HIKMA SUMMIT
OF INTERNATIONAL RELATIONS

The ICC’s Flexible Evidentiary Regime and Judicial Discretion

While international courts – including the International Criminal Court – have embraced digital evidence as an indispensable investigative resource, the legal standards governing its admissibility and evaluation have not kept pace. In particular, the absence of a structured procedural safeguard tailored to the distinctive risks posed by user-generated digital content raises concerns about the protection of fair-trial guarantees, including the defence’s ability to effectively challenge the authenticity, reliability, and probative value of such evidence De Arcos Tejerixo, 2023). The framework governing evidence of the International Criminal Court is characterised by a high degree of flexibility. It does not prescribe formal admissibility thresholds for specific categories of proof, including digital and user-generated material. Instead, the Rome Statute adopts an approach centred on judicial discretion, allowing the Court to assess evidence on a case-by-case basis (McDermott, 2017). Article 69(4) of the Rome Statute grants the Court extensive powers of discretion in matters of evidence, applying a three-step test to assess the relevance, admissibility, and probative value of evidence on a case-by-case basis. This discretionary approach is further reinforced by Rule 63 of the Rules of Procedure and Evidence, which affirms the principle of free evaluation of evidence. Taken together, these provisions reflect the Court’s need to accommodate the evidentiary constraints inherent in international crimes that are investigated and prosecuted. However, judicial discretion must be exercised in a manner consistent with fundamental fair trial guarantees, which constitute a cornerstone of the Rome Statute system. Article 67 guarantees a fair and public hearing and the right to challenge the evidence presented by the prosecutor; Article 64(2) assigns the Trial Chamber responsibility for ensuring that proceedings are conducted fairly and expeditiously; and Article 21(3) requires consistency with internationally recognised human rights.

In light of this legal context, the growing use of digital material, including UGC, brings with it a unique set of challenges. The Rome Statute and the RPE do not specify standards that are expressly tailored to the distinctive characteristics of user-generated digital content. Issues such as verifying authenticity, preserving metadata, establishing a reliable chain of custody, and assessing vulnerability to manipulation are not explicitly regulated. Instead, these matters are left largely to judicial discretion and prosecutorial practice (McDermott, 2017). Despite Article 69(7) establishing a general exclusionary standard related to violations of internationally recognised human rights, this provision is not intended to address the structural reliability issues associated with UGC (Laving, 2014).

Investigative Value and Structural Vulnerabilities of User-Generated Digital Evidence

At the same time, UGC offers significant investigative value. User-generated content can be collected remotely, without exposing investigators to the security risks associated with physical presence on the ground, or in situations where access to the territory is restricted due to State refusal to cooperate (Trevisan, 2021). This material can be collected almost contemporaneously, as events unfold, rather than years later, relying on later reconstruction from witness memory. Because this material is shared in near-real time through social media and other platforms, it can significantly shorten the time between the commission of violations and their public, institutional, and international awareness (Hellwig, 2021). The situation in Sudan illustrates this dynamic. To date, the staff of the Office of the Prosecutor has never conducted on-site investigations in Darfur. In this context, user-generated content constitutes the primary means through which the ongoing crimes become immediately visible at the international level (Hamilton, 2019). Videos disseminated via social media documented killings and other serious violations committed by the Rapid Support Forces and affiliated militias against civilians fleeing El Fasher. The circulation of this material substantially compressed the temporal gap between the commission of the alleged crimes and their potential consideration by international prosecutorial authorities (ACAPS, 2025). From an evidentiary standpoint, UGC can reveal population movements, troop deployments, the locations of mass graves, and the destruction of civilian areas, offering a level of spatial and operational insight that is often unattainable through traditional investigative methods. Geolocation techniques allow the verification of the location of a recorded event by matching features using Google Earth and satellite imagery. In some cases, it is also possible to determine the date and time of day from the shadows, weather, and other clues about the climate in the footage. Judges have increasingly recognised that the precision and objectivity of electronic evidence – particularly when supported by metadata and geolocation – may enhance its reliability for evidentiary purposes (Insa, 2007).

Nevertheless, the increasing reliance on user-generated digital content exposes a range of risks that directly affect its reliability and evidentiary value. The authorship of open-source and UGC material is often unknown, contested, or unverifiable. The absence of source identification may undermine the accused’s right to cross-examination. Open-source information is frequently curated by partisan individuals or organizations seeking to advance specific narratives (Trevisan, 2021). User-generated content is also vulnerable to misattribution, staging, and technical manipulation. These risks are compounded by advances in generative adversarial networks, which enable the creation of deepfakes. Modern technology can already produce fabricated audio-visual material that is indistinguishable from authentic footage to the naked eye (Gillet & Fan, 2023). The Sudanese context further demonstrates how conflict parties have engaged in misinformation and internet shutdowns, heightening the risks of manipulation and distortion of UGC. Moreover, much of the collection of open-source content is conducted voluntarily by non-governmental organisations. While some third parties have developed databases on serious crimes, such initiatives are not systematic or guaranteed. The largely unregulated and voluntary nature of this content collection creates uncertainty as to whether international procedural standards regarding authenticity, integrity, and provenance are met. Timeliness represents an additional challenge. User-generated content is frequently at risk of removal due to platform policies. If not collected immediately, it risks permanent loss. Access to platform-held data is governed by internal policies and national legal frameworks, and cooperation is uneven, particularly with platforms located in States that have not ratified the Rome Statute (Trevisan, 2021).

The Need for Structured Procedural Standards

These vulnerabilities reveal a structural tension between the ICC’s flexible evidentiary model and the need to ensure robust procedural protections. The absence of structured procedural guidance risks turning flexibility into inconsistency. While broad judicial discretion enables the Court to fulfil its truth-seeking mandate, reliance on discretion and ex post safeguards does not resolve structural uncertainties relating to authentication, metadata preservation, chain of custody, and provenance (Hamilton, 2019). Structured procedural guidance is therefore necessary to discipline discretion, especially at the stages of collection, preservation, and submission of UGC. Verification of digital material should become an obligatory stage of criminal investigations, allowing for the accuracy of the source and the validity of a piece of evidence to be established before it may be relied upon in a trial. Such guidance could build upon existing discussions within international criminal practice concerning authentication and preservation. Scholars have emphasised the need for clearer standards on chain of custody and digital integrity to ensure that open-source material meets evidentiary thresholds rather than journalistic or advocacy standards (White, 2024). Moreover, as digital material often requires expert interpretation and forensic validation, structured reliance on qualified digital experts and transparent documentation of verification methodologies would mitigate risks of manipulation and misattribution. Developments in digital submission platforms and investigative tools further demonstrate the ICC’s evolving technological capacity, yet they also highlight the importance of embedding such innovations within coherent procedural safeguards (Kuczynska, 2024).

By clarifying the standards of collecting, verifying, and using user-generated digital content, the ICC could increase transparency, improve the assessment of evidence, and strengthen its institutional legitimacy (McDermott, 2017). Ultimately, as such material becomes increasingly central to international criminal proceedings, the Court’s credibility will depend not merely on its ability to accept digital evidence, but on its capacity to demonstrate that such evidence is gathered, assessed, and relied upon in accordance with clear, consistent, and fair procedures that uphold the core guarantees of the Rome Statute system.