Legal Relevance of Digital Evidence in the Context of International Crimes

DOI: 10.5281/zenodo.13971716

Abstract

This paper presented by the undersigned on 3 April 2024 at the University of Roma Tre during the Seminar for Italian and Brazilian Military Magistrates “Comparative Military Legal System of Brazil and Italy”, aims to provide an overview of the legal standards related to digitally derived evidence (DDE) in international liability mechanisms. In order to establish the current practices and legal frameworks regarding the use of DDE in International Criminal Law (ICL), information has been collected from national and international legal sources and integrated with existing academic literature in the field. A key limitation is the lack of established rules and practices related to DDE in the field of international criminal law. This stems from the fact that DDE is a rapidly evolving form of evidence. Furthermore, the use of DDE in a criminal law context raises many challenging questions, such as how to safely store DDE and ensure its integrity, or which existing procedural guidelines can be used to enable the introduction of DDE in criminal proceedings. Regarding admissibility, unlike some national systems, the approach of most international criminal courts and tribunals is lenient. Generally, DDEs may be admitted as long as they are relevant and have probative value. After the DDEs are admitted, judges give weight to the evidence using their discretion.