Searching for law at the Security Council: fact-making in the age of digital evidence

Abstract

The emergence of new tools for the media and other civil society actors to harness digital information found in the public domain offers the potential for unprecedented access to detailed and evidence of state wrongdoing that was previously available only to states with powerful intelligence agencies. Yet instead of engendering a new era of transparency and meaningfully restructuring international legal discourse beyond judicial proceedings, a sober look at the new realities of fact-making in the digital age reveals continuity rather than disruption. Using the example of deliberations at the UN Security Council after the incident at al-Ahli Arab Hospital in Gaza City in October 2023 in comparison with the factual disputes surrounding the so-called Markale Massacre that occurred during the siege of Sarajevo in 1994, this intervention argues that while digital technologies used to record atrocities and novel techniques of narration can help overcome some long-standing structural and cognitive constraints of fact-making, they ultimately fail to losen the grip powerful state actors continue to exert over the construction of a shared perception of reality for the purpose of international legal discourse. This brief intervention looks at the process of fact-making at the UN Security Council and the impact of digital technologies, in particular the emergence of open-source information as provided by the media and other civil society actors.