Symposium on Forensic and Counter-Forensic Approaches to International Law: Piecing Together the Accountability Puzzle: Using Open Source Information to Fight Detention-related Impunity in the Ongoing Genocide in Gaza

[Dr Sabina Garahan is a lecturer in criminal law and human rights at the University of Essex Law School and Director of the Essex Human Rights Centre Clinic.

Dr Sarah Zarmsky is a lecturer at Queen’s University Belfast School of Law with a research focus on international criminal law, human rights, and new and emerging technologies.]

Introduction

Detention is often associated with the perpetration of international crimes and violations of human rights because individuals are placed entirely within the control of authorities. Indeed, a commonality between genocides such as the Holocaust, those in Rwanda and the former Yugoslavia, at present in Palestine, and allegedly in Myanmar and Xinjiang China, has been the use of internment camps and other detention facilities to separate out and abuse or kill members of a particular group. Given the closed nature of detention centres, in earlier instances of genocide, law enforcement, legal actors, civil society, and journalists often needed to wait until individuals had escaped or been released to obtain their testimony, or until the conflict was over to be able to physically visit sites to collect evidence. As noted by Koettl, Murray, and Dubberley, technological developments (including the increasing availability of open source information, hereafter ‘OSI’) ‘represent a clear shift in the extent of information control’, providing avenues to circumvent traditional ‘information gatekeepers’. This is especially true for closed environments such as prisons, where data from social media postings or satellite imagery can lift the veil and provide information about potential violations in real time.

This post analyses the relationship between detention and violations associated with it (such as torture or ill-treatment) and new technologies through the lens of the ongoing genocide in Gaza, where there has been a significant amount of online information published about crimes against Palestinian detainees by Israeli authorities. Drawing upon a comparative analysis of the situation of Palestine and previous genocides (such as the Holocaust and the Rwandan genocide), we assess how technology has impacted the international legal community’s ability to both investigate and prosecute detention-related harms. In terms of investigation, the proliferation of OSI, often shared by officials within prisons themselves, allows for more evidence of crimes that normally would go unseen. However, this degrading content also inflicts additional harms on victims when filmed and shared, and eventual reliance upon OSI for accountability efforts may encourage perpetrators to switch to unanticipated strategies.

Detention and Genocide

As defined in the Genocide Convention and in Article 6 of the Rome Statute, the crime of genocide refers to a number of acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Causing serious bodily or mental harm, including rape and other forms of sexual violence, constitute acts of genocide. Serious bodily or mental harm inflicted through acts of torture, ill-treatment, and sexual violence frequently take place in detention settings. Such acts are facilitated through the use of detention and the lack of accountability this entails, especially in makeshift places of detention which are common during armed conflict. Widespread detention in particular provides a way for perpetrators of genocide to pursue their goals, for instance, by preventing births by detaining all men. This is the reason why detention in camps and other official and unofficial detention facilities is often a marker of genocide.

​​Genocides often take place in situations of armed conflict or other precarious contexts in which the regular functioning of State institutions has broken down. This includes courts that may be able to review allegations of arbitrary detention or other related violations. Access to lawyers, family members, and health professionals, who are the first points of contact in identifying and reporting abuses, is often curtailed in these contexts. Access to both national detention monitoring bodies, such as national preventive mechanisms under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and external bodies such as the Committee against Torture and the ICRC, becomes equally limited. This poses a significant obstacle to accountability since genocide can result from impunity for often widespread abuses in places of detention.

Detention and Genocide in the Digital Age: Benefits of OSI

The emergence of smartphones, social media, and open source satellite imagery now makes it possible for the world to view genocides in real-time. This has even been the case in detention centres associated with genocidal acts, where, as explained above, reporting of harms could previously only occur once they had already been committed. The most pressing example is the current genocide in Gaza perpetrated by the Israeli regime – a label which has been widely accepted by practitioners, scholars, and doctors on the ground. 

In this regard, the Office of the High Commissioner for Human Rights (‘OHCHR’) has concluded on the basis of consistent and credible reports that thousands of Palestinians in Gaza have been taken into custody by the Israeli Defense Forces (‘IDF’) since early November 2023, on an arbitrary and incommunicado basis. This echoes the conclusion of Francesca Albanese, UN Special Rapporteur on the occupied Palestinian territories, who has also found that “[t]housands have been detained and systematically subjected to severe ill-treatment”. The OHCHR reports that such detention has been accompanied by widespread torture, and at least 53 Palestinian detainees have died in custody during that time. Without access to a lawyer or any possibility of effective judicial review, any means of preventing or responding to torture in detention are entirely dismantled. Israel has not provided information regarding the fate or location of detainees, many of whom are detained in secret for months at a time. The ICRC, which fulfills the role of national prison healthcare professionals in monitoring ill-treatment in conflict settings, has been blocked from accessing all Palestinian detainees in Israeli custody since October 2023.

As a result, the means of documentation usually relied upon to act both as deterrents against further abuse and as a future basis for accountability cannot be used. OSI therefore has the potential to fill the gap created by the disregard of international human rights standards outlined above. Content such as this may be valuable in pursuing accountability for genocidal acts committed in detention settings, such as through formal criminal processes at the International Criminal Court (‘ICC’), more normative or political efforts like reporting by journalists and NGOs to ‘name and shame’, or UN-established fact-finding missions. The benefits and challenges of using OSI as evidence of international crimes has been widely discussed by scholars. Yet, in a detention-specific context, while such footage may help to lift the veil on violations behind bars, those depicted may face unique and unprecedented harms. These harms could also facilitate the associated genocide, as explored below.

Detention and Genocide in the Digital Age: Challenges posed by OSI

Reliance on OSI for Accountability Could Encourage Alternative Modes of Perpetration

OSI, particularly satellite imagery, has already been valuable for identifying detention sites that have been used in the context of alleged genocides and other international crimes. For example, regarding the situation in Xinjiang, journalists and human rights organisations deployed satellite imagery to uncover mass internment sites used by the Chinese government to detain Uyghurs and other Muslim minorities. In 2020, Buzzfeed News reported that it had used blacked out sections of Baidu Maps to find locations of internment camps by cross-referencing those areas onto other platforms like Google Earth and Planet. Further, in 2022, the OHCHR reported that more detention sites in Xinjiang had been identified through ‘public source satellite imagery’. In tandem with other evidence, these revelations from satellite imagery led multiple organisations and governments to condemn the acts against the Uyghurs by the Chinese government. China soon began to decommission some of its detention centres (which it calls ‘re-education camps’).

While in this example satellite imagery was a valuable catalyst to closing some detention centres where abuse allegedly occurred, it also inadvertently may have encouraged the Chinese government to pursue alternative means of persecuting the Uyghur population. After satellite images of camps sparked international outrage and as camps closed, the government allegedly installed more invasive surveillance technologies throughout Xinjiang. As reported by Sky News, ‘There is no doubt a new phase is under way in Xinjiang, one perhaps hastened by the wave of international condemnation that the crackdown wrought’. These technologies have been accused of repressing the human rights of Uyghurs by multiple organisations, and represent an unprecedented level of monitoring both inside and outside the home, forcing Uyghurs to assimilate into the mainstream Chinese culture out of fear of punishment.

In this case, the visibility of detention centres and associated crimes through OSI may have merely encouraged ‘less visible’ forms of perpetration. Consequently, and unintentionally, the use of OSI has created the very challenge that it seeks to counteract – namely, invisibility of the harms taking place. This new form of challenge has yet to be explored in the literature. It is possible that this challenge has already translated to the situation in Gaza, specifically concerning videos of crimes shared on social media by Israeli soldiers. After months of this practice, which will be discussed in greater detail below, in early 2025, IDF officials reportedly issued warnings to their soldiers to stop posting this content online out of fears it would be used as evidence in later accountability efforts. As described below, videos from soldiers themselves are often key ways genocidal acts in detention can be documented in real-time given the closed nature of prisons. While an in-depth analysis of whether this has had an effect on the behaviour of perpetrators or the types of genocidal acts committed is outside the scope of this post and remains to be seen, possible concerns already arise. Indeed, the fact that crimes are filmed less does not mean they have ceased to be committed. Moreover, there is a risk that abusive acts may potentially become more heinous without the presence of a camera.

OSI can Exacerbate the Harm to Victims

OSI, particularly photos and videos shared to social media, can also play a role in advancing accountability efforts for crimes committed in detention settings. Prior to the development of smartphones and social media, digital imagery was used after genocides had taken place as evidence in criminal trials. For example, a video of the concentration camps was shown during the Nazi trials at Nuremberg, which was taken by allied forces after the sites had been liberated. In later genocide trials, such as those at the ICTR and ICTY, the prosecution also used photos and videos to prove their cases. Moreover, open source social media imagery has been increasingly used in domestic and international prosecutions of international crimes and in connection with alleged genocides in Myanmar, Ukraine, and Palestine, amongst others.

This is a key feature of the ongoing genocide in Gaza, where Israeli officials have filmed and posted videos of Palestinian detainees to platforms like Instagram and TikTok, or leaked CCTV footage from prisons to Israeli media. For example, degrading videos verified by Bellingcat that were posted by IDF soldiers on social media depicted blindfolded and bound Palestinian detainees, some draped in Israeli flags and others subjected to soldiers throwing US dollars at them. In addition, footage from Sde Teiman prison near the Gaza border showing Israeli soldiers raping Palestinian detainees, verified by Al Jazeera, was shared with and publicised by Israeli mainstream media.

These are just two examples of many reported instances where IDF soldiers have been filmed committing horrific acts against detainees and were involved with the distribution of the footage. The OHCHR has reported that detainees aged 12 through 70 have been subject to extreme violations in detention in Gaza, including that many ‘were forced to strip down to their underwear, were blindfolded and tightly handcuffed, and were filmed and photographed in deliberately humiliating positions prior to being transported’. Further, 2024 reports from the Independent International Commission of Inquiry on the Occupied Palestinian Territory detail the ‘shaming and doxing of female detainees’ and other sexual abuse, such as rape using a foreign object, that was filmed and later shared online by IDF soldiers. The publication of humiliating and degrading footage of Palestinian detainees contributes to a campaign of dehumanisation and ‘othering’. Through sharing this footage, Israeli perpetrators are able to spread propaganda to ‘brag’ about their crimes and signal to audiences that they view Palestinians as sub-human, and in so doing, to seek to justify their eradication.

Footage shared of detainees in this context can thus potentially constitute incitement to genocide, which is expressly prohibited by Article 25(3)(e) of the Rome Statute, if the content was intended to incite further hatred and violence against the Palestinian people, which is likely the case given the frequent statements made by the Israeli regime that demonstrate such intent. In addition, the filming and sharing of such degrading content could constitute an act of genocide in itself. ‘Serious mental harm’ is an act of genocide (see for example Article 6(b) of the Rome Statute), which undoubtedly arises through the systemic and cruel weaponisation of cameras and social media to degrade victims. Notably, in all of the reported instances discussed above, detainees were completely immobilised by prison guards, subject to horrific abuse, and helpless as these acts were filmed. The level of mental suffering that would arise in these situations is on par with ‘offline’ public humiliation previously recognised as contributing to international crimes (for example, see discussion of Furundžija at the ICTY and previous cases in domestic trials in The Netherlands, Germany, Finland, and Sweden). Moreover, this harm is likely exacerbated due to the fact that the content is shared with an infinite audience and can never be completely removed from the internet.

On this note, any further attention brought to such content through accountability processes (i.e. open source investigations, journalistic reporting, or showing such videos at trial) should be minimal and done on a strictly necessary basis to reduce inflicting more harm on victims and their families. Measures taken may include (amongst other methods) blurring faces where possible, redacting any personal information in the images, and restricting those who view the original content to only those who need to see it.

Conclusion

In this post, we have outlined how, while genocidal acts committed in a detention context previously often went unseen until after the situation had unfolded, the rise in OSI has now allowed the veil to be lifted earlier. However, though OSI can be valuable to document genocidal acts in detention centres in real-time, it can also pose the risk of inadvertently encouraging perpetrators to simply switch tactics (which could in turn be harder to detect) or of causing further harm to victims when content is shared. These challenges are not unique to detention settings, but are important to consider when assessing how we approach OSI generated from or about traditionally closed spaces.