Tag: International Criminal Law

IMPUTING INTERNATIONAL CRIMINAL LIABILITY TO SOCIAL MEDIA COMPANIES: THE CASE OF FACEBOOK IN MYANMAR

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By Isha Ahlawat and Aakanksha Singh

[Isha Ahlawat and Aakanksha Singh are penultimate-year law students at Jindal Global Law School.]

Between August and November 2017, Myanmar’s government and military institutions orchestrated a crackdown on the country’s ethnic Rohingya minority in the northern state of Rakhine. What the UN Independent International Fact-Finding Mission (“FFM”) on Myanmar termed as “clearance operations”, began with troops and local mobs burning Rohingya villages and attacking civilians in response to Arakan Rohingya Salvation Army’s attack on police posts, and culminated in the forced displacement of hundreds of thousands of refugees who fled to Bangladesh. Facebook in particular was chastised for playing a “determining role” in the ethnic cleansing. Through Facebook, politicians, religious leaders, and citizens weaponized decades of ethnic tensions to spread hate speech and propaganda against the Rohingyas. Facebook became a fertile ground for Myanmar’s state institutions to build a narrative that the Rohingyas were a threat to the majority Bamar ethnic group and the Buddhist religion. 

Facebook may never be indicted for the role it played in the Rohingya crisis as on an international level there persists a lack of corporate accountability for war crimes due to the limited scope of prosecution and legal responsibility. The Genocide Convention and international criminal law only recognize states and natural persons as the sole regimes of legal responsibility while regulating incitement to genocide. Similarly, the UN Guiding Principles on Business and Human Rights follows a soft law approach and merely provides a roadmap for corporate conduct without seeking to impose strict sanctions in case of violations. Due to the absence of corporate liability in international criminal law, there is an urgent need for the development of standard regulations and liabilities for social media platforms such as Facebook. 

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During the years leading up to the expulsion of Rohingyas from Myanmar, Facebook had come to dominate cyberspace in the country. The platform became so ubiquitous, that for many citizens, Facebook and the internet were synonymous entities. This meant that the social media giant assumed the role of a State-like entity where the public was served the illusion of participative democracy, as any citizen could interact with or comment on and share posts made by government officials. In an interesting paradox, the regulated became the regulator when in December 2018, Facebook banned Myanmar’s commander-in-chief for hate speech. This action, which came far too late and amounted to far too little, revealed how the governing laws of Facebook mimic a constitution, while its community standards become the law of the land in a country with pervasive Facebook use.  In a way, moderators keeping the community standard in check assume the role of enforcement agencies of a state, while the Facebook Oversight Board interprets the law, similar to a Supreme Court. The imposition of a ban on the speech of the official by Facebook is an example of the transformation of a corporation into a State-like watchman that regulates individual or collective actions to protect human rights. But who watches the watchman when it errs? 

Ultimately, Facebook is a company that works for profit maximization and user retention, and engagement. Its policies are not grounded in any one national legal order but are influenced by competing interests and the preferences of its top-level management. In several rounds of group discussions with Facebook’s employees, researchers found a lack of understanding of human rights norms. A formal framework or guidelines for decisions on content moderation were absent and some employees admitted to “making rules up”. Even though Facebook has stated that they look for guidance in Article 19 of the International Covenant for Civil and Political Rights (ICCPR) when setting standards for restricting freedom of speech, their interpretation of Article 19 is conclusory and collapses tests of legality, legitimacy, and necessity under Article 19(3) as well as proportionality into an undefined “risk of harm”. Thus, the company continues its practice of ad-hoc decision-making and wielding undefined discretion. Matters are further complicated since “risk of harm,” “newsworthiness,” “public interest,” and “international human rights standards” are not defined in Facebook’s community guidelines or press statements and thus questionable content can easily go under the radar or be ignored at will by the platform. Facebook’s lackadaisical approach has led many to believe that the constitution of an Oversight Board by the company, meant to address the deficit of transparency and legitimacy surrounding the company’s current content moderation rules and processes is merely an eyewash. 

The list of problematic elements does not end here. A judge in Washington D.C. recently criticized Facebook for not handing over information to investigators working toward prosecuting Myanmar for international crimes against Rohingyas. Facebook withheld information citing “privacy concerns” and tried to take refuge under U.S laws which bar electronic communication services from disclosing user communications. 

In light of all this, several important questions arise. To what extent are corporations like Facebook and its executives responsible in international law for the mismanagement of large-scale atrocity crimes? Moreover, do Facebook’s claims of preserving freedom of speech legitimize its inaction? In the case of Prosecutor v. Nahimana, Barayagwiza, & Ngeze before the International Criminal Tribunal of Rwanda, the founders of extremist media outlets were charged with direct and public incitement to commit genocide for encouraging the Hutu population to kill the Tutsis. However, later the Appeals Chamber reversed several aspects of the judgment by drawing a clear distinction between international crimes and hate speech and subsequently made it difficult to hold individuals who foment hatred accountable for the violence that stemmed from their actions. It has thus become an immense legal challenge to prosecute military leaders who perpetrate genocidal propaganda, much less censure executives of social media companies who allow such propaganda to flourish unabated on their platforms.

Existing mechanisms to address state liability in international criminal and humanitarian law were designed through a statist gaze and cannot apply to corporations without being structurally ill-equipped to address numerous manifestations of business operations. One may ask, could Facebook be held liable in a civil suit for “complicity in a genocide” or “aiding and abetting” a crime against humanity? Besides international criminal law, Rohingya plaintiffs may bring a state tort law claim against Facebook for negligence. However, they may not succeed as in most nations, providers of interactive computer services such as Facebook are granted broad immunity for content posted by third parties since they are not considered as the publisher of incriminating information. A prominent example of this is Section 230 of Title 47 of the US Code which establishes that websites cannot be held liable for third party content. In the analogue era, in cases such as Prosecutor v William Samoei Ruto and Others (2012) or during the Nuremberg Trials, publishers and broadcasters of hate speech were placed on the same plane for incitement to genocide.  However, in the internet age, social media platforms produce a structure where the instigator and broadcaster are considered legally separate entities. Regardless, while Facebook in Myanmar did not itself propagate hate speech, it did act as a third-party participant by coding the message through its software that ultimately made the speech public.

     Caroline Kaeb, of The Wharton School has argued that the focus of imprisonment and deprivation of liberty in criminal law has served to constrain the development of corporate criminal liability. To transform the criminal law to address the gap in legislation for corporate liability, Kaeb argues that courts can issue decrees for confiscation of a company’s assets, closure of the implicated corporate unit, or even corporate death penalties in the form of dissolution or monitorship. On the other hand, another scholar, VS Khanna has advocated for a variant of civil liability to curtain the higher standard of proof that is demanded in criminal proceedings. Although most of these solutions have been proposed for implementation under municipal laws, they are equally relevant for international criminal or human rights law. Moreover, while there is no evidence to support the argument that criminal liability will be effective in constraining the actions of corporations, tortious liability on the other hand may not serve as sufficient incentive to push corporations to be socially responsible.

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Facebook’s State-like conduct in regulating speech is similar to the restrictions enforced by nations, except the former is not answerable to its users like governments are answerable to their people and judicial systems. This lack of legal regulation enhances the gap in corporate accountability in situations of mass atrocities as the State-like role is internally assumed by the company without any liability. To fill this gap, international law must transform soft law-based corporate accountability into strict criminal conventions. Corporate executives can indeed be held liable under international criminal law, as was evidenced by the prosecution of directors of companies that were complicit in the Nazi regime during the Nuremberg Trials. However, when the Rome Statute was being drafted, the possibility of prosecuting corporations was rejected as the practice was uncommon in participant States. The global dynamic has shifted and any new convention seeking to build a framework for corporate criminal liability must ensure that corporate governance and policy formation is structured to provide for transparency and accountability. 

While social media corporations may themselves not publish hateful, genocidal content, they construct their platforms in such a manner that makes it easy for such material to proliferate and reach millions. The algorithm used by Facebook and other social media platforms is a powerful tool that tracks user activity on the application and other websites to serve content and advertisements that encourages users to scroll, click, comment, share and shop. While the use of such algorithm leads to a more personalized user experience, it is heavily criticized for exacerbating social issues such as violence and racism, by promoting misinformed content due to its shock value and high user engagement. It is thus important that guidelines for community standards must adhere to norms of international human rights law and the development of artificial intelligence that supports efficient and non-arbitrary decision making must be prioritized. 

Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.

The Attacks against the Brazilian Amazon and its Native Populations: Are We Witnessing Crimes that Fall under the Jurisdiction of the ICC?

Posted in International Criminal Law, Public International LawTagged , , , , , , , 2 Comments

By Melina Lima, Gabriela Silva, and Maria Clara Pontes.

[Melina Lima is an International Law Professor at IBMEC in Brazil. She leads a research group on International Law and the Amazon. Gabriela Silva and Maria Clara Pontes are undergraduate law students and researchers at International Law and the Amazon research group.]

The Amazon and its native populations have been under attack since the beginning of the European colonization, which means that they have endured invasions, diseases, and deforestation, among many other threats for centuries. Nowadays, however, their situation is deteriorating rapidly, as the current Brazilian administration shows literally no concern for the environment or for the indigenous populations. This article intends to analyze this situation through the lens of international law, but before doing it we shall present some of the facts and numbers concerning the Brazilian Amazon and its autochthonous populations.  

Addressing the deforestation topic, the Brazilian Amazon has lost 34% more of its forest in 2019 than in the year before, according to INPE (country’s space agency). From 2005 on, deforestation had decreased significantly, but since 2015 it has been on the rise again. Soybean production for world markets and industrial-scale cattle ranching are two of the main reasons for the deforestation of the Amazon. The deforestation in indigenous lands has increased 64% during the first months of 2020, which is the biggest rate in the last 4 years according to INPE. Federal policies that weakened monitoring institutions and stimulate the invasion of lands that are still in process of demarcation contributed to this exponential growth. 

When it comes to demarcation of indigenous land, which is a constitutional provision in Brazil, the current demarcation figures show a significant setback. Although this constitutional norm has never been a guarantee that the demarcation would happen as it should, the situation has become even more alarming in the last two years. The former and the current administrations have not demarcated any new indigenous land. The Brazilian President, Jair Bolsonaro, stated right before being elected ‘I will not demarcate one square centimeter of indigenous land. Period’. He not only has been fulfilling his campaign promise; he is also paralyzing demarcation processes that were in the final stage. 

Other facts and figures also show that the Brazilian native peoples’ safety is in serious jeopardy. According to CIMI, out of 19 categories of systemic violence, there has been an increase in 16 of them. The cases of invasions and illegal exploitation rose from 109 to 256 in 2019. With respect to the COVID pandemic, the numbers are also disproportionate when compared with the non-native population. For instance, the mortality rate is 150% higher among indigenous. 

The facts and statistics presented above are only a portion of what is happening daily in the Brazilian Amazon and they engender many issues that relate directly to the international law field. In this text we will analyze the repercussions on the realm of International Criminal Law by examining the claim that the Amazon destruction constitutes ecocide and the possibility of describing the recent attacks against the Brazilian indigenous peoples as genocide. The analysis will reveal that the attacks against the native population is more likely to fall under the International Criminal Court’s (ICC) jurisdiction than the ecocide situation.     

The destruction of the Amazon and Ecocide

According to Polly Higgins, the crime of ecocide was supposed to be the fifth crime foreseen in the Rome Statute, along with war crimes, genocide, crimes against humanity (CAH) and crime of aggression. Although 50 out of 54 countries negotiating the treaty supported its inclusion, the crime of ecocide was removed in 1996 without much explanation. From then on until she died, Higgins dedicated her life to the endeavor of including this crime in the Rome Statute. To this end, the environmental lawyer and advocate proposed an amendment to the Rome Statute in 2010, which was submitted to the UN’s International Law Commission (ILC), but the same has not been added to the Rome Statute up until now. 

Without an express provision of the crime of ecocide in the Rome Statute and taking into consideration the principle of strict legality—which is one of the foundations of criminal law—it becomes controversial to affirm that ICC could have jurisdiction over a case whose foundation rests on actions and facts that have not been typified. The only explicit reference to environmental crimes in the Rome Statute is in the war crimes section, in Article 8(2)(b)(iv), which reads ‘[…] long-term and severe damage to the natural environment […]’. Given that the situation related to the Amazon is not connected with an armed conflict, this provision cannot be applied.   

Therefore, the best scenario in the context of the Amazon deforestation would be for the Rome Statute to adopt a text that expressly addresses environmental issues in peacetime. The concept of ecocide that Higgins suggested to the ILC—‘The extensive damage to, destruction of or loss of ecosystems of a given territory, whether by human agency or by any other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished’— would describe well what is happening now in the Brazilian Amazon and could be pertinent to other situations in the world where entire ecosystems may also be deliberately destroyed. 

In practice, it takes only one signatory country to propose such an amendment to the Secretary-General of the UN and, if the proposal is accepted, two thirds of the State parties have to vote in favor in order for the text to be added to the Rome Statute. Vanuatu has already expressed the intent to present the ecocide amendment and it is possible that it will become the fifth crime in the short to medium term. While it does not happen, the deforestation alone will probably not be the basis for a complaint before the ICC, but it can certainly make the genocide case undermentioned stronger.   

The attacks against the Amazonian indigenous peoples and the crime of genocide

The situation is different regarding the attacks against the Brazilian indigenous peoples and the crime of genocide, for it is clearly typified in Article 6 of the Rome Statute as an act ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. As the data presented in the first section of this text shows, the attacks against the Brazilian indigenous populations have increased significantly in the last two years. The word attack, in this context, may include many acts, such as the murder of indigenous leaders, government’s encouragement of mining in indigenous lands, encouragement of religious missions targeting even isolated indigenous populations and the deliberate neglect of this population during the COVID crisis. It is worth mentioning that the destruction of the rainforest analyzed before also counts as an attack against indigenous peoples because it affects them disproportionally, as it represents not only the dismantling of their home and way of life, but it also seriously endanger the preservation of their own identity as an ethnic group.

These facts among many others are the foundation of an Informative Note to the Prosecutor against the Brazilian President Bolsonaro before the ICC. The document addresses a supposed ‘incitement to genocide and widespread systematic attacks against indigenous peoples’, laying its basis both in articles 6 (genocide) and 7 (CAH) of the Rome Statute. Regarding the COVID-19 pandemic and the indigenous people, even a Judge from the Brazilian Supreme Court—Gilmar Mendes—mentioned the word genocide to describe what was happening with this population. 

It normally takes long for the Prosecutor of the ICC to decide whether or not an informative note or a complaint will actually become a case and go into trial. Regardless the time it may take for it to reach the ICC’s Chambers, many relevant elements for admissibility are apparently present in the situation of the indigenous. Firstly, Brazil is a State party of the ICC and the facts that support the informative note have been happening mainly in the last two years in the Brazilian territory. This means that the Court would have temporal, territorial and personal jurisdiction to analyze the case. Secondly, although one could argue that the ICC should be guided by the complementary principle and that states parties should have priority in judging cases under their national jurisdiction, there is no current investigation taking place in Brazil or any other state party regarding the indigenous situation in the Amazon. Finally, as for the merits, it would require a careful investigation, but the murders, the increased systemic violence, the land invasions and forced evangelization at unprecedented levels indicate that there might be grounds for a CAH and/or genocide trial before the ICC. 

Conclusion

On the one hand, the international environmental regime becomes stronger with every passing year, with institutions and rules biding an increasing number of countries; on the other hand, it is difficult to hold accountable a violator, as these same rules often do not come with enforcement mechanisms. In this context, international criminal law and its main institution (ICC) appear as a potential path, despite indirect, to accountability, since the Amazon deforestation will be a powerful reinforcement for the genocide case if charges are confirmed before trial. Ecological conscience is constantly growing and there might come a time when the destruction of an ecosystem will be considered as horrifying as genocide. But right now the fact is that it is not typified in the Rome Statute and the ICC would have to be quite audacious to try a case on this basis. As far as for the indigenous situation, the most uncertain issue is to determine if the acts against the indigenous and the forest fit in the criminal description of genocide and/or CAH as foreseen in the Rome Statute. Only a detailed investigation can tell if the facts brought into light in this text, among others not mentioned, meet the requirements in the Rome Statute. If the answer is yes, it would set a historical precedent, as the ICC has never tried a case involving autochthonous populations and environmental issues.    

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]