Expert Evidence and Digital Open Source Information

Abstract

Abstract Digital open source information (DOSI) has emerged as a significant source of evidence for the International Criminal Court (‘the Court’) and other jurisdictions applying international criminal law. However, its use in litigation raises questions about who can be considered an expert in DOSI and what methods and safeguards they should adopt. This article examines how the Court can receive DOSI via expert evidence while maintaining rigorous fact-finding standards. It addresses challenges that DOSI introduces to the paradigm of expert testimony, including the lack of an overarching formalized system of DOSI accreditation, the typically group-based nature of DOSI investigations and the scope for misinterpretations and biases to result in erroneous conclusions. It proposes a novel six-factor test for the Court’s identification of sufficiently qualified DOSI specialists as expert witnesses. At the same time, it highlights that DOSI specialists should utilize transparent, accessible and replicable methodologies, with quality control feedback loops, peer review processes and bias controls. The aim of the article is to facilitate the use of DOSI evidence to resolve atrocity crimes cases, while also maintaining rigorous fact-finding standards and conforming with due process and fair trial rights.