Zooming in on the relationship between photography, death and war

Ever since the invention of the camera in 1861, photography has had a profound connection with death,Footnote ⁶ and it comes as no surprise that war contexts have always proved to be fertile ground for the manifestation of this intertwining.Footnote ⁷ The influential American intellectual Susan Sontag, in her essay “Regarding the Pain of Others”, noticed that technical developments in the field of photography played a crucial role in shaping the portrayal of war’s destruction.Footnote ⁸ She recalled that initially, a close-up and dynamic reportage of war was beyond the reach of the camera, and that conflict photos thus retained an epic character and generally depicted the aftermath of combat, showing destroyed landscapes, trenches and villages that the war had passed through.Footnote ⁹ It was with the introduction of lightweight and quicker cameras that it became possible to take photos in the heat of battle and, especially, to focus up close on casualties and soldiers. This technical development made the Spanish Civil War (1936–39) the first to be “covered” in the modern sense of the term, with photographers in the field whose work was immediately visible in newspapers and magazines, both in Spain and abroad.Footnote ¹⁰ Similarly, years later, the spread of television cameras during the Vietnam War (1954–75) made real-time footage of battles and casualties a routine feature of the continuous media stream, “introduc[ing] the home front to a new tele-intimacy with death and destruction”.Footnote ¹¹ Analogously, a shift can be observed in the role of the recipients of these images, who transitioned from passive, distant witnesses to intense explorers of the horrors of war.Footnote ¹²

The most recent evolution of photography, namely its democratization through the widespread adoption of smartphones with integrated cameras and the rise of social media, has further transformed the taking and dissemination of images. Unlike traditional media outlets, such as television and newspapers, which operate under editorial and ethical guidelines,Footnote ¹³ the rise of social media and direct, instantaneous sharing allows anyone to broadcast images to a vast audience. This shift has expanded the reach and immediacy of photography, enabling unprecedented visibility and engagement. What distinguishes contemporary practices is not merely the vast increase in available and consumed images, but also a shift in their qualitative characteristics. A trend has emerged in visual culture, characterized by a shift toward more explicit and personalized depictions of death and suffering, often featuring close-up perspectives and clearly recognizable individuals.

Some have noticed that smartphones and social media are transforming the documentation of human rights violations, with the aim of “catalys[ing] some kind of response from an international community” in order to “let them know the horrors”Footnote ¹⁴ that people face. One might ask, however, what kind of response these images elicit, or are intended to elicit. Photography, as claimed by Andrew Hoskins, enables “distant witnessing”Footnote ¹⁵ of suffering occurring in other countries, which is further mediated through its portrayal in mainstream and social media. According to many, such exposure can mobilize radically effective forms of public response;Footnote ¹⁶ however, a growing number of commentators in various disciplines have suggested that it might merely fuel a “bemused awareness, continually restocked by photographic information, that terrible things happen”,Footnote ¹⁷ rather than an active opposition to the losses that war entails.Footnote ¹⁸

Finally, it is contended that the ideas explored in this article are particularly relevant in relation to the current focus, in both academic and public debate, on the issue of media censorship, during peace and wartime alike. The emphasis on the concealment of certain images often eclipses discussions on the legitimacy, or even legality, of the display of others, thus creating an imbalance in the discourse. On the contrary, it is argued here that the focus on concealing certain images and the debate over displaying others are two non-mutually exclusive faces of the same coin. In fact, media outlets play a crucial role in the “distribution of the sensible” – or “partage du sensible”, in Rancière’s phrasingFootnote ¹⁹ – not only through what they withhold from publication but also through what they decide to show, as distribution implies both exclusion and inclusion. This duality is well reflected in Article 10 of the European Convention on Human Rights (ECHR), which, on the one hand, safeguards against censorship by prohibiting unlawful restrictions of freedom of expression,Footnote ²⁰ and, on the other, emphasizes that media outlets bear certain “duties and responsibilities”Footnote ²¹ vis-à-vis the general public and society at large.

When it comes to the topic of publishing and sharing images of the dead, the relevance of critically investigating not only what is hidden, but also what is shown and how, is exemplified by instances of unequal use of images of death in the media. It has been found that, often, the dignity of one group, an “us”, is protected, while the publication of graphic images of the “other” is permitted.Footnote ²² This dynamic is often referred to as “othering”, or the creation of an “otherness”, as the result of “a discursive process by which a dominant in-group (‘Us’, the Self) constructs one or many dominated out-groups (‘Them’, Other) by stigmatizing a difference – real or imagined – presented as a negation of identity and thus a motive for potential discrimination”.Footnote ²³ The findings of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions further substantiate this intuition. In examining how States manage the protection of the bodies and human remains of minorities and the indigent, the Rapporteur observes that patterns of discrimination evident in life persist in death.Footnote ²⁴

Protecting the dignity of the dead in armed conflict: What role for the notion of public curiosity under international humanitarian law?

The significant emphasis placed on rules designed to protect the deceased during armed conflict traces back to ancient Greek practices.Footnote ²⁵ Commanders were required to recover the bodies of fallen soldiers, and failure to fulfil this duty often resulted in condemnation by fellow citizens.Footnote ²⁶ Moreover, the desecration of bodies was widely regarded as a violation of universally accepted norms.Footnote ²⁷ These practices underscore the early principles mandating for the recovery, identification and dignified burialFootnote ²⁸ of the dead. However, the care afforded to the dead coexisted with, and often responded to, practices of desecration or instrumentalization of enemy bodies,Footnote ²⁹ which were employed as tools for spreading fear and propaganda. It was to prevent looting or commodification of corpses by enemy soldiers that the Romans typically buried their war dead in situ and in unmarked mass graves.Footnote ³⁰

In contemporary IHL, the dead are considered as a “distinct category of victim”Footnote ³¹ and their dignity is protected and upheld through a multifaceted set of norms and practices,Footnote ³² applicable in both international and non-international armed conflicts.Footnote ³³ This corpus of rules shows that the perspective on the protection of the dead under IHL is, as in its historical antecedents, twofold. On the one hand, it has an underlying functional aim, which is to avoid the instrumentalization of corpses by the enemy. On the other hand, it substantially attributes a dignified status to those who have lost their lives during conflict.Footnote ³⁴ These norms protect the dead against pillaging and ill-treatment,Footnote ³⁵ mandate the steady and continuous search for casualtiesFootnote ³⁶ and establish rules on identification,Footnote ³⁷ emphasizing sensitivity towards next of kin and towards social or religious communities of belonging. Additionally, rules govern the honourable disposal or burial of the dead,Footnote ³⁸ ensuring respect for religious beliefsFootnote ³⁹ and the will of the deceased.Footnote ⁴⁰

Having outlined the general framework, we now turn our attention to norms that are relevant to the case at hand, which can be found in Article 13 of Geneva Convention III (GC III)Footnote ⁴¹ and Article 27 of Geneva Convention (GC IV).Footnote ⁴² Notably, subsequent interpretation by the 2020 ICRC Commentary on GC IIIFootnote ⁴³ will be delved into, as this Commentary addresses the unique challenges posed by the digital age, particularly the sharing of video and photographic materials in the media. It is argued that through this interpretation, the scope of protection attributed to the dead – and to images depicting them – under IHL has been significantly expanded, with a particular emphasis on the dignity rationale underpinning such protection.

Article 13 of GC III deals with the treatment of prisoners of war (PoWs)Footnote ⁴⁴ during international armed conflicts (IACs), mandating that they must be protected from “acts of violence or intimidation, and from insults and public curiosity”.Footnote ⁴⁵ The latter concept of public curiosity also appears in Article 27 of GC IV, concerning protected persons, and applies analogously to this category.Footnote ⁴⁶ The delineation in digital terms of the concept put forward by the ICRC Commentary on GC III provides a useful framework for analyzing the legal implications of sharing images of the conflict dead. GC IV still relies on an older Commentary that does not account for the complexities introduced by digital technologies;Footnote ⁴⁷ nevertheless, it can be inferred that the clarifications regarding the concept of public curiosity articulated in the context of GC III, as discussed above, would similarly apply to the use of the term in Article 27 of GC IV.

Initially intended for protecting PoWs from humiliating practices as well as from unlawful reprisals, the ICRC Commentary on GC III explains that “as technology advanced, prisoners became exposed to public curiosity via photographic images and video footage”,Footnote ⁴⁸ and thus, “[i]n modern conflicts, the prohibition [against public curiosity] also covers … the disclosure of photographic and video images … irrespective of which public communication channel is used, including the internet”.Footnote ⁴⁹ The 2020 revision of the Commentary further clarifies that the publication of images of PoWs can constitute exposure to public curiosity even without accompanying insult, humiliation or ill intent, thus broadening the scope of protection.Footnote ⁵⁰ The expansion of the concept is a consequence of the risks inherent in the global nature of modern telecommunications. This factor has also resulted in the territorial limits of the standard being extended to bind third States and actors that are not party to the conflict, as images of prisoners and protected persons “leaked to the press or posted on the internet can be quickly picked up and retransmitted by television channels, newspapers or websites all over the world”.Footnote ⁵¹ On this note, the ICRC Commentary on GC III clarifies that all States bear this responsibility, both parties to the conflict and non-parties, under Article 1 common to the four Geneva Conventions (common Article 1), which prohibits any aid or assistance in violations of IHL,Footnote ⁵² and Article 129(3) of GC III, which mandates measures to suppress acts contrary to the Conventions.Footnote ⁵³ The Commentary also recognizes due diligence obligations of media outlets such as media channels and television networks, with implications for social media platforms, which are increasingly influential in shaping public perceptions of war. This evolving interpretation is consistent with similar provisions in international law, most notably with the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, which concludes that Detaining Powers must prevent their networks from being used to “violate the respect or honour owed to prisoners of war”.Footnote ⁵⁴ This includes a specific prohibition bearing, although indirectly, on traditional and social media with regard to “posting information or images on the Internet that could be demeaning or that could subject prisoners of war or interned protected persons to public ridicule or public curiosity”.Footnote ⁵⁵

The ICRC Commentary on GC III further specifies that the prohibition against exposing identifiable images of PoWs to public curiosity “applies equally to deceased prisoners of war: their remains must be treated with respect. The prohibition on exposing prisoners or their identifiable images to public curiosity therefore applies in the same fashion to their dead bodies.”Footnote ⁵⁶ This suggests that the exposure of identifiable images of deceased prisoners and protected persons would violate the respect owed to the dead under IHL. Regarding the transmission, publication or broadcasting of images, it is provided in the Commentary that publicly sharing any materials enabling identification or depicting prisoners in humiliating or degrading situations would amount to subjecting them to public curiosity. Therefore, such materials may not be transmitted, published or broadcasted, unless there is a compelling reason of public interest.Footnote ⁵⁷ It is worth mentioning here that in IHL, the threshold for invoking public interest is notably high.Footnote ⁵⁸ Moreover, even in instances where the justification of public interest holds, media outlets are expected to make every effort to protect the dignity and identities of the individuals depicted, ensuring that images fulfil their purpose without disclosing the identities of those involved, and thus maintaining a balance between freedom of the press, the public’s right to information and the individual’s right to privacy and dignity.Footnote ⁵⁹

In conclusion, the emergence of digital media appears to have triggered, or at least facilitated, the expansion of the protective regulatory framework designed to uphold respect for the deceased. To further explore the evolving protection and nuanced understanding of the inherent dignity of the conflict dead, particularly through the regulation of their images, this issue will be now examined under the lens of IHRL. Human rights are recognized to apply both online and offlineFootnote ⁶⁰ and, save through derogations,Footnote ⁶¹ they are applicable in wartime.Footnote ⁶² IHRL binds States in their interactions with everyone within their jurisdiction, as well as imposing due diligence obligations on private actors operating within their jurisdiction. Resorting to IHRL also offers the possibility to evaluate, and eventually bridge, the extent of protection afforded under IHL. In fact, the categories examined in this section, along with their associated protective scope, are limited to IACs and, more specifically, to individuals that are under the control, within the territory or under the occupation of a power of which they are not nationals.

Privacy in times of conflict and the evolving notion of inherent dignity of the dead in international human rights law

Human rights treaties, with a few notable exceptions,Footnote ⁶³ generally lack provisions directly addressing the treatment of the dead; therefore, the protection of deceased persons can typically be inferred from broader human rights principles. For instance, States are bound, under human rights treaties, to respect the right to life, including its procedural limb, requiring effective investigations and reparations in case of breaches.Footnote ⁶⁴ Similarly, the protection of human dignity, the right to private and family lifeFootnote ⁶⁵ and the prohibition of cruel, inhuman or degrading treatment or punishmentFootnote ⁶⁶ have all been interpreted by regional human rights courts as encompassing obligations related to the dignity of the dead. While all these principles are relevant and require States to comply with certain obligations regarding the dead, this paper wishes to focus on the right to privacy. While the right to life and the prohibition of inhuman and degrading treatment relate to the circumstances of death itself, this research instead focuses on a subsequent concern – namely, the public exposure of those who have died. The right to privacy therefore offers a particularly insightful lens through which to examine the challenges posed by publicly shared images of the war dead. Furthermore, through a balancing analysis with freedom of expression, it enables an exploration of the tension between dignity, media exposure and the legal-ethical limits of publication, shedding light on how the sharing of such images may intersects with other rights.

To begin with, the right to privacy is a concept traditionally pertaining to human rights. Due to rapid technical advancement in warfare, privacy and data protection in armed conflicts have recently begun to be scrutinized.Footnote ⁶⁷ However, there are no IHL provisions regulating privacy, making human rights law a valuable general framework for addressing these concerns.

At this point, the jurisprudence of the European Court of Human Rights (ECtHR) comes to the fore. The ECtHR has developed one of the most robust standards on privacy, specifically in the context of media and photographic representations, under Article 8 of the ECHR.Footnote ⁶⁸ Moreover, its extensive jurisprudence on the balancing of privacy and freedom of expression, along with its authoritative and binding nature, makes it a valuable point of reference for this analysis.

The ECtHR has recognized that a “person’s image constitutes one of the chief attributes of his or her personality”, and that “[t]he right to the protection of one’s image … presupposes the individual’s right to control the use of that image, including the right to refuse publication”.Footnote ⁶⁹ During conflicts, however, the chaotic nature of events might result in a lack of consent concerning the use of images by the victim’s next of kin. Thus, decisions regarding the publication of images must undergo a careful balancing test, weighing privacy rights against other interests – in particular, freedom of expression, as “freedom of expression includes the publication of photos” and is “an area in which the protection of the rights and reputation of others takes on particular importance”.Footnote ⁷⁰ Freedom of expression is governed by Article 10 of the ECHR.Footnote ⁷¹ Paragraph 2 of Article 10 sets out that it is not an absolute right and that the exercise of this freedom carries with it “duties and responsibilities”.Footnote ⁷² Thus, freedom of expression can be restricted in some circumstances, provided that the restriction is prescribed by law, is aimed at protecting one or more overriding interests, and is necessary in a democratic society.Footnote ⁷³ Limitations on freedom of expression may result from interference with another equally protected fundamental right, such as the protection of the reputation or privacy of others, and in such cases, the ECtHR’s analysis consists in finding the right balance between freedom of expression, the public’s interest in knowing, and the conflicting right. A key element applicable to the matter at hand is that a private individual, who is unknown to the public, can claim heightened protection of their right to privacy vis-à-vis freedom of expression, especially when the photos or videos in question are aimed only at satisfying public curiosity. In such cases, the ECtHR has ruled that freedom of expression should be interpreted more narrowly.Footnote ⁷⁴ The concept of public curiosity is outlined, by the ECtHR, through testing whether the information has a “value for the general public”Footnote ⁷⁵ and whether the photo or report “contributed to a factual debate”.Footnote ⁷⁶ If not, the material in question is considered to be aimed merely at satisfying public curiosity.

The publishing outlet’s duties and responsibilities connected with the choice of publication medium are also influenced by the “situation and technical means”Footnote ⁷⁷ used, as well as by the “potential impact of those means”, which “must be taken into account when considering the proportionality of the interference”.Footnote ⁷⁸ For instance, in a case concerning the publication of a photo showing a French prefect’s lifeless body, the ECtHR determined that the circumstances of the prefect’s death, which were violent and traumatic for the family, should have been considered.Footnote ⁷⁹ The publication medium was also scrutinized, and the Court reached the conclusion that the publication of the picture in a widely distributed magazineFootnote ⁸⁰ intensified the trauma connected with the death of the victim. Therefore, it can be argued that the publication of a photo on social media would entail a heightened threshold of responsibility and duty, due to the inherent characteristics of the technical means of publication. This is particularly true given that images shared online are not only exposed to a vast audience but also enter a state of potentially perpetual circulation.Footnote ⁸¹ The obligation becomes more pronounced when the circumstances depicted in the image are especially traumatic or humiliating, as the way an individual is represented in an image is a significant factor in the balancing test, alongside how the image is published.

A further element that, according to the ECtHR jurisprudence, raises the threshold of due diligence in publication decisions is the absence of consent for publication. On this point, the ECtHR offers valuable insight, despite not directly or definitively solving the issue. The Court has held that when the press intends to publish a photograph without the consent of the persons concerned, it must provide evidence of the circumstances under which the photograph was taken. This allows the relevant courts or authorities to assess whether the publication respects the legitimate expectations of privacy held by the person depictedFootnote ⁸² or, in the case of the dead, by their family members and next of kin.

In sum, IHRL seems to provide numerous elements that can extend the reasoning advanced in this article. The reference to public curiosity, and the imperative to protect individuals from it – especially where the ECtHR narrows freedom of expression in cases involving private individuals and content serving only public curiosity – is particularly significant, because it suggests that the concept could be meaningfully expanded beyond the categories of PoWs and protected persons in the sense of GC IV to encompass contexts involving non-international armed conflicts (NIACs) and scenarios involving non-State actors. Furthermore, the flexible threshold envisioned by the ECtHR in defining responsibility within the framework of freedom of expression is particularly relevant. This threshold, influenced by situational and technical factors as well as the legitimate expectations of privacy of the individual depicted, could be relevant to cases involving the dissemination of particularly graphic or humiliating photographs on media platforms.

Resorting to IHRL might, however, have its limits. The main one is that unlike in IHL, which attributes inherent dignity to the dead, in the field of international human rights the obligation to respect and protect those who have lost their legal capacity upon death seems to be derived from the rights of surviving next of kin. The lack of recognition of the residual rights of the deceased person, together with the plausible absence of surviving or trackable close relatives in contexts of war, implies a significant protective gap.

However, especially in the context of the post-mortem protection of personal data and related privacy rights, the question increasingly arisesFootnote ⁸³ as to how to protect deceased individuals and their extra-patrimonial rights.Footnote ⁸⁴ In various legal systems, such rights can be subject to acquisition iure proprio by the deceased’s successors, who may exercise them limitedly, in the event of injury and for matters of protection of the memory or image of the deceased.Footnote ⁸⁵ While this affords a certain degree of protection, it usually implies that these rights are exercised in the capacity of those affected or harmed by the tortious action against the deceased, rather than directly exercised for the protection of the residual rights of the person concerned.Footnote ⁸⁶

Similarly, most of the international jurisprudence seems to confirm that dignity and the rights ensuing therefrom belong to the surviving family members. This interpretation is confirmed in ECtHR case law,Footnote ⁸⁷ but the emphasis on survivors is not unique to the latter Court and rather reflects a broader consensus among other relevant human rights adjudicatory bodies. For instance, both the Human Rights CommitteeFootnote ⁸⁸ and the Inter-American Court of Human Rights (IACtHR)Footnote ⁸⁹ have determined that the disrespectful treatment of a deceased individual generally constitutes a form of ill-treatment inflicted upon their relatives.

However, more recent developments, often engaging interrelated concepts of the right to privacy, the right to be forgotten and personality rights, appear to favour the interpretation that the concept of inherent human dignity can be applied posthumously.Footnote ⁹⁰ For instance, while the ECtHR has generally found violations of privacy only when the offence against the deceased significatively impacts the rights of a living applicant,Footnote ⁹¹ in a recent reasoning it appears to suggest that the right to be forgotten might directly apply to a deceased person, while eventually being exercised by a next of kin.Footnote ⁹² Similarly, the Court pointed to the inherent dignity of a dead person in a defamation case by stating that insults directed to the deceased were contradicting “respect for human beings” and constituted an “attack on the core of personality rights”.Footnote ⁹³ While the Court refrained from fully recognizing the protection of the reputation of the dead person, this seems to point to a plausible legal development with respect to the trend observed in previous case law.

Similarly, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, in a recent report dedicated to human rights and the treatment of the dead, has noted that there is a growing recognition within national legal frameworks that inherent human dignity does not terminate upon death.Footnote ⁹⁴ In the report, the Special Rapporteur mentions various and diverse jurisdictions, such as Chile, France, India and Kenya, that explicitly acknowledge this notion through laws or jurisprudence. Notably, German courts have affirmed that deceased individuals possess posthumous rights, using the concept of dignity to protect personality rights such as the right not to be defamed.Footnote ⁹⁵ Similarly, the Spanish Ley Orgánica 1/1982 mandates that, although the death of a subject would extinguish his or her personality rights, the memory of the deceased constitutes an extension of those rights which is protected by the law. Therefore, legal protection of the memory of the deceased is triggered only when an injury to that memory occurs, at which point either a next of kin or the Public Prosecutor’s Office may intervene to seek redress.Footnote ⁹⁶ Finally, in India, it is a well-established legal principle that the rights to life, fair treatment and dignity, enshrined in Article 21 of the country’s Constitution, extend not only to living individuals but also to their deceased bodies. Among the basic principles for upholding the dignity of the dead in India, there is the right to be protected from defamation as well as the right to privacy.Footnote ⁹⁷ Notably, many of these national laws draw on the language of human rights, particularly in relation to privacy and personality rights.

The trend outlined by the Special Rapporteur has a twofold significance. First, it broadens the analytical scope beyond the practice of the ECtHR, pointing to a potential normative shift towards a more expansive interpretation of posthumous rights. Second, the invocation of human rights language by States may point towards the emergence of an opinio juris supporting the recognition of the dignity of the dead under the framework of IHRL.

In conclusion, recent developments in international and national law suggest an evolution beyond the focus on survivors and toward an (albeit embryonic) recognition of the inherent dignity of the deceased through privacy and personality rights. Divergent interpretations persist across jurisdictions, but the emergence of this concept in different legal systems may signal a developing opinio juris recognizing the enduring dignity of the deceased and allowing heightened protection thereof.Footnote ⁹⁸

Turning to international criminal law: Changing meanings of humiliating and degrading treatment of the war dead in the digital era

ICL provides us with the third lens through which to look at the issue under discussion. The Rome Statute of the ICC codifies the war crime of outrages upon personal dignity, in particular humiliating and degrading treatment.Footnote ⁹⁹ The dissemination of footage has been confirmed by the ICC to possibly constitute “cruel, dehumanizing, and degrading” treatment.Footnote ¹⁰⁰ Similarly, lack of respect for the dead can fall within the scope of this war crime. More precisely, the Elements of Crimes clarify that the term “persons” found in Articles 8(2)(b)(xxi) and 8(2)(c)(ii) of the Rome Statute extends to deceased individuals, as “the victim need not personally be aware of the existence of the humiliation or degradation or other violation”.Footnote ¹⁰¹ This interpretation is pivotal as it establishes that outrages upon personal dignity can be committed against unconscious individuals or the deceased. It ensures the protection of dignity regardless of the victim’s awareness, thereby bridging the protection gap found in IHRL, which we have found to be skewed towards the survivors. An additional element, concurrently introduced in the Elements of Crimes, is that of the victim’s cultural background, which is recognized as pivotal in assessing whether an act constitutes an outrage upon personal dignity.Footnote ¹⁰² Notably, this recognition appears in conjunction with the above-mentioned extension of the term “person” to include the deceased, thus creating a direct link between outrages upon the dead and cultural sensibilities. This connection is not incidental, as in many societies and communities, certain treatments of the deadFootnote ¹⁰³ – including photographing of human remains or, even more so, making such images publicly viewableFootnote ¹⁰⁴ – are considered unethical, insensitive and deeply harmful.Footnote ¹⁰⁵

While ICL arguably provides valuable insights, it should be noted that criminal responsibility entails a high threshold. For this reason, the mere publication or sharing of images of the deceased is unlikely to constitute an international crime by itself. The relevant case law focuses on the enemy party disseminating video and photographic materials depicting victims from the opposing side and with the specific intent to humiliate the dead.Footnote ¹⁰⁶ The ICC has considered the posting and sharing of visual materials as adding to the perpetrator’s intent to further degrade the victims, as seen in the Al Hassan and Al Werfalli cases.Footnote ¹⁰⁷ Recent domestic jurisprudence under universal jurisdiction laws in Germany, Sweden, Finland and the Netherlands has addressed the issue of photographing war dead as constituting a war crime under Articles 8(2)(b)(xxi) and 8(2)(c)(ii) of the Rome Statute. In these cases, courts have found defendants guilty of humiliating and degrading treatment for taking or disseminating images of deceased individuals in conflict settings. While a more comprehensive analysis is provided by Mischa Gureghian Hall in this issue of the Review,Footnote ¹⁰⁸ it is relevant to highlight, for present purposes, the growing number of cases in which defendants have been convicted of war crimes for posing with corpses and/or sharing such images online,Footnote ¹⁰⁹ even where they could not be directly linked to the underlying acts of mutilation or mistreatment of the corpses. Notably, in most cases, the essence of the humiliating and degrading treatment has been found in the very act of exposing the deceased to the public gaze. Importantly, this harm does not seem to be construed as a wrong against the family or next of kin, but rather as a violation of the inherent honour and dignity of the deceased as persisting beyond death. This approach underscores a heightened standard of inherent dignity attributed to victims and to the visual representation of their bodies.

However, there is a higher threshold when it comes to the mens rea element,Footnote ¹¹⁰ as perpetrators are generally found guilty when posing with mutilated bodies or when mocking them by, for example, “broadly smiling and displaying a victory sign” or “putting one foot on the victim”.Footnote ¹¹¹ This mens rea standard seems to be higher than the knowledge standard established by the International Criminal Tribunal for the former Yugoslavia (ICTY) in relation to the crime of outrages upon personal dignity.Footnote ¹¹² Beyond the mere taking and sharing of the picture, the humiliation is proven by factors such as the explicit mocking of the victim, thus suggesting a mens rea standard of intent, which is, of meaning to cause that consequence, in the wording of Article 30 of the Rome Statute.Footnote ¹¹³

The OSINT conundrum

As illustrated by the cases presented in the previous section, images of the dead are often both evidence of and constitute the material act of the crime. This duality raises a question relating to OSINT investigations, which rely on publicly available data such as geospatial information, satellite imagery, social media posts, think tank studies, and information available on traditional mass media and, generally, on the internetFootnote ¹¹⁴ to conduct investigations on grave violations of IHRL or IHL. A dedicated section is warranted here because OSINT is generally employed in the context of accountability processes that are often relevant to, but not limited to, ICL. This brief examination of OSINT is also aimed at underscoring that a deep and critical reflection on both the content and manner of visual representation is needed to make sense of emerging practices.

On the one hand, OSINT investigations have proven invaluable for gathering key evidence and for bypassing traditional information gatekeepers.Footnote ¹¹⁵ On the other hand, they pose crucial challenges in terms of privacy,Footnote ¹¹⁶ reliabilityFootnote ¹¹⁷ and admissibility,Footnote ¹¹⁸ making the use of such evidence fraught with challenges. As noticed by Zarmsky, “[m]uch of the literature that focuses on the intersection between new technologies and human rights has concentrated on how technology can be used to enhance accountability” and has overlooked how “technology enables novel forms of perpetration of existing international crimes or entirely new crimes”.Footnote ¹¹⁹ It is noteworthy that the posting of pictures with the intent of circulating evidence by a party or outlet other than that of the enemyFootnote ¹²⁰ is disincentivized as there exist other more suitable and effective methods to reach the same aim.Footnote ¹²¹ Similarly, the Berkeley Protocol on Digital Open Source Investigations sets out some ethical considerations to be followed when conducting OSINT investigations. In particular, it suggests that

Technological advancements, including artificial intelligence and deepfakes, pose significant threats to the reliability of digital evidence. The erosion of epistemological foundations in journalism and human rights investigations could render justice processes more difficult and resource-intensive. As the volume of online information grows, so too does the challenge of verifying the authenticity of images and videos, which are increasingly susceptible to manipulation, potentially rendering OSINT investigations inoperable. Indeed, one of the greatest challenges for using OSINT materials to build a case and prosecute is posed by the verification of relevant material within an increasing volume of online information, especially photographs and videos captured on smartphones and other mobile devices, some of which may be compromised or misattributed.Footnote ¹²³

Conclusion: On the evolving notions of inherent dignity and frameworks for protection

This article has explored how contemporary transformations in the relationship between war, death and photography may influence the legal rules protecting the dead in armed conflict. By examining this issue through the lenses of IHL, IHRL as it applies during armed conflict and ICL, and by employing a systemic integrative approach,Footnote ¹²⁴ the analysis has aimed to assess whether and how the normative landscape surrounding the protection of the inherent dignity of the deceased in armed conflict is shifting. The inquiry has revealed that, although the protection of the dead takes on distinct nuances across the three legal regimes, there is a discernible trend towards increased sensitivity regarding the use and dissemination of images of the dead and, eventually, a broader normative emphasis on their inherent dignity. It appears that recent digital advancements in photography and image sharing have catalyzed this evolution, presenting both challenges and opportunities for legal development. Ultimately, this evolution reflects broader questions about how societies regulate the visibility of the vulnerable “other” and how legal systems respond to shifting cultural practices of representation, memory and respect in times of war.

The approach suggested in this article has aimed at integrating the strength of three different normative frameworks, which differ in their legal, social and historical objectives and premises, in order to respond to the challenges posed by digital media. It has been found that IHL offers foundational protections, particularly during IACs, including a prohibition against exposing PoWs and other protected persons to public curiosity. Rather than undermining existing legal obligations, the evolution of visual media appears to have reinforced them. This is particularly evident in the updated 2020 ICRC Commentary on GC III, which explicitly extends the application of the principle of dignity to the online sphere, including the internet and social media platforms. However, while the circulation of images may be justified by an overriding public interest, the latter concept remains insufficiently defined within the framework of IHL. Moreover, IHL’s emphasis on preserving anonymity, for instance through the blurring of images and faces, does not adequately address broader concerns regarding the context of publication, the modes of representation or the potential emotional and psychological impact of imagery.

This gap brings us to IHRL. An analysis of ECtHR jurisprudence has demonstrated the requirement, for States party to the ECHR, of conducting a contextual assessment of image publication. This includes consideration of whether representations risk exacerbating trauma or humiliation, as well as attention to the specific medium of dissemination, particularly given the vast reach and permanence associated with social media platforms. The ECtHR case law further emphasizes the necessity of obtaining consent prior to publication; in cases where consent is not feasible, publishers must be able to justify the use of such images by providing information about the circumstances under which they were obtained, thereby enabling an assessment of whether the deceased’s and their family members’ legitimate expectations of privacy and dignity have been respected. This framework assumes particular significance for actors operating in third States, especially media outlets that are not directly bound by IHL but are nonetheless subject to domestic legal standards, informed by IHRL obligations and influenced by public expectations. Nevertheless, despite emerging jurisprudence and doctrinal developments recognizing certain residual rights of the deceased, the prevailing focus remains on the rights of survivors as primary beneficiaries, thus revealing a structural limitation in fully protecting posthumous dignity under human rights law.

In contrast, ICL has long recognized the inherent dignity of the deceased. The prohibition of outrages upon personal dignity under ICL encompasses acts that may occur irrespective of the victim’s awareness, thus reflecting a robust commitment to posthumous respect. Developments in digital media have further influenced this field, with courts increasingly relying on images of the deceased both as evidentiary material and, in a growing number of cases, as the corpus delicti itself. Nevertheless, ICL’s scope is confined to instances involving deliberate humiliation by identifiable perpetrators, thereby excluding the broader array of public, private and institutional actors involved in the digital circulation of such images.

Finally, the practice of open-source intelligence introduces an important dimension. While OSINT has proven instrumental in documenting violations and supporting accountability mechanisms, it simultaneously raises complex ethical and legal concerns. Moreover, it has been invoked as a justification for the dissemination of images depicting deceased individuals. The brief discussion of OSINT in this paper highlights the need for a critical and principled approach to the practice. Specifically, it suggests that emerging standards in this field should prioritize verification and reporting mechanisms that avoid public dissemination when such dissemination would contravene privacy and dignity protections. In this way, the question of what is shown and how it is shown becomes central to shaping both the evidentiary and normative dimensions of this evolving practice.

In closing, this paper has aimed at drawing the attention of international legal scholars to the power of images in shaping societal hierarchies and reinforcing the power dynamicsFootnote ¹²⁵ underlying both IACs and NIACs. Visual media does not merely nor objectively document conflict; rather, it actively participates in the construction of meaning and legitimacy, often prompting normative shifts. This happens either through gradual legal evolution or by exposing tensions within existing legal frameworks when they no longer align with contemporary realities. In an era where the boundaries between information, representation and manipulation are increasingly blurred, it becomes essential to critically engage with the processes through which images are produced, circulated and consumed. Doing so is essential not only for understanding their ethical and political implications but also for shaping the legal obligations that must accompany their use, particularly in contexts marked by violence, vulnerability and contested narratives.