Challenges of Using Digital Evidence for War Crimes Prosecutions: Availability, Reliability, Admissibility

Abstract

Digital evidence has the potential to transform the accountability landscape. However, several obstacles must be overcome to use it effectively for war crimes prosecutions. The availability of digital evidence can be impacted by a range of factors, from Internet connectivity to removal of content by platforms to the difficulty of identifying relevant content through the fast pace of social media. The reliability of digital information is increasingly being called into question because of deliberate disinformation campaigns by parties to conflicts, as well as the fear of media manipulated by Artificial Intelligence (AI). And questions around chain of custody and admissibility of digital evidence have not fully been resolved by international courts. This essay unpacks some of these challenges. It suggests some ways in which governments and big tech should seek to ensure access to digital spaces and put in place measures to increase the integrity of online content, and how investigators and lawyers can gather, authenticate, archive, and establish chain of custody to ensure it can be used in accountability processes.