Scenario 31: Sharing degrading content

State A and Group A are involved in a non-international armed conflict. Group A posts a video to a globally operating social media platform headquartered in State B of a beheading it perpetrated in State A. The video, which depicts the victim in a vulnerable state, is circulated widely online and in mainstream news. The scenario analyses whether the sharing of the execution video amounted to violations of international law, including international human rights law, international humanitarian law, and international criminal law.
==Scenario==
===Keywords===
social media, degrading treatment, international humanitarian law, international human rights law, international criminal law, outrages upon personal dignity.
===Facts===
[F1] Group A, a non-state armed group involved in a conflict in State A, posts a video on a globally operating social media platform of an execution. The social media platform directs its operations from its headquarters in State B and does not have a physical office in State A. 
[F2] The account the video is shared from is claimed as an official account for Group A, and the Group’s insignia appears both in a slide at the beginning of the video and on the uniforms of men in the footage. The video is extremely graphic, depicting a civilian man pleading for his life before he is violently beheaded by a member of Group A, his face clearly visible. After the man is executed, the member of Group mocks him, laughs, and spits on the body. 
[F3] The social media platform removes the video for violating its community guidelines within 24 hours, but by then the video has been widely reshared on the platform and on other websites. The account of Group A is disabled by the platform, but the Group is able to make a new account shortly after. This scenario is one of multiple similar instances, as the Group regularly films itself committing such acts and shares the footage to instil fear and spread propaganda. 
[F4] Group A and State A have been actively engaged in hostilities for years, and Group A has carried out several operations against the State in attempts to gain more control over State A and spread its extremist political and religious message. Group A has a highly organized command structure and has control over a large area of territory within State A, where it also has its headquarters. 
[F5] State A and State B are parties to the International Covenant on Civil and Political Rights (ICCPR),International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). the 1949 Geneva Conventions and Additional Protocols I (AP I) and II (AP II),Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Times of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287; Protocol Additions to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3; Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609. as well as the Rome Statute of the International Criminal Court (‘Rome Statute’).Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute).
===Examples===
*Syria’s ‘social media war’ (since 2011)
*Video of alleged beheading of a Ukrainian Prisoner of War by Russian Forces (2023)
==Legal analysis==
For a general overview of the structure of analysis in this section, see Note on the structure of articles.
[L1] This scenario focuses on the act of filming and sharing footage of an international crime (in this case, an execution). While the acts depicted in the footage may also constitute violations of international law, this analysis is concerned only with the cyber element of the scenario and is therefore restricted to the acts of filming and distributing the video online. First, it examines whether Group A, State A, and State B may be held liable for violations of international human rights law (IHRL). The analysis then considers the characterization of the conflict between State A and Group A as a non-international armed conflict, and further discusses the potential responsibility of Group A for violations of international humanitarian law (IHL). The analysis concludes with an exploration of individual criminal responsibility for agents of Group A.
=== Violations of international human rights law ===
[L2] The video uploaded and shared to social media by Group A depicts an individual at his most vulnerable, moments before his life brutally ends. He is clearly identifiable, so any social media user (including his family and friends) could view and recognise him in the footage. Further, after he is killed in a dehumanising way, his executioners mock him. It is for these reasons that at its root, the key harm that arises from posting this footage is a gross assault on dignity. 
[L3] Dignity is a concept at the heart of IHRL, enshrined in the preamble of the Universal Declaration of Human Rights (UDHR) and referenced throughout international legal jurisprudence.Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR); See also A. Gattini, R. Garciandia, and P. Webb (eds) Human Dignity and International Law (Brill, 2020); G. Le Moli, Human Dignity in International Law (CUP, 2021); J. Benton Heath, 'Human Dignity at Trial: Hard Cases and Broad Concepts in International Criminal Law' (2012) 44 Geo Wash Int'l L Rev 317; M. M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, (OUP, 2020). In addition, Article 5 of the UDHR and Article 7 of the ICCPR provide that “no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment”.Art. 5 UDHR; Art. 5, Art. 7 ICCPR. While a beheading is in itself cruel and degrading treatment, the online element of this offence (sharing footage of the crime to social media) exacerbates the cruelty of the situation, further humiliating the victim. The fact that the video was shared on social media also adds a layer of harm to the victim’s loved ones that would constitute cruel and inhuman treatment. This is because in addition to seeing the content potentially multiple times, they suffer from the knowledge that the footage of someone close to them in such a vulnerable state is still in circulation. 
[L4] Concerning responsibility for the human rights violations mentioned above, although non-state actors are generally not bound to IHRL treaties, it is still possible that Group A could have obligations to respect human rights under IHRL.See Daragh Murray, The Application of International Human Rights Law to Armed Groups (Hart Publishing, 2016) 157-171; Katharine Fortin, The Accountability of Armed Groups under Human Rights Law (OUP, 2017), 323-356; and Antal Berkes, International Human Rights Law beyond State Territorial Control (CUP, 2021) 149-206. Using the de facto control theory,Daragh Murray (n 26) and Katharine Fortin (n 26). Group A would arguably be bound by IHRL applicable to State A and customary IHRL because it is an independent and organized non-state armed group with effective control over a large region of the territory of State A. This would make Group A responsible for the violations of human rights resulting from sharing the video. 
[L5] Additionally, though members of Group A committed the execution and shared the video, State A could still be responsible for harms committed by the group on its territory. This is because States have due diligence obligations to prevent the commission of harm by non-State actors, as confirmed by the UN Human Rights Committee General Comment No. 31 [80] and recognised by regional human rights bodies.UN HRC, General Comment No. 31 [80] The Nature of the General Legal Obligation Imposed on States Parties to the Covenant] (26 May 2004) CCPR/C/21/Rev.1/Add. 13; Commission Nationale des Droits de l’Homme et Libertés v Chad (Merits) African Commission on Human and Peoples’ Rights (October 1995) [20]; Velásquez Rodríguez v. Honduras, (Merits) IACrtHR (Ser. C) No. 4 (29 July 1988) [172]; and Odievre v France, App no 42326/98 (ECtHR, 13 February 2003) [40]; Tatyana Eatwell, State Responsibility for Human Rights Violations Committed in the State’s Territory by Armed Non-State Actors, Geneva Academy Briefing No 13, December 2018, available online at Briefing 13.pdf https://www.geneva-academy.ch/joomlatools-files/docman-files/Academy%20Briefing%2013.pdf, 22. See also Danwood Mzikenge Chirwa, ‘The Doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights’ (2004) 5 Melbourne Journal of International Law. Both State A and State B are parties to the ICCPR. In line with Article 2 of the ICCPR, State A has the duty to “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [Covenant], without distinction”.Art. 2(1) ICCPR. State A would have positive obligations to take appropriate measures to protect individuals from harm and to respond effectively to such incidents, and would be in violation of those obligations if it knew or ought to have known about Group A’s plans to commit the acts or the real and immediate risk of harm,Association of Victims of Post Electoral Violence and Interights v Cameroon (Merits), African Commission on Human and Peoples’ Rights (2009) [115]; Finogenov and Others v Russia, App no 18299/03 and 27311/03 (ECtHR, 18 March 2010) [173]; Tatyana Eatwell (n 28), 23. and failed to plan security operations to minimize such violence or did so with undue delay,Ibid; Association of Victims of Post Electoral Violence and Interights v Cameroon (Merits), African Commission on Human and Peoples’ Rights (2009) [116]. and/or did nothing to respond to such violations after they occurred. As sharing of degrading videos has been a pattern for Group A, it could be argued that State A must have known about this practice and did not take reasonable action, such as through law enforcement, regulations, or working with the social media platform, to stop the content from circulating online or to prevent Group A from creating more accounts.
[L6] In addition to responsibility arising from the conduct of non-State armed groups, States can be responsible for harms caused by private corporations. Although the social media platform is based in State B, the execution video was uploaded and circulated in State A, meaning the corresponding harm took place on its territory. State A would therefore be responsible for harm caused by the social media company through hosting the content and not removing it quickly enough if it could be proven that State A did not take all reasonable measures to prevent such harm.See n 29-31. These due diligence measures could include, for example, ensuring that adequate regulations are in place for social media companies to remove harmful content within a certain timeframe, or potentially ordering internet service providers to block access to platforms who do not comply with regulations. State B may also be responsible for violations of human rights if it did not fulfil its obligations to reasonably prevent harm by the platform operating out of its territory, through for example implementing appropriate legislation to ensure that platforms responsibly moderate content and respect international humanitarian and international criminal law. 
[L7] Though companies are not legally bound by IHRL treaties, the platform could have acted inconsistently with its “responsibility” to respect human rights under the non-binding UN Guiding Principles on Business and Human Rights.UN Guiding Principles on Business and Human Rights, Part II (as endorsed by UN Human Rights Council res 17/4 (16 June 2011)); see also Susan Benesch, 'But Facebook's Not a Country: How to Interpret Human Rights Law for Social Media Companies' (2020-2021) 38 JREG Bulletin 86. This “responsibility” would include not allowing harmful content to circulate on the platform, and also cooperation with judicial mechanisms.Ibid, Commentary on Principle 22. In this regard, the social media platform should ensure that once the content is removed, it is properly preserved for use in future war crimes prosecutions. In this scenario, once the social media platform removes Group A’s video, it should be preserved in its original form, in a secure manner with metadata intact, with its chain of custody documented.Lindsay Freeman, ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials’ 41 Fordham International Law Journal (2018) 283-336; Chelsea Quilling, ‘The Future of Digital Evidence Authentication at the International Criminal Court’(2022) Journal of Public & International Affairs https://jpia.princeton.edu/news/future-digital-evidence-authentication-international-criminal-court. Guidelines for how to best collect and archive content for international prosecutions can be found in the Berkeley Protocol on Digital Open Source Investigations, available at https://www.ohchr.org/en/publications/policy-and-methodological-publications/berkeley-protocol-digital-open-source, and in Human Rights Center, UC Berkeley School of Law, ‘Digital Lockers: Archiving Social Media Evidence of Atrocity Crimes’ (2021) available at https://humanrights.berkeley.edu/publications/digital-lockers-archiving-social-media-evidence-atrocity-crimes/. Further, should a court prosecute members of Group A for alleged crimes, the platform should be willing to share the video with the relevant authorities for use as evidence. 
[L8] In addition, regulation by States A and B in order to prevent the dissemination of violent content and self-regulation by the social media platform needs to strike the right balance and be consistent with the right to freedom of expression.UNCHR, ‘Report on Online Hate Speech’ (9 October 2019) A/74/486, available at https://www.ohchr.org/en/documents/thematic-reports/a74486-report-online-hate-speech; Article 19, Content moderation and freedom of expression handbook (August 2023) available at https://www.article19.org/wp-content/uploads/2023/08/SM4P-Content-moderation-handbook-9-Aug-final.pdf; see also Barrie Sander, ‘Freedom of Expression in the Age of Online Platforms: The Promise and Pitfalls of a Human Rights-Based Approach to Content Moderation’ 43 Fordham International Law Journal (2020) 939. In this scenario, there is a clear case for removing the original video as it is violent terrorist propaganda, but for example, approaches to reposts which condemn the video and there is no intent to incite violence may need to be more nuanced (for instance, the platform could keep the text of the repost online but remove the video). Further, any State legislation aimed at regulating the content allowed on social media companies should meet the requirements of legality, necessity, proportionality, and legitimacy under IHRL.Ibid.
=== Violations of international humanitarian law ===
[L9] The hostilities between State A and Group A meet the definition of a NIAC, which triggers the applicability of IHL. This is because (1) the intensity requirement is met given the protracted armed violence between the State and the group,Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [177]. and (2) Group A possesses a clear command structure and strategy, and has a headquarters on territory which it controls, demonstrating that it is an organized group with the capacity to comply with IHL.Prosecutor v Limaj, Bala and Musliu (Trial Judgment) IT-03-66-T (30 November 2005) [129]; Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [199]–[203]. 
[L10] As a party to a NIAC with State A, Group A must comply with IHL, and would be liable for war crimes for violations of IHL. This is because though IHL treaties are ratified by States, it is widely accepted that they can be binding on non-state actors.For instance, Common Article 3 of the Geneva Conventions refers to ‘conflicts not of an international character’, and binds ‘each Party to the conflict’ to its provisions; Common Article 3 GCs. See also Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, [218]; D. Murray, ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’ 20(1) Journal of Conflict and Security Law (2015) 101-131. In addition to war crimes associated with the “offline” element of this scenario (i.e. the beheading of a civilian and spitting on the body), the act of filming and sharing the footage of the execution to social media likely constitutes the war crime of an outrage upon personal dignity.Common Article 3(1)(c) of the Geneva Conventions expressly prohibits “outrages upon personal dignity, in particularly humiliating and degrading treatment”. Although the text of Common Article 3 states that it applies to conflicts of a non-international character, in practice, the prohibitions outlined in the Article have been applied to international armed conflicts as well; Common Article 3(1)(c) GCs; Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 1986 [218], in reference to Common Article 3: 
“There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to more elaborate rules which are also to apply to international armed conflicts”. As defined by the ICTY Trial Chamber in the Aleksovski case, “outrages upon personal dignity” are “particularly intolerable forms of inhumane treatment that cause ‘more serious suffering than most prohibited acts falling within the genus” and “must cause serious humiliation or degradation to the victim”; Prosecutor v. Aleksovski (IT-95-14/1-T), Trial Judgment, 25 June 1999 [54], [56]. This is because the victim is filmed with his face identifiable as he pleads for his life, and the knowledge that he is being recorded at his most vulnerable can make the situation even more distressing.The knowledge that a crime is being filmed, in addition to it being distributed afterwards, can significantly add to the degradation experienced by the victim; Sveinung Sandberg and Thomas Ugelvik, ‘Why Do Offenders Tape Their Crimes? Crime and Punishment in the Age of the Selfie’, 57 The British Journal of Criminology (2017), 1023-1040, 1036. The added humiliation of filming crimes was also recognised by the Office of the Prosecutor of the International Criminal Court in the Al Hassan case, noting in its application for an arrest warrant that the public nature of the crimes and the fact that the videos were shared on social media were particularly humiliating for the victims; Prosecutor v Al Hassan Abdoul Aziz Ag Mohamed Ag Mahmoud (Requête urgente du Bureau du Procureur) ICC-01/12-01/18, PTC (20 March 2018) [136] and [304]; see also Sarah Zarmsky and Emma Irving, ‘Rewrite of Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud’ in Kcasey McLoughlin, Rosemary Grey, Louise Chappell, and Suzanne Varrall (eds) Reimagining Judging in International Criminal Courts: A Gendered Approach (Cambridge University Press, forthcoming 2024), available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4765275, and Sarah Zarmsky, ‘Is International Criminal Law Ready to Accommodate Online Harm? Challenges and Opportunities’ 22 Journal of International Criminal Justice (2024). The footage of his death and the aftermath of his executioner mocking him is then circulated online for any user to see, which constitutes what any reasonable person would view as serious humiliation and degradation.See the ‘reasonable person’ test established for outrages upon personal dignity in Prosecutor v. Kvočka et al. (IT-98-30/1), Trial Judgment, 2 November 2001, [167]. In this scenario, the cyber element of sharing footage of the beheading online exacerbates the harm to the victim, and brings upon an added sense of humiliation to him and his family.The act of sharing footage of this nature to social media has been found by domestic courts to be in violation of the war crime of outrages upon personal dignity. For example, in The Netherlands, a man was sentenced to six years for the crime after posting a photo of himself next to a crucified body of a man executed by the Islamic State on Facebook; ECLI:NL:GHDHA:2021:103, https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:GHDHA:2021:103. Similar cases have occurred in Germany, Sweden, and Finland, see Eurojust, ‘Prosecuting war crimes of outrage upon personal dignity based on evidence from open sources – Legal framework and recent developments in the Member States of the European Union’, February 2018, available at https://www.eurojust.europa.eu/publication/prosecuting-war-crimes-outrage-upon-personal-dignity-based-evidence-open-sources-legal.
[L11] In addition, sharing the video on social media would constitute a violation of Article 13(2) of Additional Protocol II, which prohibits acts or threats of violence intended to spread terror among the civilian population.Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609; see also Cody Corliss, ‘Digital Terror Crimes’ 62 Columbia Journal of Transnational Law (2023) 58-112. This is because by posting footage of a gruesome violent crime to a very public online forum (as opposed to privately sending the video to targeted individuals), it is clear that the members of Group A intended to instil fear in the general population.
=== Violations of international criminal law ===
[L12] The members of Group A could incur individual criminal responsibility for their acts whether perpetrated individually or as part of a joint criminal enterprise. In addition, as State A is a Party to the Rome Statute and the alleged crimes took place on the territory of State A, the ICC would have jurisdiction. 
[L13] To be admissible for prosecution at the ICC, the alleged crimes would also need to have sufficient gravity. The gravity of a crime or case arises in multiple international and domestic frameworks for the investigation and prosecution of international crimes.Priya Urs, Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion (OUP, 2024). In general, it is roughly synonymous with the ‘grossness’ or ‘seriousness’ of a crime. Concerning the ICC, Article 17 of the Rome Statute establishes a ‘gravity threshold’ for the Court to exercise its jurisdiction, providing that a case shall be determined as inadmissible where it ‘is not of sufficient gravity to justify further action by the Court’.Art 17(1)(d) Rome Statute. 
[L14] Gravity is not defined in the Rome Statute, and its meaning has been widely discussed in literature.See Priya Urs (n 59), Margaret M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, (OUP, 2020); Rachel Lopez, ‘The Law of Gravity’ (2020) 58 Columbia Journal of Transnational Law 3, 567-614; Anni Pues, ‘Discretion and the Gravity of Situations at the International Criminal Court’ 17 International Criminal Law Review (2017) 960-984; Stuart Ford, ‘Understanding Crime Gravity: Exploring the Views of International Criminal Law Experts’ 27 William & Mary Bill of Rights Journal (2019) 659-688. In its 2016 Policy Paper on Case Selection and Prioritization, the ICC Office of the Prosecutor (OTP) provided that its assessment of gravity ‘includes both quantitative and qualitative considerations’, and that the factors that guide this assessment ‘include the scale, nature, manner of commission, and impact of the crimes’.ICC Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, 15 September 2016, available at https://www.icc-cpi.int/sites/default/files/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf, [37]. The OTP defined ‘scale’ as dependent on factors such as the number of victims, the extent of the damage caused (and ‘in particular the bodily or psychological harm caused to the victims and their families’), and the geographical or temporal spread of the crimes.Ibid, [38]. The ‘nature’ of the crimes concerns the specific factual elements of the offence, and the ‘manner of commission’ refers to the ‘means employed to execute the crime’.Ibid, [39-40]. ‘Impact’ can be assessed in light of ‘the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities’.Ibid, [41].
[L15] The act of filming and sharing footage of the beheading video by Group A would meet the gravity threshold to be considered admissible before the ICC. This is because sharing footage of a violent crime causes serious mental harm to the victims, their loved ones, and potentially any other user who may stumble across the content online and suffer secondary trauma. The harms inflicted in this scenario are also similar to those previously recognised as grave in ICL jurisprudence, such as in the cases of Kvočka and Furundžija at the ICTY, where the Trial Chambers found that the public nature of the crimes inflicted severe mental suffering that amounted to torture and outrages upon personal dignity.Prosecutor v. Kvočka et al. (IT-98-30/1), Trial Judgment, 2 November 2001, [149]; Prosecutor v. Furundžija (IT-95-17/1-T), Trial Judgment, 10 December 1998, [267(ii)]; Sarah Zarmsky (n 49) 8-12. 
[L16] Concerning the criteria used by the ICC OTP to assess gravity (i.e. nature, scale, manner of commission, and impact),ICC, Office of the Prosecutor (n 62). this scenario fulfils the requirements for each. In terms of the nature and manner of commission of the crimes, sharing the video to a public online forum demonstrates a particular cruelty, depicting the victim at their most vulnerable. It also exacerbates the degradation of the victim and the suffering of their loved ones, as once a video circulates online, it is virtually impossible to remove completely. This is also relevant to the scale of the crime, which may be assessed (in part) with regard to the geographical and temporal spread,Ibid, [38]. as the online element extends the harm permanently from beyond the original incident to a worldwide audience. ‘Scale’ also includes the degree of psychological harm caused to the victims and their families,Ibid. which is the root of the harm of this scenario. Finally, in terms of impact, sharing the video increases ‘the vulnerability of the victims’ and ‘the terror subsequently instilled’,Ibid, [41]. due to the added humiliation of the victims knowing they are being filmed and the footage being shared on the internet, and the terror that violent content can instil in any person who comes across it.
=== War crimes ===
[L17] As this scenario occurred in the context of an armed conflict, the members of Group A who were involved with the beheading video would be liable for war crimes. The members of Group A who recorded the video and shared it to the social media platform would be liable for outrages upon personal dignity as prohibited by Article 8(2)(c) (applicable to NIACs) of the Rome Statute. 
[L18] The Elements of Crimes for Article 8(2)(c)(ii) provides that for the war crime of outrages upon personal dignity, the perpetrator must have “humiliated, degraded or otherwise violated the dignity of one or more persons”, and “the severity […] was of such as degree to be generally recognized as an outrage upon personal dignity”. Additionally, the conduct must have taken place in the context of an armed conflict, and the perpetrator must be aware of the existence of the conflict. As stated above, the members of Group A significantly added to the degradation and humiliation of the victim by filming his execution and sharing it on social media, which would meet the threshold for an outrage upon personal dignity.See n 48 for the definition of “outrages upon personal dignity” established by the ICTY Trial Chamber in the Aleksovski case. In line with this definition, filming and sharing a degrading video of a beheading would constitute a “particularly intolerable form of inhumane treatment’ and would cause ‘serious humiliation or degradation to the victim’. See also n 51; this scenario was found to meet this definition of outrages upon personal dignity in domestic courts. The members of Group A were aware of the existence of a NIAC between Group A and State A, which involved years of protracted armed violence and military operations between the parties. The elements of the crime would therefore likely be met. 
[L19] The Elements of Crimes for Article 8(2)(c)(ii) further note that “persons” can include dead persons, so the victim need not be alive or personally aware of the existence of the humiliation.Elements of Crimes Article 8(2)(c)(ii), ftn 57. Thus, even though the victim was only aware of being filmed and did not live to see the video circulate on social media, the degradation incurred from sharing the footage online can still constitute the crime.
=== Crimes against humanity ===
[L20] Members of Group A could also be liable for the crime against humanity of “other inhumane acts” under Article 7(1)(k) for sharing the execution video. Group A has a systematic practice of attacking the civilian population of State A, which would meet the requirements for a crime against humanity under Article 7. Regarding “other inhumane acts”, sharing degrading footage can amount to inflicting great mental suffering as provided by Article7(1)(k),Elements of Crimes Article 7(1)(k)(1). and as Group A regularly shares this type of content to further humiliate victims and spread their message, it is likely that “the perpetrator knew that the conduct was part of or intended the conduct to be part of” the systematic attack directed against the population.Elements of Crimes Article 7(1)(k)(5). 
==Checklist==
*International human rights law 
**Does Group A have obligations to respect IHRL as a non-state armed group, and were those obligations breached by its conduct?
**Did State A violate the prohibition of cruel, inhuman, and degrading treatment and incitement to violence by allowing members of Group A to film and share a degrading execution video on its territory?
**Is State B under a due diligence positive obligation to prevent the spread of violent and degrading content extraterritorially pursuant to the applicable human rights treaties?
**Did the social media platform respect its non-binding human rights due diligence obligations through its content moderation practices? 
*International humanitarian law
**Does the violence between State A and Group A qualify as a NIAC?
**Does sharing degrading footage online violate the prohibition of outrages upon personal dignity? 
**Does sharing degrading footage online violate the prohibition of acts intended to spread terror in the civilian population?
**Is State B responsible for not preventing it and/or not punishing those responsible for it?
*International criminal law
**Did the alleged perpetrators fulfil the material elements (actus reus) and mental elements (mens rea) of the offence?
**Did the alleged perpetrator commit the offence individually, jointly or through another?
**Would the ICC have jurisdiction over the case? 
**Would this conduct meet the gravity threshold for admissibility at the ICC?
==Appendixes==
===See also===
*Scenario 19: Hate speech
*International human rights law
*Non-international armed conflict
*Individual criminal responsibility under international law
===Notes and references===
===Bibliography and further reading===
*A. Berkes, International Human Rights Law beyond State Territorial Control (CUP, 2021)
*A. Gattini, R. Garciandia, and P. Webb (eds) Human Dignity and International Law (Brill, 2020)
*A. Pues, ‘Discretion and the Gravity of Situations at the International Criminal Court’ 17 International Criminal Law Review (2017) 960-984
*B. Sander, ‘Freedom of Expression in the Age of Online Platforms: The Promise and Pitfalls of a Human Rights-Based Approach to Content Moderation’ 43 Fordham International Law Journal (2020) 939
*C. Corliss, ‘Digital Terror Crimes’ 62 Columbia Journal of Transnational Law (2023) 58-112
*C. Quilling, ‘The Future of Digital Evidence Authentication at the International Criminal Court’ (2022) Journal of Public & International Affairs 
*D. Murray, The Application of International Human Rights Law to Armed Groups (Hart Publishing, 2016)
*D. Mzikenge Chirwa, ‘The Doctrine of State Responsibility As A Potential Means of Holding Private Actors Accountable for Human Rights’ (2004) 5 Melbourne Journal of International Law 
*Eurojust, ‘Prosecuting war crimes of outrage upon personal dignity based on evidence from open sources: Legal framework and recent developments in the Member States of the European Union’ (February 2018) available at https://www.eurojust.europa.eu/sites/default/files/Partners/Genocide/2018-02_Prosecuting-war-crimes-based-on-evidence-from-open-sources_EN.pdf 
*G. Le Moli, Human Dignity in International Law (CUP, 2021) 
*Human Rights Center, UC Berkeley School of Law, ‘Digital Lockers: Archiving Social Media Evidence of Atrocity Crimes’ (2021) available at https://humanrights.berkeley.edu/publications/digital-lockers-archiving-social-media-evidence-atrocity-crimes/ 
*J. Benton Heath, 'Human Dignity at Trial: Hard Cases and Broad Concepts in International Criminal Law' (2012) 44 Geo Wash Int'l L Rev 317
*K. Fortin, The Accountability of Armed Groups under Human Rights Law (OUP, 2017)
*L. Freeman, ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials’ 41 Fordham International Law Journal (2018) 283-336
*Lachezar Yanev, ‘Syrian War Crimes Trials in The Netherlands: Claiming Universal Jurisdiction Over Terrorist Offences and the War Crime of Outrages Upon Personal Dignity of the Dead’ (2023) 52 NYIL 301-326
*M. M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, (OUP, 2020)
*M. Roscini, ‘Gravity in the Statute of the International Criminal Court and Cyber Conduct that Constitutes, Instigates or Facilitates International Crimes’, 30 Criminal Law Forum (2019), 247
*N. Suzor et al., ‘Human Rights by Design: The Responsibilities of Social Media Platforms to Address Gender-Based Violence Online’ (2018) 11(1) Policy and Internet 84-103
*OHCHR and Human Rights Center, ‘Berkeley Protocol on Digital Open Source Investigations’ (2022) available at https://www.ohchr.org/en/publications/policy-and-methodological-publications/berkeley-protocol-digital-open-source
*P. Urs, Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion (OUP, 2024)
*R. Lopez, ‘The Law of Gravity’ (2020) 58 Columbia Journal of Transnational Law 3, 567-614
*R. McCorquodale and P. Simons, ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70(4) Modern Law Review 598-625
*S. Benesch, 'But Facebook's Not a Country: How to Interpret Human Rights Law for Social Media Companies' (2020) 38 JREG Bulletin 86 
*S. Ford, ‘Understanding Crime Gravity: Exploring the Views of International Criminal Law Experts’ 27 William & Mary Bill of Rights Journal (2019) 659-688.
*S. Gregory, ‘Cameras Everywhere: Ubiquitous Video Documentation of Human Rights, New Forms of Video Advocacy, and Considerations of Safety, Security, Dignity and Consent’ (2010) 2(2) Journal of Human Rights Practice 191-207
*S. Sandberg and T. Ugelvik, ‘Why Do Offenders Tape Their Crimes? Crime and Punishment in the Age of the Selfie’, 57 The British Journal of Criminology (2017), 1023-1040
*S. Zarmsky and E. Irving, ‘Rewrite of Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud’ in L. Chappell, R. Grey and K. McLoughlin (eds) Reimagining Judging in International Criminal Courts: A Gendered Approach (Cambridge University Press, forthcoming 2024), available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4765275 
*S. Zarmsky, ‘Is International Criminal Law Ready to Accommodate Online Harm? Challenges and Opportunities’, (2024) 22 (1) Journal of International Criminal Justice 
*T. D. Gill, ‘Classifying the Conflict in Syria’ (2016) 92 International Law Studies 353-380 
*T. Eatwell, ‘State Responsibility for Human Rights Violations Committed in the State’s Territory by Armed Non-State Actors’, Geneva Academy Briefing No 13 (December 2018) available at https://www.geneva-academy.ch/research/publications/detail/455-briefing-no013-state-responsibility-for-human-rights-violations-committed-in-the-state-territory-by-armed-non-state-actors 
===Contributions===
*Scenario by: Sarah Zarmsky
*Analysis by: Sarah Zarmsky
*Reviewed by: Marko Milanovic, Marco Roscini
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