be relied upon exclusively to verify the truthfulness of a piece of digital information. Additionally, access to metadata can prove challenging in its own right when dealing with third-party open source platforms. While many of these platforms, such as Facebook, YouTube, and Twitter, do store the metadata of information posted on their platforms, they have so far been hesitant to collaborate with international criminal investigators due to user privacy and other liability issues.61 However, additional techniques allow investigators to supplement the use of metadata to verify the source of a piece of information.

Best practices in digital forensics indicates that investigators should seek to corroborate open source evidence based on external factors. For instance, investigators can use satellite images to help verify locations, weather records can be used to verify consistency at the particular time and date the metadata alleges the information was created at, etc.62 Many of these best practices are already being incorporated into the frameworks of investigatory NGOs, and have been in practice in international criminal proceedings in the past. For instance, the ICTR tried a case that involved video evidence of a rally along with a transcript of a radio broadcast covering the rally.63 The ICTR found that the combination of these pieces of evidence reliably supported a finding that the accused was in attendance at the rally.64 In another case, the ICTR relied on a similar combination of video footage and transcript to find that the defendant was exercising military control.65 These provide examples of how international courts can triangulate multiple pieces of evidence to create greater assurances of reliability.66

In addition to focusing on external factors to verify reliability, a strong chain of custody can increase the reliability of a piece of open source evidence. A chain of custody is the history of persons who have had a piece of evidence within their control.67 In court proceedings, establishing chain of custody is generally done by testimony of the persons who controlled the electronic evidence, verifying that the piece of evidence as presented in court is substantially the same as it was at the beginning of its lifetime.68 This ensures transparency around how the evidence was collected and stored, which can in turn be protective of fair trial rights of the defendant and the reliability of the evidence presented to the judges.

There are many additional techniques available to corroborate, verify, and authenticate open source digital evidence. The OTP continues to develop its own internal capacity as well as rely on critical external partnerships to conduct the necessary digital forensics to ensure the evidence used in criminal proceedings is accurate and reliable. As technology changes, it’s likely that different and new challenges and possibilities to digital verification will emerge.

V. Conclusion

Today, citizens and journalists are documenting human rights violations on the frontlines of emerging conflicts and sharing that information online. Social media, online news sources, and other media sharing sites have the power to make everyday people journalists, documentarians, and investigators. The OTP must harness the powerful changes technology is bringing to how the world witnesses, experiences, and communicates around conflict and international crimes. Open source evidence provides investigators the possibility to gain access to inaccessible places and curate information on a level that has never been possible before. Open source evidence also provides international criminal prosecutors the opportunity to tell the story of victims more effectively than traditional evidentiary sources can on their own.

Despite the limitations that open source evidence might pose, and the challenges that may come with convincing the Court to accept it, the benefits will likely make open source evidence more and more popular in international criminal investigations. The future case law, beginning perhaps with the Al-Werfalli case should it advance to trial, will prove pivotal in how evidence is generated, collected, assessed, and ultimately used as a tool for justice at the ICC.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, ICC-01/11-01/17, Warrant of Arrest (PTC I, Aug. 15, 2017), available online. ↩

2. 2.

   Id. ↩

3. 3.

   Rebecca J. Hamilton, User-Generated Evidence, 57 Colum. J. Transnat’l L. 1, 17–18 (Nov. 7, 2018), available online; See also Tolu Ogunlesi & Stephanie Busari, Seven Ways Mobile Phones Have Changed Lives in Africa, CNN, Sep. 14, 2012, available online. ↩

4. 4.

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

5. 5.

   Rebecca J. Hamilton, The Hidden Danger of User-Generated Evidence for International Criminal Justice, Just Security (Jan. 23, 2019), available online. ↩

6. 6.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 5(1), available online. ↩

7. 7.

   International Criminal Court Fast Facts, CNN, Apr. 7, 2020, available online (last visited May 28, 2020). ↩

8. 8.

   Id. ↩

9. 9.

   UC Berkeley Human Rights Center, Digital Fingerprints: Using Electronic Evidence to Advance Prosecutions at the International Criminal Court (Feb. 2014) [hereinafter Digital Fingerprints], available online. ↩

10. 10.

    Nikita Mehandru & Alexa Koenig, ICTS, Social Media, and the Future of Human Rights, 17 Duke L. & Tech. Rev. 129, 145 (2019), available online. ↩

11. 11.

    See Jeff Deutch & Hadi Habal, The Syrian Archive: A Methodological Case Study of Open-Source Investigation of State Crime Using Video Evidence from Social Media Platforms, 7 St. Crim. J. 46 (2018), paywall, doi; Hamilton, supra note 3. ↩

12. 12.

    Deutch & Habal, supra note 11. ↩

13. 13.

    Id. ↩

14. 14.

    Conor Fortune, Digitally Dissecting Atrocities: Amnesty International’s Open Source Investigations, Amnesty Int’l (Sep. 26, 2018), available online. ↩

15. 15.

    See, e.g., How a Werfalli Execution Site Was Geolocated, Bellingcat (Oct. 3, 2017), available online; See, e.g., Anna Banchik, Leenah Bassouni, Michael Elsanadi, Hannah Ellis, Sonia Hamilton, Natalia Krapiva, Danny Lee & Andrea Trewinnard, Hum. Rts. Investigation Lab, Chemical Strikes on Al-Lataminah, March 25 & 30, 2017 (Jan. 18, 2018), available online; Mehandru & Koenig, supra note 10, at 133. ↩

16. 16.

    See Caroline Buisman, Delegating Investigations: Lessons to be Learned from the Lubanga Judgment, 11 Nw. J. Int’l Hum. Rts. 30, 52 (2013), available online

    (describing one-month delay after the collapse of the Ghadafi regime before investigators from OTP arrived in Libya). ↩

17. 17.

    The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, Second decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (TC V, Sep. 19, 2016), available online. ↩

18. 18.

    Hamilton, supra note 3. ↩

19. 19.

    See Thomas Obel Hansen, Masters of Manipulation: How the Kenyan Government is Paving the Way for Non-Cooperation with the ICC, Open Democracy (May 30, 2012), available online. ↩

20. 20.

    See Digital Fingerprints, supra note 9, at 4. ↩

21. 21.

    Id. ↩

22. 22.

    The Prosecutor v. Laurent Koudou Gbagbo and Charles Blé Goudé, ICC-02/11-01/15, Delivery of Decision (TC I, Jan. 15, 2019) (Oral Decision), available online. ↩

23. 23.

    Situtation in the Republic of Côte d’Ivoire, ICC-02/11-26, Warrant of Arrest for Laurent Koudou Gbagbo (PTC III, Nov. 23, 2011), available online. ↩

24. 24.

    See, e.g., Open Society Justice Initiative, Witness Interference in Cases Before the International Criminal Court (Nov. 2016), available online. ↩

25. 25.

    Office of the Prosecutor, ICC, Strategic Plan 2016–2018 (Jul. 6, 2015), available online. ↩

26. 26.

    Id. ↩

27. 27.

    Patricia M. Wald, Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal, 5 Yale Hum. Rts. & Dev. L.J. 217 (2002), available online. ↩

28. 28.

    Id. ↩

29. 29.

    Jennifer Stanley, Note: From Nuremberg to Kenya: Compiling the Evidence for International Criminal Prosecutions, 49 Vand. J. Transnat’l L. 819 (Aug. 8, 2016), available online. ↩

30. 30.

    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. ↩

31. 31.

    Id. at 301. ↩

32. 32.

    Wald, supra note 27. ↩

33. 33.

    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. ↩

34. 34.

    Anne Barnard, Syrian Soldier is Guilty of War Crime, a First in the 6-Year Conflict, N.Y. Times, Oct. 3, 2017, available online. ↩

35. 35.

    Id. ↩

36. 36.

    Cathrin Schaer, Prosecuting Syrian War-Crimes Suspects from Berlin, The Atlantic (Jul. 31, 2019), available online. ↩

37. 37.

    See, e.g., Jon Christian, Experts Fear Face Swapping Tech Could Start an International Showdown, The Outline, Feb. 1, 2018, available online. ↩

38. 38.

    Doctored Nancy Pelosi Video Highlights Threat of “Deepfake” Tech, CBS, May 25, 2019, available online. ↩

39. 39.

    See, e.g., 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. ↩

40. 40.

    See Hamilton, supra note 3. ↩

41. 41.

    International Criminal Court, Rules of Procedure and Evidence, ICC-ASP /1/3, R. 63(2) (2d ed. Sep. 9, 2013), available online, archived. ↩

42. 42.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision on the Prosecution’s Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute of 6 September 2012 (TC III, Oct. 8, 2012), available online. ↩

43. 43.

    The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision amending the e-Court Protocol (Pre-trial Chamber I, Apr. 28, 2011), available online. ↩

44. 44.

    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, 118 (2014), available online, doi ↩

45. 45.

    Id. at 3. ↩

46. 46.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the confirmation of charges (PTC I, Jan. 29, 2007), available online. ↩

47. 47.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 A 5, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction (AC, Dec. 1, 2014) [hereinafter Lubanga Appeals Judgment], available online. ↩

48. 48.

    Elizabeth O’Shea & Kelly Matheson, From Camera to Courtroom: Using Video Evidence for International Prosecutions, Int’l Just. Monitor (Oct. 4, 2016), available online. ↩

49. 49.

    Id. ↩

50. 50.

    See Lubanga Appeals Judgment, supra note 47, ¶ 216; see also The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Mr. Thomas Lubanga’s appellate brief against the 14 March 2012 “Judgment pursuant to Article 74 of the Statute” (AC, Dec. 3, 2012), available online. ↩

51. 51.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-06 A 5, Dissenting Opinion of Judge Anita Ušacka (AC, Dec. 1, 2014), available online. ↩

52. 52.

    See Mehandru & Koenig, supra note 10. ↩

53. 53.

    See Hamilton, supra note 3. ↩

54. 54.

    The Prosecutor v. Laurent Koudou Gbagbo, ICC-02/11-01/11, Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute (PTC I, Jun. 3, 2013), available online. ↩

55. 55.

    See Mehandru & Koenig, supra note 10. ↩

56. 56.

    See, e.g., Dan Sabbagh & Sophia Ankel, Call for Upskirting Bill to Include “Deepfake” Pornography Ban, The Guardian, Jun. 21, 2018, available online. ↩

57. 57.

    DEEP FAKES Accountability Act, H.R. 3230, 116th Cong. (Introduced Jun. 12, 2019), available online. ↩

58. 58.

    See e.g., Koenig, supra note 39. ↩

59. 59.

    See Prosecutor v. Mbarushimana, supra note 43. ↩

60. 60.

    Id. ↩

61. 61.

    See Mehandru & Koenig, supra note 10. ↩

62. 62.

    See Koenig, supra note 39. ↩

63. 63.

    The Prosecutor v. Édouard Karemera and Matthieu Ngirumpatse, ICTR-98-44-T, Judgement and Sentence (ICTR TC III, Feb. 2, 2012), available online. ↩

64. 64.

    Id. ↩

65. 65.

    The Prosecutor v. Théoneste Bagosora and Anatole Nsengiyumva, ICTR-98-41-A, Judgement (ICTR AC, Dec. 14, 2011), available online. ↩

66. 66.

    See Ashouri, Bowers & Warden, supra note 44. ↩

67. 67.

    Id. at 11. ↩

68. 68.

    Id. ↩