By Sarah Zarmsky, Assistant Lecturer, Essex Law School
Photo from Unsplash
Historically, international criminal law (ICL) has been mainly concerned with physically violent crimes. Progressively, ICL has begun to recognise the importance of mental forms of suffering (such as for torture and genocide), but this has always been in connection with cases focused on physical harms. Recently, developments such as the proposed addition of the crime of ecocide to the Rome Statute of the International Criminal Court have signalled that ICL may be ready to evolve further and accommodate novel types of harm, including those perpetrated through technology.
To explore the potential of ICL to encompass online harms, or harmful acts perpetrated through online spaces, Sarah Zarmsky, PhD Candidate and Assistant Lecturer with the Law School, recently published her article ‘Is International Criminal Law Ready to Accommodate Online Harm? Challenges and Opportunities’ with the Journal of International Criminal Justice (JICJ). This article stems from part of Sarah’s doctoral research on accountability for digital harms under ICL, which encompasses a broader range of harms inflicted using technology than online harms.
This article aims to answer the understudied question of how technology can serve as the vehicle by which certain international crimes are committed or lead to new offences. It explores how current international criminal law frameworks may be able to accommodate ‘online harms’ to ensure that the law recognises the full scope of harms caused to victims, who currently may not be able to access redress through the international criminal justice system.
Three examples of online harm that have a foreseeable nexus to the perpetration of international crimes are identified, including (a) hate speech and disinformation, (b) sharing footage of crimes via the internet, and (c) online sexual violence. The article analyses these online harms alongside similar harms that have been encompassed by core ICL crimes, including genocide, crimes against humanity, and war crimes, to assess how they might fit into existing definitions of crimes (potentially as an aggravating factor at sentencing or as a new manner of commission), or warrant the creation of an entirely new offence.
The article concludes that the examples of online harm considered in the piece should be able to be accommodated by existing crimes, but this does not mean they should necessarily be treated the same as ‘traditional’ offences.
For example, in the case of the spread of hate speech, this online harm could likely fall under existing definitions of persecution or incitement to genocide, or when footage of crimes is shared online, it could likely amount to an outrage upon personal dignity. Yet, the online component often exacerbates the harm—for instance, posting a video of a crime could be potentially even more humiliating than committing the same crime in a public square, where the footage is not preserved, distributed, and virtually impossible to get rid of.
These elements should be recognised by ICL Chambers in future cases, such as during the gravity assessment of the crimes or at sentencing, to ensure that the full scale of the harm is acknowledged.
Finally, the article emphasises that as technology will only continue to develop and serve as a vehicle for an increasing array of harms, finding ways to account for online harm and bring redress to victims should be an issue at the forefront of ICL.
The article forms part of a forthcoming Special Issue with the JICJ edited by Dr Barrie Sander (Leiden University) and Dr Michelle Burgis-Kasthala (University of Edinburgh) titled ‘Contemporary International Criminal Law After Critique’.
The discussions that will be sparked by this article are relevant to the explorations of engaging with ICL ‘after critique’ presented in the Special Issue, as it is important that ICL be able to recognise and adapt to new forms of harm to avoid the favouring of existing criminal harms that can reinforce traditional assumptions and stereotypes behind the law.
This is a post originally published by the Essex Human Rights Centre Blog on February 12th, 2024.
Mexico Country Visit of the Working Group in September 2023
Spotlight regularly features a significant individual or team from the Human Rights Community to answer questions put by students and colleagues from the University of Essex. This time we feature Dr. Matthew Gillett.
Dr. Gillett was appointed as a United Nations Special Mandate Holder in 2022. Specifically, he is the Expert Member from the Western Europe and Others Group in the Human Rights Council’s Working Group on Arbitrary Detention. In 2023, he was elected Vice-Chair for Communications of the Working Group. In this role, he cooperates with other Special Mandate Holders (typically the Special Rapporteurs on Torture, on Extra-judicial Killings, and on Counterterrorism, plus the Working Groups on Forced Disappearance and on the Elimination of Discrimination against Women and Girls); to issue communications to Governments and other entities (such as corporations) regarding potential human rights violations. As a member of the Working Group on Arbitrary Detention, he deliberates around 80-90 judgments (called opinions) a year and also conducts country visits to scrutinize detention practices around the World.
Previously, Dr. Gillett has around 15 years of experience working in international organisations in The Hague (particularly as a prosecution attorney at the International Criminal Court (“ICC”) and the International Criminal Tribunal for the former Yugoslavia (“ICTY”)). He has conducted investigations in various conflict zones, including for six months as a Human Rights Officer with the United Nations Assistance Mission in Afghanistan (“UNAMA”).
Academically, his work encompasses: International Criminal Law; Human Rights; Terrorism and Counterterrorism; Procedure and Evidence; Open-Source investigations; the Environment; International Humanitarian Law; Mediation (as a qualified mediator); Speech Crimes; and Aggression. His publications have been cited before international and hybrid courts, including in filings and Decisions of the Colombia Special Jurisdiction for Peace (“Pre-Report on Charging Environmental Damage before the Jurisdicción Especial para la Paz”); the International Criminal Court (e.g. “Collective dislocation; crimes of displacement, property depravation and discrimination under international criminal law”, Routledge; “The Call of Justice: Obligations under the Genocide Convention to Cooperate with the International Criminal Court”, CLF) and the Special Tribunal for Lebanon (e.g. “Fast-Track Justice”, JICJ; “The Special Tribunal for Lebanon Swiftly Adopts Its Rules of Procedure and Evidence”, JICJ).
Students’ and colleagues’ questions answered
We are honoured that Dr. Gillett agreed to answer questions put by the human rights students and community at Essex.
Q: What initially drew you towards human rights?
A: Working at the High Court of New Zealand exposed me to various human rights cases, from freedom of expression claims to complaints of ill-treatment in detention. Learning about the substance of human rights, and the effect of international conventions on the application of domestic law was fascinating.
Q: How do you believe the efforts of the Working Group on Arbitrary Detentioncan help address criticisms of the UN’s human rights work?
A: The Working Group on Arbitrary Detention strives for fair conclusions and innovative ways to enhance human rights compliance. One of the important ways we can reduce criticism is through robust fact-finding. We have five expert members, with a range of experiences and backgrounds. Our individual cases are subjected to rigorous review, while also ensuring that we address a high volume each year. We also travel to countries to assess their detention systems and meet with detainees, officials, and NGO representatives, all of which helps us to reach well-grounded findings.
Q: What advice would you offer aspiring human rights workers?
A: Gain field experience early, explore alternative avenues for redress, and follow up on cases to understand their outcomes comprehensively. In more detail: (i) Get field experience at an early stage – it will open your eyes to the situation on the ground and whether you are well suited to that type of work. (ii) Think about your options in any situation, such as new avenues or fora to redress a human rights violation, and don’t simply accept binary choices that are presented to you. (iii) Follow-up on situations you have been involved in – if you assisted a victim with a human rights claim, then get back in contact periodically afterwards to find out how it panned out.
Q: How can we assess the effectiveness of human rights measures such as issuing communications?
A: Tracking responses and subsequent actions by governments is essential. Effective engagement with international bodies like the UN can amplify pressure for change. An obvious case is if the Government or entity in question explicitly changes their conduct as a result of the communication. However, in many cases that won’t happen, at least not instantly. So the first step is keeping a track of communications and responses, the second is assessing to what extent the response engaged with the issues, and the third is considering follow-up measures such as public statements or bringing pressure through international fora like the United Nations Human Rights Council or General Assembly.
Q: Considering the allegations against the US and UK regarding torture in Iraq and Afghanistan, and their reluctance to allow ICC investigation or hold themselves accountable, what message do the actions of powerful states convey regarding accountability for human rights violations?
A: Reluctance to engage with international institutions sends a discouraging message globally, undermining the universality of human rights principles. Just like international human rights law, international criminal law is designed to apply universally. The lack of commitment to institutions like the International Criminal Court by powerful States including Russia, China and the USA sends a dispiriting message to the people of the world – especially given that the crimes listed in the Rome Statute, such as aggression, genocide, crimes against humanity and war crimes are lowest common denominators, which all States should agree to prohibit.
Q: What are your concerns regarding the existing framework of the working group, and how can it be improved?
A: Balancing increasing caseloads with broader advocacy efforts poses challenges. For the future, it would be ideal to have increased resources for the OHCHR team which supports the expert members of the Working Group.
Q: In your role as Vice-Chair for Communications of the Working Group, what strategies do you employ to foster collaboration among Special Mandate Holders and issue effective communications to address potential human rights violations?
A: Collaborating with other Special Mandate Holders is a highlight of the work, but of course can present its own challenges in terms of coordination. Typically, a strategy is to have a lead mandate in charge of a particular communication, and then others to review and sign onto it. We have also started having more regular meetings and exchanges on particular hot-spots which raise issues for multiple mandates, so that we are communicating with each other and exchanging information and views in order to enhance our understanding of the situation.
Q: Having worked as a prosecution attorney at the ICC and the ICTY, how do you draw on your experiences in conflict zones to contribute to the Working Group on Arbitrary Detention?
A: As a former prosecutor, I am used to looking through statements, documents and other sources to reach factual conclusions. Having worked in multiple situations of armed conflict, I am aware of security requirements but also know the importance of seeing situations and speaking to people first-hand to establish events. Additionally, there is considerable overlap between arbitrary detention and the crimes I prosecuted, which helps for legal assessments.
Q: Can you share insights from your academic work and its relevance to human rights advocacy?
A: My research has recently focused on fact-finding. This has spurred me to look at the procedures employed at various human rights bodies, and what types of materials they base their findings on. Legally, the context of armed conflict or terrorism type scenarios helps to understand when there may be different considerations to bear in mind when assessing the application of international human rights law.
Q: Given that your work exposes you to stressful and harrowing experiences and stories, how do you cope with these challenges?
A: When I am interviewing a victim or visiting a crime scene, my focus is usually on forensic details and ensuring an accurate record, as well as the safety of everyone involved. However, I realised after many years of working long hours that you have to look out for your own well-being as well. Now I exercise reasonably often and enjoy catching up with friends and colleagues from around the world when the opportunity arises. I also have two young children to keep me on my toes.
By Dr. Matthew Gillett, Senior Lecturer, Essex Law School, Head of the Digital Verification Unit.
Image via shutterstock
Throughout history, grave crimes have been fueled by incitement and inflammatory rhetoric. From the Holocaust to Rwanda, influential leaders have established the psychological and rhetorical antecedents for mass violence. However, in the digital age, a far wider range of potential inciters have access to platforms with instantaneous global reach. Already this new era has seen online incitement to atrocities in Myanmar, Ukraine, and Sudan. These events demand accountability and, as investigations and prosecutions get underway, inflammatory statements are increasingly becoming a critical form of evidence.
Speech acts, whether oral or written are forensically significant in multiple ways. They can demonstrate criminal intent, they can demonstrate instigation, and they can amount to crimes in and of themselves, such as persecution or direct and public incitement to genocide. The relevance of speech acts was evident in the International Court of Justice’s provisional measures order in the Israel-South Africa genocide case. Statements made online by high-level Israeli officials through Twitter/X and other platforms were key evidentiary items cited by the Court in granting provisional measures. And that relevance will continue to grow in future litigation. Whereas the Court’s provisional order did not require a detailed evidentiary assessment, the statements will be subjected to far more exacting scrutiny during the merits phase. Equally, if genocide is charged at the ICC or other courts, incendiary statements will constitute a central focal point for the litigation. This begs the question of how such statements can be entered into evidence and contextualized in the context of international legal proceedings.
In an article I recently co-authored with Wallace Fan, former student manager at the University of Essex Digital Verification Unit, we explore how online materials can be submitted as evidence before international courts. Published in the Journal of International Criminal Justice in December 2023, the article notes that digital open-source information has become a significant means of proving atrocity crimes charges. It argues that digital materials will typically need to be authenticated and contextualized via expert evidence. Highlighting the challenges that DOSI presents, including the risks of misinterpretation and biases leading to erroneous conclusions, the article proposes a six-factor test to identify digital specialists to serve as expert witnesses. It also encourages the digital open-source community to utilize transparent, accessible and replicable methodologies when conducting online investigations. On a complementary track, I am working with PhD candidate Vanessa Topp on a new version of The Hartford Guidelines on Speech Crimes in International Criminal Law, which I co-authored with Professor Richard Wilson of the University of Connecticut in 2017. The new guidelines will address international speech crimes on social media platforms, disinformation, and other linked topics arising in the digital age. Building on the analyses in those publications, a key facet of the research is to examine how to analyse and tender online speech acts as evidence. For these purposes, it is clear that expert evidence will be required from a range of specialists. Forensic questions include the authenticity of the statement (excluding deepfakes and identifying alterations to the item), attributing it to the suspect, preserving the native files, measuring the reach of the statement, identifying the influence of the statement maker, and, perhaps most significantly, interpreting the statement’s contents in light of its sociological, temporal and cultural context. Underlying conceptual questions include how to categorize online materials as evidence, how digital materials can shift the truth-discerning moment outside of the courtroom, and how the democratization of access to technology tests the distinction between experts and laypersons for legal purposes. As court proceedings heat up, providing conceptual clarity on these issues will help facilitate the submission, contextualization and interpretation of online materials which may constitute or instigate atrocity crimes including genocide and persecution.
Essex Law Research Blog 