On June 8, 2020, The Gambia filed an application for discovery with the U.S. District Court for the District of Columbia. The application asks the Court to compel Facebook to provide information related to the personal Facebook accounts of Myanmar officials. The information that The Gambia seeks is to be used in an action brought by The Gambia against Myanmar in the International Court of Justice (ICJ) in The Hague, The Netherlands.
In November 2019, The Gambia submitted a request to the ICJ for provisional measures of protection. The application alleges that the Government of Myanmar has been involved in atrocities against the Rohingya Muslims, which include “killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers, are genocidal in character because they are intended to destroy the Rohingya group in whole or in part” in violation of the U.N. Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).
The case continues at the ICJ. In January 2020, the ICJ issued the requested provisional measures, ordering Myanmar to prevent genocidal acts against the Rohingya Muslims. The order is an interim step, put in place to protect the Rohingya while the case continues. Under the terms of the order, Myanmar is to report regularly on its implementation of the order. Meanwhile, The Gambia was ordered to produce its written submissions by July 2020, with Myanmar to respond by January 2021.
The Gambia’s application to the U.S. District Court for the District of Columbia followed a 2018 admission by Facebook that it failed to prevent its platform’s use to “foment division and incite offline violence.” Facebook admitted that it “can and should do more.” Its admission was posted in response to a report which recommended that Facebook “preserve and share data where it can be used to evaluate international human rights violations, and that the company publish data specific to Myanmar so that the local and international community can evaluate progress more effectively.”
Nonetheless, in August 2020, Facebook objected to the Gambia’s June 2020 request for disclosure. Its response to The Gambia’s application seems at odds to its 2018 statement. Facebook’s submission reportedly states that, “the request, made in June, for the release of ‘all documents and communications’ by key military officials and police forces was ‘extraordinarily broad’ and would constitute ‘special and unbounded access’ to accounts.”
The Gambia’s application for discovery against Facebook indicates that “statements on social media, including Facebook, made by officials and representatives of Myanmar hostile to the Rohingya, or encouraging violence against them, including but not limited to statements made by senior military officers directed at rank-and-file soldiers or armed civilians who carried out attacks against the Rohingya, may constitute evidence of genocidal intent necessary to support a finding of responsibility for genocide.” As such, Facebook should step up to assist with the issue.
The lack of cooperation is not surprising. A few days after the announcement, Nicholas Koumjian, head of the Independent Investigative Mechanism on Myanmar (IIMM), a UN Human Rights Council established mechanism to collect evidence of the most serious international crimes and violations of international law and prepare files for criminal prosecution, reportedly said that despite long talks with Facebook and it holding evidence which is “highly relevant and probative of serious international crimes”, Facebook had declined to share any information with IIMM.
Towards the end of August 2020, Facebook’s attitude appeared to change. It maintained its stage towards The Gambia’s application in the District Court of Columbia. Yet it did agree to share limited data with the IIMM’s investigators. The head of the IIMM is quoted by Reuters as stating that Facebook had not released evidence of “serious international crimes”, despite vowing to cooperate. He confirmed that the IIMM had received a “first data set which partially complies with [the IIMM’s] previous requests” and that he was “hopeful it signifies a further step forward towards a cooperative relationship that will allow us access to important relevant evidence of serious international crimes.”
And so, Facebook continues to sit on evidence that could help to bring to account those most responsible for the genocide unleashed against the Rohingya Muslims in Myanmar. This is yet another reason why there is a greater need for the regulation of social media providers. Social media companies, like Facebook, enabled the spread of genocidal propaganda and so allowed the crime to happen. Refusing to allow access to disclosure accommodates impunity of those responsible for the acts. As the proceedings continue, the question is how to regulate the giant so that it would not be used for genocidal atrocities or other international crimes that flourish on propaganda of hate and violence.