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The Use of Digital Open-Source Information as Evidence in Human Rights Adjudication: A Reality-Check

February 15, 2022Posted in International Law and TechnologyTagged adjudication, Human Rights, technologyLeave a comment

[Ruwadzano Patience Makumbe is a doctoral researcher under the ERC funded project DISSECT: Evidence in International Human Rights Adjudication at the Human Rights Centre, Ghent University in Belgium.]

User-generated content, such as social media material posted on Facebook, Twitter and Facebook, has arguably become the most depended on source of information by society including the media and civil society for developments on human rights violations. Content posted by witnesses, victims, perpetrators and independent civil society groups provides relatively comprehensive accounts of events. For instance, Syrian opposition activists provided information on the conflict which has been a useful basis for various actors to act upon. It has been pointed out that more hours of video footage now exist of the Syrian conflict than the actual length in hours of the conflict itself. There is also a surging interest by practitioners, lawyers and legal scholars on how digital open source information can be utilized as evidence that meets standards accepted in courts. How digital open source information and investigations has triggered an immense shift in international justice and accountability is receiving so much scholarly and practitioner attention particularly the complexities around using this type of information as evidence in international courts. This blog post contributes to this discussion by highlighting some of the key challenges inhibiting the harnessing of digital open source information as evidence and proposes solutions to address these challenges.

Globally, courts are progressively transitioning to the new machineries proffered by digital technologies and adapting the manner in which law is practiced. Forensic evidence such as finger prints or DNA evidence has for long been used as evidence unlike digital open source evidence. With regards to digital open source evidence such as electronic images, video footage and satellite imagery, its use is still maturing particularly so in human rights related cases. In recent years, there has been changes in the evidential system and digital open source evidence is being used in human rights violations related prosecutions before the International Criminal Court (ICC) and in Europe particularly in Germany, the Netherlands, Sweden and Finland where universal jurisdiction prosecutions of (often) asylum seekers from Syria and Iraq who are identified as alleged perpetrators of international crimes are investigated and prosecuted. Despite the increase in the production of digital open source information, it is not yet commonly used as evidence in courts. However, this is set to shift with the increasing quantities of digital information being gathered by human rights practitioners, lawyers, victims and witnesses that is useful to cases and its widespread availability and accessibility.

The lack of clarity on the use of digital open source information presents challenges and questions to lawyers and human rights practitioners who may potentially want to present it before courts as evidence. This is largely due to it being less tested in human rights courts and also its inherent relatively flawed characteristics. Potential hinderances to harnessing digital open source information as evidence are also experienced by open source investigators and judicial officers. This post highlights three key challenges;

First, digital information is inherently instable. This poses a significant difficulty to ensure that the material can be relied on for evidence, proof and truth in court proceedings. That digital information is generally susceptible to be manipulated is well-documented here, with this danger also having been discussed specifically in relation to international criminal investigations here and its vulnerabilities and mitigation strategies here. Concerns have been raised as to the appropriateness of relying on material that is impermanent, can be easily manipulated and is vulnerable to attack from misinformation and disinformation campaigns. This is even more worrying with tools such as deep fake technologies constantly being improved such that it is difficult to tell when a piece of digital information such as a video has been manipulated. The perceived credibility deficit from which digital information suffers thus is met with a bias position which requires much more efficient authentication and verification mechanisms that can reverse this bias.

Second, digital open source information may vanish in that it is often/always at risk of being taken down by third party companies particularly those that run online social media platforms like Facebook, Twitter and Youtube. Content is usually taken down because it incites or promotes violence. A video containing hate speech or an extra-judicial killing is for example generally considered as restricted material by the third party entities who remove content from their platforms in order to protect their user community against being subjected to harmful content. It is possible, however that this material would have been very precious to victim representatives/human rights lawyers to prove what happened and corroborates or substantiates further the accounts of victims and witnesses.

Once deleted the material is no longer available to the public. Although it is usually retained by the social media company, it is not archived within a system that allows relevant authorities or institutions to access it as part of online investigations. Facebook even tried to fight the application for discovery which the Gambia had filed in June 2020 with the U.S. District Court for the District of Columbia in order to compel it to provide information related to the personal Facebook accounts of Myanmar officials who allegedly had perpetrated human rights violations against the Rohingya. Facebook had argued that complying with the request would violate the Stored Communications Act (SCA) (28 USC §2702) which restricts entities that provide an electronic communication service to the public from sharing the information. However, the Court disagreed and granted the application. Highlighting that only permanently removed content may be divulged, it noted that failure to produce the requested information “would compound the tragedy that has befallen the Rohingya”, thereby recognising and prioritising the need for accountability for international human rights violations. However, a sustainable measure has to be designed to address the uncertainty caused by takedowns while enhancing the already existing responsibility of social media platforms to moderate the information posted on their platforms.

Third, the use of digital open-source information as evidence in human rights courts has not yet been tested so that it remains to be seen how these courts will approach this type of evidence. As digital open source information is increasingly becoming useful in human rights work, more cases will inevitably be developed with digital open-source evidence as primary evidence. This in particular applies to regional human rights courts where the use of digital open-source information as key evidence is still in the early stages. Additionally, unlike in international and domestic criminal courts, human rights courts apply complex and varied evidentiary rules and are not distinctively designed to conduct fact-finding thus they are not equipped with forensic specialists who may be useful in processing digital open source evidence. Nevertheless, testing its use will allow for an understanding of key issues attached to digital open source evidence including proving its credibility, how the metadata and source information should be presented to the court and a consideration of the sufficiency and detail required to adequately ensure that the evidence is considered as admissible and credible by the courts.

The challenges discussed are complex and require multi-stakeholder responses designed to withstand temporality as technology is advancing rapidly. Essentially, the inherent instability of digital information is a key issue that is difficult to address particularly because digital open source information is often user-generated and thus at the risk of manipulation. Online open source investigators have the task to continually keep up with misinformation, disinformation campaigns and deep fake technologies by developing verification and authentication tools as well as archival techniques to preserve digital information. They also require financial resources to adequately meet the changing technological tools. Further, it may be difficult to regulate takedowns but laws that address what social media companies do after takedowns will be useful in a digital landscape. This law can ensure that relevant content removed on social media platforms is archived in such a manner that it is shareable with authorities and credible institutions involved in accountability efforts. The lessons learnt in international and domestic criminal prosecutions are certainly useful in human rights courts and practice. However, the practices cannot necessarily be duplicated as the systems in place for criminal courts are different for human rights courts. This includes the lack of specialised investigative and fact-finding mechanisms in human rights courts. Human rights courts and lawyers have the opportunity to design a working mechanism to deal with the use of digital open source evidence which includes identifying key evidentiary considerations that will be useful in assessing the admissibility, credibility and probative value of digital open source evidence.

Conclusion

Digital open source information will increasingly become important evidence in court proceedings. International justice institutions including both domestic and international courts should be prepared to handle the upsurge in cases that are built on digital open source evidence. Actors involved in justice processes have the opportunity to contribute to the use of digital open source evidence by ensuring that approaches that are designed are responsive and adaptive to the changing landscape prompted by the digital age.

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.

Platforming Violence? Incitements to Genocide on Social Media Platforms: a Legal Analysis

February 1, 2022Posted in International Law and TechnologyTagged genocide, technologyLeave a comment

Claudia Hyde

[Claudia Hyde holds an LLM (Hons) in Public International Law from the London School of Economics and is a legal researcher.]

Introduction

As jurisdictions such as the United Kingdom and the European Union grapple with the challenge of regulating tech giants, the use of social media platforms during mass atrocities has been brought to the fore by the protracted legal battle between Meta/Facebook and The Gambia.

In November 2019, The Gambia instituted proceedings against Myanmar at the International Court of Justice (ICJ) alleging breaches of the 1946 Genocide Convention committed against Myanmar’s Rohingya minority. At the height of the violence, Facebook emerged as a powerful tool in intensifying and spreading conflict: as many as 700 individuals were employed by the Tatmadaw (Myanmar Military) to create fake profiles on the platform and flood the fake profiles with propaganda and incitement to violence. In support of its case before the ICJ, in June 2020, The Gambia filed an application for discovery with the US District Court for the District of Columbia requesting that Facebook disclose information about the now-deleted Facebook accounts.

The legal issues raised by the dispute have received extensive comment elsewhere. What has received relatively little attention, however, is the extent to which those Facebook posts constitute breaches of international law in their own right as violations of the prohibition on incitement to genocide. This post will briefly survey the case law on incitement emanating from the International Criminal Tribunal for Rwanda (ICTR), the legal principles and their application to speech on social media.

The prohibition on incitement

Article 3(c) of the Genocide Convention prohibits “direct and public incitement to genocide.” Each of the underscored elements are essential components of the crime and will be discussed in turn.

Direct

Incitement to genocide must be “direct” to be punishable in the sense of being understood as a call to commit genocide (Timmermann, 2006). The ICTR Akayesu judgment provides the most detailed description of the “direct” requirement in case law, stating in para. 557 that the incitement must “assume a direct form and specifically provoke another to engage in a criminal act.” Speech that is “mere vague or indirect suggestion” will not constitute incitement.

Nonetheless, the ICTR has interpreted the “direct” requirement expansively with a focus on the meaning of the message in its context. In its caselaw, there have been clear-cut cases of defendants calls on others to commit genocide, unambiguously and directly. In Bikindi, for instance, the accused’s comments included “Hutus should hunt and search for the Tutsis and kill them” [para. 125]. Less direct and euphemistic language has also been held to constitute direct incitement: in Kambanda, the accused was convicted for stating “you refuse to give your blood to your country and the dogs drink it for nothing” [para. 39]. The meaning of the message in its historical, cultural and linguistic contexts determines whether the incitement is direct.

In the context of social media, the sociolinguistic nuances particular to that platform define the relevant context. Language is codified on social media platforms by users who develop similar reference points and adopt similar sentence structure, terminology and syntax, such as acronyms and “memes.” This context may be considered to determine whether a direct call to genocide has been made. For instance, users of 4chan’s /pol/ board employed triple parentheses as a coded means of referring to Jews, stylised as (((Them))) (Tuters and Hagen, 2020). The flexibility within the meaning of “direct” in “direct and public incitement” would allow for such anachronisms and coded language to be considered and is sufficiently flexible to incorporate new forms of media and ways of presenting information. This is significant in the Burmese context, where Rohingya people have been vilified as “terrorists” and “traitors” by the government to legitimate violence. These accusations pervade the portrayals of Rohingya people in the impugned Facebook posts.

More controversially, ICTR jurisprudence suggests that sharing incitement posts may be prohibited as well. In Niyitegeka, the accused was found guilty of incitement after commending a member of a militia at a public meeting for his “good work” [para. 142]. Similarly, the accused in Ruggiu was found guilty of incitement after referring to genocidaires as “valiant combatants” [para. 44]. This suggests that other speech acts in which the author endorses or glorifies acts of genocide will constitute incitement, regardless of whether the statement calls on others to partake in genocide. The logical conclusion of the decisions in Ruggiu and Niyitegeka is that the act of sharing, such as “retweeting,” a post that incites genocide would be sufficiently direct. Again, this will be context specific. A post on Twitter retweeting another’s incitement to genocide when accompanied by criticism of the message will not be understood by the audience as adopting or endorsing incitement to genocide. However, retweeting another’s incitement to genocide with an affirmative message could be viewed in the same way as the speeches in Ruggiu and Niyitegeka and be considered sufficiently direct. Thus, social media users need not be the authors of a post that incites genocide in order to commit the crime of incitement, as sharing or ‘retweeting’ would suffice

Public

Various factors have been considered throughout the ICTR’s case law in determining the “publicness” of a statement. Most significant for this analysis is the medium of communication employed. Certain forms of communicating incitement to genocide, including through print media and radio, have been considered “public” by their very nature. For instance, in the Media case, the circulation of Kangura or the average number of listeners Radio Télévision Libre des Mille Collines (RTLM), a radio station that played a significant role in spurring on violence, were not considered in any depth by the Chamber. The fact that mass media were employed determined the publicness of the remarks. Similarly, the broadcast of violent and patriotic songs written by the defendant in Bikindi on radio waves was considered public in of itself. Relevant here is the ILC’s 1996 commentary where it was argued that “public incitement is characterized by a call for criminal action…by such means as the mass media.”

This would lead to the conclusion that speech or statements made through social media, being a mass communication platform, would necessarily be “public.” However, the publicness of social media is not so easily discerned: invite-only or “elite” social media platforms such as Raya, for instance, cannot be accessed by a “mass” audience in the sense that their audience is select or limited. Similarly, if a Twitter user with 20 followers were to incite genocide on their account, it is difficult to view this as “mass” communication. Considering that social media users’ followings and reach vary widely, it is difficult to gauge when a user’s posts will be “public” and when they will not.

The fake profiles created on the orders of Burmese generals often had thousands of followers, meaning that any posts published on those profiles would likely be considered “public” for the purposes of the Convention. But the application of these legal principles to social media posts is currently untested, and each post would need to be considered individually in the context considering all the facts of the case. It cannot be assumed that every post that is “public” on social media is “public” in the Convention sense.

Incitement

The act of incitement is not defined in the Genocide Convention or subsequent instruments. In Kajelijeli, the ICTR provided some guidance by stating that in “common law jurisdictions, incitement to commit a crime is defined as encouraging or persuading another to commit the crime, including by use of threats or other forms of pressure” [para. 850]. The Chamber did not, however, endorse any particular definition of incitement.

Scholars are divided on the question of whether incitement must be linked to an act of genocide in order to be considered a crime. Benesch, for instance, has argued that a statement should be considered incitement where there is a “reasonable possibility that a particular speech will lead to genocide” (Benesch, 2008). This reading receives little support in scholarly comment (see for instance Wilson, 2017 and Scott Maravilla, 2008) and case law. In Nahimana, the ICTY confirmed in para. 981 that there is no requirement that incitement be linked to an act of genocide for it to be punishable. Such a reading better reflects one of the key purposes of the Convention: to prevent genocide from happening. It would be inconsistent with the object and purpose of the treaty for unsuccessful incitement to genocide to be considered any more lawful than successful incitement.

This conclusion is important for the purposes of incitement on social media, where the effect of a statement may be remote from the statement itself. The global nature of social media communication means that a statement in one country can have effects in another. Considering the example of Myanmar where several hundred accounts were created to incite genocide against Rohingya people, there is no way of proving which particular Facebook post or account prompted a reader to commit violence. International criminal law does not require proof that a post directly caused the reader to commit violence. It is sufficient that the post could prompt such action.

Conclusion

From my analysis, it is clear that incitement directed over social media is capable of being covered by the international criminal prohibition on incitement to genocide. However, the ambiguities in the law present a barrier to accountability. Social media platforms have clearly displaced other media as the new frontiers for the dissemination of hate. Considering the role that these platforms are already playing in spurring on mass atrocities, it is essential to understand where the deficiencies in the current legal framework lie and what must be remedied to hold the perpetrators to account.