Skip to content

B. Photographs

Definition

Photographs are widely used within international criminal proceedings, but despite their common usage, courts and tribunals have not undertaken to provide a widespread definition at this stage. Photographs often fall under the broad definition of documentary evidence which includes 'anything in which information of any description is recorded'1 and can be defined as 'picture[s] made using a camera, in which an image is focused on to light-sensitive material and then made visible and permanent by chemical treatment, or stored digitally'.2

B1. The Court can make an inference from the content of a photograph to the extent that it allows the Court to make a definite finding.

Keywords

relevance; inferences

This Guideline is derived from the ICC's treatment of video evidence, but it can reasonably be applied to photographs as well. Caution should be exercised when considering a photograph since differences in personal perception can cause difficulties in making a definite finding.3 The Court will rely on the photograph only to the extent that it can make such a definite finding.4 The ICC Trial Chamber in Lubanga found that a reliable distinction can be drawn between individuals of different ages, based solely on the individuals' appearance.5 Pursuant to Rule 63(4) of the ICC Rules of Procedure and Evidence, there is no strict legal requirement that a photograph has to be corroborated by other evidence for the Court to be able to rely on it and establish a specific fact.6

B2. Photographs can be admitted into evidence if prima facie authenticity is demonstrated by providing information about the date, the location, the events depicted, the author, the source, and/or the chain of custody.

Keywords

probative value; relevance; authenticity; chain of custody; admissibility

Based on Article 69(4) of the Rome Statute and Rules 63 and 64 of the ICC Rules of Procedure and Evidence, regarding the Court's authority to rule on the relevance, probative value and admissibility of any evidence, photographs should be accompanied by reliable information on their date, location and events depicted. If the Court does not receive such information, photographs' relevance to issues in the case and probative value cannot be determined.7 The ICC Trial Chamber in Ntaganda noted that since six photographs brought by the Prosecution were not dated, their relevance and probative value surrounding issues in the case could not be determined.8 It added that when photographs are dated, the parties seeking admission should provide evidence from which the Court can conclude that the dates are correct and fall within the temporal scope of the charges.9 The ICC Trial Chamber in Ntaganda also noted that certain dated photographs could have some relevance, including photos dated ambiguously (such as ‘08/07 2003', which could be interpreted as either the 8th of July or August 7th) or by a range ('January-February 2003'), but in the absence of any further reliable information as to the date, location and events depicted in the photographs, it could not admit them into evidence due to lack of probative value.10

Likewise, the ICTR Trial Chamber in Karamera found that a photographic piece of evidence did not have sufficient indicia of authenticity as it did not contain any reliable information: for example, it did not bear any official stamp, signature, seal, date, nor was there any corroborating evidence, indication of the chain of custody and/or information regarding the author. The ICTR Trial Chamber thus found the origin of the photograph doubtful.11 The ICC Trial Chamber in Bemba also discussed this when considering two photographs, stating that since the Prosecution had not provided 'any information or evidence to support their authenticity and reliability', their probative value was 'outweighed by their potential unfair prejudice to a fair trial'.12

B3. The content of photographs can be corroborated by witnesses present at the moment they were taken.

Keywords

relevance, probative value; witnesses; contemporaneity

Where photographic evidence is of poor quality or it is unclear who took them and/or how they were developed, consistent testimonies from credible witnesses who were at the site can corroborate the content of the photographs.13 The ICC Trial Chamber in Ntaganda noted the consistency of evidence from photographs taken from credible witnesses, and the consistent testimony from seven witnesses, with which it was able to satisfy itself that the photographs did indeed depict the aftermath of a massacre.14

Unreliable Expert Testimony. An expert witness' testimony is unreliable if it is based on conclusions drawn from photographs displaying obvious limitations in terms of reliability.15 In Mladić, the ICTY Trial Chamber was presented with multiple photographs of the allegedly same crater: one was taken initially by a war correspondent during the conflict in the 1990s, and then others were subsequently taken by Defence experts in 2010. The Trial Chamber found the Defence expert's conclusions drawn from the photographs were unreliable because of the limitations of the photographs in terms of their reliability.16 Firstly, the Chamber found that the photographs did not in fact depict the same crater, nor the same floor tiles which were depicted in the initial photograph.17 Secondly, editing software was used on the Defence expert's photographs to place each photograph in a vertical position and remove deformations caused by the angle of photography.18 Exposure to such software undermined the reliability of photographs as they were no longer submitted in their original form.

Keywords

prejudice; privacy; consent

Pursuant to Article 68(1) of the Rome Statute, the Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. Circulation of photographs of witnesses and others affected by the work of the Court without consent from the individuals may constitute a violation of their human right to privacy and/or private life.19 Prior to disclosure of the photographs, the individuals concerned should be consulted, if possible, to ensure that no unaddressed issues, for example security risks, occur.20 Once a photograph has been disclosed pursuant to Article 67(2) of the Rome Statute or Rules 76 or 77 of the ICC Rules of Procedure and Evidence, a party or participant does not have to make an advanced discrete application if the photograph is to be shown during investigations.21 The ICC Trial Chamber in Bemba determined that doing so would render the investigation ineffective.22 Nevertheless, a very high degree of care should be taken to avoid unnecessarily identifying individuals in photographic evidence before the Court.23 Such photographs should only be used when no acceptable alternative investigative approach is available.24

  1. Prosecutor v Musema (Judgement And Sentence) ICTR-96-13-A (27 January 2000) (TC I) [53]; Prosecutor v Karemera et al (Decision on the Prosecutor's Motion for Admission of Certain Exhibits into Evidence) ICTR-98-44-T (25 January 2008) (TC III) [5]. ↩

  2. 'Photograph' (Lexico) accessed 12 January 2022. ↩

  3. Prosecutor v Lubanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04-01/06-2842 (14 March 2012) (TC I) [643]. ↩

  4. Prosecutor v Lubanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04-01/06-2842 (14 March 2012) (TC I) [644]. ↩

  5. Prosecutor v Lubanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04-01/06-2842 (14 March 2012) (TC I) [718]. ↩

  6. Prosecutor v Lubanga (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) ICC-01/04-01/06-3121-Red (1 December 2014) (AC) [218]. ↩

  7. Prosecutor v Ntaganda (Decision on Prosecution's request for admission of documentary evidence) ICC-01/04-02/06-1838 (28 March 2017) (TC VI) [68]. In Case 09/748003-18 & 09/748003-19 Prosecutor v Oussama Achraf Akhlafa ECLI:EN:RBDHA:2019:7430, the Dutch District Court in The Hague noted that "determining the date on which a particular image was taken is potentially an interesting element in the context of a criminal investigation". Though it does not establish it as a guideline, it does mirror the importance of photographic evidence being dated. ↩

  8. Prosecutor v Ntaganda (Decision on Prosecution's request for admission of documentary evidence) ICC-01/04-02/06-1838 (28 March 2017) (TC VI) [68]. ↩

  9. Prosecutor v Ntaganda (Decision on Prosecution's request for admission of documentary evidence) ICC-01/04-02/06-1838 (28 March 2017) (TC VI) [68]. ↩

  10. Prosecutor v Ntaganda (Decision on Prosecution's request for admission of documentary evidence) ICC-01/04-02/06-1838 (28 March 2017) (TC VI) [68]. ↩

  11. Prosecutor v Karemera et al (Decision on the Prosecutor's Motion for Admission of Certain Exhibits into Evidence) ICTR-98-44-T (25 January 2008) (TC III) [22]. ↩

  12. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [159]. ↩

  13. Prosecutor v Ntaganda (Judgment) ICC-01/04-02/06-2359 (8 July 2019) (TC VI) [282]. ↩

  14. Prosecutor v Ntaganda (Judgment) ICC-01/04-02/06-2359 (8 July 2019) (TC VI) [282]. ↩

  15. Prosecutor v Mladić (Judgment, Volume II of V) IT-09-92 (22 November 2017) (TC) [2170]; Prosecutor v Mladić (Judgment, Volume II of V) IT-09-92 (22 November 2017) (TC) [2039], fn 8717. ↩

  16. Prosecutor v Mladić (Judgment, Volume II of V) IT-09-92 (22 November 2017) (TC) [2170]. ↩

  17. Prosecutor v Mladić (Transcript) IT-09-92 (22 September 2015) (TC) 39145. ↩

  18. Prosecutor v Mladić (Transcript) IT-09-92 (1 October 2015) (TC) 39599. ↩

  19. Prosecutor v Bemba (Public Redacted Decision on the Prosecution's Requests to Lift, Maintain and Apply Redactions to Witness Statements and Related Documents) ICC-01/05-01/08-813-Red (20 July 2010) (TC III) [85]. ↩

  20. Prosecutor v Bemba (Public Redacted Decision on the Prosecution's Requests to Lift, Maintain and Apply Redactions to Witness Statements and Related Documents) ICC-01/05-01/08-813-Red (20 July 2010) (TC III) [86]. ↩

  21. Prosecutor v Bemba (Public Redacted Decision on the Prosecution's Requests to Lift, Maintain and Apply Redactions to Witness Statements and Related Documents) ICC-01/05-01/08-813-Red (20 July 2010) (TC III) [87]. ↩

  22. Prosecutor v Bemba (Public Redacted Decision on the Prosecution's Requests to Lift, Maintain and Apply Redactions to Witness Statements and Related Documents) ICC-01/05-01/08-813-Red (20 July 2010) (TC III) [87]. ↩

  23. Prosecutor v Bemba (Public Redacted Decision on the Prosecution's Requests to Lift, Maintain and Apply Redactions to Witness Statements and Related Documents) ICC-01/05-01/08-813-Red (20 July 2010) (TC III) [87]. ↩

  24. Prosecutor v Bemba (Public Redacted Decision on the Prosecution's Requests to Lift, Maintain and Apply Redactions to Witness Statements and Related Documents) ICC-01/05-01/08-813-Red (20 July 2010) (TC III) [87]. ↩