Scenario 31: Sharing degrading content

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State A and Group A are involved in a non-international armed conflict. Group A posts a video to a globally operating social media platform headquartered in State B of a beheading it perpetrated in State A. The video, which depicts the victim in a vulnerable state, is circulated widely online and in mainstream news. The scenario analyses whether the sharing of the execution video amounted to violations of international law, including international human rights law, international humanitarian law, and international criminal law.

Scenario[edit | edit source]

Keywords[edit | edit source]

social media, degrading treatment, international humanitarian law, international human rights law, international criminal law, outrages upon personal dignity.

Facts[edit | edit source]

[F1] Group A, a non-state armed group involved in a conflict in State A, posts a video on a globally operating social media platform of an execution. The social media platform directs its operations from its headquarters in State B and does not have a physical office in State A.

[F2] The account the video is shared from is claimed as an official account for Group A, and the Group’s insignia appears both in a slide at the beginning of the video and on the uniforms of men in the footage. The video is extremely graphic, depicting a civilian man pleading for his life before he is violently beheaded by a member of Group A, his face clearly visible. After the man is executed, the member of Group mocks him, laughs, and spits on the body.

[F3] The social media platform removes the video for violating its community guidelines within 24 hours, but by then the video has been widely reshared on the platform and on other websites. The account of Group A is disabled by the platform, but the Group is able to make a new account shortly after. This scenario is one of multiple similar instances, as the Group regularly films itself committing such acts and shares the footage to instil fear and spread propaganda.

[F4] Group A and State A have been actively engaged in hostilities for years, and Group A has carried out several operations against the State in attempts to gain more control over State A and spread its extremist political and religious message. Group A has a highly organized command structure and has control over a large area of territory within State A, where it also has its headquarters.

[F5] State A and State B are parties to the International Covenant on Civil and Political Rights (ICCPR),[1] the 1949 Geneva Conventions and Additional Protocols I (AP I) and II (AP II),[2] as well as the Rome Statute of the International Criminal Court (‘Rome Statute’).[3]

Examples[edit | edit source]

Legal analysis[edit | edit source]

For a general overview of the structure of analysis in this section, see Note on the structure of articles.

[L1] This scenario focuses on the act of filming and sharing footage of an international crime (in this case, an execution). While the acts depicted in the footage may also constitute violations of international law, this analysis is concerned only with the cyber element of the scenario and is therefore restricted to the acts of filming and distributing the video online. First, it examines whether Group A, State A, and State B may be held liable for violations of international human rights law (IHRL). The analysis then considers the characterization of the conflict between State A and Group A as a non-international armed conflict, and further discusses the potential responsibility of Group A for violations of international humanitarian law (IHL). The analysis concludes with an exploration of individual criminal responsibility for agents of Group A.

Violations of international human rights law[edit | edit source]

International human rights law
International human rights law applies in cyberspace; individuals enjoy the same human rights online as they enjoy offline.[4] States are therefore bound by their human rights obligations to respect, protect and fulfil human rights in cyberspace. States also bear international responsibility for the violation of human rights obligations that are attributable to them.[5]

The source of these obligations is primarily treaty law. The two key global treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR);[6] many of these treaties’ provisions, along with the provisions of the Universal Declaration of Human Rights, are regarded as reflective of customary international human rights law, even though there is no universally accepted codification. Apart from the ICCPR and ICESCR, there are important regional human rights treaty systems, especially for Europe (based on the European Convention on Human Rights – ECHR),[7] the European Union (Charter of Fundamental Rights of the European Union – EUCFR),[8] America (American Convention on Human Rights – ACHR),[9] and Africa (African Charter on Human and Peoples’ Rights – ACHPR),[10] which provide for adjudicatory mechanisms by which individuals can assert their human rights against States and which have generated a considerable amount of case-law as a result.

In order to determine whether a State has breached its human rights obligations, the following steps of analysis should be conducted:

  1. Since cyber operations often take place in the cyber infrastructure of multiple States, the issue of jurisdiction must be addressed. Each human rights treaty has its own bespoke jurisdictional requirements and scope. In this regard, every State party to the ICCPR has undertaken “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [ICCPR]”.[11] The UN Human Rights Committee (UN HRC) has understood this provision to mean that the human rights obligations recognized within the ICCPR apply not only to persons physically located within a State’s territory, but also to situations where the State exercises “power or effective control” either over the territory on which an individual is located (the spatial model of jurisdiction) or over the individual (the personal model of jurisdiction).[12] Likewise, the International Court of Justice (ICJ) has stated that the ICCPR “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”.[13] A few States (such as the US and Israel) have adopted the contrary view and maintain that human rights obligations do not apply extraterritorially. To date, however, these States remain in the minority.[14] As such, although the exact criteria for the applicability of human rights obligations to extraterritorial activities of States are not settled and are subject to ongoing academic and political debate,[15] the prevailing opinion at present is that human rights obligations do apply to some acts of a State outside its territory.[16]
  2. If an international human rights regime is applicable, the second question is whether a cyber operation attributable to a State constitutes an interference with a particular human right. The human rights that are often implicated by cyber operations include the right to privacy[17] and the right to freedom of opinion and expression.[18] Other rights such as the freedom of association,[19] the prohibition of discrimination, the right to life, to health or other social and economic rights may be also affected by cyber operations or cyber-related measures.[20] If the right in question is absolute – such as the right to be free from torture or slavery – then no interference with it is allowed.[21]
  3. For an interference with a qualified right – such as the right to privacy or to freedom of expression – to be legal under human rights law, it must fulfil certain conditions, namely:
    1. be in accordance with an accessible and foreseeable domestic law (“legality”),
    2. pursue a legitimate aim of public interest (such as national security, public order, public health, or morals) or for the protection of rights of others,
    3. be necessary to achieve that aim, and
    4. be proportionate in balancing the means and the end.[22]

Apart from the responsibility for human rights violations attributed to it, a State can also be held responsible for its failure to take all reasonable measures to protect the human rights of individuals in its territory and subject to its jurisdiction (for instance, if it unlawfully allows non-State actors to violate human rights).[23]

Publicly available national positions that address this issue include: Common position of the African Union (2024) (2024), National position of Australia (2020) (2020), National position of Austria (2024) (2024), National position of Canada (2022) (2022), National position of Costa Rica (2023) (2023), National position of the Czech Republic (2020) (2020), National position of the Czech Republic (2024) (2024), National position of Estonia (2021) (2021), National position of Finland (2020) (2020), National position of Ireland (2023) (2023), National position of the Italian Republic (2021) (2021), National position of Japan (2021) (2021), National position of Kazakhstan (2021) (2021), National position of Kenya (2021) (2021), National position of the Netherlands (2019) (2019), National position of New Zealand (2020) (2020), National position of Norway (2021) (2021), National position of the Republic of Poland (2022) (2022), National position of Romania (2021) (2021), National position of the Kingdom of Sweden (2022) (2022), National position of Switzerland (2021) (2021), National position of the United Kingdom (2021) (2021), National position of the United States of America (2012) (2012), National position of the United States of America (2016) (2016), National position of the United States of America (2021) (2021).

[L2] The video uploaded and shared to social media by Group A depicts an individual at his most vulnerable, moments before his life brutally ends. He is clearly identifiable, so any social media user (including his family and friends) could view and recognise him in the footage. Further, after he is killed in a dehumanising way, his executioners mock him. It is for these reasons that at its root, the key harm that arises from posting this footage is a gross assault on dignity.

[L3] Dignity is a concept at the heart of IHRL, enshrined in the preamble of the Universal Declaration of Human Rights (UDHR) and referenced throughout international legal jurisprudence.[24] In addition, Article 5 of the UDHR and Article 7 of the ICCPR provide that “no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment”.[25] While a beheading is in itself cruel and degrading treatment, the online element of this offence (sharing footage of the crime to social media) exacerbates the cruelty of the situation, further humiliating the victim. The fact that the video was shared on social media also adds a layer of harm to the victim’s loved ones that would constitute cruel and inhuman treatment. This is because in addition to seeing the content potentially multiple times, they suffer from the knowledge that the footage of someone close to them in such a vulnerable state is still in circulation.

[L4] Concerning responsibility for the human rights violations mentioned above, although non-state actors are generally not bound to IHRL treaties, it is still possible that Group A could have obligations to respect human rights under IHRL.[26] Using the de facto control theory,[27] Group A would arguably be bound by IHRL applicable to State A and customary IHRL because it is an independent and organized non-state armed group with effective control over a large region of the territory of State A. This would make Group A responsible for the violations of human rights resulting from sharing the video.

[L5] Additionally, though members of Group A committed the execution and shared the video, State A could still be responsible for harms committed by the group on its territory. This is because States have due diligence obligations to prevent the commission of harm by non-State actors, as confirmed by the UN Human Rights Committee General Comment No. 31 [80] and recognised by regional human rights bodies.[28] Both State A and State B are parties to the ICCPR. In line with Article 2 of the ICCPR, State A has the duty to “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [Covenant], without distinction”.[29] State A would have positive obligations to take appropriate measures to protect individuals from harm and to respond effectively to such incidents, and would be in violation of those obligations if it knew or ought to have known about Group A’s plans to commit the acts or the real and immediate risk of harm,[30] and failed to plan security operations to minimize such violence or did so with undue delay,[31] and/or did nothing to respond to such violations after they occurred. As sharing of degrading videos has been a pattern for Group A, it could be argued that State A must have known about this practice and did not take reasonable action, such as through law enforcement, regulations, or working with the social media platform, to stop the content from circulating online or to prevent Group A from creating more accounts.

[L6] In addition to responsibility arising from the conduct of non-State armed groups, States can be responsible for harms caused by private corporations. Although the social media platform is based in State B, the execution video was uploaded and circulated in State A, meaning the corresponding harm took place on its territory. State A would therefore be responsible for harm caused by the social media company through hosting the content and not removing it quickly enough if it could be proven that State A did not take all reasonable measures to prevent such harm.[32] These due diligence measures could include, for example, ensuring that adequate regulations are in place for social media companies to remove harmful content within a certain timeframe, or potentially ordering internet service providers to block access to platforms who do not comply with regulations. State B may also be responsible for violations of human rights if it did not fulfil its obligations to reasonably prevent harm by the platform operating out of its territory, through for example implementing appropriate legislation to ensure that platforms responsibly moderate content and respect international humanitarian and international criminal law.

[L7] Though companies are not legally bound by IHRL treaties, the platform could have acted inconsistently with its “responsibility” to respect human rights under the non-binding UN Guiding Principles on Business and Human Rights.[33] This “responsibility” would include not allowing harmful content to circulate on the platform, and also cooperation with judicial mechanisms.[34] In this regard, the social media platform should ensure that once the content is removed, it is properly preserved for use in future war crimes prosecutions. In this scenario, once the social media platform removes Group A’s video, it should be preserved in its original form, in a secure manner with metadata intact, with its chain of custody documented.[35] Further, should a court prosecute members of Group A for alleged crimes, the platform should be willing to share the video with the relevant authorities for use as evidence.

[L8] In addition, regulation by States A and B in order to prevent the dissemination of violent content and self-regulation by the social media platform needs to strike the right balance and be consistent with the right to freedom of expression.[36] In this scenario, there is a clear case for removing the original video as it is violent terrorist propaganda, but for example, approaches to reposts which condemn the video and there is no intent to incite violence may need to be more nuanced (for instance, the platform could keep the text of the repost online but remove the video). Further, any State legislation aimed at regulating the content allowed on social media companies should meet the requirements of legality, necessity, proportionality, and legitimacy under IHRL.[37]

Violations of international humanitarian law[edit | edit source]

Non-international armed conflict
The law of non-international armed conflict (NIAC) applies to all armed conflicts not of an international character.[38] As set forth by the ICTY Appeals Chamber in the Tadić case, NIACs are situations of “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.[39]

This definition rests on two factors—the intensity of the fighting and the organization of the non-State group.[40] First, the hostilities between the parties must reach a certain level of intensity, which may be indicated by, among other factors, the seriousness and frequency of attacks and military engagements, the extent of destruction, or the deployment of governmental armed forces.[41] Second, the non-State group must have some minimum level of organization, indicators of which may include the presence of a command or leadership structure, the ability to determine a unified military strategy and speak with one voice, the adherence to military discipline, as well as the capability to comply with IHL.[42]

These same criteria of intensity and organization apply in situations involving (or even limited to) cyber operations.[43] However, cyber operations alone will only rarely meet the requisite level of intensity to trigger a NIAC.[44]

Publicly available national positions that address this issue include: Common position of the African Union (2024) (2024), National position of Austria (2024) (2024), National position of Costa Rica (2023) (2023), National position of Finland (2020) (2020), National position of France (2019) (2019), National position of Germany (2021) (2021), National position of Ireland (2023) (2023), National position of Japan (2021) (2021).

[L9] The hostilities between State A and Group A meet the definition of a NIAC, which triggers the applicability of IHL. This is because (1) the intensity requirement is met given the protracted armed violence between the State and the group,[45] and (2) Group A possesses a clear command structure and strategy, and has a headquarters on territory which it controls, demonstrating that it is an organized group with the capacity to comply with IHL.[46]

[L10] As a party to a NIAC with State A, Group A must comply with IHL, and would be liable for war crimes for violations of IHL. This is because though IHL treaties are ratified by States, it is widely accepted that they can be binding on non-state actors.[47] In addition to war crimes associated with the “offline” element of this scenario (i.e. the beheading of a civilian and spitting on the body), the act of filming and sharing the footage of the execution to social media likely constitutes the war crime of an outrage upon personal dignity.[48] This is because the victim is filmed with his face identifiable as he pleads for his life, and the knowledge that he is being recorded at his most vulnerable can make the situation even more distressing.[49] The footage of his death and the aftermath of his executioner mocking him is then circulated online for any user to see, which constitutes what any reasonable person would view as serious humiliation and degradation.[50] In this scenario, the cyber element of sharing footage of the beheading online exacerbates the harm to the victim, and brings upon an added sense of humiliation to him and his family.[51]

[L11] In addition, sharing the video on social media would constitute a violation of Article 13(2) of Additional Protocol II, which prohibits acts or threats of violence intended to spread terror among the civilian population.[52] This is because by posting footage of a gruesome violent crime to a very public online forum (as opposed to privately sending the video to targeted individuals), it is clear that the members of Group A intended to instil fear in the general population.

Violations of international criminal law[edit | edit source]

Individual criminal responsibility under international law
Acts committed by cyber means could lead to individual criminal responsibility under international criminal law for genocide (Article 6 of the Rome Statute),[53] crimes against humanity (Article 7 of the Rome Statute), war crimes (Article 8 of the Rome Statute) and aggression (Article 8 bis of the Rome Statute).[54] Individual criminal responsibility for each of these offences requires that the perpetrator committed the requisite actus reus with the corresponding mens rea.[55]

Pursuant to Article 25(3)(a) of the Rome Statute, different forms of incurring individual criminal responsibility may be envisaged: (1) individual commission; (2) joint commission; and (3) commission through others.[56] Criminal responsibility could also arise for instigating, assisting in, facilitating, and aiding or abetting the commission, or attempted commission by cyber means (Article 25(3)(b)-(d) of the Rome Statute). Furthermore, Article (3)(f) of the Rome Statute envisages individual criminal responsibility for attempts to commit a crime when the crime does not occur because of circumstances independent of the person’s intentions.

In accordance with Article 28 of the Rome Statute and customary international law,[57] commanders and other superiors may be criminally responsible for cyber operations that qualify as international crimes and that were conducted by their subordinates.[58]

[L12] The members of Group A could incur individual criminal responsibility for their acts whether perpetrated individually or as part of a joint criminal enterprise. In addition, as State A is a Party to the Rome Statute and the alleged crimes took place on the territory of State A, the ICC would have jurisdiction.

[L13] To be admissible for prosecution at the ICC, the alleged crimes would also need to have sufficient gravity. The gravity of a crime or case arises in multiple international and domestic frameworks for the investigation and prosecution of international crimes.[59] In general, it is roughly synonymous with the ‘grossness’ or ‘seriousness’ of a crime. Concerning the ICC, Article 17 of the Rome Statute establishes a ‘gravity threshold’ for the Court to exercise its jurisdiction, providing that a case shall be determined as inadmissible where it ‘is not of sufficient gravity to justify further action by the Court’.[60]

[L14] Gravity is not defined in the Rome Statute, and its meaning has been widely discussed in literature.[61] In its 2016 Policy Paper on Case Selection and Prioritization, the ICC Office of the Prosecutor (OTP) provided that its assessment of gravity ‘includes both quantitative and qualitative considerations’, and that the factors that guide this assessment ‘include the scale, nature, manner of commission, and impact of the crimes’.[62] The OTP defined ‘scale’ as dependent on factors such as the number of victims, the extent of the damage caused (and ‘in particular the bodily or psychological harm caused to the victims and their families’), and the geographical or temporal spread of the crimes.[63] The ‘nature’ of the crimes concerns the specific factual elements of the offence, and the ‘manner of commission’ refers to the ‘means employed to execute the crime’.[64] ‘Impact’ can be assessed in light of ‘the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities’.[65]

[L15] The act of filming and sharing footage of the beheading video by Group A would meet the gravity threshold to be considered admissible before the ICC. This is because sharing footage of a violent crime causes serious mental harm to the victims, their loved ones, and potentially any other user who may stumble across the content online and suffer secondary trauma. The harms inflicted in this scenario are also similar to those previously recognised as grave in ICL jurisprudence, such as in the cases of Kvočka and Furundžija at the ICTY, where the Trial Chambers found that the public nature of the crimes inflicted severe mental suffering that amounted to torture and outrages upon personal dignity.[66]

[L16] Concerning the criteria used by the ICC OTP to assess gravity (i.e. nature, scale, manner of commission, and impact),[67] this scenario fulfils the requirements for each. In terms of the nature and manner of commission of the crimes, sharing the video to a public online forum demonstrates a particular cruelty, depicting the victim at their most vulnerable. It also exacerbates the degradation of the victim and the suffering of their loved ones, as once a video circulates online, it is virtually impossible to remove completely. This is also relevant to the scale of the crime, which may be assessed (in part) with regard to the geographical and temporal spread,[68] as the online element extends the harm permanently from beyond the original incident to a worldwide audience. ‘Scale’ also includes the degree of psychological harm caused to the victims and their families,[69] which is the root of the harm of this scenario. Finally, in terms of impact, sharing the video increases ‘the vulnerability of the victims’ and ‘the terror subsequently instilled’,[70] due to the added humiliation of the victims knowing they are being filmed and the footage being shared on the internet, and the terror that violent content can instil in any person who comes across it.

War crimes[edit | edit source]

War crimes
Individual criminal responsibility for war crimes is stipulated in Article 8 of the Rome Statute. Article 8(1) of the Rome Statute stipulates that the International Criminal Court has jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. War crimes, unlike crimes against humanity, do not have to be committed as part of a widespread attack against the civilian population,[71] but they have to be committed in the context of an armed conflict.

As international humanitarian law applies to cyber operations during armed conflicts, serious violations of international humanitarian law committed by cyber means may qualify as war crimes.[72] The Tallinn Manual 2.0 explains that such war crimes under customary international law include the grave breaches in Articles 50, 51, 130, and 147 of the four Geneva Conventions respectively, Article 85 of AP I, as well as the offences stated in Article 8 of the Rome Statute regarding both international and non-international armed conflicts as war crimes under customary international law.[73]

[L17] As this scenario occurred in the context of an armed conflict, the members of Group A who were involved with the beheading video would be liable for war crimes. The members of Group A who recorded the video and shared it to the social media platform would be liable for outrages upon personal dignity as prohibited by Article 8(2)(c) (applicable to NIACs) of the Rome Statute.

[L18] The Elements of Crimes for Article 8(2)(c)(ii) provides that for the war crime of outrages upon personal dignity, the perpetrator must have “humiliated, degraded or otherwise violated the dignity of one or more persons”, and “the severity […] was of such as degree to be generally recognized as an outrage upon personal dignity”. Additionally, the conduct must have taken place in the context of an armed conflict, and the perpetrator must be aware of the existence of the conflict. As stated above, the members of Group A significantly added to the degradation and humiliation of the victim by filming his execution and sharing it on social media, which would meet the threshold for an outrage upon personal dignity.[74] The members of Group A were aware of the existence of a NIAC between Group A and State A, which involved years of protracted armed violence and military operations between the parties. The elements of the crime would therefore likely be met.

[L19] The Elements of Crimes for Article 8(2)(c)(ii) further note that “persons” can include dead persons, so the victim need not be alive or personally aware of the existence of the humiliation.[75] Thus, even though the victim was only aware of being filmed and did not live to see the video circulate on social media, the degradation incurred from sharing the footage online can still constitute the crime.

Crimes against humanity[edit | edit source]

Crimes against humanity
Individuals may incur criminal responsibility for crimes against humanity based on Article 7 of the Rome Statute, which can be committed through cyber operations or cyber means.[76] As provided for in the chapeau to Article 7(1) of the Rome Statute, for an act to constitute a crime against humanity it must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Article 7(2)(a) of the Rome Statute further defines the term “[a]ttack directed against any civilian population” as “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”.[77] The attributes “widespread or systematic” are disjunctive.[78] The term “widespread” refers to the geographical scope of the attack and the number of victims.[79] The systematic nature of the attack refers to “the organised nature of the acts of violence and the improbability of their random occurrence”.[80]

Several of the acts listed in Article 7(1) of the Rome Statute could be committed by cyber means. When cyber operations are used to attack the civilian population and lead to the loss of life, the perpetrators could be responsible for murder under Article 7(1)(a) of the Rome Statute, provided that they had the intent to kill one or more persons.[81] Cyber means could also be used to persecute an identifiable group or collectivity on one of the prohibited grounds listed in Article 7(1)(h) of the Rome Statute.[82] Article 7(2)(g) specifies that persecution “means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. The necessary mental element is the intent to discriminate.[83] It is also conceivable that an individual is criminally responsible for using cyber means to commit “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” under Article 7(1)(k) of the Rome Statute. This residual provision suggests that the list of expressly named acts is not exhaustive.[84]

[L20] Members of Group A could also be liable for the crime against humanity of “other inhumane acts” under Article 7(1)(k) for sharing the execution video. Group A has a systematic practice of attacking the civilian population of State A, which would meet the requirements for a crime against humanity under Article 7. Regarding “other inhumane acts”, sharing degrading footage can amount to inflicting great mental suffering as provided by Article7(1)(k),[85] and as Group A regularly shares this type of content to further humiliate victims and spread their message, it is likely that “the perpetrator knew that the conduct was part of or intended the conduct to be part of” the systematic attack directed against the population.[86]

Checklist[edit | edit source]

  • International human rights law
    • Does Group A have obligations to respect IHRL as a non-state armed group, and were those obligations breached by its conduct?
    • Did State A violate the prohibition of cruel, inhuman, and degrading treatment and incitement to violence by allowing members of Group A to film and share a degrading execution video on its territory?
    • Is State B under a due diligence positive obligation to prevent the spread of violent and degrading content extraterritorially pursuant to the applicable human rights treaties?
    • Did the social media platform respect its non-binding human rights due diligence obligations through its content moderation practices?
  • International humanitarian law
    • Does the violence between State A and Group A qualify as a NIAC?
    • Does sharing degrading footage online violate the prohibition of outrages upon personal dignity?
    • Does sharing degrading footage online violate the prohibition of acts intended to spread terror in the civilian population?
    • Is State B responsible for not preventing it and/or not punishing those responsible for it?
  • International criminal law
    • Did the alleged perpetrators fulfil the material elements (actus reus) and mental elements (mens rea) of the offence?
    • Did the alleged perpetrator commit the offence individually, jointly or through another?
    • Would the ICC have jurisdiction over the case?
    • Would this conduct meet the gravity threshold for admissibility at the ICC?

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ↑ International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
  2. ↑ Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Times of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287; Protocol Additions to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3; Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609.
  3. ↑ Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute).
  4. ↑ See, for example, United Nations Human Rights Council, The promotion, protection and enjoyment of human rights on the Internet, Resolution A/HRC/RES/32/13 (1 July 2016), para 1; NATO, Warsaw Summit Communiqué (9 July 2016), para 70; G8 Summit of Deauville, Declaration: Renewed Commitment for Freedom and Democracy (27 May 2011), para II/11; UNGA ‘Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’ (22 July 2015) A/70/174, paras 13(e) and 28(b); UNGA, ‘Report of the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security’ (14 July 2021) A/76/135, paras 36 and ff. This has been reaffirmed by most States in their national positions, such as Australia, Canada, Czech Republic, Estonia, Finland, Italy, Japan, the Netherlands, New Zealand, Norway, Romania, Sweden, Switzerland, the United Kingdom and the United States.
  5. ↑ See, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 [170].
  6. ↑ International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
  7. ↑ Formal title: Convention for the Protection of Human Rights and Fundamental Freedoms (opened to the signature in Rome on 4 November 1950, entered into force 3 September 1953), ETS 5 (ECHR); there are several protocols which significantly expand and amend the obligations of the original Convention.
  8. ↑ Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 (EUCFR).
  9. ↑ American Convention on Human Rights (open for signature from 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123 (ACHR).
  10. ↑ African Charter on Human and Peoples’ Rights (‘Banjul Charter’) (adopted 27 June 1981, entered into force 21 October 1986), CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (ACHPR).
  11. ↑ Article 2(1) ICCPR.
  12. ↑ UN HRC, ‘General Comment No. 31 (80): The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (adopted on 29 March 2004, 2187th meeting), para 10.
  13. ↑ Cf, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136 [111]. See further, UN HRC, General comment No. 36, Article 6, Right to life (3 September 2019) CCPR/C/GC/36, para 63. See also the approach adopted by the European Court of Human Rights in Al-Skeini and others v. the United Kingdom, App no 55721/07 (ECtHR, 7 July 2011) [131] and ff; Loizidou v. Turkey, App no 15318/89 (ECtHR, 23 March 1995) [62], and recently in Carter v. Russia, App no. 20914/07 (ECtHR, 21 September 2021) [161]. For the position within the Inter-American System see Saldano v. Argentina, Report No 38/99 (Inter-American Commission of Human Rights, 11 March 1999) [17] and in particular the wide interpretation adopted by the Inter-Amercian Court of Human Rights in its Advisory Opinion 23/17 on the Environment and Human Rights, Series a 23 (IACtHR, 15 November 2017) para 104(h).
  14. ↑ See, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ 136, para 110; UN HRC, Summary Record of the 1405th Meeting, CCPR/C/SR.1405 (31 March 1995) 6 [20].
  15. ↑ See, for example, Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56 Harvard International Law Journal 81.
  16. ↑ Switzerland has expressly stated in its national position that ‘Human rights obligations are equally binding upon states operating in cyberspace as in physical space. This also applies when the cyber operation in question is being carried out extraterritorially, to the extent that the States exercise their sovereign authority in doing so’. See Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 8.
  17. ↑ Article 17 ICCPR; Article 8 ECHR; Article 7 EUCFR; Article 11 ACHR. The exact titles and scopes of the provisions vary. For example, this can be triggered be the practice of surveillance. See Helen McDermott, ‘Application of the International Human Rights Law Framework in Cyber Space’ in Dapo Akande and others (eds), Human Rights and 21st Century Challenges. Poverty, Conflict, and the Environment (Oxford University Press 2020) 194. See also Szabo and Vissy v Hungary, App no 37138/ 14 (ECtHR, 12 January 2016); Liberty and Others v United Kingdom, App No 58243/00 (ECtHR, 2008).
  18. ↑ Article 19 ICCPR; Article 10 ECHR; Article 11 EUCFR; Article 13 ACHR. The exact titles and scopes of the provisions vary, and include its counterpart, the right to access to information, as highlighted in the national positions of Estonia, Finland, Italy, Sweden, Switzerland and the United States. A violation of this right may be, for example by ‘a DDoS attack that inhibits access to the Internet or the voicing of views, and is attributable to a state’. See Helen McDermott, ‘Application of the International Human Rights Law Framework in Cyber Space’ in Dapo Akande and others (eds), Human Rights and 21st Century Challenges. Poverty, Conflict, and the Environment (Oxford University Press 2020) 194.
  19. ↑ As highlighted by many States in their national positions, including Australia, Canada, the Czech Republic, Estonia, the Netherlands and Sweden.
  20. ↑ See Helen McDermott, ‘Application of the International Human Rights Law Framework in Cyber Space’ in Dapo Akande and others (eds), Human Rights and 21st Century Challenges. Poverty, Conflict, and the Environment (Oxford University Press 2020) 195–197.
  21. ↑ See Soering v. the United Kingdom, App no 14038/88 (ECtHR, 07 July 1989) [88]; Ireland v. the United Kingdom, App no 5310/71 (ECtHR, 18 January 1978) [163]; Hurri Laws v. Nigeria, Communication No 225/98 (AComHPR, 6 November 2000) [41]; UN HRC, General Comment 20, Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (10 March 1992) para 3; CAT, General Comment 2 on the implementation of article 2 by States parties (24 January 2008) CAT/C/GC/2, paras 1 and 5.
  22. ↑ UN Human Rights Committee, ICCPR General Comment No. 34 (12 September 2011), paras 21-36; See also ICCPR General Comment No. 27 (1 November 1999), paras 14-16; UN HRC, General Comment No. 31 [80] The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004) CCPR/C/21/Rev.1/Add. 13, para 6.
  23. ↑ See, Velásquez Rodríguez v. Honduras, (Merits) IACrtHR (Ser. C) No. 4 (29 July 1988) [177]. See also UN HRC, General Comment No. 31 [80] The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004) CCPR/C/21/Rev.1/Add. 13, para 8; UN HRC, General comment No. 36, Article 6, Right to life (3 September 2019) CCPR/C/GC/36, para 7. See also the national positions of Finland and Switzerland.
  24. ↑ Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR); See also A. Gattini, R. Garciandia, and P. Webb (eds) Human Dignity and International Law (Brill, 2020); G. Le Moli, Human Dignity in International Law (CUP, 2021); J. Benton Heath, 'Human Dignity at Trial: Hard Cases and Broad Concepts in International Criminal Law' (2012) 44 Geo Wash Int'l L Rev 317; M. M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, (OUP, 2020).
  25. ↑ Art. 5 UDHR; Art. 5, Art. 7 ICCPR.
  26. ↑ See Daragh Murray, The Application of International Human Rights Law to Armed Groups (Hart Publishing, 2016) 157-171; Katharine Fortin, The Accountability of Armed Groups under Human Rights Law (OUP, 2017), 323-356; and Antal Berkes, International Human Rights Law beyond State Territorial Control (CUP, 2021) 149-206.
  27. ↑ Daragh Murray (n 26) and Katharine Fortin (n 26).
  28. ↑ UN HRC, General Comment No. 31 [80] The Nature of the General Legal Obligation Imposed on States Parties to the Covenant] (26 May 2004) CCPR/C/21/Rev.1/Add. 13; Commission Nationale des Droits de l’Homme et Libertés v Chad (Merits) African Commission on Human and Peoples’ Rights (October 1995) [20]; Velásquez Rodríguez v. Honduras, (Merits) IACrtHR (Ser. C) No. 4 (29 July 1988) [172]; and Odievre v France, App no 42326/98 (ECtHR, 13 February 2003) [40]; Tatyana Eatwell, State Responsibility for Human Rights Violations Committed in the State’s Territory by Armed Non-State Actors, Geneva Academy Briefing No 13, December 2018, available online at Briefing 13.pdf https://www.geneva-academy.ch/joomlatools-files/docman-files/Academy%20Briefing%2013.pdf, 22. See also Danwood Mzikenge Chirwa, ‘The Doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights’ (2004) 5 Melbourne Journal of International Law.
  29. ↑ Art. 2(1) ICCPR.
  30. ↑ Association of Victims of Post Electoral Violence and Interights v Cameroon (Merits), African Commission on Human and Peoples’ Rights (2009) [115]; Finogenov and Others v Russia, App no 18299/03 and 27311/03 (ECtHR, 18 March 2010) [173]; Tatyana Eatwell (n 28), 23.
  31. ↑ Ibid; Association of Victims of Post Electoral Violence and Interights v Cameroon (Merits), African Commission on Human and Peoples’ Rights (2009) [116].
  32. ↑ See n 29-31.
  33. ↑ UN Guiding Principles on Business and Human Rights, Part II (as endorsed by UN Human Rights Council res 17/4 (16 June 2011)); see also Susan Benesch, 'But Facebook's Not a Country: How to Interpret Human Rights Law for Social Media Companies' (2020-2021) 38 JREG Bulletin 86.
  34. ↑ Ibid, Commentary on Principle 22.
  35. ↑ Lindsay Freeman, ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials’ 41 Fordham International Law Journal (2018) 283-336; Chelsea Quilling, ‘The Future of Digital Evidence Authentication at the International Criminal Court’(2022) Journal of Public & International Affairs https://jpia.princeton.edu/news/future-digital-evidence-authentication-international-criminal-court. Guidelines for how to best collect and archive content for international prosecutions can be found in the Berkeley Protocol on Digital Open Source Investigations, available at https://www.ohchr.org/en/publications/policy-and-methodological-publications/berkeley-protocol-digital-open-source, and in Human Rights Center, UC Berkeley School of Law, ‘Digital Lockers: Archiving Social Media Evidence of Atrocity Crimes’ (2021) available at https://humanrights.berkeley.edu/publications/digital-lockers-archiving-social-media-evidence-atrocity-crimes/.
  36. ↑ UNCHR, ‘Report on Online Hate Speech’ (9 October 2019) A/74/486, available at https://www.ohchr.org/en/documents/thematic-reports/a74486-report-online-hate-speech; Article 19, Content moderation and freedom of expression handbook (August 2023) available at https://www.article19.org/wp-content/uploads/2023/08/SM4P-Content-moderation-handbook-9-Aug-final.pdf; see also Barrie Sander, ‘Freedom of Expression in the Age of Online Platforms: The Promise and Pitfalls of a Human Rights-Based Approach to Content Moderation’ 43 Fordham International Law Journal (2020) 939.
  37. ↑ Ibid.
  38. ↑ Common Article 3 GCs.
  39. ↑ Prosecutor v Tadić (Decision on Jurisdiction) IT-94-1-AR72 (2 October 1995) [70].
  40. ↑ See also Prosecutor v Tadić (Trial Judgment) IT-94-1-T (7 May 1997) [562] (noting that the two criteria distinguish “an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law”).
  41. ↑ Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [177].
  42. ↑ Prosecutor v Limaj, Bala and Musliu (Trial Judgment) IT-03-66-T (30 November 2005) [129]; Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [199]–[203].
  43. ↑ Cf. L Cameron et al, ‘Article 3: Conflicts Not of an International Character’ in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 158 [436] (“In order to determine the existence of a non-international armed conflict involving cyber operations, the same criteria apply as with regard to kinetic violence.”).
  44. ↑ Tallinn Manual 2.0, commentary to rule 83, para 7; Yoram Dinstein, Non-International Armed Conflicts in International Law (CUP 2014) 35. For State views affirming this position, see, eg, French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’, 9 September 2019, 12; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 7.
  45. ↑ Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [177].
  46. ↑ Prosecutor v Limaj, Bala and Musliu (Trial Judgment) IT-03-66-T (30 November 2005) [129]; Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [199]–[203].
  47. ↑ For instance, Common Article 3 of the Geneva Conventions refers to ‘conflicts not of an international character’, and binds ‘each Party to the conflict’ to its provisions; Common Article 3 GCs. See also Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, [218]; D. Murray, ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’ 20(1) Journal of Conflict and Security Law (2015) 101-131.
  48. ↑ Common Article 3(1)(c) of the Geneva Conventions expressly prohibits “outrages upon personal dignity, in particularly humiliating and degrading treatment”. Although the text of Common Article 3 states that it applies to conflicts of a non-international character, in practice, the prohibitions outlined in the Article have been applied to international armed conflicts as well; Common Article 3(1)(c) GCs; Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 1986 [218], in reference to Common Article 3: “There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to more elaborate rules which are also to apply to international armed conflicts”. As defined by the ICTY Trial Chamber in the Aleksovski case, “outrages upon personal dignity” are “particularly intolerable forms of inhumane treatment that cause ‘more serious suffering than most prohibited acts falling within the genus” and “must cause serious humiliation or degradation to the victim”; Prosecutor v. Aleksovski (IT-95-14/1-T), Trial Judgment, 25 June 1999 [54], [56].
  49. ↑ The knowledge that a crime is being filmed, in addition to it being distributed afterwards, can significantly add to the degradation experienced by the victim; Sveinung Sandberg and Thomas Ugelvik, ‘Why Do Offenders Tape Their Crimes? Crime and Punishment in the Age of the Selfie’, 57 The British Journal of Criminology (2017), 1023-1040, 1036. The added humiliation of filming crimes was also recognised by the Office of the Prosecutor of the International Criminal Court in the Al Hassan case, noting in its application for an arrest warrant that the public nature of the crimes and the fact that the videos were shared on social media were particularly humiliating for the victims; Prosecutor v Al Hassan Abdoul Aziz Ag Mohamed Ag Mahmoud (Requête urgente du Bureau du Procureur) ICC-01/12-01/18, PTC (20 March 2018) [136] and [304]; see also Sarah Zarmsky and Emma Irving, ‘Rewrite of Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud’ in Kcasey McLoughlin, Rosemary Grey, Louise Chappell, and Suzanne Varrall (eds) Reimagining Judging in International Criminal Courts: A Gendered Approach (Cambridge University Press, forthcoming 2024), available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4765275, and Sarah Zarmsky, ‘Is International Criminal Law Ready to Accommodate Online Harm? Challenges and Opportunities’ 22 Journal of International Criminal Justice (2024).
  50. ↑ See the ‘reasonable person’ test established for outrages upon personal dignity in Prosecutor v. Kvočka et al. (IT-98-30/1), Trial Judgment, 2 November 2001, [167].
  51. ↑ The act of sharing footage of this nature to social media has been found by domestic courts to be in violation of the war crime of outrages upon personal dignity. For example, in The Netherlands, a man was sentenced to six years for the crime after posting a photo of himself next to a crucified body of a man executed by the Islamic State on Facebook; ECLI:NL:GHDHA:2021:103, https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:GHDHA:2021:103. Similar cases have occurred in Germany, Sweden, and Finland, see Eurojust, ‘Prosecuting war crimes of outrage upon personal dignity based on evidence from open sources – Legal framework and recent developments in the Member States of the European Union’, February 2018, available at https://www.eurojust.europa.eu/publication/prosecuting-war-crimes-outrage-upon-personal-dignity-based-evidence-open-sources-legal.
  52. ↑ Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609; see also Cody Corliss, ‘Digital Terror Crimes’ 62 Columbia Journal of Transnational Law (2023) 58-112.
  53. ↑ The Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3. See also the Amendments on the crime of aggression to the Rome Statute of the International Criminal Court, Kampala, 11 June 2010, Resolution RC/Res.6 of the Review Conference of the Rome Statute.
  54. ↑ See Kai Ambos, ‘International Criminal Responsibility in Cyberspace’ in Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on Cyberspace and International Law (Elgar 2015) 118, 120, noting that the focus of the debate lies on the application of IHL to cyber space. In this regard, see Tallinn Manual 2.0, rule 84 (on “Individual criminal responsibility for war crimes”).
  55. ↑ See generally M. Cherif Bassiouni, Introduction to International Criminal Law (2nd rev ed, Martinus Nijhoff 2014), Chapter IV.
  56. ↑ Art 25(3)(a) Rome Statute.
  57. ↑ ICRC CIHL Study, Rules 152 and 153.
  58. ↑ See Tallinn Manual 2.0, rule 85; Elies van Sliedregt, ‘Command Responsibility and Cyberattacks’, (2016) 21(3) Journal of Conflict & Security Law 505.
  59. ↑ Priya Urs, Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion (OUP, 2024).
  60. ↑ Art 17(1)(d) Rome Statute.
  61. ↑ See Priya Urs (n 59), Margaret M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, (OUP, 2020); Rachel Lopez, ‘The Law of Gravity’ (2020) 58 Columbia Journal of Transnational Law 3, 567-614; Anni Pues, ‘Discretion and the Gravity of Situations at the International Criminal Court’ 17 International Criminal Law Review (2017) 960-984; Stuart Ford, ‘Understanding Crime Gravity: Exploring the Views of International Criminal Law Experts’ 27 William & Mary Bill of Rights Journal (2019) 659-688.
  62. ↑ ICC Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, 15 September 2016, available at https://www.icc-cpi.int/sites/default/files/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf, [37].
  63. ↑ Ibid, [38].
  64. ↑ Ibid, [39-40].
  65. ↑ Ibid, [41].
  66. ↑ Prosecutor v. Kvočka et al. (IT-98-30/1), Trial Judgment, 2 November 2001, [149]; Prosecutor v. Furundžija (IT-95-17/1-T), Trial Judgment, 10 December 1998, [267(ii)]; Sarah Zarmsky (n 49) 8-12.
  67. ↑ ICC, Office of the Prosecutor (n 62).
  68. ↑ Ibid, [38].
  69. ↑ Ibid.
  70. ↑ Ibid, [41].
  71. ↑ CLICC commentary, Art 8 (1) (noting that “it is unlikely that a single act would meet the gravity threshold in Article 17(1)(d)” of the Rome Statute).
  72. ↑ Tallinn Manual 2.0, commentary to rule 84, para 2.
  73. ↑ Tallinn Manual 2.0, commentary to rule 84, para 1. See also Kai Ambos, ‘International Criminal Responsibility in Cyberspace’ in Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on Cyberspace and International Law (Elgar 2015) 118, 121.
  74. ↑ See n 48 for the definition of “outrages upon personal dignity” established by the ICTY Trial Chamber in the Aleksovski case. In line with this definition, filming and sharing a degrading video of a beheading would constitute a “particularly intolerable form of inhumane treatment’ and would cause ‘serious humiliation or degradation to the victim’. See also n 51; this scenario was found to meet this definition of outrages upon personal dignity in domestic courts.
  75. ↑ Elements of Crimes Article 8(2)(c)(ii), ftn 57.
  76. ↑ Kai Ambos, ‘International Criminal Responsibility in Cyberspace’ in Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on Cyberspace and International Law (Elgar 2015) 118, 141.
  77. ↑ The Elements of Crimes explain that “[i]t is understood that ‘policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population” but adds in a footnote that “[t]hat such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.” (ICC, Elements of Crimes (ICC 2011), 5).
  78. ↑ CLICC commentary, Art. 7 (1).
  79. ↑ Ibid, relying inter alia on Prosecutor v Katanga and Ngudjolo (Decision on confirmation of charges) ICC-01/04-01/07-717 (30 September 2008) [394]; Prosecutor v Gbagbo (Decision on the confirmation of charges) ICC-02/11-01/11-656-Red (12 June 2014) [222]; Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) ICC-01/04-01/07-3436 (7 March 2014) [1123]; and Prosecutor v Bemba (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor) ICC-01/05-01/08-424 (15 June 2009) [83].
  80. ↑ Prosecutor v Katanga and Ngudjolo (Decision on confirmation of charges) ICC-01/04-01/07-717 (30 September 2008) [394]; and Prosecutor v Gbagbo (Decision on the confirmation of charges) ICC-02/11-01/11-656-Red (12 June 2014) [223].
  81. ↑ CLICC commentary, Art 7(1)(a).
  82. ↑ Prosecutor v Nahimana (Media Case) (Appeals Judgement) ICTR 99-52-A (28 November 2007) [988] (finding that “the hate speeches and calls for violence against the Tutsi made after 6 April 1994 [i.e., after the beginning of a systematic and widespread attack against the Tutsi] themselves constituted underlying acts of persecution”).
  83. ↑ CLICC commentary, Article 7(1)(h).
  84. ↑ CLICC commentary, Article 7(1)(k).
  85. ↑ Elements of Crimes Article 7(1)(k)(1).
  86. ↑ Elements of Crimes Article 7(1)(k)(5).

Bibliography and further reading[edit | edit source]

  • A. Berkes, International Human Rights Law beyond State Territorial Control (CUP, 2021)
  • A. Gattini, R. Garciandia, and P. Webb (eds) Human Dignity and International Law (Brill, 2020)
  • A. Pues, ‘Discretion and the Gravity of Situations at the International Criminal Court’ 17 International Criminal Law Review (2017) 960-984
  • B. Sander, ‘Freedom of Expression in the Age of Online Platforms: The Promise and Pitfalls of a Human Rights-Based Approach to Content Moderation’ 43 Fordham International Law Journal (2020) 939
  • C. Corliss, ‘Digital Terror Crimes’ 62 Columbia Journal of Transnational Law (2023) 58-112
  • C. Quilling, ‘The Future of Digital Evidence Authentication at the International Criminal Court’ (2022) Journal of Public & International Affairs
  • D. Murray, The Application of International Human Rights Law to Armed Groups (Hart Publishing, 2016)
  • D. Mzikenge Chirwa, ‘The Doctrine of State Responsibility As A Potential Means of Holding Private Actors Accountable for Human Rights’ (2004) 5 Melbourne Journal of International Law
  • Eurojust, ‘Prosecuting war crimes of outrage upon personal dignity based on evidence from open sources: Legal framework and recent developments in the Member States of the European Union’ (February 2018) available at https://www.eurojust.europa.eu/sites/default/files/Partners/Genocide/2018-02_Prosecuting-war-crimes-based-on-evidence-from-open-sources_EN.pdf
  • G. Le Moli, Human Dignity in International Law (CUP, 2021)
  • Human Rights Center, UC Berkeley School of Law, ‘Digital Lockers: Archiving Social Media Evidence of Atrocity Crimes’ (2021) available at[1] https://humanrights.berkeley.edu/publications/digital-lockers-archiving-social-media-evidence-atrocity-crimes/
  • J. Benton Heath, 'Human Dignity at Trial: Hard Cases and Broad Concepts in International Criminal Law' (2012) 44 Geo Wash Int'l L Rev 317
  • K. Fortin, The Accountability of Armed Groups under Human Rights Law (OUP, 2017)
  • L. Freeman, ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials’ 41 Fordham International Law Journal (2018) 283-336
  • Lachezar Yanev, ‘Syrian War Crimes Trials in The Netherlands: Claiming Universal Jurisdiction Over Terrorist Offences and the War Crime of Outrages Upon Personal Dignity of the Dead’ (2023) 52 NYIL 301-326
  • M. M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, (OUP, 2020)
  • M. Roscini, ‘Gravity in the Statute of the International Criminal Court and Cyber Conduct that Constitutes, Instigates or Facilitates International Crimes’, 30 Criminal Law Forum (2019), 247
  • N. Suzor et al., ‘Human Rights by Design: The Responsibilities of Social Media Platforms to Address Gender-Based Violence Online’ (2018) 11(1) Policy and Internet 84-103
  • OHCHR and Human Rights Center, ‘Berkeley Protocol on Digital Open Source Investigations’ (2022) available at https://www.ohchr.org/en/publications/policy-and-methodological-publications/berkeley-protocol-digital-open-source
  • P. Urs, Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion (OUP, 2024)
  • R. Lopez, ‘The Law of Gravity’ (2020) 58 Columbia Journal of Transnational Law 3, 567-614
  • R. McCorquodale and P. Simons, ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70(4) Modern Law Review 598-625
  • S. Benesch, 'But Facebook's Not a Country: How to Interpret Human Rights Law for Social Media Companies' (2020) 38 JREG Bulletin 86
  • S. Ford, ‘Understanding Crime Gravity: Exploring the Views of International Criminal Law Experts’ 27 William & Mary Bill of Rights Journal (2019) 659-688.
  • S. Gregory, ‘Cameras Everywhere: Ubiquitous Video Documentation of Human Rights, New Forms of Video Advocacy, and Considerations of Safety, Security, Dignity and Consent’ (2010) 2(2) Journal of Human Rights Practice 191-207
  • S. Sandberg and T. Ugelvik, ‘Why Do Offenders Tape Their Crimes? Crime and Punishment in the Age of the Selfie’, 57 The British Journal of Criminology (2017), 1023-1040
  • S. Zarmsky and E. Irving, ‘Rewrite of Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud’ in L. Chappell, R. Grey and K. McLoughlin (eds) Reimagining Judging in International Criminal Courts: A Gendered Approach (Cambridge University Press, forthcoming 2024), available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4765275
  • S. Zarmsky, ‘Is International Criminal Law Ready to Accommodate Online Harm? Challenges and Opportunities’, (2024) 22 (1) Journal of International Criminal Justice
  • T. D. Gill, ‘Classifying the Conflict in Syria’ (2016) 92 International Law Studies 353-380
  • T. Eatwell, ‘State Responsibility for Human Rights Violations Committed in the State’s Territory by Armed Non-State Actors’, Geneva Academy Briefing No 13 (December 2018) available at https://www.geneva-academy.ch/research/publications/detail/455-briefing-no013-state-responsibility-for-human-rights-violations-committed-in-the-state-territory-by-armed-non-state-actors

Contributions[edit | edit source]

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