Regarding (Pictures of) the Pain of Others: Photographic Images of Conflict-Related Deaths under International Law

[Viola Santini is a PhD candidate in International and European Law at the University of Florence. She holds an MA in International Law from the Geneva Graduate Institute.]

Photography, War and Death, a Close Relationship

In recent times, social networks and media have been inundated with harrowing images: beheaded soldiers on the Ukrainian front, mutilated bodies and blindfolded prisoners of war in Gaza, as well as distressed and dead civilians. As Susan Sontag recalls in her essay Regarding the Pain of Others (2003), it is since the invention of the camera that photography has maintained a profound and intimate connection with death. Thus, war contexts have always proved to be fertile ground for the occurrence of this connection, with real-time footages of battles and massacres becoming a routine feature of the continuous media stream since the Vietnam War. What distinguishes contemporary practices, however, is not merely the vast increase in available and consumed images, but also a notable shift in their qualitative characteristics. A discernible trend has emerged, revealing a move toward more explicit and pervasive depictions of death and suffering in visual culture. Koenig, co-director of the Human Rights Center at UC Berkeley, notices that smartphones and social media are further transforming the documentation of human rights violations. The intent is to “catalyze some kind of response from an international community … to let them know the horrors” people face. However, one might – rightfully – ask: what kind of response do these images provoke? Sontag delves into the spectrum of reactions that witnessing distant suffering can provoke, acknowledging that these range from appeals for peace to demands for vengeance. Yet, more often than not, such responses ultimately settle into what she describes as “a vague, persistent awareness of global horrors”. 

These reflections raise critical questions, under international law, about whether sharing certain images serves the public’s interest and furthers freedom of expression, and they pose a balancing challenge with concerns for privacy and human dignity. The need to strike a balance is also extremely relevant in the context of an emerging practice in contexts of conflict and gross human rights violations, viz. that of open-source investigations: as Zarmsky explains, new technologies create a paradox when it comes to accountability for international crimes: while offering valuable tools for investigation and prosecution, the same content can also be weaponized against victims and communities, serving as a means of degradation and humiliation.

This post will therefore examine how the of “digital dignity in death” is addressed within the framework of international humanitarian law (IHL). I will then turn to human rights law, in order to fill some gaps left by the lex specialis on the matter of privacy and balancing of interests, and I will briefly discuss how breaches of digital dignity in conflict-related deaths could be framed as war crimes under the Rome Statute. 

Finally, a short disclaimer is necessary before delving deeper into the analysis. The reasoning presented in this blogpost may seem in contrast with discussions around the censorship of certain images and content (see the “all eyes on Rafah” trend, or HRW’s report on Meta’s censorship of pro-Palestine content). While acknowledging the importance of the debate against censorship, it is essential to note that media outlets play a crucial role in the  distribution of the sensible – in Rancière’s terms, the “partage du sensible” (2000) – not only through what they withhold from publication, but also through what they decide to show, as distribution implies both exclusion and inclusion. A striking example of the relevance of what is shown versus what is concealed can be found in instances of unequal use of images of death in the media, where the dignity of one group, an “us”, is protected, while the publication of graphic images of the “other” is often permitted. On this point, Sontag aptly notes that “the more remote or exotic a place is, the greater the chances for frontal and full-length images of the dead and dying. These images convey a twofold message. They show outrageous and unjust suffering that should be remedied. And at the same time, they confirm that this is the kind of thing that happens in those places”.

Provisions on the Treatment of the Dead During War

IHL contains several provisions regarding the treatment of the dead, emphasizing dignity in death. Article 16 protects the dead against pillaging and ill treatment. Analogous norms can also be found in the I and II Geneva Conventions, respectively at Articles Article 15(1) and 18(1). These principles also apply to non-international conflicts (NIACs) as principles of customary law (Rule 113). Finally, Article 34(1) of Additional Protocol I mandates respect for the remains of those who die for reasons related to occupation or in detention. These norms underscore a clear prohibition against mistreatment of the deceased and a dignified status attributed to them under IHL. 

More detailed rules in this regard, however, can be found in Article 13 of the III Geneva Convention and its 2020 Commentary, which explicitly introduces the case of video-photographic materials shared in the media. Article 13 addresses the treatment of prisoners of war (PoWs) in international armed conflicts, stating they must be protected from “acts of violence or intimidation, and from insults and public curiosity”. The concept of “public curiosity”, alongside the broader emphasis on dignity and respect, offers a useful framework for analysing the legal implications of sharing images of the dead, and will be explored further here. First and foremost, it is worth noting that it is a fairly unique concept, which appears in the aforementioned Article 13 and in Article 27 of the IV Geneva Convention concerning protected persons. Initially intended for protecting PoWs from humiliating practices and from unlawful reprisals, the Commentary clarifies that “as technology advanced, prisoners became exposed to public curiosity via photographic images and video footage”. Notably, the publication of images of PoWs can constitute, by itself, exposure to public curiosity, even without accompanying insult, humiliation, or ill intent. The prohibition on exposing prisoners or their identifiable images to public curiosity applies in the same fashion to their dead bodies. It is further clarified that images depicting prisoners in humiliating or degrading situations – such as death by violent means – must not be transmitted, published, or broadcasted, unless there is a compelling reason of public interest. In IHL the threshold for invoking public interest is notably high, and it can be enforced vis à vis other competing interests when exposing serious violations of humanitarian law is necessary. However, even in these instances, media outlets are expected to make every effort to protect the identities of the individuals depicted, ensuring that images fulfil their purpose without disclosing the identities of those involved, maintaining a balance between the public’s right to information and the individual’s right to privacy and dignity.

Balancing Privacy, Freedom of Expression, and Dignity of the Dead in Conflict

The issue of privacy is largely unaddressed by IHL, mainly due to the speed of technological advancements in this field. However, it remains – or even raises as – a critical area of concern. A notable example is that of digital open source investigations, where the need to balance the investigation of grave crimes with the protection of privacy rights has been emphasized (The Berkeley Protocol). As recognized by the International Court of Justice in the Nuclear Weapons case (1996), human rights law applies in times of conflict, save through the effect of provisions for derogation (para. 25), and, when it comes to the interplay between it and IHL, “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law” (para. 106). In absence of explicit IHL provisions regulating privacy issues, human rights law seems to provide a valuable general framework for addressing these concerns. Most notably, the European Court of Human Rights (ECtHR) has developed robust standards on privacy, in the context of media and photographic representations, under Article 8 of the European Convention on Human Rights (ECHR). The ECtHR has recognized that: 

[A] person’s image constitutes one of the chief attributes of his or her personality … [and] mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof.

Von Hannover v. Germany (No. 2), para. 96

In contexts of conflict, the chaotic nature of events results in a lack of consent concerning the use of images by family members or those who survive the deceased. Thus, all the more reason, decisions regarding the publication of such images must undergo a careful balancing test, weighing privacy rights against other interests and, in particular, freedom of expression: 

[F]reedom of expression includes the publication of photos … This is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance.

para. 103

The ECtHR has developed a balancing test to navigate these competing interests, which is directly relevant to the IHL analysis above, as it touches upon the same themes of public interest and public curiosity.

A key element in this balancing test is that a private individual who is unknown to the public can claim heightened protection of their right to privacy, especially when photos or commentary serve only to satisfy public curiosity. In such cases, the ECtHR has ruled that freedom of expression should be interpreted more narrowly (see Hachette Filipacchi Associés v. France, para. 42; Rubio Dosamantes v. Spain, para. 34; MGN Limited v. the United Kingdom, para. 143). The reference to “public curiosity” and the imperative to shield individuals from its intrusion is highly significant, as it suggests that the concept could be extended beyond the categories of PoWs and protected persons, to include contexts of NIACs, and instances where non state actors are involved. 

Turning to the Rome Statute: The Crime of Outrages upon Personal Dignity

The way an image is published and how the individual is represented in it are also significant factors in the balancing test outlined above. Humiliating or degrading situations, such as death by violent means, where recognizable pictures are published without consent, would arguably constitute a violation of dignity and of the obligation to respect the dead under IHL. In this regard, it is relevant to mention here the war crime of “outrages upon personal dignity, in particular humiliating and degrading treatment” codified in Article 8(2)(b)(xxi) and (2)(c)(ii) of the Rome Statute. As pointed out by Zarmsky, sharing videos and photos online serves the perpetrator’s intent to further degrade the victims and has a heightened harmful effect “given the widespread availability and instantaneousness of the internet, and the permanency of the content”.

The term ‘persons’ in Article 8(2)(b)(xxi) and (2)(c)(ii) “can include dead persons,” as “the victim need not personally be aware of the existence of the humiliation or degradation or other violation” (Elements of Crimes, footnotes 49 and 57). Consequently, outrages upon personal dignity can be committed against unconscious individuals, or dead bodies. The principle of protecting personal dignity, regardless of awareness, is essential in the context of armed conflicts, where individuals may be unable to assert their rights directly, especially posthumously. This approach is particularly relevant, as human rights law—especially in the jurisprudence of the ECtHR —considers privacy rights as primarily applicable to the living, typically “falling within the scope of the “private life” of the surviving family members” (Polat v. Austria, para. 48) when it comes to protecting the dignity of the deceased. However, this focus on survivors presents a key challenge in conflict zones, due to the chaotic conditions or the absence of surviving close relatives, raising concerns about preserving dignity in death regardless of their involvement.

Finally, this category of crimes allows consideration of “relevant aspects of the cultural background of the victim” when assessing whether an act constitutes an outrage upon personal dignity. This specification appears in conjunction with the above mentioned extension of the term “person” to include the deceased (Elements of Crimes, footnotes 49 and 57), thus creating a close link between outrages upon the dead and cultural sensibilities. Such connection is not incidental as, for instance, in many societies and communities, photographing human remains—or, even more so, making such images publicly viewable—is considered unethical, insensitive, and deeply harmful.

Concluding Remarks

On this note, given the nature of modern communication, one might ask: who is ultimately responsible for upholding these rules, and who is liable? The 2020 Commentary clarifies that all states bear this responsibility – both parties to the conflict and non-parties – the latter under Common Article 1, which prohibits any aid or assistance in violations of humanitarian law, and Article 129(3) of the III Convention, which mandates measures to suppress acts contrary to the Conventions. However, it also recognizes a due diligence of media outlets such as media channels and television networks, with implications for social media platforms, which are increasingly influential in shaping public perceptions of war. Indeed, Sontag’s critique of the objectivity of war photography echoes the idea, previously articulated by Carey (1989), that images have a unique power in shaping societal hierarchies and reinforcing power dynamics. In the digital age, where the boundaries of information blur, it becomes essential to critically examine how images of war are produced, circulated, and consumed, recognizing the ethical and legal obligations that accompany them.

Photo attribution: Still from Swiss Documentary “War Photographer” by Christian Frei with James Nachtwey is licensed under CC BY-SA 2