Terror, Chaos, and Shame: When Information Operations Constitute War Crimes
The informational dimension of Russia’s war of aggression against Ukraine has provoked important debate around the legal framework applicable to information operations in armed conflict. However, Russia’s weaponization of information goes far beyond Ukraine, with different types of information campaigns tied to conflicts in Europe, Latin America, the Middle East, and Africa. While information and psychological operations have always been an integral part of warfare, new and emerging technologies are amplifying their effects and expanding their reach. The increasingly harmful consequences of these types of operations have prompted legal scholars and criminal prosecutors to consider when and under what circumstances the spread of malicious information may qualify as an international crime. In August 2023, the UN Human Rights Council warned that Russian propaganda could amount to incitement to genocide, and in June 2024, the International Federation for Human Rights petitioned the International Criminal Court (ICC) to investigate Russian hate speech as contributing to the crime against humanity of persecution.
In October 2024, the Human Rights Center at the University of California, Berkeley School of Law (where I work) submitted a confidential filing to the ICC Prosecutor detailing the ways in which Russian private military contractors (PMCs) are committing war crimes and using social media to advance political and military objectives in the Sahel region of Africa. Drawing from material in that submission, this post analyzes how several provisions of the Rome Statute could apply to the malicious dissemination of “conflict content”: a term that describes any information on the internet including text, images, audio, video, and software applications that depict, describe, originate from, or otherwise relate to an armed conflict. Without exploring the specific details of the Berkeley Human Rights Center’s submission to the ICC, this post uses real-world examples from the Wagner Group’s use of Telegram in Africa, where Wagner fighters are engaged in active hostilities alongside local armed forces in a number of countries.
The most prevalent “conflict content” spread by Wagner-affiliated Telegram channels is graphic imagery of civilians or captured combatants who are dead or wounded. This includes content ranging from torture videos to mutilated bodies to trophy photos in which, for example, a fighter poses with the decapitated head of his slain enemy. The intent of documenting and distributing this content is often to humiliate, demean, threaten, or terrorize enemy combatants and civilian populations alike. This content may violate several protections established under international humanitarian law (IHL) including, but not limited to, the prohibition against exposing prisoners of war (POWs) to public curiosity, the prohibition against mutilating and despoiling dead bodies, the prohibition against collective punishment and all measures of intimidation or terrorism, and the prohibition against torture and other cruel, inhuman, or degrading treatment.
The publication of violence has long been a hallmark of the Wagner Group, which became infamous for sharing videos of brutal sledgehammer murders and beheadings in Syria and Ukraine. On the African continent, however, this content has gone far beyond a few viral videos. Rather, the group’s media channels have evolved into a 24/7 stream of on-demand gore. These Wagner-affiliated accounts post images and videos of their crimes in the most graphic way imaginable with disturbing or mocking commentary that not only serves as evidence of their crimes but amount to potential crimes in and of themselves (namely, the war crime of outrages on personal dignity and the crime against humanity of other inhumane acts).
The War Crime of Outrages on Personal Dignity
In 1946, an Australian Military Court convicted three Japanese officers in the Trial of Tanaka Chuichi and Two Others of severe ill-treatment of POWs after the Japanese officers beat POWs unconscious and cut off their hair and beards. The prisoners were Indians belonging to the Sikh religion, the tenets of which forbade them from removing their hair or beards. They were also forced to smoke cigarettes in contravention of their religious beliefs. This novel decision was the first to interpret the 1929 Geneva Convention (GC) to protect prisoners of war from attacks on their religious beliefs as well as attacks on life and limb. The court, which based its decision entirely on documentary evidence, found support for its decision in Article 2, which states that prisoners of war shall “at all times be humanely treated and protected, particularly against acts of violence, from insults and public curiosity,” and Article 3, stating that “prisoners of war are entitled to respect for their persons and honour.”
The following year, a United States Military Court issued its decision in the Trial of Max Schmid, acquitting him on two charges of murder of POWs, but convicting him for the mistreatment of a dead member of the U.S. Army. Schmid was a German medical officer serving in France during the Second World War. Evidence in his trial showed that he took the severed head from the corpse of an American airman, “boiled it and removed the skin and flesh and bleached the skull which he kept on his desk for several months.” He later sent the skull to his wife in Germany as a souvenir. The court sentenced Schmid to ten years in prison for the mutilation of the dead body and refusal of honorable burial in contravention of the rule protecting the dead left on the battlefield enshrined in the 1929 GC for the Amelioration of the Conditions of the Wounded and Sick of Armies in the Field.
These two cases provided initial jurisprudence upon which the judges at the International Criminal Tribunal for the former Yugoslavia (ICTY) expounded several decades later. At the ICTY, the Trial Chamber considered the war crime of outrages on personal dignity in Prosecutor v. Aleksovski, Prosecutor v. Kvočka, Prosecutor v. Kunarac, and Prosecutor v. Furundžija. In Aleksovski, the Trial Chamber described outrages upon personal dignity as particularly intolerable forms of inhumane treatment that cause “more serious suffering than most prohibited acts falling within the genus.” Thus, the act or omission “must cause serious humiliation or degradation to the victim.” The Chamber emphasized the objective measure that “the humiliation must be so intense that the reasonable person would be outraged.”
Kvočka confirmed this approach, but the Trial Chamber in that case found it appropriate to include the victim’s temperament or sensitivity in addition to the reasonable person standard. Following the same approach, the Kunarac Trial Chamber explained that “the humiliation or degradation inflicted upon the victim need not be lasting.” With respect to the mens rea, the Kunarac Appeals Chamber affirmed that “the crime of outrage upon personal dignity requires that the accused knew that his act or omission could cause serious humiliation, degradation or otherwise be a serious attack on human dignity,” highlighting that this only requires that the accused had knowledge of the “possible consequences” of the act or omission. Finally, the Trial Chamber recognized that the manner in which other crimes are carried out may give rise to this charge. For example, in Furundžija, the judges found that the rapes in front of soldiers who were watching and laughing caused severe public humiliation in addition to physical and mental pain.
In 1998, the war crime of outrages on personal dignity was codified in Article 8 of the Rome Statute. To charge this crime in the context of a non-international armed conflict pursuant to Article 8(2)(c)(ii), the prosecution must establish the following elements:
1) The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons;
2) The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity;
3) Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities;
4) The perpetrator was aware of the factual circumstances that established this status;
5) The conduct took place in the context of and was associated with an armed conflict not of an international character; and
6) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
The language used in the Rome Statute is the same as Common Article 3(1)(c) of the 1949 Geneva Conventions. The statutes of other international and hybrid criminal courts, such as the ICTY, International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), also codify this as a crime, defining it as “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.” The ICC Elements of Crimes adopts the jurisprudence of the ICTY, recognizing the objective and subjective elements of the crime. In a footnote, it explains that “the cultural background [of] the victim” should be considered when assessing whether an act amounts to an outrage upon personal dignity. Significantly, the Elements of Crimes explicitly states that for this crime, the term “person” can include a dead person, and that the victim “need not personally be aware of the existence of the humiliation or degradation or other violence.” Therefore, this crime can be perpetrated against “unconscious persons, mentally handicapped persons or on dead bodies.”
Over the last decade, there have been a growing number of universal jurisdiction cases in national courts in which accused persons have been charged and convicted of the war crime of outages on personal dignity. The principle of universal jurisdiction allows States to bring criminal proceedings for grave international crimes irrespective of the location of the crime and the nationality of the perpetrator or victim. Most of these cases have involved the use of information and communications technologies (ICTs), particularly smartphones and social media, to commit the act.
For example, in 2016, a Finnish court separately convicted two Iraqi migrants for taking photographs while holding or posing with the decapitated heads of Islamic State fighters and sharing the images on social media. The same year, German authorities convicted a radicalized German national for taking photographs of himself posing with the severed heads of enemy combatants impaled on metal rods in Syria. In the Netherlands, in a case that marked the first time prosecutors used a geolocation report as evidence, the courts convicted a defendant who posed next to a dead man hanging on a cross and posted the photograph to Facebook. To date, there have been at least fifteen similar cases in which digital photographs or videos found on the accused’s phone or posted to Instagram, Facebook, Telegram, or YouTube have been the critical evidence garnering convictions for outrages on personal dignity.
In the majority of these cases, the prosecutors tried but were unable to convict the accused of murder as a war crime based on this evidence. However, the digital documentary evidence alone was enough to secure a conviction for the war crime of outrages on personal dignity. In this sense, this war crime provides a useful tool for prosecutors, similar to the often-cited use of tax evasion charges to convict notorious American gangster Al Capone. It is a lesser, but related and easier-to-prove criminal charge. There is now ample case law in multiple jurisdictions that establishes social media posts as admissible evidence sufficient and strong enough to prove that a defendant has committed the war crime of outrages on personal dignity.
These European universal jurisdiction cases generally involved one or a couple of trophy photographs of fighters posing with dead bodies or decapitated heads. However, these cases, while horrible and reprehensible, pale in comparison to the constant flow of harmful content across multiple Wagner-affiliated Telegram channels. Some specific examples, which are not shown or linked to here (both to spare the reader and to avoid interfering with ongoing investigations), include troves of images of beheading, castration, and dismembered bodies. Images include those depicting men with their pants pulled down to reveal castrations paired with jokes about their “black hoses,” piles of severed arms and legs accompanied with jests about making “black jelly meat,” and impaled heads, some with severed penises placed in their mouths. There are images of trees decorated with decapitated heads and a video of masked white men driving a truck with heads tied off the back. The content also includes themes of cannibalism, bestiality, and rape. Some images of dead bodies have captions like “the liver is already with the cook” and “meat tastes better when you procure it yourself.” Some images show murdered men, naked and posed to embrace dead goats, with captions such as “tired lovers after a hot f*ck in the sun.” Frequently, dead bodies showing signs of torture and brutality are referred to as “roosters,” which is Russian gulag jargon for the lowest caste of prison inmates, often with the pejorative association of being the subject of homosexual acts and sexual violence.
For years now, on the open internet for any member of the public, anywhere in the world to see, members of the Wagner Group have displayed their crimes. Worse yet, to date, they have done this with full impunity, despite significant legal precedent establishing that creating this content in the context of an armed conflict and posting it publicly is a war crime that could be charged by the ICC or any national court in States that have integrated the Rome Statute into domestic legislation and accept the principle of universal jurisdiction.
Crimes Against Humanity and Other Inhumane Acts
In addition to the humiliation and degradation intentionally caused by the posting of this very graphic content, Wagner fighters have other aims in publishing and promoting this information online. They use digital content strategically to instill fear in the opposition and terrorize the civilian population. Therefore, a prosecutor could use the same digital evidence that proves the commission of the war crime of outrages on personal dignity to prove the same perpetrator engaged in the commission of crimes against humanity pursuant to Article 7 of the Rome Statute. In particular, the crime against humanity of other inhumane acts serves as a “catch-all” category for acts that have not been articulated in the statute but are of equal gravity, such as causing severe mental harm.
To charge the crime against humanity or other inhumane acts pursuant to Article 7(1)(k), the prosecution must establish the following elements:
1) The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.
2) Such act was of a character similar to any other act referred to in Article 7(1) of the Statute.
3) The perpetrator was aware of the factual circumstances that established the character of the act.
4) The conduct was committed as part of a widespread or systematic attack directed against a civilian population; and
5) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
The Elements of Crimes and ICC case law establish that crimes against humanity are, among other factors, “characterized by intentional and severe violations of fundamental rights” insofar as this amounts to “conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.” The fundamental rights to privacy and human dignity are both implicated by the non-consensual posting of naked, tortured, or dead POWs or civilians.
Unlike war crimes, crimes against humanity do not require a nexus to an armed conflict. Rather, crimes against humanity need only to be committed as part of a widespread or systematic attack directed against a civilian population. Importantly, as established in ICTY and ICC jurisprudence, the term “attack” carries a slightly different meaning for crimes against humanity than it does for war crimes. In Prosecutor v. Kunarac et al., the ICTY Trial Chamber considered the existence of an attack in the context of crimes against humanity and determined that an attack “can be described as a course of conduct involving the commission of acts of violence.”
The conflict content distributed through Wagner-affiliated Telegram channels is unquestionably widespread; indeed, some may even characterize it as systematic in specific instances. To give a sense of its scale, researchers at the Berkeley Human Rights Center have identified more than 150 Telegram accounts and channels in this network, with many cross-posting and communicating with one another. A few of these channels boast hundreds of thousands of followers, including thousands who have subscribed to a paid channel for particularly graphic content. After years of operation, the number of posts and communications is undoubtedly in the millions. The volume of this content is staggering on its own, but it is even more shocking considering the number of unique victims of the Wagner Group’s violence. There are thousands of African victims visible in these images and videos. The death of each of these victims serves as new, attention-grabbing content.
According to the Rome Statute and the Elements of Crimes, the perpetrator of an “other inhumane act” must have inflicted a sufficient degree of harm upon a person, qualified as “great suffering, or serious injury to body or to mental or physical health.” As explained in the ICC’s request to investigate the Bangladesh/Myanmar situation, “In past cases, conduct which caused this threshold of harm included: beatings; rape; sexual violence by means of forced nudity; confinement in inhumane conditions; forced observation of killings of family members; forced observation of mutilation; forcible transfer; and forced marriage.”
Regardless of whether family members or specific individuals watch such content on Telegram, visual depictions of Africans being killed, maimed, mutilated and, in some cases, cannibalized, are clearly inhuman and inhumane. The viewing of this content is not just disturbing to those related to the victims, but to anyone who watches. There is significant research that shows watching such graphic content is psychologically harmful even for those who do not personally know the victim (something to which Berkeley researchers can unfortunately attest).
In the case of the Wagner Group specifically, the group’s intent to cause psychological terror is evident in the way it has used systematic information campaigns in countries like Mali. In October 2023, for example, a convoy of Wagner and Malian armed forces set out from their base in Gao on a mission to take back the town of Kidal from insurgents. Over the course of five to six weeks, this convoy moved up Route 16 from village to village, leaving behind a wake of destruction in its path, with clusters of beheadings marking each stop on the Wagner Group’s journey. Specific incidents documented online clearly show the intent to terrorize, including, for example, allegedly decapitating 80 heads of cattle, which both destroyed an important source of food for the population and sent a disturbing message that spread among civilians. In another incident, Wagner forces allegedly killed and beheaded seventeen men and boys and displayed their bodies in the center of town. Wagner forces then booby-trapped the bodies with explosives, placing each severed head ritualistically on its now-detached torso. Later, videos online showed the bodies exploding when town residents attempted to move them for proper burial.
Over the course of several weeks, these types of violent incidents escalated, documented online for all in Mali to see the convoy’s progression getting closer and closer to Kidal. This information had the intended effect, causing so much fear in the population that civilians began to flee their homes. The online campaign resulted in unusually large numbers of refugees and internally displaced persons from the towns along Route 16. By November 7, 2023, an estimated 40,000 to 50,000 people (or 70 percent of the population) had fled the Kidal area. When the Wagner fighters finally reached Kidal, they found little to no resistance, with videos of their arrival showing empty streets and abandoned homes.
The extreme nature of the crimes depicted has sent and continues to send a message to the African people that Wagner Group forces know no limits to the pain they will inflict. It is, at times, designed to cause chaos and confusion that has materialized into civil panic within the population. Based on the intent of the post, what it depicts, and its harmful effects, such content could also be charged as other crimes against humanity such as forcible transfer, deportation, sexual violence, or persecution, given that the targeted victim population was of the same ethnic minority.
Conclusion
The very purpose of having laws to govern armed conflict is to preserve humanity and dignity during times of war. These laws acknowledge that, while the waging of war between States is sometimes a necessity, it should never devolve into complete chaos, lawlessness, and the absolute destruction of human civilization. At its core, the purpose of IHL is to prevent people from becoming monsters. In contrast, the Wagner Group and their public information campaigns embrace horror and moral terror. They seek to prove to the world that they are monsters and gain clout by displaying their inhumanity. The Wagner Group’s use of Telegram and ICTs broadcasts their crimes to every country in the world, making their localized violence a global issue. This flagrant display of lawbreaking cannot continue, as it undermines the very conception of the rule of law.
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Lindsay Freeman is the Director of Technology, Law & Policy at the Human Rights Center, UC Berkeley School of Law.
Photo credit: Taguelmoust
