How is Digital Evidence Used in the International Criminal Court? An Exploratory Analysis

We examine the use of digital versus classical evidence in cases handled by the International Criminal Court (ICC). We study and exploit variations in the use of evidence (i) between stages of proceedings, namely pre-trial and trial, and (ii) between parties in ICC trials. Since the standard of proof varies between stages of the proceedings, we frame the situation using a simple model and discuss the results we can empirically expect. The model predicts that the prosecution’s reliance on both types of evidence should increase from the pre-trial to the trial stage, although the relative magnitude of the increase remains ambiguous. Our empirical results confirm that references to both categories of evidence are more frequent at trial and show that the rise is proportionally larger for classical evidence than for digital evidence. For variations in the use of evidence between the parties involved in the trial, our approach is purely empirical. We find that the relative intensity of references to digital evidence by parties varies across cases and across trial sub-phases.