Graf, Jan-Phillip

Thielbörger, Pierre

English

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Prisoner of War Videos on FacebookPierre Thielbörger, Jan-Phillip Graf 2023-04-14T08:00:08When violent clashes between Armenian and Azerbaijani forces reignited theinternational armed conflict (IAC) in Nagorno-Karabakh last year, social mediawas flooded with videos allegedly portraying the mistreatment of prisoners of war(POWs). Recently, Meta, Facebook’s parent company, referred a case concerningone such video to the so-called Oversight Board for review (Article 2 (1) OB Charter).The Board acts as an ‘independent grievance mechanism’ where experts can issuebinding decisions or nonbinding policy recommendations on any of Facebook’scontent decisions (Article 4 OB Charter), i.e., whether posts or materials can stay onFacebook (a platform with roughly 3 billion active users in 157 countries). While theOversight Board did not share the video in question, it provided a rough description:“The video shows people who appear to be Azerbaijani soldiers searchingthrough rubble. The video has been edited so that their faces cannot beseen. They find people in the rubble who are described in the caption asArmenian soldiers. Some appear to be injured, others appear dead. Theypull one solider from the rubble, who cries out in pain. His face is visible andhe appears injured.”While the mistreatment of POWs is troubling in itself, this post focuses on theapplicability of international humanitarian law (IHL) to Meta’s decision to keep thevideo on public display even after it became aware of its existence. As a disclaimer,the authors of this post have filed an ‘amicus brief’ on behalf of the Institute forInternational Law of Peace and Armed Conflict (IFHV) arguing that the video shouldbe taken down. We would like to use this post to discuss some of the conceptualobstacles in applying IHL to foreign corporations’ online conduct during armedconflicts which we could not address in the brief.First Obstacle: An Incomplete Framework for Applying IHL OnlineWhile the IHL of IACs, i.e., the four Geneva Conventions (GCs) and the firstAdditional Protocol, is clearly applicable to the situation in Nagorno-Karabakh andthe acts portrayed in the video, its applicability to online activities of corporate actorsis more contentious.There is general consensus that IHL applies to “cyber operations executed in thecontext of an armed conflict” (Tallinn Manual 2.0, p. 375). The term ‘cyber operation’may include any online activity that falls under IHL’s material scope. Any suchcyber operation, however, requires a nexus to the respective armed conflict – theexact nature of which is contested (ibid., p. 376). One camp argues that IHL onlycovers cyber operations by one conflict party against the other, which would excludecorporate actors who can, by definition, never become party to an IAC (ibid.).- 1 -The second position suggests that cyber operations are governed by IHL if“undertaken in furtherance of the hostilities, that is, in order to contribute to theoriginator’s military effort” (ibid., p. 376). This standard can be read in two ways.The more restrictive reading would require some form of intent to contribute toone side of the hostilities. This interpretation arguably includes private actorsconducting cyber operations on the instruction of a conflict party but would notcapture Facebook’s more passive role of merely providing an online platform forother actors.The second interpretation would draw on a matter-of-fact determination of whetherany activity, regardless of its originator’s role or intent, actually contributed to thefurtherance of the hostilities. Acknowledging states’ primary responsibility to upholdIHL, we argue that the second reading of the nexus requirement ought to be appliedin this case because any other understanding would leave online corporate activitiesthat incidentally contribute to the hostilities (e.g., banking, logistics) immune fromlegal assessment under IHL.Second Obstacle: No Accountability Framework for Foreign BusinessesOperating in Armed ConflictsWhile ‘business and human rights’ or corporate criminal liability have receivedsignificant attention, the discussion about corporations’ IHL obligations is almostnonexistent apart from private security companies (Doswald-Beck, p. 115 andChesterman, p. 321). The few notable exceptions (Hughes, p. 47; Bismuth, p. 203and Aparac, p. 40) have nevertheless advanced two theories for IHL accountabilityfor foreign corporations operating in the context of armed conflicts.The traditional theory argues that states are under an obligation, by virtue ofCommon Article 1 of the Geneva Conventions, to “ensure respect” for the rules ofIHL in their domestic legal systems (Gillard, p. 130). Since the U.S., where Meta isheadquartered, is a party to the Geneva Conventions, all rules contained thereinwould apply to the conduct at hand, however, only indirectly through U.S. law, which,under the current reading of the Alien Tort Statute, is not enforceable in this casefor lack of a minimal connection to the U.S. But one can imagine jurisdictions morewilling to hold Meta criminally or civilly accountable for violations of IHL (Mongelard,p. 665).The second position, tentatively advanced by the International Committee of the RedCross (ICRC), argues that whenever a corporation’s conduct is “closely linked” to anarmed conflict, IHL applies to all corporate activities that might implicate one of itsrules. But even this standard seems problematic in relation to Facebook’s passivecontribution by hosting content posted by others. In this case, however, Facebookmade the conscious decision to keep the video online after review which makes itpossible to assert that Facebook itself engaged in an activity that is “closely linked”to the armed conflict.This, however, leaves us in an uneasy position where everything points in thedirection that Meta should follow IHL, but no clear theory that makes IHL directlyapplicable to incidental foreign corporate conduct has yet emerged.- 2 -Third Obstacle: State-Centric Geneva ConventionsFollowing Meta’s description of the video, the supposed Armenian combatants wouldqualify as POWs under Article 4 (A) GC III with Azerbaijan as their detaining power(Article 12 GC III).Article 13 GC III stipulates that “prisoners of war must at all times be protected,particularly […] against insults and public curiosity.” The interpretation of Article 13has evolved to prohibit any exposure to the public that has the potential to humiliateor identify them. Thus, “the disclosure of photographic and video images […],irrespective of which public communication channel is used, including the internet,”is prohibited (ICRC, p. 592). The reason for this strict prohibition is the aggravateddanger of public humiliation of POWs online and the safety risks to their families andthemselves (Risius and Meyer, p. 293).However, the value of video recordings in raising public awareness and as evidencein criminal trials has been cited by Meta as a rationale for keeping the video online.State practice (here, para. 811; here, para. 12.3.3 and here), case law (here), andscholarly opinions (Maia, Kolb and Scalia, pp. 194-200 and Krähenmann, p. 200)support the assertion that a compelling public interest may exceptionally overridePOWs’ interest in protection against public curiosity. There is agreement however,that a compelling public interest needs to be conclusively demonstrated and that anymaterials depicting POWs shall not identify or humiliate them, except for cases ofutmost public importance (e.g., a senior government official POW is wanted). Thecommentary to GCIII, therefore, recommends that “the media should always resort toappropriate methods, such as blurring, pixelating or otherwise obscuring faces andname tags, altering voices or filming from a certain distance, in order to serve theirfunction without disclosing the prisoners’ identities” (ICRC, p. 594).In this case, the face of at least one POW was visible, possibly exposing the injuredindividual to identification and humiliation. Meta has argued “that the public interestin seeing the content outweighed the risk to the safety and dignity of the prisonersof war.” But the public’s rather abstract “general interest in seeing the content” doesnot satisfy the specificity required under the “compelling public interest” standard.Meta has also not balanced the public’s interest against the POWs’ right to notbe identified or humiliated. Therefore, Meta’s decision to keep this video publiclyavailable is inconsistent with Article 13 GC III.But, once again, we run into the problem that Article 13 GC III specifically covers“any unlawful act or omission by the Detaining Power” suggesting that the conflictparties have the sole responsibility to protect POWs (Article 12 GC III). If one followsthis systematic, Facebook would be off the hook. One could only blame Azerbaijanfor its soldiers’ violation of Article 13 GC III.Where Do We Go From Here?Reflecting on our brief in this case, we realized that IHL can be a powerful tool forevaluating the online conduct of foreign corporate actors in armed conflicts. Meta,Twitter, and others even embrace the language of human rights and IHL in their- 3 -policy documents. Our problem is, however, that the entire IHL framework dependson the assumption that all conduct in the context of an IAC is connected to a (state)conflict party, especially in relation to the treatment of POWs. This ignores the newreality that transnational corporations play an important role in online warfare and areoften beyond the control of the conflict parties. Perhaps the time has come to updatethe ICRC’s 2006 guidelines on ‘Business and IHL’ to translate the state-centric IHLlanguage into a concrete code of conduct for businesses and emphasize that armedconflicts are not a legal vacuum for corporations. The “Bofaxe” series appears as part of a collaboration between the IFHV andVölkerrechtsblog.- 4 -

Prisoner of War Videos on Facebook

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Prisoner of War Videos on Facebook

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