Fact-Finding Online – A Fair Trial Offline?

Abstract: The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) faces massive evidentiary problems due to flawed state-cooperation, limited access to sites of atrocity and an insufficient budget. Meanwhile, potentially relevant digital open-source information abounds, as citizens increasingly turn to social media to spread awareness of human rights violations and possible international crimes. Using YouTube videos, Facebook posts, and other publicly available digital content as evidence at the ICC may mitigate the limitations inherent in the OTP’s traditional dependence on state-cooperation to obtain evidence, hence increasing the efficiency of international criminal justice and furthering the objective of crime control. However, using digital open-source information as evidence presents new challenges of its own, with particular implications for the accused’s right to a fair and expeditious trial, which is an equally important objective of the ICC procedural framework. The OTP has long made use of evidence from open sources, and the ICC chambers have often allowed for the admission of reports from United Nations (UN) missions, nongovernmental organisations (NGOs), and news agencies in the past. However, establishing facts in our “post-truth” times is an increasingly complex affair. The spread of fakes, forgery and misattributed content online, coupled with unresolved questions relating to the authentication and verification of such materials, suggest that there are reasons for the ICC bench to be cautious about admitting Instagram photos, Tweets and other online content into evidence. Furthermore, there is an ever-increasing number of private stakeholders engaged in online fact-finding, which raises questions of bias and exacerbates already existing concerns as to the equality of arms between the Prosecutor and the defence. It must therefore be assessed whether the ICC procedural framework remains effective, appropriate and capable of guaranteeing the fair-trial rights of the accused in the face of the particular challenges posed by the acquisition and use of the newest forms of evidence available online. Decisions on admissibility – i.e. on what evidence the ICC judges may base their findings – assume particular importance in this regard. The present study thus sets out to analyse the admissibility of digital open-source evidence in relation to trial fairness at the ICC. More specifically, the purpose of the thesis is to analyse what impact that the admission of digital open-source evidence may have on the accused’s right to a fair trial, and to explore whether the ICC chambers can guarantee fairness through their current approach to admissibility, that is, if the OTP increasingly relies on online content to substantiate criminal allegations. The thesis concludes that the ICC’s rules on the admissibility of evidence allow for considerable judicial discretion. Thus far the ICC judges have adopted a permissive approach, allowing for unauthenticated materials and information from unknown sources to be admitted into trial. This may not sufficiently protect the accused’s right to a fair trial when digital open-source evidence start flooding the court rooms in The Hague, but may deprive the defendant of his or her right to adequately test the evidence at trial, and have grave implication for his or her right to be tried without undue delay. In view of the increased spread of fakes and misattributed online materials, the large number of private parties engaged in fact-finding, risks of bias and an exacerbated substantial inequality between the parties, the present study submits that the ICC chambers must update their approach to the admissibility of evidence as far as digital open-source materials are concerned. The unfettered admission of unreliable or unauthenticated digital open-source evidence would, at best, result in a considerable loss of time and may, as a worst-case scenario, result in an unsafe verdict.