Social media evidence a game-changer in war crimes trial

A case being taken against a Libyan commander is set to be a game-changer for the Hague-based International Criminal Court (ICC).

It is not the heinous nature of the charges against Mahmoud al-Werfalli that mark the case out as different, however, but the fact that all the evidence supporting those charges has, for the first time, been collected from social media.

Al-Werfalli (39), who headed a Special Forces unit of the Libyan National Army (LNA), is wanted by the ICC to answer charges arising from a string of prisoner executions that took place in and around Benghazi in the comparatively recent past, between June 3rd, 2016 and July 17th, 2017.

The killings took place in the “mopping up” stages of a three-year LNA campaign against Islamist militants and a broad spectrum of other “terrorist” groups – which began in May 2014, ironically under the code name “Operation Dignity”, in which Al-Werfalli’s Al-Saiqa Brigade had a leading role.

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The LNA announced victory in Operation Dignity in July, and on foot of those territorial gains is now vying for control of the centre and south of the country with the UN-backed interim Government of National Accord established in Tripoli at the end of 2015.

The allegation against Al-Werfalli is that he either personally executed or oversaw the execution of a total of 33 unarmed prisoners in seven separate incidents in which the victims were masked and handcuffed. Their bodies were later discovered in refuse tips, with gunshot wounds to their heads.

Crystal-clear evidence

The problem for Al-Werfalli is that the charge against him of “murder as a war crime” under article 8 of the Rome Statute is based on the crystal-clear evidence of seven separate videos that capture the graphic and “cold-blooded” detail from those seven separate crime scenes.

One video shows Al-Werfalli, wearing camouflage trousers and a black T-shirt with the Al-Saiqa logo, holding a weapon in his left hand and shooting three figures in the head.

In another, he speaks directly to the camera before dropping his hand in an apparent signal to two men who shoot a number of kneeling figures.

A third shows him shooting an unarmed figure, hooded and kneeling, at whom he shouts: “You have been misled by Satan.”

It's understood that the first of the videos was posted to Facebook, while the other six being relied upon by ICC prosecutor Fatou Bensouda are described simply as having been posted to social media.

Some of the videos are known to have been posted by Al-Werfalli’s Al-Saiqa colleagues themselves.

The ICC judges even note in one case that the evidence supporting the application for their arrest warrant came from “the media centre of the Al-Saiqa Brigade”.

This is reminiscent of the strategy of the Islamic State terror group, which infamously posted videos of a series of executions of western hostages produced by their own media arm between 2014 and 2016.

Digital evidence

For the ICC, however, Al-Werfalli’s is the first warrant based solely on social media evidence, a move which, given the profusion of potential digital evidence of all sorts of events recorded on smartphones and cameras and posted online, was bound to come.

Sweden, in fact, took the lead earlier this year when a domestic court convicted a Syrian man of war crimes in Idlib, in north-west Syria, in 2012, after accepting in evidence a video showing the execution of seven men with their hands tied behind their backs.

There are, of course, procedural difficulties posed by this new era of “open-source evidence”, not the least being that it’s notoriously hard to verify, that it’s hard to prove that it hasn’t been tampered with, and that its date, time and location can be hard to establish beyond doubt.

As a result, the International Bar Association has been developing apps – including one called eyeWitness – which allow photographs and video footage to be stored in secure virtual evidence lockers, to be used later in investigations and, ultimately, in trials.

There’s also the question of whether open-source evidence will be accorded the same weight in court, where the test is “beyond reasonable doubt”, as in issuing an arrest warrant, where the test is simply “reasonable grounds to believe”.

Only Al-Werfalli’s appearance before the ICC judges – if and when that ever happens – will establish those international precedents.