7. International Digital Forensic Investigation at the ICC

Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 2187 U.N.T.S. 90 (17 July 1998).

Ibid., Article 54.

Ibid., Article 21 paras. 1–2.

The Statute, supra note 1, Article 54 para. 3.

Ibid., Article 54 para. 2.

Ibid., Article 99 para. 4.

Ibid., Article 87 para. 1(a).

Ibid., Article 87 para. 5 states (a) The Court may invite any State not party to this Statue to provide assistance under this Part based on an ad hoc arrangement, an agreement with such State or any other appropriate basis; (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of State Parties or, where the Security Council referred the matter to the Court, the Security Council.

Ibid., Article 57 para. 3(d).

Ibid., Article 56 para. 1(a).

The Statute, supra note 1, Article 93(1) provides the forms of cooperation. (a) The identification and whereabouts of persons or the location of items; (b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; (c) The questioning of any person being investigated or prosecuted; (d) The service of documents, including judicial documents; (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; (f) The temporary transfer of persons; (g) The examination of places or sites, including the exhumation and examination of grave sites; (h) The execution of searches and seizures; (i) The provision of records and documents, including official records and documents; (j) The protection of victims and witnesses and the preservation of evidence; (k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for eventual forfeiture, without prejudice to the rights of bona fide third parties; and (l) Any other type of assistance that is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

Ibid., Article 54 para. 1(a).

Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09-501, 28 August 2013, para. 42.

Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-2388, 14 September 2010, para. 36.

See International Criminal Court (2004), Regulation 26, para. 1.

Ibid., para. 4.

International Criminal Court (2015) Unified Technical protocol (“Ecourt Protocol”) for the provision of evidence, witness and victims information in electronic form. ICC-01/12-01/15-11- 25-Anx, para. 1.

See Microsoft Corp. v. United States, 14-2985-cv (2nd Cir. 2016). The view of Second Circuit was diametrically opposed to United States District Court in the matter of a warrant to search a certain Mail account controlled and maintained by Microsoft servers outside the United States.

CBPR (Cross Border Privacy Rules, http://​www.​cbprs.​org/​GeneralPages/​About.​aspx ), a voluntary accountability-based system to facilitate privacy-respecting data flows among APEC economies, was endorsed by APEC Leaders in 2011; EU GDPR (General Data Protection Regulation, http://​www.​eugdpr.​org/​eugdpr.​org.​html), designed to harmonize data privacy laws and reshape the way organizations across the EU approach data, will take effect on 25 May 2018 replacing the Data Protection Directive 95/46/EU (http://​ec.​europa.​eu/​justice/​policies/​privacy/​docs/​95-46-ce/​dir1995-46_​part1_​en.​pdf); Russia Federal Law No. 242-FZ, which regulates data operators to process and store Russian citizens’ personal data using databases located within the territory of Russia, was enacted on 31 December 2014; China Cybersecurity Law (http://​www.​npc.​gov.​cn/​npc/​xinwen/​2016-11/​07/​content_​2001605.​htm), which contains requirements of comprehensive privacy and security for the cyberspace, will come into force on 1 June 2017.

The Statute, Article 99 provides that the Court can specify the procedure or to send specific persons to be present at and assist in the execution of the request for cooperation.

See supra note 18.

Prosecutor v. Jean-Pierre Bemba Combo, ICC-01/05-01/08-2981, 23 June 2016, paras. 56, 64.

The Rome Statute, supra note 1, Article 69 para. 4, prescribes that “The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence”.

Prosecutor v. Jean-Pierre Bemba Combo, ICC-01/05-01/08-2981, 23 June 2016, paras. 15.

For instance, INTERPOL provides international trainings for examiners, investigators and other first responders to ensure they possess the latest knowledge of cybercrime trends, and the use of digital forensic tools and techniques.