Fact-Finding Without Rules: Habermas’s communicative rationality as a framework for judicial assessments of digital open-source information

Digital open-source information is revolutionizing the conduct of international criminal trials. It can alleviate the need to call traumatized witnesses, it can be preserved without temporal limit, and it can constitute powerful probative evidence of the commission of grave crimes. However, the International Criminal Court’s procedural framework is largely silent on digital material, despite the inherent risks of misinterpretation, misinformation and disinformation. Eschewing prescriptive regulatory responses, this article argues that a framework of ‘communicative rationality’, based on the writings of Jürgen Habermas, may guide the Court’s judicial deliberations regarding digital information. Importantly, Habermas places emphasis on forming a broad epistemic community, to draw specialists into the deliberative process. As the truth-seeking evidentiary function increasingly moves outside of the courtroom, Habermas’s communicative rationality and inclusive approach to attracting specialised knowledge provides a conceptual justification for the judges’ exercise of power regarding the emerging phenomenon of digital open-source information.