Open Source Evidence on Trial

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Keith Hiatt
Publication Date
March 3, 2016
Publication Type
Journal Article
Human Rights Investigations Lab, Open Source Investigations


Investigating war crimes is a messy business. It is difficult and dangerous. International criminal tribunals charge powerful individuals, including heads of state and leaders of armed forces, whose personal resources may well exceed the annual operating budget of the investigating tribunal. It is not surprising when witnesses for the prosecution recant or decline to testify. Witnesses may end up missing or killed. In court, as in war, witnesses bear the risks. While the court pays the financial expense of an investigation, witnesses put their lives on the line. No other form of evidence is so costly. International human rights courts and their observers have expressed hope that new information technologies might bring about better, cheaper, and safer prosecutions. A promising but underexplored approach involves the use of “open source intelligence” in international prosecutions for genocide, war crimes, and crimes against humanity. Open source intelligence “refers to a broad array of information and sources that are generally available” to the public, such as news media, academic work, and public reports. Increasingly, social media and online video and image sharing services provide a rich, open source of information about crimes and their perpetrators. A recent survey of law enforcement professionals found that eighty percent “used social media platforms as intelligence gathering tools.” But to date, international criminal tribunals have made only limited use of such sources. In this essay, I examine challenges presented by open source investigations that rely on social media or online video and image sharing websites. I present one example of these challenges drawn from the International Criminal Court (ICC). While questions remain about the reliability and admissibility of evidence obtained from open sources, I contend that these new investigative techniques are too important to ignore.