Skip to main content
×
×
Home

IHL 2.0: Is There a Role for Social Media in Monitoring and Enforcement?

  • Anne Herzberg (a1) and Gerald M Steinberg (a1)
Abstract

This article will examine the opportunities and limitations of using social media in the execution of legal duties relating to the monitoring and enforcement of IHL. The article will first provide an overview of social media. Next, it will briefly summarise the normative framework of IHL as well as the legal duties of the primary actors and promoters of IHL (for example, states, the UN, NGOs, the International Committee of the Red Cross and courts) to monitor and enforce these rules. The article will then address specific legal obligations relating to IHL monitoring and enforcement and the impact of social media on meeting these requirements.

Throughout, the article will use case studies from several conflict zones, including Sudan, Uganda, Mexico, Somalia, Gaza and Libya. The article will conclude that social media can play a critical role in promoting IHL education, and monitoring for potential violations. The benefits of this technology, however, are less clear for carrying out legal obligations related to the enforcement of IHL, such as fact-finding, arrest and prosecution. It is essential, therefore, that clear guidelines for utilising this quickly evolving technology, particularly in official fact-finding and judicial frameworks, be established.

Copyright
References
Hide All

1 Jolie O'Dell, ‘One Twitter User Reports Live from Osama Bin Laden Raid’ (Mashable Social Media, 2 May 2011), http://mashable.com/2011/05/02/live-tweet-bin-laden-raid.

2 ‘Osama Bin Laden, al-Qaeda Leader, Dead – Barack Obama’ (BBC News, 2 May 2011), http://www.bbc.co.uk/news/world-us-canada-13256676.

4 ibid; Shefali Anand, ‘Abbottabad Tweeter Unmoved by Fame’ (IndiaRealTime, 3 May 2011), http://blogs.wsj.com/indiarealtime/2011/05/03/abbottabad-twitter-hero-unmoved-by-fame.

5 @M0chin (Twitter, 1 May 2011).

7 Lindsey Hilsum, ‘Libya's YouTube and Facebook Rebels’ (Channel 4 News, 27 February 2011), http://blogs.channel4.com/world-news-blog/libyas-youtube-and-facebook-rebels/15226.

8 See Josh Halliday, ‘Gaddafi Death Video: BBC Defends Use of “Shocking” Images’ (The Guardian, 21 October 2011), http://www.guardian.co.uk/media/2011/oct/21/gaddafi-death-video-bbc; ‘Gaddafi's Death Sparks Celebrations, Calls for Probe, as Libyans Begin New Era Free of Regime’ (DemocracyNow, 21 October 2011), http://www.democracynow.org/2011/10/21/gaddafis_death_sparks_celebrations_probe_calls.

9 Kaplan, Andreas M and Haanlein, Michael, ‘Users of the World, Unite! The Challenges and Opportunities of Social Media’ (2010) 53 Business Horizons 59, 61. Web 2.0 is ‘the second stage of development of the Internet, characterized especially by the change from static web pages to dynamic or user-generated content and the growth of social networking’: Oxford Dictionaries Online, http://oxforddictionaries.com/definition/english/Web+2.0.

10 See, eg, Facebook, ‘Statistics’, http://newsroom.fb.com/content/default.aspx?NewsAreaId=22 (526 million daily users in March 2012); YouTube, ‘Statistics’, http://www.youtube.com/t/press_statistics (4 billion videos viewed per day, 800 million unique visitors each month); Graeme McMillan, ‘Twitter Reveals Active User Number, How Many Actually Say Something’ (Time Magazine, 9 September 2011), http://techland.time.com/2011/09/09/twitter-reveals-active-user-number-how-many-actually-say-something (Twitter has 100 million active users; 50 million log in each day).

11 Kaplan and Haanlein (n 9) 61.

12 Hilary JM Topper, ‘Do You Know the Difference between New and Old Media?’ (New York Enterprise Report, 16 March 2011), http://www.nyreport.com/articles/79511/do_you_know_the_difference_between_new_and_old_media; United States Department of Agriculture, ‘Social Media’, Communication Channels Newsletter (2011) 1, http://www.fns.usda.gov/snap/outreach/pdfs/toolkit/2011/Community/Communications/social-media.pdf.

13 Kaplan and Haanlein (n 9) 62–64.

14 Although these tools refer to hardware, they are intrinsically linked with social media and serve as the major tools for creating and sharing (particularly in developing nations where computer access is limited) social media information. Without these devices, social media would lack its unique characteristics, such as immediacy and the ability to provide ‘on-the-ground’ reporting.

15 New Media Committee of the Conference of Court Public Information Officers, ‘New Media and the Courts’ (New Media Report, 26 August 2010) 7–8, http://www.ccpio.org/documents/newmediaproject/New-Media-and-the-Courts-Report.pdf.

16 See text at Section 5.3.1.

17 Facebook, ‘Statistics’ (n 10).

19 Howard Owens, ‘Four Types of Content Aggregators’ (HowardOwens.com, 28 February 2009), http://howardowens.com/2009/02/28/four-types-online-aggregation.

20 ‘How NPR's Andy Carvin is Using Twitter to Tell Egypt's Story’ (Knight Digital Media Center, 4 February 2011), http://www.knightdigitalmediacenter.org/news_blog/comments/20110204_how_nprs_andy_carvin_is_using_twitter_to_tell_egypts_story (noting that ‘skilled use of social media as a curation tool can help journalists keep up with events – and keep interested audiences in the loop round the clock’).

21 cf Malcolm Gladwell, ‘Small Change: Why the Revolution Will not be Tweeted’, The New Yorker (4 October 2010) 42. But Shirky notes that Gladwell ‘concentrates on examples of what has been termed “slacktivism”, whereby casual participants seek social change through low-cost activities, such as joining Facebook's “Save Darfur” group … The critique is correct but not central to the question of social media's power; the fact that barely committed actors cannot click their way to a better world does not mean that committed actors cannot use social media effectively’: Clay Shirky, ‘The Political Power of Social Media’, Foreign Affairs (January/February 2011). See also Jesse Lichtenstein, ‘Did Twitter Make Them Do It?’ (Slate, 2 February 2011), http://www.slate.com/articles/news_and_politics/foreigners/2011/02/did_twitter_make_them_do_it.html.

22 Malcolm Gladwell and Clay Shirky, ‘From Innovation to Revolution: Do Social Media Make Protests Possible?’, Foreign Affairs (March/April 2011).

24 Shirky (n 21).

25 Pew Research Center's Project for Excellence in Journalism, ‘New Media, Old Media: How Blogs and Social Media Agendas Relate and Differ from the Traditional Press’ (23 May 2010), http://www.journalism.org/node/20621.

27 Françoise Hampson, ‘International Humanitarian Law in Situations of Acute Crisis’ (Conference on the Promotion and Protection of Human Rights in Acute Crisis, London (UK), 11–13 February 1998), http://www.essex.ac.uk/rightsinacutecrisis/report/hampson.htm.

28 Hague Convention (IV) respecting the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461 (Hague Convention); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I); Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II); Convention Relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III); Convention Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II).

29 In 1995, the International Committee of the Red Cross (ICRC) undertook a study to compile the customary laws of IHL: see Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, vol I: Rules (International Committee of the Red Cross, Cambridge University Press 2005) (ICRC Study).

30 Schmitt, Michael, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 Virginia Journal of International Law 795, 799; Forrest, Craig, ‘The Doctrine of Military Necessity and the Protection of Cultural Property during Armed Conflicts’ (2007) 37 California Western International Law Journal 177, 181.

31 Schmitt, ibid 796.

32 ICRC Study (n 29) rule 141 commentary.

33 ibid; see also ICRC Study, ibid, rule 144 commentary.

34 See, eg, Focarelli, Carlo, ‘Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble’ (2010) 21 European Journal of International Law 125.

35 ibid; ICRC Study (n 29) rule 144 commentary (according to this rule, all states are required to act individually and jointly to prevent violations and ensure respect for the law).

36 See, eg, Zegveld, Liesbeth, The Accountability of Armed Opposition Groups in International Law (Cambridge University Press 2002). See also ICRC Study, ibid, rule 139 commentary.

37 See ibid; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Merits, Judgment, 27 June 1986 [1986] ICJ Rep 14, 114; GC I–IV and Additional Protocol II (n 28), Convention for the Protection of Cultural Property in the Event of Armed Conflict (entered into force 7 August 1956) 249 UNTS 240 (Cultural Property Convention); Second Protocol (entered into force 9 March 2004) 38 ILM 769 (Cultural Property Convention Protocol II).

38 Geneva Academy of International Humanitarian Law and Human Rights, ‘Armed Non-State Actors and International Norms’, February 2011, 2, http://www.geneva-academy.ch/docs/projets/NonStateActors/Armed%20Non-State%20Actors%20and%20International%20Norms_Workshop%20Summary_ENG.pdf (noting that a group of 41 armed groups signed a declaration to ban the use of land mines).

39 See, eg, Peter Chapman, ‘Ensuring Respect: United Nations Compliance with International Humanitarian Law’ (2009) 17 Washington College of Law Human Rights Brief 1; European Union Guidelines on Promoting Compliance with International Humanitarian Law, 2005/C 327/04, 23 December 2005 (EU Guidelines), 6; ICRC Study (n 29) rule 144 commentary.

40 Secretary General Bulletin, ‘Observance by United Nations Forces of International Humanitarian Law’ UN Doc ST/SGB/1999/13, 6 August 1999.

41 Additional Protocol I (n 28) art 89.

42 OSCE and ODIHR, ‘OSCE Human Dimension Commitments on the Prevention of Terrorism’ (April 2011), http://www.osce.org/odihr/42555.

43 EU Guidelines (n 39) 3.

44 ibid 8–10.

45 ICRC, ‘The ICRC's Mandate and Mission’ (29 October 2010), http://www.icrc.org/eng/who-we-are/mandate/overview-icrc-mandate-mission.htm.

46 ibid; Additional Protocol I (n 28) arts 97, 98.

47 ibid; GC IV, (n 28) arts 3(2), 10, 11; Additional Protocol I, ibid art 17.

48 ibid; GC IV, ibid arts 10, 12, 14, 63; Additional Protocol I, ibid arts 5, 33, 78, 81.

50 ibid arts 4(g), 5(1).

51 See, eg, Amnesty International's statute, which includes the core aims of universality, impartiality, independence and accuracy, http://amnesty.org/en/who-we-are/accountability/statute-of-amnesty-international. The French human rights group, FIDH, notes that its key values are universality, independence and objectivity: FIDH (International Federation for Human Rights), ‘Our Fundamentals’, http://www.fidh.org/-FIDH-s-Role-. Whether NGOs actually abide by these principles has become the increasing focus of academic inquiry: see, eg, Steinberg, Gerald, Herzberg, Anne and Berman, Jordan, Best Practices for Human Rights and Humanitarian NGO Fact-Finding (Nijhoff 2012).

52 International Non-Governmental Organisations Accountability Charter (20 December 2005), http://www.ingoaccountabilitycharter.org/wpcms/wp-content/uploads/INGO-Accountability-Charter.pdf.

54 International Human Rights Fact-Finding Guidelines, http://www.factfindingguidelines.org/about.html.

55 GC I–IV (n 28) art 1.

56 See, eg, GC I, ibid art 47; GC IV, ibid art 144.

57 See Pictet, Jean S (ed), Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (International Committee of the Red Cross 1960) 349.

58 EU Guidelines (n 39).

59 US Department of the Army, Field Manual 27-10, The Law of Land Warfare, 18 July 1956 (as modified by Change No 1, 15 July 1976), 11–12.

60 UN Doc S/RES/1674 (2006), 28 April 2006 (emphasis in the original).

61 Yves Sandoz, ‘The International Committee of the Red Cross as Guardian of International Humanitarian Law’, (ICRC.org, 31 December 1998), http://www.icrc.org/eng/resources/documents/misc/about-the-icrc-311298.htm; Ratner, Steven R, ‘Law Promotion Beyond Law Talk: The Red Cross, Persuasion, and the Laws of War’ (2011) 22 European Journal of International Law 459.

62 See, eg, @USAgov, @StateDept, @USUN, @whitehouse, @TheJusticeDept, @FBIPressOffice, @TSABlogTeam, @USAID, @USEmbPrestoria, @USConsLeipzig, @AmbassadorRice, @ONDCP (US drug policy).

63 See, eg, @theJointstaff, @us_navyseals, @USArmyAfrica, @USNavy, @USArmy, @USairforce, @USMarineCorps, @CENTCOM, @GENRayOdierno (Joint Chief), @NoradNorthcom, @USArmyEurope.

64 @USArmy, Twitter, 3 May 2012: ‘These @USArmy MedEvac UH-60s are just not getting tired any time. I see them 12/7 in Kabul sky flying around moving casualties, saving lives’; 26 April 2012: ‘Video: @USArmyReserve Soldiers risk their lives to keep #Afghanistan roads safe ht.ly/apggy’.

65 See, eg, @UN, @UNPeacekeeping, @UNpublications, @UN_Women, @UNDP, @UN_HRC, @Refugees, @MONUSCO, @UNHABITAT, @UNICEF, @WHO, @unescoNOW, @UN_Radio, @WFPLogistics.

68 ‘Ban Ki-moon Google+ Hangout’ (YouTube, 10 April 2012), http://www.youtube.com/watch?v=wRhq-qBsfkY&feature=relmfu.

69 See, eg, NATO Community Channel, OTAN Channel (http://www.youtube.com/user/NATOCOMMUNITY); http://www.facebook.com/NATO; @NATO, @NATOPress, @AndersFoghR (NATO Secretary General).

70 See, eg, @US Embassy Haiti, Twitter, 9 May 2012: ‘#Chicago2012: @SlaughterAM: #NATO works against threats such as terrorism and piracy, but also does humanitarian missions’; @US Embassy Brussels, Twitter, 9 May 2012: ‘Interested in #NATO, but unable to attend the summit? On May 10, join our Webchat with NDU#LeoMichel goo.gl/9Ir5a #Chicago2012’.

71 See, eg, @IDFSpokesperson, @AvitalLeibovich, @SachaDratwa, @IDFinJapan, @CaptainBarakRaz, @AvichayAdraee, @Tsahal_IDF.

72 @IDF Spokesperson, Twitter, 10 May 2012: ‘Yesterday 5,828 tons of goods & gas (including 60 tons of candy) entered #Gaza from #Israel’; ‘Breaking: rocket fired from #Gaza lands in southern #Israel’; 7 May 2012: ‘The #IDF has launched a campaign to prevent abductions of soldiers. Read why & watch video with English captions’.

73 The Twitter account for the ICC Office of the Prosecutor, for instance, has only 200 followers and has transmitted just 10 ‘tweets’ since April 2011 (as of 27 February 2012).

74 See, generally, @IntCrimCourt, Twitter.

75 See, generally, @ICTYnews, Twitter.

76 @KRTribunal, Twitter, 22 February 2012: ‘#ECCC Compilation of statements of apology made by Kaing Guek Eav alias Duch distributed by media bit.ly/zzUXIV #krt #cambodia’.

77 @SpecialCourt, Twitter, 2 May 2012: ‘Freetown – Prosecutor Brenda Hollis briefed Sierra Leone civil society activists & representatives of INGOs today on the Taylor judgement’; 28 February 2012: ‘Freetown – The Prosecutor & Principal Defender take questions at today's Outreach at the Annie Walsh Memorial School’.

78 Amnesty has more than 400,000 Twitter followers; HRW and Oxfam each exceed 200,000 followers. MSF has more than 150,000 followers on Twitter and close to 450,000 people who ‘like’ the organisation's Facebook page (as of 14 May 2012). While these numbers may seem small compared to the figures for celebrities or media outlets, they vastly exceed those of most state actors and international organisations. Moreover, as many journalists and celebrities also follow these NGOs, the potential for NGO material to reach tens of millions of people is greatly enhanced.

79 See, eg, Amnesty International YouTube account as of 14 May 2012, http://www.youtube.com/user/AmnestyInternational/videos (nearly 3 million views); HRW account as of 14 May 2012, http://www.youtube.com/user/humanrightswatch?feature=results_main (nearly 2 million views); MSF account as of 14 May 2012, https://www.youtube.com/user/MSF (nearly 1.2 million views).

80 @Amnesty, Twitter, 19 April 2012: ‘Our efforts to ensure the arrest of Bosco Ntaganda owl.li/aop21 #ICC #DRC #Kony2012’.

81 ibid, 21 April 2012: ‘From the Field: Amnesty Mission to South Sudan owl.li/aqdra’.

82 ibid, 27 April 2012: ‘Charles Taylor verdict sends message no one is above the law. Demand all war criminals are brought to justice:http://www.amnesty.org.au/news/comments/28500/’; ‘Hague verdict: Charles Taylor guilty of aiding Sierra Leone war crimeshttp://www.amnestyusa.org/news/news-item/charles-taylor-guilty-of-aiding-sierra-leone-war-crimes’.

83 As measured in terms of frequency of postings, podcasts, webchats and numbers of subscribers and followers on its various accounts.

84 @icrc_arabic, Twitter, as of 27 February 2012.

85 GC IV (n 28); GC I, II (n 28) art 8.

86 EU Guidelines (n 39) 5.

87 See, eg, missions to Syria, Congo, Côte d'Ivoire, Georgia, Sudan, etc.

88 See Bergal, Carina, ‘The Mexican Drug War: The Case for a Non-International Armed Conflict Classification’ (2011) 34 Fordham International Law Journal 1042.

89 See Guadalupe Correa-Cabrera and Jose Nava, ‘Drug Wars, Social Networks and the Right to Information’ (paper prepared for delivery at the 2011 Annual Meeting of the American Political Science Association, Seattle, Washington, September 2011) 1–4.

91 Damien Cave, ‘Mexico Turns to Social Media for Information and Survival’, The New York Times (24 September 2011).

92 UNSC Res 1970 (2011), UN Doc S/RES/1970 (2011), 26 February 2011.

93 ICC Office of the Prosecutor, Press Release, ‘ICC Prosecutor to Open Investigation in Libya’ (2 March 2011); Tamir Eshel, ‘NATO Takes Control – Coordinating Air and Naval Blockade on Libya’ (Defense Update, 27 March 2011), http://defense-update.com/20110327_libya_report.html.

94 Spencer Ackerman, ‘On Facebook, NATO Chief Announces End to Libya War’ (Danger Room, 21 October 2011), http://www.wired.com/dangerroom/2011/10/nato-libya-war-facebook (‘I will be recommending conclusion of this mission to the North Atlantic Council of NATO in a few hours’).

95 Graeme Smith, ‘How Social Media Users are Helping NATO Fight Gadhafi in Libya’, Globe & Mail (14 June 2011).

96 Richard Norton-Taylor and Nick Hopkins, ‘Libya Air Strikes: NATO Uses Twitter to Help Gather Targets’, The Guardian (15 June 2011).

97 See Smith (n 95).

100 Marsico, Edward Jr, ‘Social Networking Websites: Are MySpace and Facebook the Fingerprints of the Twenty-First Century?’ (2010) 19 Widner Law Journal 967.

101 Jared Keller, ‘The FBI Wants to Read Your Tweets’ (The Atlantic, 26 January 2012), http://www.theatlantic.com/technology/archive/2012/01/the-fbi-wants-to-read-your-tweets/252059.

102 ibid.

103 International Network of Crisis Mappers, http://crisismappers.net.

104 Amnesty International, ‘Amnesty International Adopts Powerful Technology in Campaign to Protect Civilians in Darfur – Satellite Cameras to Monitor Events on the Ground’ (6 June 2007), http://amnesty.org/en/library/asset/AFR54/025/2007/en/317435b3-d38a-11dd-a329-2f46302a8cc6/afr540252007en.pdf.

105 Amnesty International, Eyes on Darfur, ‘About the Project’, http://www.eyesondarfur.org/about.html.

106 Amnesty International, Eyes on Nigeria, http://www.eyesonnigeria.org/index.aspx; Amnesty International, Eyes on Pakistan, http://www.eyesonpakistan.org/satellite.html. See also American Association for the Advancement of Science, ‘Pioneering AAAS Project Finds Strong Evidence of Zimbabwe Repression’ (30 May 2006), http://www.aaas.org/news/releases/2006/0530zim.shtml.

107 UNITAR, ‘UNOSAT Trains Duke University Students in Geospatial Information for Humanitarian Relief and Human Security’ (25 July 2011), http://www.unitar.org/unosat-trains-duke-university-students-geospatial-information-humanitarian-relief-and-human-security.

108 Institutions include Duke University, Harvard University and the International Institute of International Humanitarian Law.

109 UNITAR, ‘UNOSAT: The Pilot Phase of Satellite Sentinel Project over South Sudan has Concluded Positively’ (26 July 2011), http://www.unitar.org/unosat-pilot-phase-satellite-sentinel-project-over-south-sudan-has-concluded-positively.

110 Diane Marie Amann, ‘All Eyes On’ (IntLawGrrls, 6 December 2011), http://www.intlawgrrls.com/2011/12/all-eyes-on.html.

112 Mark Benjamin, ‘George Clooney's Satellites Build a Case against an Alleged War Criminal’ (Time Magazine, 3 December 2011), http://www.time.com/time/world/article/0,8599,2101425,00.html.

113 ‘Ushahidi’ means ‘testimony’ in Swahili.

114 ‘Ushahidi.com’ (Kenyan Pundit, 9 January 2008), http://www.kenyanpundit.com/2008/01/09/ushahidicom.

115 Simon Jeffery, ‘Ushahidi: Crowdmapping Collective that Exposed Kenyan Election Killings’ (The Guardian, 7 April 2011), http://www.guardian.co.uk/news/blog/2011/apr/07/ushahidi-crowdmap-kenya-violence-hague.

117 Côte d'Ivoire Crisis 2011, https://rci2011.crowdmap.com/main.

120 ibid.

121 Pew Research Center, ‘Global Digital Communication: Texting, Social Networking Popular Worldwide’, 20 December 2011(Pew Texting Survey), http://www.pewglobal.org/2011/12/20/global-digital-communication-texting-social-networking-popular-worldwide/?src=prc-quiz.

122 ibid.

123 ibid.

124 Columbia Center for the Study of Development Strategies, ‘Event Mapping in Congo’, http://cu-csds.org/projects/event-mapping-in-congo.

125 ICC, Situation in the Republic of Côte d'Ivoire, Request for Authorisation to Open an Investigation Pursuant to Article 15, ICC 02-11, Pre-Trial Chamber III, 23 June 2011, Annex 3 (attaching Report of the High Commissioner of Human Rights on the situation of Human Rights in Côte D'Ivoire, 15 February 2011, para 41).

126 ibid.

128 Antonio Lupetti, ‘The Internet is Still Not For Everyone’ (Work Up Blog, 5 October 2010), http://woorkup.com/2010/10/05/the-internet-is-still-not-for-everyone.

129 ibid.

130 Pew Texting Survey (n 121).

131 Ron, James, Ramos, Howard and Rodgers, Kathleen, ‘What Shapes the West's Human Rights Focus?’ in Goodwin, Jeff and Jasper, James M (eds), The Social Movements Reader: Cases and Concepts (2nd edn Wiley Blackwell 2009) 351.

132 See Golnaz Esfandiari, ‘The Twitter Devolution’, Foreign Policy (7 June 2010).

133 ibid.

134 Minotti, Kathleen, ‘The Advent of Digital Diaries: Implications of Social Networking Web Sites for the Legal Profession’ (2009) 60 South California Law Review 1057.

135 Tonya Oaks Smith, ‘A Little Birdie Told Me: H1N1 Information and Misinformation Exchange on Twitter’ (William H Bowen School of Law Legal Studies Research Paper No. 11-03) 27.

136 ibid 46.

137 Clay Shirky, ‘It's not Information Overload, it's Filter Failure’ (Lecture to Web 2.0 Expo NY, 2008), http://blip.tv/web2expo/web-2-0-expo-ny-clay-shirky-shirky-com-it-s-not-information-overload-it-s-filter-failure-1283699 (remarking that few pre-publication filters exist on social media platforms as a result of the low costs of producing information).

138 Invisible Children and Resolve, ‘Map Methodology & Database Codebook v1.3’ (LRA Crisis Tracker, 2012), http://www.lracrisistracker.com/sites/default/files/Map-Methodology-and-Database%20Codebook%20v1.0.pdf.

139 Despite acknowledging the variance in data quality, it is surprising that in the LRA Crisis Tracker coding system, ‘Human Rights Watch (HRW) reports are given a verification rating of 5 [the highest ranking] and considered confirmed reports due to their rigorous and thorough research methods’: LRA Crisis Tracker (n 138). Several research studies, however, have systematically detailed severe methodological flaws in HRW's reporting practices, reinforcing the idea that these publications should not be relied on without independent verification: Steinberg, Herzberg and Berman (n 51). For instance, a study conducted by Professors Gerald Steinberg and Abraham Bell of Bar Ilan University, evaluating the reporting of HRW and Amnesty International during the 2006 war between Israel and Hezbollah, found that in ‘nearly every case, [HRW's] initial estimation of Lebanese casualties was exaggerated’ and ‘the lack of reliable sources of information [was] prominent’ (ibid). The study concludes that ‘[HRW's] reports were closer to unverified claims than researched conclusions’. In parallel, William Arkin, an independent researcher and former senior military analyst for HRW, conducted an independent analysis of the Lebanon War while serving as the military adviser to the UN fact-finding mission (ibid). The study contradicted many of HRW's claims, while applying more rigorous methodological standards.

Similar conclusions were reached by scholars from the University of London and the Conflict Analysis Resource Center (CERAC), a Bogota-based conflict think tank. In their 2007 study (Andres Ballesteros and others, ‘The Work of Amnesty International and Human Rights Watch: Evidence from Colombia’, 1 February 2007, http://www.scribd.com/doc/30748914/The-Work-of-Amnesty-International-and-Human-Rights-Watch-Evidencefrom-Colombia), they found that HRW followed a ‘non-systematic approach that includes opaque sourcing and frequent changes in the objects they measure’. Moreover, their research showed ‘a failure to specify sources, unclear definitions, an erratic reporting template and a distorted portrayal of conflict dynamics’ among the methodological problems with HRW's publications (ibid). Furthermore, the report accuses HRW of ‘bias against the government relative to the guerrillas’.

The reliability of HRW reporting has also been called into question at the ICC. In the case of Prosecutor v Callixte Mbarushimana, defence counsel objected to an attempt by the Prosecutor to admit HRW reports into evidence (ICC, Prosecutor v Callixte Mbarushimana, Hearing, ICC-01/04-01/10-T-7-RED, Pre-Trial Chamber I, 19 September 2011, 73). Counsel expressed concern that these reports did not ‘base their assertions on interviews with victims. They merely make a reference to second–hand hearsay emanating from unidentified and unidentifiable villages’ (ibid). Counsel also raised the issue of significantly inconsistent casualty figures:

Why did Human Rights Watch say in February that dozens of civilians were killed … only to change this figure to seven in the December 2009 report? Did people come back from the dead? What does this tell us about Human Rights Watch's working methodology? What does this tell us about Human Rights Watch's statistics? (ibid 80)

Based on these arguments, the Court ruled:

78. The evidentiary weight to be attached to the information contained in documents emanating from Human Rights Watch will be assessed on a case-by-case basis. As a general principle, the Chamber finds that information based on anonymous hearsay must be given a low probative value in view of the inherent difficulties in ascertaining the truthfulness and authenticity of such information.

(ICC, Mbarushimana, Decision on the Confirmation of the Charges, ICC-01/04-01/10, Pre-Trial Chamber I, 16 December 2011).

In another case, Prosecutor v Germain Katanga & Mathieu Ngudjolo Chui, the Court excluded HRW reports, as well as other NGO publications (publications by Amnesty, FIDH and the International Crisis Group were also excluded) specifically over issues relating to reliability (ICC, Prosecutor v Germain Katanga & Matheiu Ngudjolo Chui, Decision on the Prosecutor's Bar Table Motions, ICC-01/04-01/07, Trial Chamber II, 17 December 2010).

140 See N MacFarquhar, ‘Sharp Criticism for Egyptian Interview with Soldier’, The New York Times (18 October 2011); Ha'aretz and Associated Press, ‘Gilad Shalit's Egyptian TV Interview Comes under Fire in Israel’ (Ha'aretz, 18 October 2011), http://www.haaretz.com/news/diplomacy-defense/gilad-shalit-s-egyptian-tv-interview-comes-under-fire-in-israel-1.390827.

141 See Ha'aretz, ibid; ‘Egyptian Journalist Insists She Didn't Pressure Shalit’ (Elder of Ziyon Blog, 19 October 2011), http://elderofziyon.blogspot.com/2011/10/egyptian-journalist-insists-she-didnt.html.

142 Oaks Smith (n 135) 9.

144 See, eg, ICTY, ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’ (1999, para 51), http://www.icty.org/sid/10052 (noting critically that ‘much of the material submitted to the OTP consisted of reports that civilians had been killed, often inviting the conclusion to be drawn that crimes had therefore been committed’).

145 Elana Baylis, ‘Tribunal-Hopping with the Post-Conflict Justice Junkies’ (2009) 10 Oregon Review of International Law 361, 386.

146 Morozov, Evgeny, The Net Delusion: The Dark Side of Internet Freedom (Public Affairs 2011) ‘Introduction’.

147 ibid.

148 Facebook is a powerful exception to this trend: see Bianca Bosker, ‘Facebook's Randi Zuckerberg: Anonymity Online “Has To Go Away”’ (Huffington Post, 27 July 2011), http://www.huffingtonpost.com/2011/07/27/randi-zuckerberg-anonymity-online_n_910892.html.

149 Some commentators have noted, however, that anonymity is essential in cases of government repression: see Jemima Kiss, ‘Andy Carvin: The Man Who Tweets Revolutions’ (The Guardian, 4 September 2011), http://www.guardian.co.uk/media/2011/sep/04/andy-carvin-tweets-revolutions (quoting Carvin: ‘The reality is that many of my sources would not be alive today if they weren't working under pseudonyms’).

150 George Monbiot, ‘The Need to Protect the Internet from “Astroturfing” Grows Ever More Urgent’ (The Guardian, 23 February 2011), http://www.guardian.co.uk/environment/georgemonbiot/2011/feb/23/need-to-protect-internet-from-astroturfing.

151 ibid.

152 Marcus Baram, ‘Lobbyists Jump Ship in Wake of Mideast Unrest’ (Huffington Post, 24 March 2011), http://www.huffingtonpost.com/2011/03/24/lobbyist-mideast-unrest-departures_n_840231.html.

153 ibid.

154 See Hokky Situngkir, ‘Spread of Hoax in Social Media’ (Bandung Fe Institute Working Paper, 4 May 2011) (examining the case of Indonesia).

155 Nidaa Hassan, ‘Syrian Blogger Amina Abdallah Kidnapped by Armed Men’ (The Guardian, 7 June 2011), http://www.guardian.co.uk/world/2011/jun/07/syrian-blogger-amina-abdallah-kidnapped.

156 @Kenroth, Twitter, 7 June 2011: ‘Guardian: #Syria blogger kidnapped by armed men. Had written on uprising, politics, being a lesbian.http://bit.ly/mTc79v’.

157 ‘Gay Girl in Damascus: Second “lesbian” blogger is a man’ (BBC News, 14 June 2011), http://www.bbc.co.uk/news/world-us-canada-13760208; ‘“Kidnapped” Lesbian Syrian's Blog a Hoax, Written by a Man’ (HuffingtonPost, 12 June 2011), http://www.huffingtonpost.com/2011/06/12/lesbian-syrian-blogger-ac_n_875639.html.

158 Esfandiari (n 132).

159 ibid.

160 ibid.

161 Convention on the Safety of UN Personnel (entered into force 15 January 1999) 2051 UNTS 363, art 7(2).

162 See Lotan, Gilad and others, ‘The Revolutions were Tweeted: Information Flows during the 2011 Tunisian and Egyptian Revolutions’ (2011) 5 International Journal of Communication 1376.

163 See, eg, Evgeny Morozov, ‘Political Repression 2.0’ (The New York Times, 1 September 2011), http://www.nytimes.com/2011/09/02/opinion/political-repression-2-0.html; Anne Nelson, ‘The Limits of the “Twitter Revolution”’ (The Guardian, 24 February 2011), http://www.guardian.co.uk/commentisfree/cifamerica/2011/feb/24/digital-media-egypt; Ethan Zuckerman, ‘The First Twitter Revolution?’ (Foreign Policy, 14 January 2011), http://www.foreignpolicy.com/articles/2011/01/14/the_first_twitter_revolution; Gladwell and Shirky (n 22); Jeffrey Rosen, ‘The Web Means the End of Forgetting’ (The New York Times Magazine, 21 July 2010), http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html?pagewanted=all. One group of scholars is creating an alternative internet to circumvent government repression: see Jeffrey R Young, ‘Fear of Repression Spurs Scholars and Activists to Build Alternate Internets’ (Chronicle of Higher Education, 18 September 2011), http://chronicle.com/article/Fear-of-Repression-Spurs/129049.

164 See Kendra Srivastava, ‘Syrian Protestors Scared to Use Facebook, Twitter’ (Mobiledia, 3 August 2011), http://www.mobiledia.com/news/101219.html; New America Foundation and Arizona State University webcast, ‘How to Ignite, or Quash, a Revolution in 140 Characters or Less’ (Slate Magazine, 13 July 2011), http://newamerica.net/events/2011/ignite_or_quash_revolution.

165 Although not in the context of armed conflict, the case of Saudi blogger, Hamza Kashgari, arrested for ‘blasphemous tweets’, represents another example where utilising social media can endanger activists: see Denis MacShane ‘Why a Tweet Can Kill’ (13 February 2012), http://www.denismacshane.com/?p=1137.

166 See Ece Toksabay, ‘Turkey Reinstates YouTube ban’ (Reuters, 3 November 2010), http://www.reuters.com/article/2010/11/03/us-turkey-youtube-idUSTRE6A227C20101103.

167 ibid.

168 See Nicoletta Zappile, ‘Congo Shuts Down SMS’ (The Global Journal, 9 December 2011), http://theglobaljournal.net/article/view/413.

169 See Chris Welch, ‘SMS and Social Media Banned in Congo, Deaf Residents Lose Critical Means of Contact’ (The Verge, 19 December 2011), http://www.theverge.com/2011/12/19/2646721/sms-social-media-banned-congo.

170 ibid; Thomas Hubert, ‘DR Congo Election: Deaf Anger at Ban on Texting’ (BBC News, 14 December 2011), http://www.bbc.co.uk/news/world-africa-16187051.

171 Doug Rule, ‘Congo Bans Text Messages, Falls on Deaf Ears’ (Forbes, 16 December 2011), http://www.mobiledia.com/news/120980.html.

172 See Mark Rutherford, ‘Report: Russian Mob Aided Cyberattacks on Georgia’ (Cnet, 18 April 2009), http://news.cnet.com/8301-13639_3-10312708-42.html.

173 See Neil Arun, ‘Caucasus Foes Fight Cyber War’ (BBC News, 14 August 2008), http://news.bbc.co.uk/2/hi/europe/7559850.stm.

174 See Bridget Guarasci, ‘GPS Humanitarianism’ (Slate, 28 September 2011), http://www.slate.com/articles/health_and_science/future_tense/2011/09/gps_humanitarianism.html.

175 Thanks to Dr Heather Harrison Dinniss of the Swedish National Defence College for her comments on this issue.

176 J David Goodman, ‘In Mexico, Social Media Become a Battleground in the Drug War’ (The New York Times, 15 September 2011), http://thelede.blogs.nytimes.com/2011/09/15/in-mexico-social-media-becomes-a-battleground-in-the-drug-war (quoting Nicholas Goodbody).

177 ibid; Cave (n 91).

178 Goodman (n 176).

179 ibid.

180 See Kapil Komireddi, ‘Wikitargeted’ (Tablet Magazine, 4 October 2011), http://www.tabletmag.com/news-and-politics/79749/wikitargeted (noting that in December 2010, one of WikiLeaks' content aggregators provided unredacted diplomatic cables to the Belarus government which were not available online at the time); ‘Zimbabwe: WikiLeaks Disclosures Upset Mugabe’ (Global Post, 16 September 2011), http://www.globalpost.com/dispatch/news/regions/africa/zimbabwe/110915/zimbabwe-wikileaks-disclosures-upset-mugabe; Roy Gutman, ‘WikiLeaks Shakes Security of Iraq's Tiny Jewish Community’ (McClatchy, 7 October 2011), http://www.mcclatchydc.com/2011/10/07/126581/security-of-iraqs-tiny-jewish.html.

181 Polly Curtis, ‘Hunt for Joseph Kony Will Kill More Innocent People, Charities Warn’ (The Guardian, 19 April 2012), http://www.guardian.co.uk/world/2012/apr/19/hunt-joseph-kony-kill-innocents.

182 GC IV (n 28) art 27.

183 Additional Protocol I (n 28) art 76.

184 See, eg, Oosterveld, Valerie, ‘The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments’ (2011) 44 Cornell International Law Journal 49.

185 Roee Nahamia, ‘Saudi Cleric: Kidnap Soldier Get $100,000’ (Ynetnews, 25 October 2011), http://www.ynetnews.com/articles/0,7340,L-4138982,00.html.

187 See eg @HSMPress, al-Shabbab Twitter account, 23 February 2012: threatening ‘The fate of #Kenyan PoWs is in the hands of Kenyan population. Either heed their calls or send them to the guillotine – The choice is YOURS!’); 17 February 2012: ‘HSM hereby warns all Muslims of Somalia to stay away from the enemy bases in order to avoid being unintentional victims of this new campaign’; Jeffrey Gettleman, ‘Somalia's Insurgents Embrace Twitter as a Weapon’ (The New York Times, 14 December 2011), http://www.nytimes.com/2011/12/15/world/africa/somalias-rebels-embrace-twitter-as-a-weapon.html; Cave (n 91).

188 See, eg, Convention on the Prevention and Punishment of the Crime of Genocide (entered into force 12 January 1951) 78 UNTS 1021 (Genocide Convention), art 1 (‘The Contracting Parties confirm that genocide … is a crime under international law which they undertake to prevent and to punish’); Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (entered into force 5 October 1978) 1108 UNTS 151, art 4; Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects – Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) (entered into force 2 December 1983) 1342 UNTS 137, art 14(1); Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (entered into force 1 March 1999) 2056 UNTS 211, art 9.

189 Hague Convention (n 28) art 3.

190 See, eg, GC IV (n 28) art 146 (‘High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention’); Genocide Convention (n 188) art 5; Cultural Property Convention (n 37) art 28 (obliging ‘States Parties to take, within the framework of their criminal jurisdiction, all the steps needed to prosecute and impose penal or disciplinary sanctions on persons of whatever nationality who have committed or ordered the commission of a breach of the Convention’); Cultural Property Convention Protocol II (n 37) art 19 (state parties are obliged ‘to establish as criminal offences under their domestic law serious violations of the Protocol, intentionally committed, in the form of attacks against property under enhanced protection, or the extensive destruction or appropriation of property’); Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (entered into force 25 March 1975) 1015 UNTS 165, art 1; the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (entered into force 29 April 1997) 1974 UNTS 45, art VII.

191 Schmitt, Michael, ‘Investigating Violations of International Law in Armed Conflict’ (2011) 2 Harvard National Security Journal 31, 39, 79. According to Schmitt, the duty to investigate is triggered ‘whenever a reasonable commander in the same or similar circumstances would, based on the information before him or her, suspect a violation’: ibid 72.

192 Additional Protocol I (n 28) art 7.

193 GC IV (n 28).

194 Additional Protocol I (n 28). To date, this commission has not conducted any inquiry as a result of lack of state interest.

195 ICRC Study (n 29).

196 See, eg, Independent International Fact-Finding Mission on the Conflict in Georgia (2009), http://www.ceiig.ch.

197 Morozov (n 146).

198 Kaye, David, ‘Complexity in the Law of War’ in Russell A Miller and Rebecca M Bratspies (eds), Progress in International Law (Martinus Nijhoff 2008) 681 (citing Ingrid Detter).

199 ibid.

200 Amnesty International (n 105).

201 @bouckap, Twitter, 18 June 2011.

202 See Intelligence & Terrorism Information Center (ITIC), ‘Inside documents of the Free Gaza movement’ (27 June 2010) (Free Gaza Memo) 10–11, http://www.terrorism-info.org.il/data/pdf/PDF_10_155_2.pdf. The document also discusses the preparation of an immediate follow-up mission because it ‘will generate more media and keep the drama of the situation in the forefront’, as well as proposed media strategies should activists decide to use a ‘long-term jail strategy’: ibid 12, 17–18.

203 See, eg, Ahalem Helwa, ‘Twitter for the Gaza Freedom Flotilla’ (The Palestine Activists Handbook, 29 May 2010), http://tpah.wordpress.com/tag/gaza-freedom-flotilla-palestine; Greta Berlin, ‘Gaza Fever’ (Centre for Research on Globalization, 21 May 2010), http://www.globalresearch.ca/index.php?context=va&aid=19266.

204 Free Gaza Memo (n 202) 16–17; see also Genevieve Long, ‘Foreign Flotilla of Ships Bound for the Gaza Strip’ (Epoch Times, 24 May 2010), http://www.theepochtimes.com/n2/world/foreign-flotilla-of-ships-bound-for-the-gaza-strip-35886.html (Twitter feed called on followers ‘to be ready to express your outrage if we are stopped’).

205 The Public Commission to Examine the Maritime Incident of 31 May 2010: The Turkel Commission, ‘Report: Part One’ (January 2011) (Turkel Report) n 213 at 206–08, http://www.turkel-committee.com/files/wordocs/8808report-eng.pdf.

206 @Omargaza, Twitter, 31 May 2010.

207 The Marmara was the largest ship in the convoy and it was where the primary and extensive violent confrontation took place.

208 Omar Ghraieb, ‘Gaza: In the Eyes of the Beholder’, http://www.gazatimes.blogspot.com.

209 See, eg, Ewa Jasiewicz, ‘A Force More Powerful’ (The Electronic Intifada, 17 May 2010), http://electronicintifada.net/content/force-more-powerful/8826; Free Gaza Movement, ‘Israel's Intimidation Tactics Won't Stop Us: First Ship Sets Sail for Gaza!’ (15 May 2010), http://www.freegaza.org/en/home/56-news/1169-israels-intimidation-tactics-wont-stop-us-first-ship-sets-sail-for-gaza.

210 Berlin (n 203).

211 @freegazaorg, Twitter, 31 May 2010.

212 The actual source of the Free Gaza tweets is unknown: who disseminated the messages, where that person/s was located, and if that person/s actually witnessed the events.

213 The IDF recovered many recordings of the incident captured on passenger video cameras and cell phones. Many explicitly showed the extreme violence used by the IHH activists against the Israeli soldiers as they attempted to board the ship. See also ITIC, ‘Additional Information about the Violent Intentions of the IHH Operatives’ (10 June 2010) 13–14, http://www.terrorism-info.org.il/data/pdf/PDF_19068_2.pdf; Noam Sheizaf, ‘Rough Passage’ (Ha'aretz, 24 September 2010), http://www.haaretz.com/weekend/magazine/rough-passage-1.315481 (describing how several passengers captured and violently disarmed two Israeli soldiers, including taking a pistol and an assault rifle).

214 These activists allegedly boarded the Marmara separately from other flotilla participants. Once on board, they separated themselves out and at times prevented the other passengers from moving freely aboard the ship: Turkel Report (n 205) 206, 208–09. One of these core IHH members had been involved in a terror attack on a Russian ferry in 1996: see ITIC, ‘Erdinç Tekir, IHH Operative Wounded Aboard the Mavi Marmara, Participated in the 1996 Terrorist Attack on the Russian Ferry Avrasya’ (26 August 2010), http://www.terrorism-info.org.il/data/pdf/PDF_10_230_2.pdf.

215 Internal documents, prepared by Free Gaza prior to sailing, indicate that the organisers planned ‘putting obstructions with sharp points on the deck’ to obstruct soldiers and debated asking ‘VIPs’ to take part in ‘resistance’ against Israeli forces'. The document also proclaims that ‘the only way for Israel to stop us is to use force’: Free Gaza Memo (n 202) 14 (‘On this next mission, we will be traveling with VIPs. Is there a likelihood that they will be willing to take action to resist interference from Israel? Not likely, though we can ask’). One passenger detailed how the core activists developed specific plans to confront the Israeli soldiers: see Sheizaf (n 213).

216 See CNN Wire Staff, ‘Israeli Assault on Gaza-bound Flotilla Leaves at least 9 Dead’ (CNN, 1 June 2010), http://edition.cnn.com/2010/WORLD/meast/05/31/gaza.protest; ‘Latest Developments: Israeli Raid on Flotilla’ (CNN, 31 May 2010), http://news.blogs.cnn.com/2010/05/31/latest-developments-raids-in-gaza; ‘Israel Attacks Gaza Aid Fleet’ (Al Jazeera, 31 May 2010), http://english.aljazeera.net/news/middleeast/2010/05/201053133047995359.html; Theunis Bates, ‘Israeli Flotilla Raid Draws Protests and Condemnation’ (AolNews, 31 May 2010), http://www.aolnews.com/2010/05/31/at-least-10-dead-after-israel-storms-aid-flotilla; ‘Israeli Navy Clashes with Gaza-bound Aid Flotilla Activists’ (Xinhua News, 1 June 2010), http://news.xinhuanet.com/english2010/world/2010-06/01/c_13326087.htm.

217 See, eg, Al Jazeera, ibid.

218 See UN Doc S/PV.6325, 31 May 2010 (the Security Council debate took place at 1:55 pm – only a few hours after the incident); Neil MacFarquhar, ‘Security Council Debates Criticism of Israeli Raid’ (The New York Times, 31 May 2010), http://www.nytimes.com/2010/06/01/world/middleeast/01nations.html; Draft Programme of Work for the 14th Session of the Human Rights Council, 31 May–18 June, 2010, http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/pow.pdf.

219 Nathan Hodge, ‘YouTube, Twitter: Weapons in Israel's Info War’ (Wired, 30 December 2008), http://www.wired.com/dangerroom/2008/12/israels-info-wa.

220 @IDFSpokesperson, Twitter, 31 May 2010.

221 ibid.

222 ibid.

223 The reason for the time delay is not known.

224 See Alfred De Montesquiou, ‘Investigator says Flotilla's Donor Linked to Terror’ (Associated Press, 3 June 2010), http://articles.boston.com/2010-06-03/news/29311365_1_terror-ties-ihh-jean-louis-bruguiere; Carol Migdalovitz, ‘Israel's Blockade of Gaza, the Mavi Marmara Incident, and its Aftermath’ (Congressional Research Service, 23 June 2010) 4, http://assets.opencrs.com/rpts/R41275_20100623.pdf. See also ITIC, ‘IHH, which plays a Central Role in Organizing the Flotilla to the Gaza Strip, is a Turkish Humanitarian Relief Fund with a Radical Islamic anti-Western Orientation’ (26 May 2010), http://www.terrorism-info.org.il/data/pdf/PDF_10_126_2.pdf.

225 An internal document stated that reaching Gaza ‘while our intention, is not our minimum strategic goal’: Free Gaza Memo (n 202) 10–11. The flotilla activists repeatedly rejected offers by the Israeli government and military to dock in Ashdod, where they could unload their cargo and where it would be transported to Gaza after inspection. During searches of the ships following the operation, no humanitarian supplies were found aboard the Marmara, Boat 8000 or Challenger 1. The three other boats contained small amounts of medical goods, medicines, toys and construction materials that were given by the Israeli authorities to various UN agencies for distribution in Gaza. See Turkel Report (n 205) 178, 181–82, 193.

226 See ITIC, ‘In a TV Interview, Turkish Journalist Şefik Dinç, who was on the Mavi Marmara and wrote a Book about it, said that No Shots were Fired from the Israeli Helicopters’ (5 October 2010), http://www.terrorism-info.org.il/data/pdf/PDF_10_269_2.pdf (Dinc stated, ‘I saw with my own eyes that when the soldiers came on helicopters and started landing on the ship, they did not fire. It wasn't until the soldiers were met with resistance and realized that some of their friends' lives were in danger that they began using live ammunition’).

227 See, eg, ITIC ‘Additional Information about the Violent Intentions of the IHH Operatives’ (10 June 2010) 13– 14, http://www.terrorism-info.org.il/data/pdf/PDF_19068_2.pdf.

228 Turkish National Commission of Inquiry, ‘Interim Report on the Israeli Attack on the Humanitarian Aid Convoy to Gaza on 31 May 2010’ (September 2010), http://www.mfa.gov.tr/data/Turkish%20Interim%20Report.pdf (examples of citations to social media sources found on pages 9, 11, 13–18).

229 See, eg, Associated Press, ‘Turks Accuse Israel of War Crimes at ICC’ (YnetNews, 14 October 2010), http://www.ynetnews.com/articles/0,7340,L-3969639,00.html; Aviel Magnezi, ‘Report: Turkey Operated Agents in Israel to Track Soldiers’ (Ynetnews, 26 September 2011), http://www.ynetnews.com/articles/0,7340,L-4127645,00.html.

230 See Benjamin Weinthal, ‘Dutch Government Places IHH on Terror List’ (Jerusalem Post, 1 May 2011), http://www.jpost.com/International/Article.aspx?id=218594; Joel Mowbray, ‘Flotilla Focus Turning to Terror Ties’ (The Washington Times, 11 August 2010), http://www.washingtontimes.com/news/2010/aug/11/flotilla-focus-turning-to-terror-ties.

231 See, eg, European Parliament, Speech of High Representative Catherine Ashton on Main Aspects and Basic Choices of the Common Foreign and Security Policy and the Common Security and Defence Policy, Brussels, 11 May 2011, A 179/11; Shlomo Shamir and DPA, ‘Israel: New Gaza Flotilla has Ties to Hamas, Terrorist Organizations’ (Ha'aretz, 21 April 2011), http://www.haaretz.com/news/diplomacy-defense/israel-new-gaza-flotilla-has-ties-to-hamas-terrorist-organizations-1.357416; ‘Rosenthal: Don't Join Gaza Flotilla’ (Radio Netherlands Worldwide, 26 April 2011), http://www.rnw.nl/africa/bulletin/rosenthal-don%E2%80%99t-join-gaza-flotilla.

232 See Scott Sayare, ‘Israeli Advocacy Group Helps Delay Departure of Gaza-Bound Flotilla’ (The New York Times, 28 June 2011), http://www.nytimes.com/2011/06/29/world/middleeast/29flotilla.html.

233 United Nations, Report of the Secretary-General's Panel of Inquiry on the 31 May 2010 Flotilla Incident, (September 2011) (Palmer Report), http://www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf.

234 ibid para 72.

235 ibid paras iv, vii.

236 Listening Post, ‘Gaza Flotilla: A Humanitarian Mission or PR? A Look at the Media War over the Gaza Freedom Flotilla’ (Al Jazeera, 2 June 2011), http://www.aljazeera.com/programmes/listeningpost/2011/07/2011727382646617.html.

237 See, eg, Karolyn Coorsh, ‘“Like for Israel” takes on Flotilla Advocacy’ (Jerusalem Post, 7 July 2011), http://www.jpost.com/Features/InThespotlight/Article.aspx?id=228279; Natasha Mozgovaya, ‘Gaza, the Most Facebook Friendly Place on Earth’ (Ha'aretz, 5 June 2011), http://www.haaretz.com/print-edition/features/gaza-the-most-facebook-friendly-place-on-earth-1.365970; Jameson Berkow, ‘Israeli Government Braces for “Twitter War”’ (The Financial Post, 26 May 2011), http://business.financialpost.com/2011/05/26/bootup-israeli-government-braces-for-twitter-war.

238 GC IV (n 28); see also Schmitt (n 191).

239 See nn 94–98 and accompanying text.

240 Social media was instrumental in locating Boston mafia figure, Whitey Bolger, in June 2011, a fugitive since 1994. Although this was a domestic criminal case, there is no reason why this same approach could not be used by international tribunals to locate indicted suspects: see Sharon Gaudin, ‘FBI used Twitter, Facebook in Hunt for “Whitey” Bulger’ (Computerworld, 23 June 2011), http://www.computerworld.com/s/article/9217890/FBI_used_Twitter_Facebook_in_hunt_for_Whitey_Bulger.

241 Twitter, 28 June 2011.

242 Azy Groth, ‘The Strategy for Ending LRA Violence’ (Invisible Children, 5 April 2012), http://blog.invisiblechildren.com/2012/04/05/the-strategy-for-ending-lra-violence.

243 By 30 March 2012, more than 86 million had watched on YouTube and 16 million on Vimeo.

244 Gladwell (n 21).

245 ibid 44.

246 ibid 45.

247 ibid 49.

248 ‘Full Pledge’, http://www.kony2012.com.

249 Rodney Muhumuza, ‘Kony 2012: African Union Ramps up Hunt for Uganda Rebel Leader in Wake of Viral Video’ (thestar.com, 23 March 2012), http://www.thestar.com/news/world/article/1150843--kony-2012-african-union-ramps-up-hunt-for-uganda-rebel-leader-in-wake-of-viral-video.

250 GC I (n 28) arts 49, 50; GC IV (n 28) arts 138–46; Genocide Convention (n 188) art 6 (‘Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction’); General Assembly Basic Principles and Guidelines on the Right to a Remedy, UNGA Res 60/147 (16 December 2005), UN Doc A/RES/60/147, 21 March 2006, Principle III, 4 (‘in cases of serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him’).

251 Pictet (n 57) art 146; see also ICRC Study (n 29) rule 161.

252 See GC I (n 28) art 146 (‘In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949’).

253 ICRC Study (n 29) rule 100.

254 ‘New Media and the Courts’ (n 15) 7.

255 ibid.

256 ibid.

257 ibid.

258 Michael Fenner, ‘Evidentiary Problems Associated with the Introduction of Web-based evidence’, http://www.creighton.edu/fileadmin/user/law-school/news/docs/Admissibility_of_web-based_evidence_2.pdf (noting that ‘[b]y and large, the novel question regarding the admissibility of web-based evidence … is going to be authentication’).

259 Stephen J Finley Jr, ‘Show Me the Evidence: Use of Social Media Information at Trial’ (E-Discovery Law Alerts, 28 March 2011), http://www.ediscoverylawalert.com/2011/03/articles/litigation-preparedness-strate/show-me-the-evidence-use-of-social-media-information-at-trial. See also Hayden, Kendal Kelly, ‘The Proof is in the Posting: How Social Media is Changing the Law’ (2010) 73 Texas Bar Journal 188.

260 Remarks of Luis Moreno-Ocampo, ‘The International Response to the Crisis in Libya’ (Harvard University Humanitarian Law and Policy Forum webcast, 15 April 2011), http://www.hpcrresearch.org/events/crisis-libya-international-response.

261 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007 [2007] ICJ Rep 43.

262 ibid para 227.

263 See, eg, Dennis Sweeney, ‘Social Media and Jurors’ (Nov/Dec 2010) Maryland Bar Journal 44 (describing due process concerns resulting from the use of social media by jurors during trial).

264 eg, Minotti (n 134).

265 ibid fn 52; Miller, John M, ‘Is MySpace Really My Space? Examining the Discoverability of the Contents of Social Media Accounts’ (2011) 30 Trial Advocate Quarterly 28 (personal injury lawsuits); Witte, Derek, ‘Your Opponent Does Not Need a Friend Request to See Your Page: Social Networking Sites and Electronic Discovery’ (2010) 41 McGeorge Law Review 891; North, Evan E, ‘Facebook Isn't Your Space Anymore: Discovery of Social Networking Websites’ (2010) 58 University of Kansas Law Review 1279; Hayden (n 259) (describing a case in which the suspect, based on a photo posted on Facebook, was found to be a member of a gang).

266 Hall v State No 03-10-00665-CR (Texas Court of Appeals, 3d District, 24 August 2011) 15.

267 People v Munck 92 AD3d 63 (NY 3d Dept, 29 December 2011) 66.

268 Laporcaro v City of New York 2012 NY Slip Op 50617U (35 Misc 3d 1209(A), 9 April, 2012) *7–8.

269 ibid.

270 Lautsi v Italy App No 30814/06 (ECtHR, 18 March 2011) (Rozakis J and Vajic J concurring) (The opinion classified a work by Appollonaire as ‘pornography’ based on its characterisation in Wikipedia); Borotyuk v Ukraine App No 33579/04 (ECtHR, 16 December 2010) (citing Wikipedia as a source for information on diabetes); Zdanoka v Latvia, App No 58278/00 (ECtHR, 16 March 2006) (citing Wikipedia for Latvian demographic information); Jakobski v Poland App No 18429/06 (ECtHR, 7 December 2010) (the government of Poland cited from Wikipedia as a definitive source on Buddhist cuisine).

271 ‘New Media and the Courts’ (n 15) 61.

272 ibid.

273 Oboler, Andre, Steinberg, Gerald M and Stern, Raphael, ‘The Framing of Political NGOs in Wikipedia through Criticism Elimination’ (2010) 7(4) Journal of Information Technology and Politics.

274 Email correspondence with Rod Rastan, OTP Legal Adviser, 4 August 2011.

275 ibid.

276 ICC, Prosecutor v Lubanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06, Trial Chamber I, 14 March 2012, at paras 644, 1244, 1278; See also paras 257, 268, 481,716, 792, 854, 915, 1348.

277 See, eg, ICC, Situation in the Libyan Arab Jamahiriya, Application concerning Public Statements made by the Prosecutor and Respect for the Presumption of Innocence Principle, Pre-Trial Chamber I, 25 May 2011.

278 Email correspondence from Antônia Pereira de Sousa, OTP Associate Cooperation Officer, 10 October 2011.

279 ICC, Situation in the Libyan Arab Jamahiriya, Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi and Others, ICC-01/11, Pre-Trial Chamber I, 16 May 2011 (Annex 7 lists several videos posted on YouTube; Annex 9.10, 9.11, 9.24, screen captures of live blogs and Twitter updates).

280 Correspondence from Antônia Pereira de Sousa (n 278).

281 See, eg, Prosecutor's Application (n 279) Annexes 8–9 (attaching several NGO reports); ICC, Situation in the Republic of Côte d‘Ivoire, Request for Authorisation of an Investigation pursuant to Article 15, ICC-02/11, Pre-Trial Chamber III, 23 June 2011, Annex 4 (attaching NGO reports).

282 As noted by the Court in Mbarushimana (n 139), HRW reports were considered by the court to be of low probative value because of their reliance on hearsay.

283 Steinberg, Herzberg and Berman (n 51).

284 Decision (n 139) para 13.

285 See ibid para 21.

286 These same arguments could apply equally to social media evidence.

287 Decision (n 139).

288 See, eg, ICJ, Genocide case (n 261): evidentiary value ‘depends, among other things, on (1) the source of the item of evidence (for instance, partisan or neutral), (2) the process by which it has been generated (for instance, an anonymous press report or the product of a careful court or court-like process), and (3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts)’.

289 But see Bellin, Jeffrey, ‘Facebook, Twitter, and the Uncertain Future of Present Sense Impressions’ (2012) 160 University of Pennsylvania Law Review 331.

290 Edward Schumacher-Matos, ‘War is Hell: Andy Carvin and the Tweeting of a Graphic Syrian Video’ (NPR Ombudsman, 6 February 2012), http://www.npr.org/blogs/ombudsman/2012/02/06/146490308/war-is-hell-andy-carvin-and-the-tweeting-of-a-graphic-syrian-video.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
  • URL: /core/journals/israel-law-review
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Keywords

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed