Why International Criminal Law Must Respond to Atrocity Crimes Shared on Social Media during the Israel-Hamas War
Hamas’ assault on Israel on October 7, 2023, and Israel’s scorched-earth response in Gaza, has captivated global audiences for over three months. The staggering loss of life and the brazen mistreatment of civilians on both sides of the border — including hostage-taking, sexual violence, attacks on civilian infrastructure, blockades on necessary humanitarian aid, and mass arrests without due process — would be almost unbelievable if it was not being so widely broadcast on social media platforms like X, TikTok, and YouTube.
The utter depravity inflicted against both Israeli and Palestinian victims demand a legal response. The crimes committed since October 7 must be investigated and prosecuted. It is the collective responsibility of the international community to support a forum which will facilitate the adjudication of these crimes under international criminal law (ICL), whether this takes place at the International Court of Justice, the International Criminal Court, or within an ad hoc tribunal. As ICL is fundamentally concerned with “the vindication of human dignity, not (or not only) the reduction of aggregate suffering” (Luban, emphasis added), ICL presents an opportunity to, in the words of Carla del Ponte and Graham Blewitt, “put justice for victims ahead of realpolitik”. Doing so, in the context of this conflict, may play a particularly important role in fostering a sense of compassion and humanity in the midst of increasingly tribalistic public discourse that has treated the war as an obscene spectator sport.
Yet, even putting aside concerns regarding resources and political feasibility, ensuring that ICL adequately responds to the full ambit of violence committed against civilians during this conflict will be a challenge. This is because the war between Israel and Hamas is being fought on a parallel digital battleground, with many of the atrocities perpetrated by both sides being broadcast on social media as part of their respective propaganda campaigns. The result is that victims, both dead and alive, continue to suffer disturbing, insidious, and ongoing indignities, in which voyeuristic social media users across the World Wide Web have been complicit. Although such weaponization of social media may not be a wholly unique phenomenon, this modality of violence, and its impact on victims, has yet to be fully understood and appreciated by ICL practitioners.
The Israel-Hamas conflict has proved that social media is a new frontier of wartime violence. Those involved in the adjudication of these crimes must recognise and respond to this reality in order to fulfil ICL’s humanising mission of condemning egregious offences against human dignity — a term which, in this article, refers to the inherent worth of each human being that must be protected against acts of degradation, exploitation, humiliation, and objectification.
While there are dozens of examples that could be used to illustrate this point — including, for example, a widely-shared video that shows Israeli soldiers mocking blindfolded Palestinian detainees while smoking hookah, eating chips, and making jokes about having sex on the beach in Gaza — brevity dictates focusing on just one. Shani Louk was a 22-year-old German-Israeli citizen who was attending a music festival near Re’im at the time of Hamas’s initial attack on southern Israel. Thanks to her signature dreadlocks and distinctive tattoos, Ms. Louk was quickly identified in at least two videos that were released by Hamas militants on social media. At the risk of contributing further to the voyeuristic abuse suffered by Ms. Louk, I will describe these videos generally as depicting the victim being repeatedly punched, spat on, and hit with a plank of wood, as she lies face-down and nearly naked in the bed of a white pick-up truck that is being driven through a crowd of men.
These videos, which went viral and remain easily accessible on X and TikTok, are prima facie evidence of war crimes. Ms. Louk was a protected person under Article 4 of the Fourth Geneva Convention, to which Hamas, as an armed party to a conflict, must adhere. As a fragment of Ms. Louk’s skull was retrieved by forensic examiners at the festival site, it is likely that Ms. Louk died before she was driven into Gaza; the abuses against her body could therefore be prosecuted as corpse desecration, which is a grave violation of the Geneva Conventions and a war crime under Articles 8(2)(b)(xxi) and (c)(ii) of the Rome Statute. The sexualised nature of the abuse of Ms. Louk’s body could potentially be characterised as sexual violence, just as similar insults against female corpses were at the ad hoc tribunal for Rwanda (see, for example, Bagosora, where the appellate court affirmed that the insertion of a bottle into the vagina of a female corpse constituted sexual violence). The dissemination of these videos of Ms. Louk could also be described as a method of terrorism, which is not an offence under the Rome Statute per se but a descriptor to contextualise atrocities: security analyst Michael Horowitz has proposed that Hamas’s release of these videos was a deliberate strategy “to trigger a sense of helplessness, paralysis, and humiliation” amongst Israeli civilians. Finally, the memory of Ms. Louk’s abuse may have been used as a means of incitement, which is a mode of participation in genocide under the Rome Statute: Israeli President Isaac Herzog’s false claim that Ms. Louk had been “beheaded,” for example, arguably sensationalizes an already tragic event to justify retaliatory violence against civilians in Gaza.
Yet, the offence here is more than the sum of these individual parts. The videos depicting this treatment of Ms. Louk are not only digital evidence of potential war crimes, but the dissemination of these videos itself is an affront to human dignity.
Much has been written on the victim impact of digitising non-atrocity crimes, usually in the context of sexual assaults that are recorded and distributed online. The Council of Europe, for example, recommends that state parties to the Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence offer support services to those who have experienced “filmed rape”, which presents an “added layer of trauma and victimisation”. This is because the immortalisation of the event through photography and the like “reiterates the event, extends the event and is an act of sexual violence in and of itself as it humiliates, violates, and invites more and more viewers to join in on the violation” (Dodge). The victim can never escape from an assault that is memorialised on the Internet; the indignity suffered during the initial event is repeated every time it is viewed and shared. Thus, the circulation of photographs or video of violence online not only extends the experience of the initial act of violence but can be characterised as a free-standing act of violence that exposes the victim, their families, and their community to unique trauma and harm.
By contrast, when ICL scholars discuss the practice of uploading atrocity crimes to social media, the discussion is overwhelmingly focused on the complicity and responsibility of social media corporations. Federica D’Alessandra and Kirsty Sutherland, for example, have written on the role social media companies play in controlling digital evidence of atrocity crimes, while Shannon Raj Singh has argued that social media ought to be conceptualised as a weapon when evaluating accountability under ICL. This work, while invaluable in tackling the law’s chronic pacing problem, has little to say about the particular impact that violence broadcast on social media has on victims’ dignity.
Courts themselves have also failed to appreciate and respond to the victim impact of atrocity crimes posted online. Take, for example, the 2017 judgment of the German Federal Court of Justice (Bundesgerichtshof, or BGH) (accessible in German and English). The accused, Aria Ladjevardi, was born in 1995. After radicalising himself in Germany, Ladjevardi travelled to Syria in 2014 to participate as a jihadist in the “Holy War” against the al-Assad regime. Sometime between March and April of that year, Ladjevardi’s group attacked a Syrian military checkpoint and captured two soldiers. These soldiers were beheaded, and their heads were mounted onto metal poles. The accused and his group took several photographs of themselves with the impaled heads — at close proximity, “in a way that easily enable[d] the identification of the victim[s]” — and uploaded those images to Facebook.
One of the key issues Ladjevardi’s defence put before the BGH, in appealing the judgment from the higher regional court (Oberlandesgericht Frankfurt am Main), was whether the war crime of treating a protected person “in a gravely humiliating or degrading manner”, as codified in section 8(1)(9) of the Code of Crimes against International Law (Völkerstrafgesetzbuch), the legislation that brings German criminal law into accordance with the Rome Statute, extended to deceased victims. This question was answered in the affirmative. By assuming a position of “superiority and mercilessness” while posing for pictures with the heads of the deceased — a particularly important body part, as “the head is the outstanding identifying feature of a person and determines the external perception of a person the most” — Ladjevardi was found to have “used the situation created by the previous treatment of the victims, this extremely degrading situation, to further deepen their degradation.” Further, “viewed objectively, the fact that the defendant did not at the same time have a physical effect on the victims” was irrelevant — in other words, photographing the offence was as objectionable as the physical act of desecrating the corpses.
The BGH’s judgment reiterated the primacy of human dignity in ICL and widened the scope of protection to be conferred to the bodies of deceased victims under section 8(1)(9) of the Völkerstrafgesetzbuch, but it could have gone further simply by extrapolating on this final point. Surely, the indignity committed against these victims was more serious because these images were uploaded to a public forum like Facebook, rather than, say, printed off and kept by Ladjevardi for his personal viewing. The decision to broadcast the offence on social media elevated a private event to a public spectacle, which arguably constituted the real indignity to these deceased soldiers. Perhaps this point would have been made more clearly if the images had been widely distributed, or if the names and personalities of the victims had been known, as is the case with Ms. Louk.
When the time comes for accountability, ICL must recognise the full extent of victims’ suffering during the conflict between Israel and Hamas. Lawyers and judges must evolve their conceptualisations of wartime violence and respond to the unique and ongoing affronts to human dignity presented by social media posts that memorialise atrocities. This is the least we can do for victims like Ms. Louk, whose extreme post-mortem abuse has become casual viewing for those scrolling the algorithm.