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- AhmadSoliman: Admissibility of Illegally Obtained Cyber Evidence at the ICC I. Introduction The International Criminal Court (ICC) is already grappling with questions about what types of cyber evidence will be admissible to the Court. Even more difficult questions about the admissibility of illegally obtained cyber information are on the horizon. The law governing the admissibility of illegally obtained cyber evidence contains several ambiguities, and new types of... (more)
- Steve Helmeci: The “Coming Storm”: Possibilities for Preserving Evidence of War Crimes Published on Major Online Service Providers I. Introduction There should be no greater windfall for criminal prosecutors, national or international, than the growth of the Internet as a tool for communication and networking. Potential evidence against perpetrators abounds: photos and videos posted by offenders, victims, and witnesses alike; personal... (more)
- glazera2020: Protecting Against Deepfakes: How the ICC Can Ensure Trust in the Verification and Use of Open-Source Evidence I. Introduction Digital devices have allowed ordinary civilians to become on-the-ground investigative reporters in almost every region of the world. Contemporaneous uploads of footage featuring protestors being tear-gassed in Hong Kong or Syrians fleeing from chemical warfare have allowed viewers all over the... (more)
- brittnewell: What Policies Should the Office of the Prosecutor Adopt in Receiving Cyber Evidence From User-Generated Evidence Gathering Apps to Help Protect Those Providing It? I. Introduction The rapid increase in the use of camera-equipped and internet-connected devices has enabled individuals to record far more information about their lives and their surroundings than ever before. This fundamental shift in information gathering is transforming... (more)
- Abhishek: Digital Evidence and the Use of Artificial Intelligence I. Introduction With the advent of new advancements in the technological world, it should come as no surprise that the primary source of information gathering and documentation is within the grasp of every individual. Internet and smartphones have virtually created journalists and investigators on every corner. International human rights and criminal prosecution organizations have... (more)
- marianava: Digital Evidence Repositories and Vulnerable Populations: How the Accumulation of Digital Evidence May Interact with the Privacy of Sexual Assault Survivors I. Introduction With the rise of digital technology, it is likely that the future of evidence collection at the International Criminal Court (ICC) will increasingly rely on digital evidence. This may take the form of videos, images, etc. (media) taken by victims or civil society... (more)
- Jill Mierke: The Promise and Problems of Open Source Evidence in ICC Investigations and Trials I. Introduction On August 15, 2017, the Pre-Trial Chamber of the International Criminal Court (ICC) issued an arrest warrant for senior Libyan military commander, Mahmoud Al-Werfalli.1 Al-Werfalli is accused of personally committing or ordering thirty-three murders in Benghazi between June 2016 and July 2017. Importantly, this is the... (more)
Comment on the Cyber Evidence Question: “To what extent can cyber evidence repositories, and digital and open-source evidence, facilitate the work of the OTP, and the ICC more generally?”
Admissibility of Illegally Obtained Cyber Evidence at the ICC
The International Criminal Court (ICC) is already grappling with questions about what types of cyber evidence will be admissible to the Court. Even more difficult questions about the admissibility of illegally obtained cyber information are on the horizon. The law governing the admissibility of illegally obtained cyber evidence contains several ambiguities, and new types of evidence are likely to expose the ambiguities. This comment attempts to answer the question: What types of illegally obtained cyber evidence would be inadmissible to the Court?
While not conclusive, this comment asserts that a few categories of evidence are inadmissible. Untailored seizures of individual data acquired directly by the Prosecutor and cyber evidence unlawfully acquired by intermediaries at the specific instruction of the Prosecutor are likely inadmissible. Illegally obtained privileged cyber evidence and evidence obtained by means of torture are also clearly inadmissibly, but because of the underlying content of the evidence rather than the means of delivery to the Office of the Prosecutor (OTP).
This is an important and relevant issue because many ICC prosecutions have failed due to weak evidence. The OTP has relied heavily on witness testimony which is notoriously unreliable. International criminal prosecutors appear to increasingly rely on quantity of evidence rather than quality.1
Illegally obtained cyber evidence has the potential of shifting the trend toward admission of fewer exhibits which are more probative, and will be an attractive option for the OTP moving forward. This type of evidence is already making its way into courts. In December 2018, the US Department of Justice successfully convicted suspects, involved with the firm Mossack Fonseca, largely on the strength of the illegally obtained hacked evidence derived from the Panama Papers and hacked data provided to the prosecutor by a third party.2 This type of evidence will become increasingly accessible to prosecutors, including the ICC OTP.3 Clarifying the law regarding admissibility is critical.
II. Statutory Interpretation and Case Law
The threshold for excluding evidence obtained by means of illegal seizures is unclear. Some scholars have focused on the ambiguity of the terms “obtained by means of”.4 Others have focused on the causal link between prosecutors’ involvement and the violation itself.5 Still others have considered the impact of human rights law on the Court’s interest in this area.6 This comment attempts to interpret the recent jurisprudence of the ICC and ad hoc tribunals, applying it to likely factual scenarios.
A. Relevant Rome Statute Provisions
Article 69(7) of the Rome Statute is lex specialis with regard to the question of admissibility of illegally obtained evidence.7 The Lubanga Trial Chamber held explicitly that Article 69(7):
But several other provisions bear on questions of admissibility generally, and have been considered by courts in their analyses of illegally obtained evidence in particular.
1. Article 69(4) of the Rome Statute
Article 69(4) lays out the general threshold for admissibility of evidence, specifying that:
The Lubanga Trial Chamber established the three-fold test based on Article 69(4) which asks judges to determine admissibility of evidence on the basis of the exhibit’s 1) relevance, 2) probative value, and 3) whether the probative value outweighs its prejudicial effect.9 The consideration of probative value is notably absent from the admissibility analysis for illegally obtained evidence under Article 69(7) however.
The explicit mention that admissibility be decided in accordance with the Rules and Procedures and Evidence (RPE) in Article 69(4) is also worth noting. While Article 69(4) refers to the RPE explicitly, Article 69(7) only refers to the Rome Statute itself. One view is that since the RPE isn’t mentioned in Article 69(7), it shouldn’t be considered in interpreting the article. Another view is that inclusion of RPE in Article 69 broadly suggests it should bear on the admissibility analysis in each of the subsections, Article 69(4) and Article 69(7). The drafting history does not appear to provide clarity on the reason for the mention of the RPE in Article 69(7), but because the RPE does not include rules specific to the admissibility of illegally obtained evidence, its inclusion might have been deemed unnecessary to the drafters at the time.
The more general analysis of Article 69(4) still applies to all admissibility decisions, so if the RPE is amended to provide a factor bearing on the question of illegally obtained evidence, it should be applied by judges in admissibility decisions.
2. Article 55 of the Rome Statute
Under Article 55, violation of rights that would require exclusion of evidence include the right not to be subject to torture or other cruel punishment, the right to be free from inhuman or degrading treatment, the right to counsel, and the right not to self incriminate.10 None of these rights relate to the question of mandatory or discretionary exclusion of cyber evidence because of the illegal means by which it was gathered. No court has considered these rights in relation to such evidence.
3. Article 21(3) of the Rome Statute
Article 21(3) is a broad catch-all provision that requires application and interpretation of the Statute to be “consistent with internationally recognized human rights.”11 The term “internationally recognized human rights” actually first appeared in the drafting history in Article 69(7) and was later added to Article 21(3).12 ICC judges must interpret and apply Article 21(3) in rendering admissibility decisions as well. This mandatory consideration could be viewed as conflicting with Article 69(7), which permits judges to admit evidence which violates internationally recognized human rights so long as admission of the evidence not violate subsection (a) reliability or (b) integrity of the proceedings.
Courts have reconciled this inconsistency in two ways. One interpretation is that under ICC jurisprudence, admission of evidence in some cases might not be considered to be a violation of internationally recognized human rights where the violation is proportional to the objective sought. Investigations of serious crimes under the Rome Statute can render what would otherwise be a violation of human rights by a human rights court consistent with human rights where the conduct is proportional to the interest of investigating serious crimes.
Another interpretation, adopted by the Lubanga Trial Chamber, implicitly acknowledges the inconsistency between Article 69(7) and Article 21(3), while asserting Article 69(7) is lex specialis with regard to admissibility so is therefore the controlling provision.13 Despite the argument by some scholars,14 no decision has explicitly considered Article 21(3) in its admissibility analysis so it will not be considered in this analysis.
B. Narrowing the Scope
Breaks in the chain of custody do not factor into determination of admissibility at the confirmation stage, according the Lubanga Trial Chamber.15 Chain of custody issues also do not factor into the analysis of violations to the right to privacy as an internationally recognized human right.16 Issues of authenticity are also separate from this analysis. Authenticity is determined by a separate standard, applying a different burden of proof. The International Criminal Tribunal for the former Yugoslavia (ICTY) emphasized multiple times that the question of admissibility of illegal obtained evidence is assessed separately from general authentication analysis.17
Commentary on the issue also clarifies two relevant points that help narrow the scope of relevant factors. First, the admissibility analysis is the same regardless of which side enters the evidence and whether it be in favor or against the accused. Piragoff makes this clear in his commentary.18 Ambos argues the same.19
Second, whether or not the search or seizure was in violation of national law is not a relevant consideration for admissibility at the ICC, according to Article 69(8).20 In Lubanga, the Pre-Trial Chamber rejected the defense request to exclude evidence acquired by authorities in violation of Congolese law.21
C. Article 69(7) of the Rome Statute
Article 69(7) of the Rome Statute provides:
The case law of the Article 69(7) suggests four relevant and separate analyses can be extracted from this provision.
1. “In Violation of this Statute ”
Evidence obtained in violation of the Rome Statute would trigger analysis of whether Article 69(7) subsections (a) or (b) were satisfied. The relevant protections provided for in the Statute include rights of the accused22 and rights of witnesses and victims.23 However, no court has held that any of these protections were implicated in the type of unlawful acquisition of evidence that is relevant for the cyber evidence discussed in this comment.
Notably, explicit protections against improper search and seizure is absent from the Statute, as is the right to privacy. Provisions providing for these protections were removed from preliminary drafts, well before the final negotiated drafts.24
Scholars disagree about whether “violations of this statute” was meant to include the Rules of Procedure and Evidence. Piragoff argues it was;25 Safferling argues it was not.26 Regardless, it is not clear that the issue is relevant to the analysis here, because the RPE do not provide for protections relevant to cyber evidence discussed in this comment. The analysis of the courts has focused on violations of internationally recognized human rights. The analysis of this comment does the same.
2. Internationally Recognized Human Rights
To determine what qualifies as an “internationally recognized human right,” the ICC has looked broadly at International Human Rights Law (IHRL) jurisprudence. The primary source cited thus far has been the European Court of Human Rights (ECHR). The Lubanga Pre-Trial Chamber held, that “only serious violations of human rights may lead to exclusion of evidence.”27
For this analysis, the relevant internationally recognized human right is the right to privacy. Privacy is the most common human right asserted in admissibility cases at the ICC and other ad hoc tribunals. It also appears to be the only relevant human right related specifically to admissibility of cyber evidence.
Privacy was held to be an internationally recognized human right early on in the ICC jurisprudence in the Lubanga Confirmation Decision. This followed consistent rulings at the ICTY.
The right to privacy is codified in multiple human rights instruments, including Article 17 of the International Covenant on Civil and Political Rights, Article 8 of the European Convention on Human Rights (European Convention), and Article 11 of the American Convention on Human Rights. Each of these instruments provide an exception—for “lawful” exceptions to the right to privacy.28
The Lubanga Pre-Trial Chamber did find that evidence submitted for admission by the OTP was acquired in violation of the accused’s internationally recognized human rights.29 The Court identified two factors as weighing toward a conclusion that there was a violation of internationally recognized human rights—first, that the interception was not proportional to the objective sought; and second, that the “indiscriminate nature of the search and seizure involving hundreds of items.”30 Specifically, the Court found a violation where Congolese authorities provided the prosecutor with “hundreds of [confiscated] documents […] including correspondence, photographs, invitations, legislation, reports, diaries, and other ‘personal information.’”31 The Trial Chamber agreed, emphasizing that “hundreds of documents were seized that were unrelated to the purpose of the search.”32
The ECHR held in Klass v. Germany, that surveillance was compatible with Article 8(II) of the European Convention.33 National security was the justification for the surveillance in this case, however.34 It is unclear what other justification would convey such a broad privacy exception. In A v. France, prevention of crime was recognized by the ECHR as proper justification for the tapping of phones.35 The ECHR found no violation of Article 8 privacy protections—the critical distinction being that phone tapping was legal under French law.36
The lawfulness of the privacy intrusions proves to the critical factor in ECHR holdings of what qualifies as an Article 8 human rights violation of privacy. In France, the surveillance was lawful so there was no human rights violation,37 whereas the same conduct in the UK, where the same surveillance was not legal, amounted to a violation of Article 8.38
The ICC does not apply the same analysis as human rights courts to determine whether a human rights violation occurred. Lawfulness of surveillance under domestic law is not relevant to ICC analysis, as the Court is generally not permitted to consider domestic law in admissibility analysis.39
The ECHR also had the opportunity to address the implications of a third party providing evidence to the Prosecutor. In Schenk v. Switzerland, a private individual illegally recorded the accused and provided the recording to national authorities.40 The ECHR admitted the evidence without articulating any adverse impact from the fact that the recording was provided by a third party.41
Finally, one question that may arise related to this fact is: does it matter whose human rights are violated in acquiring the evidence? The Court has answered this definitively—it does not. The Lubanga Trial Chamber held that:
3. Article 69(7)(a) Reliability
Most of the admissibility challenges at the ICC have related to intercepted cell phone conversations. In each of these cases, the Court held that the illegal nature of its acquisition did not cast substantial doubt on the reliability of the evidence. This is true of the jurisprudence at the ICC and the ad hoc tribunals.
In Lubanga, the illegal search and seizure of the accused did not substantially undermine the evidence’s reliability according to the Pre-Trial Chamber.43 Similarly, the Mbarushimana Court held that the illegal nature of intercepted communication did not “have any impact on the reliability of the evidence thereby obtained.”44
The jurisprudence strongly suggests that the nature of violation of human rights does not meaningfully impact the Article 69(7) analysis. The nature of human rights violations could affect the reliability of evidence, but are more likely to be assessed by the judges under authentication analysis or as a question of the evidence’s “weight.” It is not relevant for Article 69(7) admissibility analysis.
4. Article 69(7)(b) Integrity
The construction of Article 69(7)(b) sets the bar for exclusion of evidence relatively high. Evidence satisfying the first of Article 69(7) in violation of human rights would only be inadmissible under Article 69(7)(b) if its admission “would be antithetical to and would seriously damage the integrity of the proceedings.” This sets out a conjunctive requirement—must be “antithetical to” and “would seriously damage” the integrity of the proceedings. A human rights violation that is antithetical to but would not seriously damage the proceeding’s integrity would still be admissible.
This raises the question: what would seriously damage the integrity of the proceedings? Klamberg argues that the fundamental values of the Rome Statute are relevant to the “integrity of the proceedings.”45 The Lubanga Pre-Trial Chamber invoked these values when it cited “the need to respond to victims’ and the international community’s expectations.”46
The ICC considered the jurisprudence of the ad hoc tribunals in analyzing this question and ruled consistently with it. The Lubanga Pre-Trial Chamber followed the approach of the ICTY in Brđanin, concluding that the privacy violation did not adversely impact the proceedings.47
Similarly, the Karadžić Trial Chamber held that illegally obtained phone intercepts were in violation of the human right to privacy, but that their admission did not conflict with the integrity of the trial.48 The Court held that the “fundamental right to privacy is not absolute and may be derogated from in times of emergency.”49 It is unclear what the Court meant by “emergency.”
The ICTY had the opportunity to rule on some contextual factors that may affect the impact on the integrity of the proceedings. Whether the intercepted communications (that were concededly obtained in violation of the accused’s privacy) were obtained in the context of an ongoing armed conflict or in peacetime did not affect the analysis. In Stanišić and Župlijanin, the Court held that the admission of intercepts illegally obtained during wartime did not adversely affect the integrity of the proceedings.50
This was consistent with an earlier holding in Kordić, where the Court held that admission of illegally intercepted phone calls by a soldier during armed conflict “clearly […] did not damage the integrity of the proceedings.”51 In Haraqija, the defendant distinguished their facts on the basis that illegally intercepted phone calls and text messages were obtained during peacetime, well after the armed conflict ended. The Trial Chamber dismissed the significance of the distinction, noting it as an issue of domestic law which the Court would not consider.
In Haraqija, the Appeals Chamber cited the national authority’s “good faith” effort to protect witnesses even while it illegally intercepted accused’s text messages and phone calls.52 In that case, national authorities provided recording equipment to witnesses in a “good faith” interest of protecting them in an “atmosphere where witnesses felt unsafe.”53
Moving forward, the OTP (or defense counsel) might argue by analogy that obtaining cyber evidence illegally is a safer alternative than sending investigators into areas of armed conflict or other dangerous situations. It would be an overstatement to claim that these factors would cause an ICC judge to find an Article 69(7) violation. These are factors which previous courts have noted the absence of which contributes to a negative finding. The logical assumption is therefore that they matter. In the aggregate, and considering likely admissibility scenarios moving forward, this comment attempts to infer likely judicial outcomes.
In summary, Article 69(7) provides for a two-step proportionality test: First, a search or seizure may violate privacy but still be legal as a lawful interference if it is proportional. Second, even if the search or seizure would be a violation of international human rights jurisprudence as analyzed under IHRL, it may still be admissible so long as:
the violation cast substantial doubt on its reliability, or
admission of the evidence not be antithetical to or cast substantial doubt on the integrity of the proceedings.
III. Three Categories of Admissibility
A. Category 1—Clearly Admissible Evidence
Seizures in violation of domestic or international law, but which were conducted pursuant to a warrant, will be admissible. The jurisprudence at the ICC and the ad hoc tribunals strongly suggests that where any court issues a search warrant, the integrity of the proceedings would not be seriously damaged even if privacy violations occur in the execution of the warrant.
The ICTY addressed this issue specifically in Delalić, where Austrian authorities obtained a search warrant for the accused. Multiple irregularities and violations occurred during the seizure, causing a violation of his right to privacy. Still, the Court admitted the evidence, holding that:
The ICC would similarly admit cyber evidence obtained under similar circumstances.
B. Category 2—Clearly Inadmissible Evidence
Based on analysis of the jurisprudence, two types of cyber evidence are clearly inadmissible under Article 69(7). First, privileged information is inadmissible. Article 69(7) analysis is triggered by violations of the Rome Statute and Article 69(5) of the Rome Statute calls on the Court to observe privileged communication. Consequently, the OTP (and defense counsel) should be careful to mark privileged documents in their eDiscovery searches.
Second, cyber evidence obtained by means of torture is clearly inadmissible. The ICTY held in Martić that “statements which are not voluntary, but rather are obtained by means including oppressive conduct cannot be admitted.”55 Evidence obtained by torture is the classically cited example of the type of evidence which would seriously damage the integrity of the trial.56 Ambos argues that evidence obtained by torture is absolutely inadmissible, whether used in favor of or against the defendant, and whether introduced by the prosecutor or defense.57
The clear inadmissibility of evidence obtained by torture should signal to the parties that there may be a human rights violation prior to the unlawful interception of the information. In that case, admission of that piece of evidence would be analyzed for each alleged violation of internationally recognized human rights or violation of the Rome Statute under 69(7).
C. Category 3—Gray Area
The limited jurisprudence and vague text of the Rome Statute leave substantial ambiguity about hypothetical admissibility rulings. Each of the following proposed types of illegally obtained cyber evidence could be viewed as admissible or inadmissible under Article 69(7). Considering the factors tribunals have applied in the past, this comment considers the most likely admissibility decisions.
This comment asserts that the role played by the OTP in acquiring the evidence—whether active acquisition or passive—is instructive in predicting admissibility decisions. While not a dispositive factor in its analysis justifying admission, the Court in Lubanga focused on the limited role of the OTP investigator in the illegal seizure conducted by Congolese authorities.58 In dismissing defense arguments that illegally obtained evidence damaged the integrity of the proceedings at the ad hoc tribunals, courts have consistently implied that violations of human rights perpetrated by national authorities did not impugn the proceedings to the same degree that direct violations by the Prosecutor might.59
1. Third-Party Acquired Evidence to a Passive OTP
Three categories of evidence are likely to be introduced, which are characterized by the passive role of the OTP.
i. Seizures Provided to the OTP by a Government Agency
Illegally obtained data provided to a passive OTP is likely admissible. ICC jurisprudence suggests that the “integrity of the proceedings” analysis should weigh the competing goals of the Court in this analysis, including ending impunity, fairness to the accused, and deterrence of future crimes.60 If states were to start cooperating with Court by providing evidence, this would represent a major boost to the cooperation and complementarity objectives of the Court—an area where the Court has acknowledged a problem. Any damage to the integrity of proceedings weighed against this benefit would not require exclusion of the evidence.
ii. Seizures Provided by Victims and Defectors
Evidence illegally obtained by victims and defectors are likely admissible, because there is a lower risk of pervasive human rights abuses by way of their seizure. The fact that these sources are individuals, without the resources of a state, suggests the degree of human rights violation would be limited, therefore the likely damage to the integrity of the proceedings is also limited. By considering evidence from these sources, the Court advances its anti-impunity goal. In these limited cases, the advancement of this goal outweighs the potential damage to the integrity of the proceedings.
An example of this information is the 55,000 photos and documents recorded by Syrian authorities smuggled out of the country by the military police defector known by the pseudonym “Caesar”.61 This type of evidence, if the Court were able to exercise jurisdiction over crimes perpetrated in Syria, would greatly bolster the goals of the Court while only minimally damaging the integrity of the proceedings.
iii. Seizures of Stolen (i.e. Hacked) Personal Data by Intermediaries Acting as OTP Agents
Seizures by intermediaries acting as agents are likely to be admissible. The factual inquiry of determining the existence of an agency relationship between the OTP and intermediaries is likely to complicate admissibility analysis. It may require an evaluation of the Prosecutor’s mens rea as to the nature of the human rights violation caused by the solicitation of the evidence.
In a U.S. Court of Appeals case in the 4th Circuit involving illegally obtained evidence provided to prosecutors by a Turkish hacker, the Court asked if the hacker acted as an “agent” of the Prosecution when he hacked the data.62 Finding that the agency test was satisfied, because the “government knew of and acquiesced in the searches conducted by [the Turkish hacker] and that [his] actions were motivated solely by an interest to further law enforcement efforts,” the Court excluded the evidence as a 4th Amendment violation.63 At the ICC, the OTP will have broader powers to employ intermediaries as agents.64 Violations of national law are not considered in the analysis, and the OTP is, by necessity, more reliant on intermediaries for evidence than American prosecutors, considering the disparity in prosecutorial and enforcement powers.
Intent vis-à-vis the human rights violation perpetrated by the agent might likely lead to inadmissibility, but negligence would not. Recklessness could go either way. More likely, the mens rea of the OTP with regard to a violation committed by the agent intermediary would not be the dispositive inquiry. This is a procedural question of admissibility rather than a question of criminal liability. The judge will likely evaluate the damage to the integrity of proceedings holistically, balancing the OTP’s reasonable reliance on intermediaries against the damage to the Court’s integrity by a transparent attempt to deflect blame onto intermediaries.
iv. ICC Direct Solicitation for Specific Information
Direct solicitation of illegally obtained evidence impugns the integrity of the Court more than passive receipt of evidence, and is more likely to lead to inadmissibility.
a. Where Instruction Causes a Source to Steal Information
Similar to “agent” analysis, but assuming a greater control of the intermediary by the OTP, evidence stolen at the specific instruction of Prosecutor is likely to be inadmissible. While speculative, this outcome is consistent with the Trial Chamber’s concern in Lubanga that the OTP investigator not have been directly responsible for the privacy violation perpetrated by the national authorities.65 Specific instructions by OTP prosecutors and investigators that a source illegally obtain cyber evidence would make the OTP directly responsible for the violation. This responsibility weighs more heavily toward damage to the integrity of the proceedings, requiring exclusion of the evidence.
b. Untailored Seizures of Individual Data Acquired Directly by the Prosecutor
Wide-reaching and untailored illegal seizures of private data submitted for evidence are likely to be inadmissible. ECHR jurisprudence viewed untailored seizures as violations of the accused’s internationally recognized human rights because these seizures failed the proportionality requirement.66 These substantial violations of human rights would have a more damaging effect on the integrity of the proceedings. The OTP should be cautious to avoid submission of evidence acquired on the basis of such substantial privacy violations.
c. Where Information is Stolen Prior to the OTP Request
When the OTP actively solicits specific stolen information and where that information had already been stolen by intermediaries prior to the Prosecutor’s request, the evidence will likely be admitted. The fact that violation occurred prior to the OTP’s involvement and not at its request, reduces the likelihood of damage to the integrity of the proceedings. This hypothetical is more analogous to the OTP investigator’s mere presence at the illegal seizure in Lubanga and the passive receipt of illegally seized evidence by the Austrian authorities. In both cases, the evidence was admitted. The same outcome is likely here.
In summary, the issue of admissibility of illegally obtained cyber evidence is a timely one, and requires further clarification. Article 69(7) jurisprudence suggests that untailored seizures of individual data acquired directly by the Prosecutor, and cyber evidence unlawfully acquired by intermediaries at the specific instruction by the Prosecutor are likely inadmissible. The Court should consider adopting more specific guidelines through the Rules and Procedures of Evidence to clarify this area of law.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Christopher Gosnell, The Changing Context of Evidential Rules, in Principles of Evidence in International Criminal Justice 221 (Karim A. A. Khan, Caroline Buisman & Christopher Gosnell, eds., Jan. 15, 2010), paywall
(noting that the ICTY admitted 386 exhibits in the Tadić case and 375 exhibits in Delalić, while admitting many more in the later cases—3,086 exhibits in Brđanin [2002–2004] and 3,800 exhibits in Krasijsnik [2004–2006]). ↩
Victor L. Hou, Lisa Vicens, Rahul Mukhi, Martha E. Vega-Gonzalez & Christine Jordan, U.S. Criminal Prosecution Based on Panama Papers Hack Raises Novel Legal Issues, Cleary Cyberwatch (Jan. 17, 2019), available online. ↩
See e.g. Mirja Gutheil, Quentin Liger, Aurélie Heetman, James Eager & Max Crawford, Directorate-General for Internal Policies, European Parliament, Legal Frameworks for Hacking by Law Enforcement: Identification, Evaluation and Comparison of Practices 8 (Mar. 2017), available online. ↩
Amal Alamuddin, Collection of Evidence, in Principles of Evidence in International Criminal Justice 232, 241 (Karim A. A. Khan, Caroline Buisman & Christopher Gosnell, eds., Jan. 15, 2010), paywall. ↩
Andrea Ryan, Toward a System of European Criminal Justice: The Problem of Admissibility of Evidence 27 (Apr. 24, 2016), paywall. ↩
Wojchiech Jasiński, Admissibility of Illegally Obtained Evidence in Proceedings before International Criminal Courts, in Prosecuting International Crimes: A Multidisciplinary Approach 201 (Bartłomiej Krzan, ed., Jul. 11, 2016), paywall, doi. ↩
Kai Ambos, The Transnational Use of Torture Evidence, 42 Israel L. Rev. 362, 375 (2009), available online. ↩
The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the admission of material from the “bar table,” ¶ 34 (TC I, Jun. 24, 2009) [hereinafter Lubanga Bar Table Decision], available online. ↩
The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Corrigendum to Redacted Decision on the defence request for the admission of 422 documents, ¶ 94 (TC I, Mar. 8, 2011), available online. ↩
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. 55, available online. ↩
Id. Art. 21(3). ↩
Donald K. Piragoff & Paula Clarke, Article 69 Evidence, in The Rome Statute of the International Criminal Court: A Commentary 1712, ¶ 65 (Otto Triffterer & Kai Ambos, eds., 3d ed. Jan. 14, 2016), available online, paywall. ↩
Lubanga Bar Table Decision, supra note 8, ¶ 34. ↩
See e.g. Alexander Zahar & Göran Sluiter, International Criminal Law: A Critical Restatement 367 (Dec. 12, 2007), paywall
(arguing for Article 21(3) balancing). ↩
Lubanga Bar Table Decision, supra note 8, ¶ 43. ↩
Alamuddin, supra note 4, at 297. ↩
Prosecutor v. Slobodan Milošević, IT-02-54-T, Preliminary Decision on the Admissibility of Intercepted Communications (ICTY TC III, Dec. 16, 2003), available online; Prosecutor v. Radoslav Brđanin, IT-99-36-T, Decision on the Defence “Objection to Intercept Evidence,” ¶ 66 (ICTY TC II, Oct. 3, 2003), available online. ↩
Piragoff & Clarke, supra note 12. ↩
Ambos, supra note 7, at 375. ↩
Rome Statute, supra note 10, at Art. 69(8). ↩
The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the confirmation of charges, ¶¶ 62–63 (PTC I, Jan. 29, 2007) [hereinafter Lubanga Confirmation Decision], available online. ↩
Rome Statute, supra note 10, at Arts. 55, 67. ↩
Id. Art. 68. ↩
George E. Edwards, International Human Rights Law Challenges to the New International Criminal Court: The Search and Seizure Right to Privacy, 26 Yale J. Int’l L. 323, 350 (2001), available online. ↩
Piragoff & Clarke, supra note 12, ¶ 63. ↩
Christoph J. M. Safferling, Towards an International Criminal Procedure (May 8, 2003), paywall. ↩
Lubanga Confirmation Decision, supra note 21, ¶ 86. ↩
Mark Klamberg, Evidence in International Criminal Trials 303 (Feb. 21, 2013), paywall. ↩
Lubanga Confirmation Decision, supra note 21, ¶ 82. ↩
Id. ¶ 81. ↩
Id. ¶ 80. ↩
Lubanga Bar Table Decision, supra note 8, ¶ 38. ↩
Klass and Others v. Germany, Judgment, ECHR 5029/71, ¶ 50 (Plenary, Sep. 6, 1978), available online. ↩
A. v. France, Judgment, ECHR 14838/89 (Chamber, Nov. 23, 1993), available online. ↩
Malone v. The United Kingdom, Judgment, ECHR 8691/79, ¶ 72 (Plenary, Aug. 2, 1984), available online. ↩
Rome Statute, supra note 10, at Art. 69(8).
(“When deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State’s national law.”). ↩
Schenk v. Switzerland, Judgment, ECHR 10862/84, ¶¶ 41–46 (Plenary, Jul. 12, 1988), available online. ↩
Lubanga Bar Table Decision, supra note 8, ¶ 37. ↩
Lubanga Confirmation Decision, supra note 21, ¶ 85. ↩
The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the confirmation of charges, ¶ 71 (PTC I, Dec. 16, 2011), available online. ↩
Klamberg, supra note 28, at 405. ↩
Lubanga Confirmation Decision, supra note 21, ¶ 86. ↩
Id. ¶ 25–46. ↩
Prosecutor v. Radovan Karadžić, IT-95-5/18-T, Decision on the Accused’s Motion to Exclude Intercepted Conversations, ¶ 8 (ICTY TC III, Sep. 30, 2010), available online. ↩
Prosecutor v. Mićo Stanišić and Stojan Župljanin, IT-08-91-T, Decision Denying the Stanišić Motion for Exclusion of Recorded Intercepts (TC II, Dec. 16, 2009), available online. ↩
William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone 460 (2006), paywall, doi; citing Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-T, Oral Decision of Judge May, ¶¶ 13693–94 (ICTY TC III, Feb. 2, 2000), available online. ↩
Prosecutor v. Astrit Haraqija and Bajrush Morina, IT-04-88-R77.4-A, Judgement, ¶ 24 (ICTY AC, Jul. 23, 2009) [hereinafter Haraqija Judgment], available online. ↩
Id. ¶ 28. ↩
Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić & Esad Landžo, IT-96-21, Decision on the Tendering of Prosecution Exhibits 104–108, ¶ 20 (ICTY TC II, Feb. 9, 1998), available online. ↩
Prosecutor v. Milan Martić, IT-95-11-T, Decision Adopting Guidelines on the Standards Governing the Admission of Evidence, ¶ 9 (ICTY TC I, Jan. 19, 2006), available online. ↩
Alamuddin, supra note 4, at 238. ↩
Ambos, supra note 7, at 375. ↩
Lubanga Confirmation Decision, supra note 21, ¶¶ 77–78. ↩
Id.; Haraqija Judgment, supra note 52, ¶ 24. ↩
See Klamberg, supra note 28. ↩
Anne Barnard, Inside Syria’s Secret Torture Prisons: How Bashar al-Assad Crushed Dissent, N.Y. Times, May 11, 2019, available online. ↩
United States v. William Adderson Jarrett, 229 F. Supp. 2d 503 (E.D. Va., Nov. 1, 2002), available online. ↩
Id. at 519–20. ↩
International Criminal Court, Guidelines Governing the Relations between the Court and Intermediaries 2 (Mar. 2014), available online. ↩
Lubanga Bar Table Decision, supra note 8, ¶ 46. ↩
Malone v. The United Kingdom, supra note 38, ¶ 72. ↩