ICC rejects Duterte camp’s request on digital evidence

MANILA, Philippines — Trial judges of the International Criminal Court (ICC) have rejected the request of the defense team of former president Rodrigo Duterte to adopt a stricter protocol in verifying digital materials.

In a seven-page decision dated Sept. 26, the ICC Trial Chamber III denied the defense’s request for an additional “expert verification” field to accompany all forms of open source and user-generated evidence.

It said such an amendment to the ICC’s protocol would not align with the framework set by the Trial Chamber, which states that it is the defense’s primary responsibility to identify and raise issues for individual evidence presented by the prosecution.

“To the contrary, the requested amendment, if implemented, requires the prosecution to prepare additional materials that contain information regarding the relevance and admissibility of open-source and user-generated evidence, before the defense analyses evidence and raises any abovementioned issues,” read the decision.

Defense lawyer Peter Haynes earlier recommended the amendment to E-Court Protocol, citing the need for extra caution to ensure that evidence is properly verified before it is submitted to the court.

“The current case operates in a uniquely challenging information ecosystem, in which a large volume of misinformation, or ‘fake news’ has circulated and will continue to circulate, online,” Haynes said.

“The defense is concerned that the evidentiary record in the present case risks being overwhelmed by material of dubious relevance, authenticity and reliability,” he added.

The ICC prosecutor, however, described the request is “unreasonable, unnecessary and against the interests of judicial efficiency.”

“Open source and user-generated evidence are extremely broad categories of documents that capture numerous types of evidence,” wrote ICC acting prosecutor Mame Mandiaye Niang.

“As such, whether open source or user-generated evidence requires an accompanying expert report should be determined on a case-by-case basis by the submitting party that has the burden of establishing its relevance, probative value and assessing its potential prejudicial effect,” Niang added.

The Trial Chamber III instead granted the prosecution’s request to add a URL (uniform resource locator) metadata field for each of the open source or user-generated evidence submitted in the case.

The prosecution said the additional field will allow parties to easily identify the URL or link “associated with the open source evidence at the time it was captured.”