Digital Evidence in the Process of the International Court of Justice

Shinkaretskaya Galina Georgievna Doctor of Law Chief Scientific Associate, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, g. Moscow, ul. Znamenka, 10 gshinkaretskaya@yandex.ru Other publications by this author

 Introduction

One of the important elements of the international judicial process is the determination of the array of materials on the basis of which the court, whose main task is to maintain the rule of law, makes a decision ^{[17, p. 54]}.

In general, these materials bear the same name as the materials submitted to the domestic court – evidence, although the content and rules for handling them in the international court differ in their originality.

Evidence is information ... for the purpose of establishing or refuting alleged facts, - this definition is given by the authoritative Encyclopedia of International Law published by the Max Planck Institute ^{[27, p. 552]}.

The complexity of any international judicial process and their diversity have led to the emergence in international law of the concept of "standard of proof", which can be roughly defined as the amount of evidence necessary to substantiate the factual statements of the parties ^{[23, p. 165]}. It must be said that international courts, as a rule, determine the standard of proof applicable in each specific case, which may differ significantly depending on the nature of the court and the case under consideration. Digital or electronic evidence is any evidentiary material stored in or transmitted in digital form, i.e. in the form of a series of digits 0 and 1, which can be used in court proceedings to prove a fact in accordance with the required standard of proof. Evidentiary material can be obtained from various sources, including stationary computer hard drives, removable USB drives, mobile phones, satellites and the Internet, and can take various forms, such as text documents (for example, Word or Excel files, emails, instant messages and spreadsheets), maps, databases, digital images, video and audio files, GPS data, internet browser history and metadata. Digital evidence most often contains attributes of communication activity or “metadata” that identify and describe the content of the transmitted and its management using an information and communication technologies (ICT) resource. Digital proofs can be in the public domain, (accessible to everyone without passwords or encryption).

Despite the growing importance of digital evidence as a means of proof and the specific problems associated with them, the use of digital evidence in interstate court proceedings attracts the attention of some specialists in domestic litigation ^{[20, pp. 120-127]}, but is almost completely ignored by scholars in the field of international law. There are, however, some works devoted to international criminal procedure ^{[24, p. 217-240]}.

The concept of digital evidenceIn the absence of generally accepted norms governing the selection and evaluation of evidence, the question of whether digital evidence can be used in an international court depends entirely on procedural

the rules of each court, and these rules differ significantly from each other.

The relevant rules are contained in the Statute of the International Court of Justice (Articles 48-52), the Rules of Court and the Advisory Nature of Practical Directives supplementing the Rules for use by States acting in the International Court of Justice.

According to Article 102 (2) of the Rules of the International Court of Justice, when determining whether the rules for dispute resolution are applicable, the Court must take into account "whether the request for an advisory opinion relates to a legal issue that is actually under consideration between two or more States." If this is the case, the Court must first find out the views of the States concerned before making any written statements and documents attached thereto available to the public (Article 106), and the disputing States have the right to appoint an ad hoc judge in connection with the consultative proceedings (Article 102(3)).

It should be noted that, although consultative proceedings are usually divided into written and oral phases, as in the case of disputes, the Court can dispense with both if it considers that it has sufficient information to issue an advisory opinion.  In general, the Court does not participate in an in-depth discussion of the admissibility or evidentiary value of documents used as evidence in advisory procedures: therefore, it was noted that "the very concept of evidence seems inappropriate in the context of the advisory jurisdiction of the Court."   Any preliminary objections to the jurisdiction of the Court or the admissibility of the claim, as a rule, are considered as secondary proceedings in accordance with Article 79 of the Rules of Court, while the proceedings on the merits are suspended, although the Court may decide to join the objection on the merits if "the objection is not, in the circumstances of the case, exclusively preliminary" (Article 79(9)).

With the exception of Directive IX bis, none of these documents explicitly mention digital evidence. There is also no exhaustive list of evidentiary means available to the parties in cases considered by the Court or any indication of their different evidentiary weight. One of the authors noted: "The International Court of Justice interpreted the absence of restrictive rules in its Statute as meaning that a party to a dispute, as a rule, can present any evidence if it is presented within the time limits set by the Court" ^{[26, p. 184]}. On our own behalf, we add that the principle of good faith in this case is fully effective, preventing abuse of the right. Thus, we can say that the basic rule is that all proofs are in principle admissible.  There is no special preliminary procedure for assessing the admissibility of the submitted evidentiary materials. Of course, some actions are possible if the other side in the dispute challenges them.

In the case of Military and Similar Actions in and against Nicaragua, the Court specifically emphasized the principle of free evaluation of evidence, stating that "within the framework of its Statute and Rules, it has freedom in assessing the value of various elements of evidence ^[9]. This means that the Court has the right to request or accept any evidence, including in digital form, and give them such evidentiary value as it deems appropriate.

Most national legislation does not distinguish between electronic evidence and physical evidence. The UN Office on Drugs and Crime, which conducted a study on the recognition of digital evidence by States, came to the following conclusion: "Although approaches differ, many countries consider this a positive practice, since it ensures fairness in the acceptability of this evidence along with all others" ^[16]. Thus, the legal position of States is that electronic documents are in principle equivalent to paper documents, and electronic mail is equivalent to traditional postal items. Although practice so far shows the absence of a formal hierarchy between the various means of proof

The International Court of Justice adheres to the approach of civil law courts and usually prefers documentary evidence over oral and other non-written evidence. According to Articles 49 and 50 of the Statute of the International Court of Justice, as well as Article 62 of the Rules, the Court has the right to call on the parties to submit any documents that it deems necessary, or to request such evidence itself, but it usually refrains from doing so and relies on those documents that were provided by the parties on their own initiative. The fact reflected in the Court's Decision in the Case of Nicaragua's Actions in the Border Area ^[6] is an exception to this custom.

          According to Articles 56 and 57 of the Rules of the International Court of Justice, all submitted copies must be certified, but if the other party does not dispute the authenticity of the evidence, the Court is likely to assume that the submitted digital evidence is authentic and will not require any formal authentication process. It is obvious that electronic copies of paper documents certified by the agents of the parties can also be recognized.

          If the authenticity is disputed, then it is the party to the dispute presenting the evidence that must confirm their authenticity, although the Court papers do not provide for a procedure for challenging the authenticity of paper evidence. It is only clear that the party confirming the authenticity must show the digital evidence of authenticity deposited with the appropriate authorities.  Authentication is designed to confirm that digital evidence has not been altered or substituted, and can be carried out with the help of witnesses, experts, or internal indicators such as timestamps and metadata. Timestamps are sequences of characters or encoded information that determine when a certain event is recorded by a computer (which does not necessarily coincide with the time of the event itself).  The supply chain is about movement and location... evidence, as well as the history of those persons who had them, from the moment they were received until they were presented in court ^{[22, p. 277-278]}. The evidentiary weight of the disputed digital evidence will depend on the credibility of the plaintiff's demonstration that they are authentic, accurate and complete, that their sources have been reliably identified. The Special Tribunal for Lebanon, for example, rejected the defense's request to admit as evidence two alleged US diplomatic cables found on the Wikileaks website. The Tribunal reviewed other cases that related to Wikileaks documents and concluded that "the judicial trend ... is not... It is aimed at recognizing the Wikileaks documents as evidence," although cross-examination on the content of the documents is permissible ^[11]. According to the Tribunal, the defense failed to prove that the Wikileaks documents were genuine US diplomatic cables and that they accurately described the events to which they referred. The Tribunal's position was based on the fact that the sworn testimony of two witnesses refuted the contents of these documents.

          However, a party to a lawsuit may refuse to explain the sources and procedures by which it obtained the digital evidence presented to them. For example, in the Tolimir case, the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) presented evidence provided by the United States on the condition that the procedures by which the evidence was obtained would not be discussed ^[12]. There are no sanctions for non-disclosure of data, but the relevant participant in the trial will bear the risk that the evidence will be excluded or given less weight and that the facts he claims will not be considered sufficiently proven.

          According to Article 56 of the Rules of Court, after the completion of the written proceedings, no additional documents may be submitted to the Court by either party, except with the consent of the other party or, in the absence of such consent, if the Court, after hearing the party, considers the document necessary. The silence of the plaintiff is regarded as consent. Directive IX states that the parties to the litigation must refrain from submitting new documents after the completion of the written proceedings and that in the absence of the consent of the other party, requests in this sense will be accepted by the Court only in exceptional cases. The submission of additional documents not included in the pleadings before the completion of the written proceedings does not depend on the consent of the other party or the permission of the Court.

          However, Article 56(4) introduces an exception to this rule: it is provided that references may be made during oral proceedings

documents that have not been officially submitted during the written proceedings, provided that they are "part of publicly known information".

          Directive IX bis, adopted in December 2006, takes note of the fact that documents can now also be published in digital form, and provides that "part of the publicly known information" is any documents "accessible to the public... in any format (printed or electronic), in any form (physical or online, for example, if the information is posted on the Internet) or on any data carrier (paper, digital or any other medium) which is available in any of the official languages of the Court and which can be consulted within a reasonably short period of time."

If the other party objects to the reference to the document during the oral proceedings, the issue must be settled by the Court. Thus, information publicly available on the Internet may be quoted by the parties during oral proceedings without prior notice to the Court or the other party to the dispute.

The fact that anyone can access documents on the Internet can make a potentially huge amount of information publicly available, there are concerns that this will increase uncertainty in the proceedings and create difficulties in the effective preparation of cases ^{[25, p. 426]}.

          Experts point out that not all publications on the Internet are ipso facto publicly available ^[18], and paragraph 2 of Article 56 of the Rules of Court states that the document should not be evaluated abstractly, but in relation to the Court and the other side of the dispute in each specific case. During the oral proceedings in the Genocide case in Bosnia, the representative of Bosnia and Herzegovina, when cross-examining a witness, tried to refer to a newspaper article available online on the newspaper's website, but the defendant objected to this, and the Chairman suggested that the Representative of Bosnia and Herzegovina change the course of his cross-examination. When assessing whether a publication on the Internet is publicly available in a particular case, the Court should take into account such factors as, for example, the language in which it is written, whether the document is in a widely available format (for example, MS-Word and PDF), whether it is indexed properly by a popular search engine.

It is also worth noting that the fact that the information is publicly available does not necessarily make the facts stated in this information public ^[19]; the Court may decide on the admissibility of each of these facts.

Issues related to the circulation of digital audiovisual evidenceThere are no specific rules in the Statute or Rules of the International Court of Justice regarding the collection and evaluation of such materials, and therefore they are prepared and evaluated in accordance with the general rules applicable to all documentary evidence.

Digital photographs, maps, graphs and other visual evidence may be submitted on paper as appendices to written pleadings in accordance with the procedural rules for the submission of documents. Resources that cannot be converted into paper documents may be presented to the Court during oral proceedings.

Copies of all audio-visual evidence constituting the document must be deposited with the Secretariat together with the pleadings until the completion of the written proceedings. If this has not been done and there is no corresponding consent of the other party, evidence can be accepted only if the Court deems it necessary or if the document is part of publicly available information. The court, as a rule, attaches less evidentiary weight to audiovisual materials than to written documents. At the same time, the Court is particularly concerned about the authenticity of audiovisual evidence and the methods of obtaining it. To solve these problems, the IX quater Directive stipulates that "a party's request for the submission of audiovisual or photographic materials must be accompanied by information about the source of the material, the circumstances and date of its creation, as well as the degree of its accessibility to the public. The relevant party should also indicate, where appropriate, the geographical coordinates in which this material was taken." The authenticity and authorship of digital audiovisual evidence can be difficult to establish with sufficient certainty: think, for example, of videos uploaded to YouTube or photos appearing on Instagram or Twitter. In fact, digital images are not real photos, they are data that needs to be interpreted and processed. Metadata indicating the time of the image and its location can be changed and, unlike traditional images, the manipulation is not easy to detect. Given this problem, some applications have been developed for police mobile devices that record geolocation and other important information and allow the user to upload photos and videos. For example, the Witness project has created and released an "application" developed by the International Bar Association and LexisNexis legal Services, in which digital evidence of international crimes can be safely stored. Once sent, the images and related data are encrypted and stored in a database where they are analyzed by legal experts, who then liaise with relevant international, regional and national jurisdictions to ensure that the images are used to bring to justice those who have committed international crimes. Even though these applications have been developed with criminal proceedings in mind, they (and similar ones) can also be useful in the International Court of Justice.

Digital images and maps can also be obtained remotely using satellites. Remote sensing of the Earth (remote sensing) is a method of extracting information about an object by analyzing data received by a sensor that is not in direct contact with the object ^[18].

Like any other documentary evidence, satellite images and maps may be submitted by the parties to the dispute or requested by the Court in accordance with Article 49 of its Statute. For example. During the oral proceedings in the Kasikili/Sedudu Island case, Judge Ranjeva requested satellite images from both sides to assist the Court ^[3]. In the case of Cameroon v. Nigeria, Nigeria submitted to the International Court of Justice a satellite image of the disputed area to demonstrate its location ^[5].  In Qatar v. Bahrain, Qatar submitted several satellite images, although Bahrain disputed its analysis of the image of the Kitat Jarada shoal and the method by which it was created ^[4]. In the Oil Platforms case, the United States presented images obtained by American satellites to refute Iran's claim that there were no missiles in the disputed area and to back up the images with expert testimony during the oral proceedings on the merits ^[10]. The United States, however, refrained from submitting high-resolution satellite images for national security reasons, but argued that the reduced resolution of the original images did not affect their reliability. In the end, the Court found the images were not clear enough. In the case of the Genocide in Bosnia, the International Court of Justice relied on the UN report, in which the conclusions were based on satellite photographs ^[2].

In the Pulp Mills case ^[14], Argentina referred to various satellite images showing the concentration of chlorophyll in the Uruguay River. In the case of aerial Spraying of herbicides, Colombia provided extensive satellite data using false color rendition to display vegetation, in some cases superimposed on GPS tracks

spray flights ^[1]. In the case of some actions, Nicaragua submitted satellite images to show the canyon artificially created by Nicaragua and vast areas cleared of vegetation ^[7].

          Like any other audiovisual evidence, satellite images and maps must be submitted by the parties either as appendices to written pleadings or during oral proceedings. In the latter case, they may be excluded due to the objections of the other party in the court proceedings. In the case of Nicaragua v. Honduras, Honduras submitted a satellite image during the oral proceedings, arguing that it should not be considered a "new document" because it was easily accessible on the Internet ^[15]. In its advisory opinion on the construction of a protective wall on the borders of Palestine, the Court traced the location of the wall itself on a map posted on the website of the Israeli Ministry of Defense ^[8].

          Obtaining satellite data is a rather complicated process: the initial data is collected by satellites and sent to ground stations, where they are processed and made available in digital form, and, if necessary, supplemented with computers.

If the original data, at least in their initial stage, cannot be distorted, then at the stage of interpretation the data may be distorted, and forgery is very difficult to establish.

          In practice, the challenge is rarely made, commercially available satellite images are simply presented with an indication of their source and date of receipt, as was the case in the cases we indicated. If the parties disagree and seek to challenge the presented data, they, as a rule, put forward competing expert opinions ^[21]. In the Pulp Mills case, the International Court of Justice was critical of the parties' use of expert advice and reminded them that during oral proceedings, "those persons who provide evidence to the Court based on their scientific or technical knowledge and personal experience must testify in Court as experts, witnesses, or in some cases in both capacities and not as a lawyer, so that they can be presented for questioning by the other party, as well as by the Court" ^[13]. Indeed, even though, according to Article 50 of the Statute of the International Court of Justice, the Court may at any time entrust any individual body, bureau, commission or other organization with the task of conducting an investigation or issuing an expert opinion, most often the Court decides any issue based on the evidence of the parties, and does not involve its own experts to conduct an independent analysis. The International Court of Justice could in the future consider hiring a permanent expert or a group of expert consultants who could assist it in evaluating digital evidence. Similar experience already exists in the practice of the International Criminal Court.

Conclusion It is easy to assume that with the further development of technology, digital evidence will be increasingly used in the proceedings of the International Court of Justice.

The analysis shows that, in fact, there are no rules or guidelines that specifically relate to the receipt and evaluation of digital evidence during proceedings before the International Court of Justice. Is the current actual use of such evidence possible, or should the proceedings be specifically regulated? From our point of view, the lack of specific rules and procedures for digital evidence is not necessarily an obstacle to obtaining and evaluating them. However, there is no doubt that the adoption of special rules that take into account the peculiarities of digital evidence would help the judges of the International Court of Justice and the parties to the dispute to act more effectively during the proceedings. The Court could amend its Rules or adopt Practical Guidelines specifically addressing issues related to digital evidence.