New US sanctions followed, targeting four ICC judges in June<\/a>, then in August the two deputy-prosecutors and two more judges<\/a> were picked out, followed by another two judges in December<\/a> \u2013 for handling the Palestine and Afghanistan investigations. This means that US individuals, corporations and groups are \u201cnot permitted to provide financial, material, or technological\u201d services to the targeted persons, explains Benjamin Thorne, assistant professor of criminal law at the University of Reading, UK, who also researches the use of tech in international criminal justice \u2013 including the ICC\u2019s Office of the prosecutor. If US organizations, such as \u2018Big Tech\u2019, partner with sanctioned persons, they risk criminal penalties (twenty years in prison<\/a> and\/or a fine of 1 million dollars) or civil penalties (fines).<\/p>\n\n\n\n \u201cThe sanctions have been an eye-opening moment for the court, as well as NGOs and individuals working in the field of justice and accountability, on the level of dependency on US tech and the US financial systems,\u201d says Zo\u00e9 Paris, advocacy coordinator at the Coalition for the International Criminal Court, that consists of civil society organizations in 150 countries.<\/strong><\/p>\n\n\n\n The ICC uses tech for virtually all daily operations. This dependency is no secret. \u201cWe all know about it. As such, this is a not sensitive topic,\u201d says Paris. \u201cBut I fully understand it that the court doesn\u2019t share certain information about potentially what service providers they are using. That, indeed, is a sensitive subject,\u201d Paris explains. However, one of the names that always keeps popping up, is that of Microsoft, which Thorne calls \u201ca key technology partner\u201d of the Office of the prosecutor. <\/p>\n\n\n\n Such concerns didn\u2019t play a role when Herman von Hebel became the Court\u2019s registrar in 2013. \u201cThe ICC was on its way to increasingly become an e-court and reduce reliance on paper materials. The discussions concentrated on creating an IT infrastructure for the judges, prosecutors and lawyers, to be able to function as efficiently as possible. One of the goals was that they would use digital tools and no longer deal with piles of paper,\u201d he says. Von Hebel explains there was \u201ca struggle\u201d within the court, as the Office of the prosecutor \u201cstressed its sovereignty and wanted its own, separate IT services for its own goals, that didn\u2019t fit the demands of the judges or others\u201d.<\/p>\n\n\n\n A more advanced technological infrastructure required extra investments. But the Assembly of States Parties (ASP) sticked to a policy of \u201czero growth\u201d for the budget. \u201cI was of the opinion that the ASP was scraping too much, because its attitude was detrimental to the efficiency and IT security of the ICC,\u201d Von Hebel says. Despite the hurdles, the court worked on its digital infrastructure. The \u201cnationality\u201d of the tech company providing services was not yet a topic of discussion, Von Hebel states. One source remembers seeing an overview in 2018 showing the top 5 software solutions used across the court. Three of these were Microsoft products.<\/p>\n\n\n\n In recent years, the Office of the prosecutor proudly announced that it was going for digital tech and artificial intelligence (AI). \u201cIt wants to become a world leader in accountability technology,\u201d Thorne says, referring to the office\u2019s Strategic Plan 2023-2025<\/a>. \u201cThe words in the report are over-shouting, overexuberant and also not fully accurate, because the Office of the prosecutor will not develop technology itself. The office will use existing products, systems and services and apply these in their context. Though the specifics could possibly be tailored into something a bit more bespoke for its specific needs and requirements,\u201d he explains.<\/p>\n\n\n\n The Strategic Plan illustrates how \u201csuper ambitious\u201d the office is in becoming a forerunner, Thorne says. \u201cWithout an up-to-date, reliable, and secure technological infrastructure the Office cannot hope to achieve the full potential of its investigative work,\u201d the organ writes in its 2023 annual report<\/a>.Prosecutor Khan was thus continuing the policy set out when he was head of the UN\u2019s Investigative team to promote accountability for crimes committed by Da\u2019esh\/ISIL (UNITAD), which was committed to tech, with Microsoft as an important provider. David Husman, a US tech and investigation expert, who worked at UNITAD, joined him when he moved to the ICC.<\/p>\n\n\n\t In 2022 the Office of the prosecutor launched \u2018Project Harmony<\/a>\u2019 \u2013 co-funded by the European Union. It is portrayed as enabling an \u201cefficient, intelligent and secure evidence management platform\u201d. The objective is to improve \u201cexisting infrastructure to collect and preserve data; advancing the Office\u2019s analytical and investigative capabilities; and revolutionising routine and specialised tasks\u201d. It will help personnel \u201cto work smarter, handling large and complex datasets while increasing staff efficiency and reducing human bias\u201d. The Prosecutor\u2019s office explains that for Project Harmony<\/a> it works with Microsoft (US), Accenture (headquartering in Dublin) and their joint-venture Avanade (with its global headquarter in Seattle, US) which are altogether \u201cproviding support<\/a> in designing and building infrastructure, implementing security measures and change management\u201d.<\/p>\n\n\n\n Project Harmony has three components. First, in 2022, the Office of the prosecutor started to work with RelativityOne, a cloud-based software that allows for safe data storage and provides a platform to manage, review and analyse the evidence. The aim is to assist the staff in \u201cconducting efficient investigations,\u201d according to the annual report<\/a>. In 2022, the court signed a 5-year contract costing 2.5 million US dollars<\/a> with Relativity, a US company which is headquartered in Chicago and works in partnership<\/a> with Microsoft.<\/p>\n\n\n\n Then, OTPLink<\/a> was launched on 24 May 2023. Stakeholders such as affected communities, witnesses, NGOs and States can use this new online application to submit \u201cquickly, safely, and securely\u201d information about international crimes, also known as \u201ccommunications\u201d, to the Office of the prosecutor. It \u201cblends the use of advanced modern-day technology and international law,\u201d prosecutor Khan said in a statement<\/a>. OTPLink, he added, \u201cstreamlines the traditional manual review process by allowing the Office to handle larger information volumes utilising AI and Machine Learning (ML) to offer greater insights into the information received, significantly reducing the time required to review and act on it\u201d.<\/p>\n\n\n\n Thirdly, in August 2023, the Office of the prosecutor started working with eVault, a cloud-based solution providing \u201ccentralised storage for information and evidence\u201d. The company is headquartered in Boston, Massachusetts. Through eVault, \u201canalysts, investigators and lawyers can access and manage all electronic evidence collected by the Office,\u201d it writes.<\/p>\n\n\n\n Furthermore, every visitor of the website can see that the ICC as an institution is using US tech products. Courts records and reports published there are in PDF\/Adobe, another US enterprise. And as recently as last October, a Microsoft spokesperson<\/a> told Euractiv, a media network specialized in EU affairs: \u201cWe value our relationship with the ICC as a customer and are convinced that nothing impedes our ability to continue providing services to the ICC in the future.\u201d<\/p>\n\n\n\n However, the alleged email-incident revealed by AP served as a stark warning of how digital technology can be \u201cweaponized in furtherance of political objectives, potentially threatening the court\u2019s ability to function according with its independent judicial mandate\u201d, states Jennifer Tridgell, an international lawyer and PhD researcher at the University of Cambridge, who has published<\/a> on the topic. \u201cThis incident has precipitated an intense discussion internally about mitigating those deep dependencies,\u201d she tells Justice Info in an interview.<\/p>\n\n\n\n The ICC, which hasn\u2019t responded to questions by Justice Info, is tight-lipped about the effect of the current sanctions on its use of tech. But it\u2019s obvious that the US measures have been causing many challenges. \u201cSome stem from the fact that by design part of the intentions of the sanctions is to sow the seeds of uncertainty, confusion and panic within the institution. In the beginning a lot of focus of the Office of the prosecutor was around speculating and possible contingency planning, such as what would happen if Microsoft suddenly disengaged with the court,\u201d says Thorne. Reuters reported<\/a> last year that at the ICC \u201cevidence was being backed up due to fears U.S. tech giant Microsoft would have to stop working with the court\u201d.<\/p>\n\n\n\n Paris, who is preparing a report on sanctions for the Coalition for the ICC, agrees that the measures created bewilderment. \u201cThe sanction system is complicated and complex. The terms that are used are very broad. On a daily basis we ask ourselves: What does \u201cmaterial support\u201d and \u201cproviding services\u201d exactly mean? The implications are not fully known,\u201d she says. \u201cOne of the big impacts is also the diversion of attention of institutions and individuals from their actual work, to assessing the risks of the sanctions and come up with the solutions, in order to keep the operational capacity going.\u201d<\/p>\n\n\n\n Thorne notes that the current sanctions are targeting eleven individuals, rather than the whole institution. \u201cSo far, however, the sanctions haven\u2019t stopped US tech companies from engaging with the court. The sanctions make the work more complicated,\u201d he says. In the first few months, the work of the Office of the prosecutor slowed down due to the uncertainties about the possible risks of violating the sanctions. It was reported that some staff were frozen off from complete dossiers. \u201cBut the sanctions are not currently stopping investigations. It hasn\u2019t brought the court to a halt,\u201d he states.<\/p>\n\n\n\n Thorns points out that \u201cif additional sanctions against individual court staff continue, this could create a \u2018web of sanctions\u2019 making it further challenging for the Office of the prosecutor to know what activities might or might not \u2018trip\u2019 the \u2018web\u2019\u201d.<\/p>\n\n\n\n Overall uncertainty also increases the risk of overcompliance, where tech companies go further \u2013 in taking measures such as cancelling contracts \u2013 than the current sanctions actually require.<\/strong><\/p>\n\n\n\n Last September, Reuters<\/a> reported that Trump considered institution-wide-sanctions against the ICC, forbidding US companies to do business with the court. \u201cThat\u2019s a very different scenario. Such sanctions will make it very hard for the court and will bring things to a halt,\u201d says Thorne. A source, quoted on the condition of anonymity, agrees: \u201cBecause it is not just the ability to send an email, but also to pay the staff, to run the security of the court, to get catering. Every aspect of its functioning has a digital component these days.\u201d<\/p>\n\n\n\n The threat of court-wide sanctions is still hovering above the ICC. But such a massive attack can also have a backfiring effect. \u201cSome States that are dialoguing with the US are raising the issue of the impact of such sanctions saying: you are going to hurt US companies as well,\u201d a source states. \u201cBusinesses are more aware and careful about how the public might perceive them, particularly related to human rights and justice, if they pull out their services and impact the functioning of a court,\u201d Paris says. <\/strong><\/p>\n\n\n\n As host state, The Netherlands have a special responsibility. One of its activities is talking to the \u201crelevant service providers\u201d to \u201cprevent overcompliance\u201d, the ministers of Foreign Affairs, and Justice and Security wrote last December in a briefing to parliament. The Dutch government is also \u201cin close contact\u201d with the ICC about the consequences of the sanctions on the digital infrastructure. The ministers point out that the ICC is supported by States Parties, \u201cstrengthening its digital independence,\u201d and has \u201calready taken several concrete steps in this regard\u201d.<\/p>\n\n\n\nThe \u2018nationality\u2019 of tech providers was not an issue<\/h2>\n\n\n\n
A \u201csuper ambitious\u201d Office of the prosecutor<\/h2>\n\n\n\n
Project Harmony<\/h2>\n\n\n\n
Weaponizing tech<\/h2>\n\n\n\n
Court-wide sanctions \u201cwill bring things to a halt\u201d<\/h2>\n\n\n\n
Digital Independence<\/h2>\n\n\n\n
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