[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
