Contemporary International Criminal Law After Critique Symposium: ICL’s Potential to Address Online Harms in Ukraine, Palestine, and Beyond

Sarah Zarmsky is a PhD Candidate and Assistant Lecturer at the University of Essex Human Rights Centre with a focus on international law and new and emerging technologies. In 2023, she was a Visiting Scholar at the Human Rights Center at the University of California, Berkeley School of Law.

As an understatement, online harms have been rampant in the contexts of the ongoing conflicts in Ukraine and in Palestine. In my article ‘Is International Criminal Law Ready to Accommodate Online Harm? Challenges and Opportunities’, published in May 2024, I identified three categories of online harms (harms perpetrated through online means) that have a foreseeable nexus to the perpetration of international crimes. These online harms included the spread of hate speech and disinformation, sharing footage of crimes to the internet, and online sexual violence. This blog post will only focus on one of these harms, which has been particularly noticeable in both areas–sharing footage of crimes on social media.

In both Ukraine and Palestine, Russian and Israeli combatants have allegedly filmed and uploaded violent footage of what likely constitute war crimes. For example, in March and April 2023, two videos went viral of what appears to be Russian soldiers executing Ukrainian prisoners of war. The first video, which circulated widely on Telegram and X (then Twitter),  showed an unarmed man standing in a ditch in a wooded area wearing a camouflage uniform with a Ukrainian military insignia. The man, holding a cigarette, takes one last puff of smoke and quietly says ‘Slava Ukraini’ (‘Glory to Ukraine’) before being fired at and executed by shooters from behind the camera. The person filming (or possibly a shooter) can allegedly be heard saying ‘Die B****’ in Russian. The man executed was later identified as a Ukrainian soldier by the Ukrainian military. In the second video, a man wearing a military uniform and a yellow armband typically worn by Ukrainian soldiers is violently beheaded with a large knife by a man wearing a white band on his leg, which is known to be worn by Russian soldiers for identification. The executioner and those filming can also be heard speaking in Russian. As reported by BBC News, the video was shared by a Pro-Kremlin blogger on Telegram and later spread to X and other social media platforms. The video was condemned by President Zelensky and the Spokesman for the UN Secretary-General.

These are just two examples of multiple alleged crimes that have circulated online since the Russian invasion of Ukraine, but are illustrative of the particularly gruesome nature of the content. In both instances, the videos could not be authenticated with absolute certainty, but information such as the clothing worn and language spoken suggested that Russian soldiers filmed the executions themselves and potentially shared them to wider audiences. This is also similar to content that has emerged from Palestine, where in addition to other imagery of alleged crimes, IDF soldiers have posted videos of Palestinian detainees stripped, blindfolded, and bound to TikTok, Facebook, YouTube, and Instagram. In one particular video shared on Instagram by an account identifying as an IDF soldier, which was verified by Bellingcat, bound and blindfolded detainees, one with an Israeli flag tied to him, are shown on the ground while a soldier taunts them and throws dollar bills at them. In addition, a sticker of a praying Israeli soldier was added on top of the footage. This example demonstrates, similarly to the videos described previously in relation to Ukraine, the alleged perpetrators’ desire to further degrade and humiliate the victims through sharing the video online. The fact that the soldiers depicted are mocking the detainees and the addition of an Instagram sticker dehumanises them, reducing them to tools to be used to boast about alleged crimes and spread propaganda.

The psychological and moral harms that arise from sharing footage of crimes online are similar in nature to those previously recognised in ICL jurisprudence. For instance, in the recent case of Al Hassan at the International Criminal Court (ICC), the Office of the Prosecutor submitted as part of its application for an arrest warrant that the fact that videos of crimes committed by Ansar Dine were posted to YouTube contributed to a ‘sense of public humiliation’ (para. 136). Similarly, in Al-Werfalli, the ICC Pre-Trial Chamber stated in its two arrest warrants that ‘the posting on social media of the videos depicting executions’ and ‘the manner in which the crime was committed and publicized was cruel, dehumanizing, and degrading’ (para. 29, para. 31). It is also important to recognise that when images are posted online, particularly on social media, they are not only made public to a wide audience, but essentially are thrown into permanent circulation. While videos of this nature may often be removed by platforms for violating their terms of use, it is virtually impossible to stop the footage from being reshared. This highlights the particularly cruel aspect of sharing footage online, as victims and/or their families may be forced to constantly relive their trauma.

Further, in addition to the harm to the victims in the footage, the circulation of footage of this nature can also result in harm to the victim’s family and friends who may be essentially forced to view the content given how difficult it is to avoid seeing images that go viral online. Chambers at the International Criminal Tribunal for the Former Yugoslavia in Furundžija and the Special Court for Sierra Leone in Fofana and Kondewa  have acknowledged the serious mental harm that can come to third parties who witness violent acts committed against others. Moreover, given the widespread availability and instantaneousness of the internet, and the permanency of the content despite potential attempts to remove it, it is likely that members of the general public will also come across the violent content while scrolling online. This can add another layer of harm that was not possible prior to the development of social media. This can result in secondary trauma to those who innocently view the videos, which can manifest in psychological ailments such as post-traumatic stress disorder and depression.

Although the acts depicted in the footage likely constitute international crimes, given the similarities to harms traditionally addressed through ICL jurisprudence, maliciously sharing the content online can conceivably constitute its own additional crime. As I have argued, the harms instilled when violent and degrading images of crimes are shared online are similar in nature to the harms recognised in elements of existing international crimes, including torture, the crime against humanity of ‘other inhumane acts’, and the war crimes of inhuman treatment, wilfully causing great suffering, and outrages upon personal dignity. At their root, a central harm of these crimes is serious mental suffering, especially in the form of humiliation, degradation, and a loss of dignity. While the digital harm of filming and sharing footage of crimes has not yet been addressed by an international criminal court or tribunal, multiple domestic war crimes trials have convicted and sentenced perpetrators for similar acts for outrages upon personal dignity, which may best fit the essence of the harm given its label. For instance, courts in The Netherlands, Finland, Germany, and Sweden have convicted individuals of the war crime of outrages upon personal dignity for posting photos and videos to social media of themselves posing with or mutilating corpses in the context of the conflict in Syria. Given the violent nature of the footage previously mentioned that is coming out of Ukraine and Palestine, and the fact that the Russian and IDF soldiers seem to be boasting about their crimes in a similar way that the individuals prosecuted in domestic courts were posing with the bodies of victims, it is not unreasonable to speculate that these acts could be addressed in future prosecutions at courts such as the ICC.

Examples of online harms discussed here demonstrate the paradox that new technologies create for accountability for international crimes: while open source footage depicting alleged violations of international law is undoubtedly very useful for ICL investigations and prosecutions, content of the same nature can be weaponized against victims and communities as a means of degradation and humiliation. This blog post focused on one example of an online harm, which constitutes only a fraction of the new harms created by digital technologies (i.e. ‘digital harms’) that will continue to slip through the cracks of accountability until international legal frameworks catch up to modern developments.

On a final note, it can be easy to question why international criminal courts and tribunals should spend their limited time and resources on digital harms such as sharing footage of crimes online, as their severity may be difficult to compare to acts such as physical killings or torture. However, in an increasingly digital society, it is important that ICL is able to account for novel forms of perpetration of international crimes. Situated within this symposium on ICL ‘after critique’, the current lack of recognition in ICL institutions of online and, more broadly, digital harms, explained in my article and in this post serves as an example of how victims of ‘new’ harms can be marginalised and silenced. Addressing digital harms (in addition to ‘traditional’ international crimes) can serve an expressivist function by demonstrating that such harms are wrongful and worthy of the attention of the international community. Whether digital harms are accounted for as their own offence, as I have argued for in this piece, or potentially through other means such as an aggravating factor during the gravity assessment or at sentencing, their recognition by international legal institutions will be critical in order to ensure justice for victims in a digital age.