And So It Begins… Social Media Evidence In An ICC Arrest Warrant

[Emma Irving is an Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies of Leiden University]

The ICC’s most recent arrest warrant, issued on the 15^th August 2017, should have us all talking for one important reason: it is the first ICC arrest warrant to be based largely on evidence collected from social media. This was a move that was bound to come, and it aligns the ICC with the realities of many of today’s conflicts.

The ICC arrest warrant in question was issued against Mahmoud Mustafa Busayf Al-Werfalli, in the context of the Libya situation. Mr. Al-Werfalli, an alleged commander within the Al-Saiqa Brigade, is accused of having committed or ordered 33 murders in Benghazi or surrounding areas in June 2016 and July 2017. The crimes are alleged to have taken place during the Al-Saiqa Brigade’s participation in Operation Dignity, an operation which began in May 2014 as a coalition effort to fight terrorist groups in Benghazi.

The charge of murder as a war crime under Article 8(2)(c)(i) of the Rome Statute is based on seven separate incidents captured in seven separate videos. The Pre-Trial Chamber decision describes the events in these videos, some of which show Mr. Al-Werfalli shooting individuals himself, and some of which show him ordering others to commit executions:

Mr Al-Werfalli, wearing camouflage trousers and a black t-shirt with the logo of the Al-Saiqa Brigade, and carrying a weapon, is seen in a video footage shooting with his left hand three male figures in the head (§12)

Mr Al-Werfalli is seen speaking into the camera and then raising his left hand in the air and sweeping it down towards the ground in a manner that suggests that he is ordering the two men to proceed with the execution. The men shoot the persons kneeling, who fall on the ground. (§16)

The first of the seven videos is stated to have been posted to Facebook, while the other six are simply described as having been posted to social media. It is not clear whether the videos were posted by the Al-Saiqa Brigade itself or by a third party. At least some of the material appears to have been posted by the group itself, as early in the decision the Pre-Trial Chamber notes that the evidence supporting the application for the arrest warrant comes from ‘social media posts by the Media Centre of the Al-Saiqa Brigade’ (§3).

That the ICC has turned to social media evidence (also referred to as open-source evidence) is significant. In many of today’s conflicts we see large volumes of video, photo, and text material being posted to social media every day. Sometimes this material is posted by onlookers who take out their smartphones to record an event, but very often the material is posted by armed groups and perpetrators themselves. In this regard one need look no further than the propaganda uploaded by ISIS, and the atrocities that it often depicted. This is a mine of potential evidence, and some domestic jurisdictions have already started taking advantage. In Sweden, a court recently convicted a Syrian national of war crimes, based in part on evidence posted to Facebook. It appears that the Swedish court used Facebook posts to establish a timeline proving that it was not possible for a prisoner to have been executed following any kind of legal proceeding. In the absence of a trial, the execution was deemed a war crime and the Syrian national was sentenced to life in prison.

As the ICC steps into this new era of open source evidence, a few questions arise from the decision to issue an arrest warrant for Al-Werfalli. First, open source evidence is notoriously susceptible to problems of verifiability, which naturally affects its reliability in any kind of criminal proceeding. It can be hard to concretely establish the time, date, and location of the evidence, and to prove that it hasn’t been tampered with. These problems have led organisations, such as the International Bar Association, to develop apps that aim to improve the verifiability of open source material. In its decision, the Pre-Trial Chamber offers no indication of the methods used to verify the videos being relied upon, or who they were verified by. While the arrest warrant decision is clear as to the dates when the videos were uploaded to social media, there is uncertainty in relation to one of the videos as to where the upload took place, which hints at issues of verifiability.

The second question is forward looking, and concerns whether the approach to open source evidence will change depending on the stage of proceedings. The standard of proof for the issuance of an arrest warrant is ‘reasonable grounds to believe’ (Article 58(1) of the Rome Statute). One might assume that the approach to open source evidence would not be stricter when it came to initiating an investigation (‘reasonable basis to believe’, Article 53(1)(a)) but the situation may be different as regards the higher standards of ‘substantial grounds to believe’ (confirmation of charges, Article 61(5)) and ‘beyond reasonable doubt’ (conviction, Article 66(3)). Will it be the case that the higher the burden, the less weight is given to open source evidence? The decision on the arrest warrant was not the place to answer such questions, but they will need to be addressed in future.

The arrest warrant against Mr. Al-Werfalli is the latest indication from the ICC that it is keeping up with developments relating to conflict, crime, and communication technology. The OTP noted in its Strategic Plan for 2016-18 that technology has led to a rapidly changing environment in which witnesses, victims, and perpetrators have access to smartphones and the internet. The Court has hired cyber investigators to conduct online investigations. Perhaps the arrest warrant from the 15^th August is the outcome of these efforts. However, much work remains to be done to carve a way forward with regards to open source/social media evidence. Practitioners and academics are, in many ways, entering unknown territory. The approach taken to this type of evidence will prove crucial for any future proceedings in conflicts such as Syria and Yemen, where open source material abounds. The warrant for Mr. Al-Werfalli is just the beginning of what will be a long, and likely complex, relationship between open source evidence and international criminal justice.