Astha Bhattacharya, currently a second year student at National Law University Odisha, Cuttack, pursuing the B.A.LL.B. (Hons.) course.
DATE OF PUBLICATION- 26/07/2021
The Nuremberg trials paved the way for the first international criminal trial, marking the dawn of a new beginning for international criminal jurisprudence. But even after seventy-five years, the struggle against impunity still continues. In the recent years, there has been a surge in evidences derived from open sources, especially through platforms like YouTube, Instagram, and Twitter which has massively transformed the way criminal prosecutors and investigators acquire, examine and produce evidence in a court of law.
It is the prosecutor’s responsibility to produce a substantial level of proof for backing their legal arguments, and to clarify the conflict’s backdrop and the primary components of offences along with the modalities for accountability. Social media proof, under this paradigm, can provide significantly more information than just about any other type of source. However, its dark reality shows us the convenience with which the offenders can distort social networking sites, the paucity of requirements and regulations to establish the ownership of the Facebook pages, groups, posts and online communications, and the vast quantity of such testimonies.
By making a comparison between the Bemba et al. case and the recent Yekatom and Ngaïssona case, this article explores the domain of admissibility of facebook evidence in the International Criminal Court. Facebook proof is the only social media evidence which imposes a unique obstacle of determining ownership and veracity, despite the fact that it is by far the most frequently utilized social media platform.
Additionally, the forthcoming ICC trials, such as Al-Werfalli, Said, and Gicheru, are anticipated to pose identical troubles, given that almost all the concerned events had occurred post 2012, when Facebook had already established itself as a prominent social networking site. As a result, the moment has arrived for the International Criminal Court’s Chambers to decide on the admissibility and appropriate significance of Facebook evidences in its cases.
The evolution from the Bemba et al. case to Yekatom and Ngaïssona
The admissibility of Facebook evidence in the ICC was first addressed through the Bemba et al. case. In this case, on the receipt of an anonymous mail, which warned the investigator of the practice of witness bribing, the prosecutors had charged the defendants for violations under Article 70 of the Rome Statute of the International Criminal Court.
In Bemba, the suspect was acquitted of all charges of command responsibility in the Central African Republic’s 2002-2003 military war, which featured the government, aided by the MLC group and headed by Bemba on one side, against the insurgents led by General Bozizé on the other. It was through four images acquired from Facebook that the prosecutor tried to connect witnesses and verify additional proof. As a response the defendant stated that the pictures were not prima facie genuine or dependable as setting up of a Facebook account does not demand a legitimate and traceable identification. As a result, it was impossible to determine whether a Facebook profile with a certain username belonged to that individual. The prosecution disagreed with this argument. However, the court did not ponder upon and resolve this issue in its final judgment, presumably because many other types of proof, such as eyewitness accounts supported what the images were supposed to illustrate.
On the contrary, in the case of Yekatom and Ngaïssona, the accused were suspected of crimes against humanity and war crimes towards citizens of Islamic Heritage in the Central African Republic between December 2013-2014. The prosecution’s strong dependence on Facebook data is explained by the conflict’s temporal span. The prosecution in this case heavily relied on Facebook evidence to prove the suspect’s intention and motive to confirm that the crimes against humanity and war crimes were undertaken by the defendant, subsequently trying to assert their case theory. In its opening arguments, the Ngaïssona counsel contended that Facebook conversation does not meet the highest factual level required by the Court, and that they will hence, contest such proof.
The ICC’s options for handling Facebook proof and the future ahead
The Rome Statute and Rule 69 of the ICC Rules of Procedure and Evidence defines the admission of evidence in the ICC. According to it, evidence would be accepted if it passes a three-part testnamely (i) relevance, (ii) probative value and (iii) absence of prejudicial effect. Despite the fact that the ICC Court has traditionally given more weight to witness evidence, they now urge parties to submit any tangible evidence, including digital proof, to establish that the material presented at trials is complete.
Following the admission, ICC judges assess the probative value and “appropriate weight” of the accepted proof in compliance with Rule 63(2) of the Regulations. This happens at the completion of a trial, when all the evidences are being evaluated thoroughly. After deeming the evidence trustworthy, the court assigns it a weightage depending on its usefulness in furthering the court’s investigation.
As indicated in the introduction of this article, the ICC Chamber prefers to encourage parties to present material that validates their case theory. In addition, the Chamber will, in essence, accept proofs that fulfill the Court’s social media evidence admissibility criteria, as outlined in the ICC’s e-Court Protocol. Ultimately the final weight that the Trial Chamber V will give towards such a proof is the major determinant.
Conferring Facebook evidence with a high probative value will indeed indicate that it would eventually suffice to substantiate several aspects of the prosecution’s arguments. Nonetheless, it raises grave reservations regarding fair trial, especially if the evidence is assembled in such a manner that it makes a case conclusive and further trying to edit it would only deter the Court from finding the truth. Furthermore, as open-source investigations are contemporary and challenging, use of technology which the defense counsel and the Chamber might not have expertise and skills in would lead to a compromise in questioning of the suspects. Moreover, the large amount of proof which the defense has to handle and possibly contest at the advanced stage of the trial might pose a challenge.
On the other hand, if accorded with low probative value and not backed by additional proof, the evidence will not be enough to prove a substantial fact and much of the case theory of the prosecutor will remain unsubstantiated. Allowing Facebook and other social media communications to have a low probative value in this as well as subsequent cases might thus weaken the Court’s truth-finding purpose in the future.
Conclusion
In international criminal law, obtaining sufficient and exact proof about the occurrence of core crimes continues to pose a significant problem. However, to narrow this issue, the role of open sources like Instagram, Twitter, YouTube and Facebook is crucial as they have become part and parcel of our daily existence. Even though the value which open source digital evidence adds to a particular trial is immaculate which can prove to be beneficial in the long run for investigatory deadlocks in a number of cases (like Syria and Myanmar), we should not turn oblivious to the threats posed by it. The acceptance of open source evidence raises concerns on the grounds of credibility, authenticity, impartiality, and ability to add more insights and its consequent impact on fair trial rights.
The application of the Berkeley Protocol on digital open source investigations becomes important to counteract risks posed by open source evidences. However, there is a need to expand the scope of the Berkeley Protocol and vigilantly assess such evidences even during its pre-trial and trial phases to ensure that the defendant’s interests as well as the integrities of the proceedings are protected.
As it is imminent that new cases will emerge during this era when every second individual operates a social media account, we cannot turn Nelson’s eye towards the fact that there is a need to include more social media and facebook specialists, having knowledge of the most recent as well as the older programming languages and software in the prosecution and the defense investigations. The involvement of the defense in investigation and acquiring proof earlier than their anticipation will also provide the ICC with more leeway in assessing this type of evidence in the forthcoming trials and also provide a small window to the defense to assess and prepare their arguments against the large quantity of evidences.
The admissibility of Facebook evidence in the International Criminal Court would indeed be a crucial facet in the forthcoming trials of the ICC. However, at the same time, its admissibility should be reviewed on judicial grounds so that any disadvantages attached to it do not hamper the impartial trial of a case.