Digital Evidence at International Criminal Courts and Tribunals – Towards a Revolution in Prosecuting International Crimes?

One characterizing facet of modern conflicts, such as the War in Ukraine, has been an unprecedented stream of information, data, and documentation that increasingly comprises reports on social media, open-source intelligence (OSI), as well as professionally gather on-ground intel made available to the public. This wealth of contingent digital evidence, however, also poses novel and far-reaching challenges with a view towards verifying, analysing, and utilizing available materials while discarding explicit misinformation. Obtaining and subsequently utilizing (verified) digital evidence, thereby safeguarding documentation of massive human rights violations, is thus also becoming more relevant for international criminal courts and tribunals: the wealth of digital evidence possibly available to both domestic and international prosecutors and, subsequently, for (international) adjudicative bodies hence generates considerable challenges for conceptualizing, structuring, and conducting criminal proceedings. Simultaneously, the importance of timely on-site investigations and comprehensive fact-finding missions on the ground, including by international organizations and NGOs making sure that available evidence is properly secured, preserved, and kept available for eventual future proceedings, has drastically increased. This new and immense wealth of available digital evidence as well as a more structured and concerted effort on the ground in what might be perceived as a somewhat ‘revolutionary’ momentum in addressing and prosecuting international crimes, eventually triggering criminal proceedings before competent adjudicative (international) bodies. The proposed contribution thus seeks to elucidate on these new forms of gathering digital evidence and the interrelated challenges for international criminal courts and tribunals in verifying, analysing, and processing these streams of information. In particular, it shall be discussed how, to what extent, and in which ways international criminal courts and tribunals are currently capable of critically handling (digital) evidence and countering false information, deep fake and fabricated sources.