Kony 2012: IHL 2.0: Is There a Role for Social Media in Monitoring and Enforcement?

by Anne Herzberg

[Anne Herzberg is the Legal Advisor at NGO Monitor, a Jerusalem-based research institution. Her post is based on a forthcoming paper (2012), presented at the “Old Laws, New Technologies Conference” sponsored by the Hebrew University Minerva Center for Human Rights and the ICRC (early draft here). Anne is the co-author of Best Practices for Human Rights and Humanitarian NGO Fact-finding (Nijhoff 2012).]

Many have commented on the role of social media in facilitating the organized uprisings of the “Arab Spring”. A lesser discussed aspect of those events is the astonishing access social media has provided us to armed conflict in real time. Within minutes of Mohamar Qaddafi’s capture and subsequent killing on October 20, 2011, for instance, images of the event recorded on cell phones were transmitted around the world via social media platforms. These graphic, yet unverified, scenes were widely disseminated even before Qaddafi’s death was confirmed, and immediately sparked an international debate regarding the circumstances and legality of his killing.

Social media can be a powerful tool, focusing worldwide attention on armed conflict and international humanitarian law (IHL); and it can facilitate greater scrutiny of the battlefield. Due to its scale and the ability to easily and exponentially reproduce information (as we saw with the massive viewership of the Kony2012 video), social media is useful for quickly and efficiently publicizing events and information which can be used to generate public interest, to bolster advocacy campaigns, and to educate about the law.

One emerging social media tool increasingly used during armed conflict and promoted as a new way to “enforce” violations of IHL is “crisis mapping”. It is interesting to note that the NGO Invisible Children (creators of Kony2012) were also one of the early adopters of this technology through their LRA Crisis Tracker website.

Crisis mapping utilizes crowdsourcing data (via SMS and email) and satellite imagery superimposed on maps to create a visual representation of an area in conflict. These maps can pinpoint incidents of violence and potential IHL violations, as well as the location of refugees and displaced persons. These maps can serve as an early warning mechanism as well as to coordinate humanitarian response.  They are created with the intention of serving a monitoring function, but also have the goal that the data collected can play a key role in judicial enforcement of IHL.  Amnesty International’s “Eyes on Darfur” project, advertised that its objective was “to provide unimpeachable evidence of the atrocities being committed in Darfur – enabling action by private citizens, policy makers and international courts.”

Ushahidi is probably the best known crisis mapping platform while Invisible Children’s LRA Crisis Tracker is one of the more sophisticated. It tracks incidents of violence committed by the Lord’s Resistance Army in Uganda with the aim of providing information to policy makers and humanitarian agencies, as well as sending out alerts of attacks to the public.  The site bases its data on incident reports collected from the “Invisible Children’s Early Warning Radio Network, UN agencies and local NGOs.”

The premise of the Kony2012 video, along with crisis mapping and other forms of social media, was that these new technologies can be used to have a concrete impact on the judicial enforcement of IHL.  While this media can play an important role in advocacy campaigns and be used for monitoring compliance with IHL, its utility for actual enforcement of IHL and punishing violators is less clear.

Social media can be harnessed by NGOs and other activists, yet it can also unfortunately, be exploited by repressive regimes which may seek to block access or harass users. In November 2011, for instance, Congolese authorities banned the use of SMS messaging and other access to social media networks via mobile phones, ostensibly in order to control protests against the outcome of elections.  This action removed a vital form of communication for civilians where SMS is often used as an alert system to rebel activity. Deaf Congolese were particularly hard hit by the ban, leaving them even more vulnerable to potential violence.

Privacy is another serious concern that can be compromised by social media.  With the potential to disseminate information exponentially, it does not take much effort to lose control of it.  This can be problematic in the IHL context, especially in cases involving sexual crimes or culturally sensitive situations where confidentiality is essential. It may also expose witnesses and victims to danger or put them at risk for reprisals should they cooperate with international tribunals or other law enforcement.  Social media projects managed by international organizations from remote locations, due to the inability to access intensely violent conflict zones, may endanger locals that are responsible for gathering data who may be identified as “collaborating” with international organizations. Crowdsourcing maps may unintentionally provide armed forces with the locations of civilians, enabling forces to more easily track and target them.

The issue also arises as to whether the complexity, nuance, and context of IHL can be conveyed adequately through social media technology.  Crisis maps, for instance, may help identify an area of armed conflict or the outcome of an event (e.g. two people killed), but it offers only limited utility in determining whether IHL violations have taken place.  Similarly, satellite imagery or other data gathered may not show the context of a particular battle, how particular objects were destroyed, who destroyed the objects, whether they were military objectives, whether combatants were present at the time of the fighting, and other critical components necessary for making a determination as to whether an IHL violation had, in fact, occurred.  The sheer volume of social media information is another factor that limits the ability to communicate context and complexity relating to armed conflicts and IHL.  How can so much information be tracked? What should be tracked? How do you choose the best sources?

Reliability is another serious concern. In general, there are few filters or checks and balances in place to verify materials communicated by social media.  As a result, it is easy to disseminate misinformation and difficult to differentiate between reliable and unreliable data.

In the judicial context, concerns arise that social media could compromise due process by eroding the presumption of innocence, breaching confidentiality, and harming witness safety, particularly if social media technology is allowed in the courtroom. Social media evidence is likely to be most successful in the IHL context when it is used as a statement against the interest of a litigating party or used to impeach witness credibility.  Social media can also serve a useful role in the enforcement context when it originates with an uninterested party and is simply capturing a “real-time” impression. Due to these challenges, ICC cases, for instance, have not yet hinged on sources derived from social media (This may also be due to low internet penetration in areas under investigation).  However, the Office of the Prosecutor (OTP) does consult social media as part of its reliance upon open source information, including in the Lubanga case and its investigations regarding Libya and Kenya.

Given the issues related to the use of social media for IHL enforcement, it is essential that clear guidelines, particularly for fact-finding and judicial frameworks, be established.  The prevalence of social media evidence in armed conflict will continue to increase, be it impressions from the ground, photographic, or video imagery.  Establishing structures now can improve future monitoring and fact-finding processes and ensure civilian protection.  Clear standards can prevent evidentiary complications and due process violations which could ultimately hamper the enforcement of IHL.

http://opiniojuris.org/2012/04/19/kony-2012-ihl-2-0-is-there-a-role-for-social-media-in-monitoring-and-enforcement/

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