This article discusses the use of digital evidence as a means of proof before the International Court of Justice (ICJ). The absence of specific Court rules and procedures for digital evidence (with the exception of Practice Direction IX bis) is not necessarily an obstacle to its production and evaluation before the ICJ, as the general evidentiary rules can also be applied to digital evidence. The article first looks at the rules on the production of documentary evidence and then examines the specific issues related to audiovisual evidence. Finally, it examines the admissibility of digital evidence unlawfully obtained by a litigant through unilateral transborder access to data. The article concludes that, even if specific regulation may be needed as to the specific way in which authenticity and accuracy of digital evidence are to be established, the particular facts of the case and the grounds of challenge can vary widely, and it is doubtful that any regulation could be sufficiently flexible to deal with this in advance.
I am grateful to Barbara Sonczyk for her research assistance and to Matt Evans for explaining to me the intricacies of cyber technologies. All errors are of course mine. This article is based on developments as of June 2010. 2 "Cyberspace" is defined in the United States National Military Strategy for Cyberspace Operations as "a domain characterized by the use of electronics and the electromagnetic spectrum to store, modify, and exchange data via networked systems and associated physical infrastructures" (United States Department of Defense (DoD), The National Military Strategy for Cyberspace Operations, December 2006, 3 ). Cyberspace, then, goes beyond the Internet and includes all networked digital activities. The updated Doctrine for the Armed Forces of the United States contains a slightly different definition of cyberspace ("[a] global domain within the information environment consisting of the interdependent network of information technology infrastructures, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers", Armed Forces of the United States, Doctrine for the Armed Forces of the United States, Joint Publication
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