I object! The use of WikiLeaks evidence in international courts and tribunals.

Most trials boil down to what the defendant did or did not do in order to establish whether the defendant is liable, and then, what the appropriate penalty should be (unless you’re watching The Good Wife where there is usually a much juicer and more interesting sub-plot than the trial). To know what the defendant did or did not do requires evidence and there are certain rules which govern the kind of ‘evidence’ that can be used to prove wrongdoing. Admissible evidence is evidence that can be used in a court or tribunal to establish wrongdoing or, conversely, exonerate a defendant.

The recent Panama Papers scandal, the Edward Snowden files (and just Wikileaks in general) have brought a new aspect of ‘evidence’ into the public domain. However, there are many unanswered questions about the extent to which this new ‘evidence’ (which is almost always illegally-obtained) can be admitted in an international court or tribunal.

Most domestic legal systems provide that evidence obtained illegally cannot be used against an entity (such as a person, corporation or State) in a criminal trial. The position of international courts and tribunals is less clear, and for the most part will come down to the rules of the particular court. One court where the position is the most unclear is the International Court of Justice (ICJ).

Let’s take, for example, a situation where a hacker or an employee downloads documents obtained from a State’s security or intelligence agency. This is essentially what Edward Snowden, a former CIA intelligence analyst, did when he downloaded thousands of classified National Security Agency documents and gave them to journalists. Presumably, these sorts of documents contain privileged or sensitive information and may relate to current security or intelligence operations. However, it is possible that such documents may also contain information on potential breaches of international law. If such documents are the only evidence that a State has to allege wrongdoing against another State, should the documents be able to be admitted and used in a trial?

There are no restrictions in the Statute of the International Court of Justice (1945) or the Rules of Court concerning the admissibility of evidence beyond procedural requirements such as when evidence may be filed. The general practice of the ICJ is for States to present any evidence and the Court will estimate its value and decide its relevance. As a result, the admissibility of evidence is largely a discretionary matter for the Court. This means that the sorts of policy arguments States may come up in arguing why this sort of evidence should or should not be admitted will probably be what shapes this area of the law.

In the 1949 Corfu Channel Case the ICJ admitted evidence collected in breach of a State’s territorial sovereignty. Some could argue that this is precedent for allowing other illegally-obtained evidence (such as documents stolen from a State’s security or intelligence agencies) to be used as evidence against that State in an international court. However, given the advancement of technology and the ability for non-State actors as well as States to illicitly collect information, such a dated decision would arguably not be persuasive.

The Special Tribunal for Lebanon (STL) has declined to admit WikiLeaks documents (US diplomatic cables) due to a perceived lack of reliability and authenticity. In the 2015 Decision on the Admissibility of Documents Published on the WikiLeaks Website, the STL held that in order for WikiLeaks evidence to be admissible in the STL, the party from whom the documents were taken must have acknowledged their authenticity or other evidence must demonstrate the documents’ accuracy or authenticity. This other ‘evidence’ can take the form of dates, signatures and seals. What can constitute an ‘acknowledgement’ is yet to be determined, but where, for example, a hacker is charged with data theft laws, or a State acknowledges that there has been a security breach; could this constitute an acknowledgement that means that the WikiLeaks documents are genuine?

This could put States in a difficult dilemma. Say a State has been the victim of a cyber attack or had its security data stolen by a hacker or former employee, and those documents appear on a site such as WikiLeaks and are tendered as evidence in a trial. If a State has acknowledged to the media any form of security breach or has charged someone with the crime, then potentially this could be taken to be acknowledgement of the documents authenticity. However, say those stolen documents had been altered prior to publication? The only way that a State could clear its name would be to tender further classified information to prove those documents were forged, which in doing so could further compromise its security operations and potentially put people’s lives in danger. The ICJ held in the Corfu Channel Case that it would not draw an adverse inference of guilt because of a State’s refusal to produce national security information. However, this doesn’t mean that there wouldn’t be serious political (both domestic and international) consequences from such a situation.

A State could also argue that admitting WikiLeaks evidence that has been obtained via a breach of its domestic laws is against the principle of ‘comity between nations’, which is a principle of international law that recognises that States must respect each other’s domestic laws.

Basic principles of justice require that an impartial third party base its decision based on all the relevant evidence, and this may include WikiLeaks documents and other illicitly-obtained evidence. It is also important for the ICJ, as a world Court, to be accessible to all States and allow redress where there has been an alleged violation of international law. However, serving such a fundamental principle may not always be easy and may become even more difficult in a world with hacktivists becoming ever more active and the growing recognition and accessibility of WikiLeaks. The direction of the law in this area will arguably be shaped by the policy arguments that States will make if, or when, they face this situation, and may change depending on the circumstances, the seriousness of the alleged violation and the importance of holding States accountable for their international wrongdoings.

 

Isabella Bogunovich is a final year LLB/BA student who enjoys wine, cheese, and long walks on the beach.

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