Between 2018 and 2023, the Nuremberg Academy has been exploring the various challenges that arise from the increased usage of digital evidence and the sophistication of technology and how these may affect the prosecution of core international crimes. The goal of the first project was to assess whether the current rules governing the International Criminal Court (ICC) need amending and, if so, how and why.

Given the complexity of the subject matter, the project was divided into several clusters, and each cluster’s methodology consisted of focused workshops, detailed research and discussions with experts from relevant fields, including practitioners in international criminal law (ICL) and international human rights law (IHRL), experts in digital evidence, digital forensics and open-source investigations as well as experts in the documentation of human rights violations generally. 

Our research and analysis focused on the following complex issues: 

• The identification of guidelines and manuals that could be potentially relevant to the investigation of core international crimes and which relate to digital evidence;
• The identification of gaps arising from the ongoing work of those involved in documenting and prosecuting human rights violations and core international crimes;
• Any current practices and criteria regarding the admissibility of digital evidence and the weight of digital evidence and challenges to these practices arising from “newer types” of sophisticated technology (such as deepfakes, information generated from artificial intelligence (AI) and deleted accounts);
• Correlations between human rights investigations and international criminal law investigations and digital evidence challenges that arise in respect of each type of investigation; and
• How the identified digital evidence challenges can (and how they cannot) be addressed in light of the ICC’s structure, rules and governing practices. 

Our key conclusions are described in the below attached final report and can be briefly summarised as follows: 

First, there is no imminent need to amend the governing rules of the ICC. Instead, there needs to be more discussion between relevant ICC stakeholders leading to decisions, where possible, on the following matters: 

  a) The Court’s limitations (including with respect to its resources and its role)
    in light of the technological advancements that may affect the evidentiary
    process;

  b) The standards that should apply to the collection, preservation and
    verification of digital evidence; and

  c) Whether the current admissibility criteria and practice need to change in
    light of the unique challenges that digital evidence brings and the need to
    safeguard the accused’s right to a fair trial.

It is important to ensure that digital information submitted to the Court, which ultimately becomes digital evidence, is of sufficient quality to allow for a proper assessment of its admissibility, thus advancing, rather than hindering or delaying, the proceedings at later stages.

Second, this report is not conclusive, and nor does it necessarily cover all possible challenges that arise from the increased usage of digital evidence and the sophistication of technology. Instead, by contextualising the identified challenges to the relevant rules and practices of the ICC and breaking them down into smaller elements, this report serves as a starting point for further research and discussions amongst ICC stakeholders and other actors in the field of international criminal justice.

Given the complexity of the subject matter, several limitations were taken into consideration when crafting the methodology for this project, including the ever-changing nature of the international criminal justice, the sophistication of technology and appearing practices and standards, as well as demands for more standard settings and efficiency of varied procedures. 

The Nuremberg Academy is grateful to the broad range of experts and consultants who have contributed to this project. We welcome any feedback and reflections on the findings, and we look forward to continuing this project. 

Note: Cluster A plus B contains a list of guidelines and manuals that were excerpted from our Digital Evidence Database.  (jm)