{"id":19778,"date":"2023-04-14T08:00:08","date_gmt":"2023-04-14T06:00:08","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=19778"},"modified":"2023-04-14T22:40:30","modified_gmt":"2023-04-14T20:40:30","slug":"prisoner-of-war-videos-on-facebook","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/prisoner-of-war-videos-on-facebook\/","title":{"rendered":"Prisoner of War Videos on Facebook"},"content":{"rendered":"

When violent clashes between Armenian and Azerbaijani forces reignited<\/a> the international armed conflict (IAC) in Nagorno-Karabakh last year, social media was flooded with videos allegedly portraying<\/a> the mistreatment of prisoners of war (POWs). Recently, Meta, Facebook\u2019s parent company, referred a case<\/a> concerning one such video to the so-called Oversight Board<\/a> for review (Article 2 (1) OB Charter<\/a>). The Board acts as an \u2018independent grievance mechanism\u2019<\/a> where experts can issue binding decisions or nonbinding policy recommendations on any of Facebook\u2019s content decisions (Article 4 OB Charter), i.e., whether posts or materials can stay on Facebook (a platform with roughly 3 billion active users<\/a> in 157 countries). While the Oversight Board did not share the video in question, it provided a rough description<\/a>:<\/p>\n

\u201cThe video shows people who appear to be Azerbaijani soldiers searching through rubble. The video has been edited so that their faces cannot be seen. They find people in the rubble who are described in the caption as Armenian soldiers. Some appear to be injured, others appear dead. They pull one solider from the rubble, who cries out in pain. His face is visible and he appears injured.\u201d<\/em><\/p><\/blockquote>\n

While the mistreatment of POWs<\/a> is troubling in itself, this post focuses on the applicability of international humanitarian law (IHL) to Meta\u2019s decision to keep the video on public display even after it became aware of its existence. As a disclaimer, the authors of this post have filed an \u2018amicus brief<\/a>\u2019 on behalf of the Institute for International Law of Peace and Armed Conflict (IFHV) arguing that the video should be taken down. We would like to use this post to discuss some of the conceptual obstacles in applying IHL to foreign corporations\u2019 online conduct during armed conflicts which we could not address in the brief.<\/p>\n

First Obstacle: An Incomplete Framework for Applying IHL Online<\/strong><\/p>\n

While the IHL of IACs, i.e., the four Geneva Conventions (GCs) and the first Additional Protocol, is clearly applicable<\/a> to the situation in Nagorno-Karabakh and the acts portrayed in the video, its applicability to online activities of corporate actors is more contentious.<\/p>\n

There is general consensus that IHL applies to \u201ccyber operations executed in the context of an armed conflict\u201d (Tallinn Manual 2.0<\/a>, p. 375). The term \u2018cyber operation\u2019 may include any online activity that falls under IHL\u2019s material scope. Any such cyber operation, however, requires a nexus to the respective armed conflict \u2013 the exact nature of which is contested (ibid., p. 376). One camp argues that IHL only covers cyber operations by one conflict party against the other, which would exclude corporate actors who can, by definition, never become party to an IAC (ibid.).<\/p>\n

The second position suggests that cyber operations are governed by IHL if \u201cundertaken in furtherance of the hostilities, that is, in order to contribute to the originator\u2019s military effort\u201d (ibid.<\/a>, p. 376). This standard can be read in two ways. The more restrictive reading would require some form of intent to contribute to one side of the hostilities. This interpretation arguably includes private actors conducting cyber operations on the instruction of a conflict party but would not capture Facebook\u2019s more passive role of merely providing an online platform for other actors.<\/p>\n

The second interpretation would draw on a matter-of-fact determination of whether any activity, regardless of its originator\u2019s role or intent, actually contributed to the furtherance of the hostilities. Acknowledging states\u2019 primary responsibility to uphold IHL, we argue that the second reading of the nexus requirement ought to be applied in this case because any other understanding would leave online corporate activities that incidentally contribute to the hostilities (e.g., banking, logistics) immune from legal assessment under IHL.<\/p>\n

Second Obstacle: No Accountability Framework for Foreign Businesses Operating in Armed Conflicts<\/strong><\/p>\n

While \u2018business and human rights\u2019 or corporate criminal liability have received significant attention, the discussion about corporations\u2019 IHL obligations is almost nonexistent apart from private security companies (Doswald-Beck<\/a>, p. 115 and Chesterman<\/a>, p. 321). The few notable exceptions (Hughes<\/a>, p. 47; Bismuth<\/a>, p. 203 and Aparac<\/a>, p. 40) have nevertheless advanced two theories for IHL accountability for foreign corporations operating in the context of armed conflicts.<\/p>\n

The traditional theory argues that states are under an obligation, by virtue of Common Article 1 of the Geneva Conventions, to \u201censure respect\u201d for the rules of IHL in their domestic legal systems (Gillard<\/a>, p. 130). Since the U.S., where Meta is headquartered, is a party to the Geneva Conventions, all rules contained therein would apply to the conduct at hand, however, only indirectly through U.S. law, which, under the current reading<\/a> of the Alien Tort Statute, is not enforceable in this case for lack of a minimal connection to the U.S. But one can imagine jurisdictions more willing to hold Meta criminally or civilly accountable for violations of IHL (Mongelard<\/a>, p. 665).<\/p>\n

The second position, tentatively advanced<\/a> by the International Committee of the Red Cross (ICRC), argues that whenever a corporation\u2019s conduct is \u201cclosely linked\u201d to an armed conflict, IHL applies to all corporate activities that might implicate one of its rules. But even this standard seems problematic in relation to Facebook\u2019s passive contribution by hosting content posted by others. In this case, however, Facebook made the conscious decision to keep the video online after review which makes it possible to assert that Facebook itself engaged in an activity that is \u201cclosely linked\u201d to the armed conflict.<\/p>\n

This, however, leaves us in an uneasy position where everything points in the direction that Meta should follow IHL, but no clear theory that makes IHL directly applicable to incidental foreign corporate conduct has yet emerged.<\/p>\n

Third Obstacle: State-Centric Geneva Conventions<\/strong><\/p>\n

Following Meta\u2019s description of the video, the supposed Armenian combatants would qualify as POWs under Article 4 (A) GC III with Azerbaijan as their detaining power (Article 12 GC III).<\/p>\n

Article 13 GC III stipulates that \u201cprisoners of war must at all times be protected, particularly [\u2026] against insults and public curiosity.\u201d The interpretation of Article 13 has evolved to prohibit any exposure to the public that has the potential to humiliate or identify them. Thus, \u201cthe disclosure of photographic and video images [\u2026], irrespective of which public communication channel is used, including the internet,\u201d is prohibited (ICRC<\/a>, p. 592). The reason for this strict prohibition is the aggravated danger of public humiliation of POWs online and the safety risks to their families and themselves (Risius and Meyer<\/a>, p. 293).<\/p>\n

However, the value of video recordings in raising public awareness and as evidence in criminal trials has been cited<\/a> by Meta as a rationale for keeping the video online. State practice (here<\/a>, para. 811; here<\/a>, para. 12.3.3 and here<\/a>), case law (here<\/a>), and scholarly opinions (Maia, Kolb and Scalia<\/a>, pp. 194-200 and Kr\u00e4henmann<\/a>, p. 200) support the assertion that a compelling public interest may exceptionally override POWs\u2019 interest in protection against public curiosity. There is agreement however, that a compelling public interest needs to be conclusively demonstrated and that any materials depicting POWs shall not identify or humiliate them, except for cases of utmost public importance (e.g., a senior government official POW is wanted). The commentary to GCIII, therefore, recommends that \u201cthe media should always resort to appropriate methods, such as blurring, pixelating or otherwise obscuring faces and name tags, altering voices or filming from a certain distance, in order to serve their function without disclosing the prisoners\u2019 identities\u201d (ICRC<\/a>, p. 594).<\/p>\n

In this case, the face of at least one POW was visible, possibly exposing the injured individual to identification and humiliation. Meta has argued<\/a> \u201cthat the public interest in seeing the content outweighed the risk to the safety and dignity of the prisoners of war.\u201d But the public\u2019s rather abstract \u201cgeneral interest in seeing the content\u201d does not satisfy the specificity required under the \u201ccompelling public interest\u201d standard. Meta has also not balanced the public\u2019s interest against the POWs\u2019 right to not be identified or humiliated. Therefore, Meta\u2019s decision to keep this video publicly available is inconsistent with Article 13 GC III.<\/p>\n

But, once again, we run into the problem that Article 13 GC III specifically covers \u201cany unlawful act or omission by the Detaining Power\u201d suggesting that the conflict parties have the sole responsibility to protect POWs (Article 12 GC III). If one follows this systematic, Facebook would be off the hook. One could only blame Azerbaijan for its soldiers\u2019 violation of Article 13 GC III.<\/p>\n

Where Do We Go From Here?<\/strong><\/p>\n

Reflecting on our brief in this case, we realized that IHL can be a powerful tool for evaluating the online conduct of foreign corporate actors in armed conflicts. Meta<\/a>, Twitter<\/a>, and others even embrace the language of human rights and IHL in their policy documents. Our problem is, however, that the entire IHL framework depends on 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 new reality that transnational corporations play an important role in online warfare and are often beyond the control of the conflict parties. Perhaps the time has come to update the ICRC\u2019s 2006 guidelines<\/a> on \u2018Business and IHL\u2019 to translate the state-centric IHL language into a concrete code of conduct for businesses and emphasize that armed conflicts are not a legal vacuum for corporations.<\/p>\n

 <\/p>\n

The \u201cBofaxe\u201d series appears as part of a\u00a0<\/em>collaboration<\/em><\/u><\/a>\u00a0between the\u00a0<\/em>IFHV<\/em><\/u><\/a>\u00a0and V\u00f6lkerrechtsblog.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

When violent clashes between Armenian and Azerbaijani forces reignited the international armed conflict (IAC) in Nagorno-Karabakh last year, social media was flooded with videos allegedly portraying the mistreatment of prisoners of war (POWs). Recently, Meta, Facebook\u2019s parent company, referred a case concerning one such video to the so-called Oversight Board for review (Article 2 (1) […]<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3635,5542],"authors":[6039,5146],"article-categories":[5108],"doi":[],"class_list":["post-19778","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-international-humanitarian-law","tag-social-media","authors-jan-phillip-graf","authors-pierre-thielborger","article-categories-bofaxe"],"acf":{"subline":"IFHV Submits \u201cAmicus Brief\u201d to the Meta Oversight Board in Case Concerning the \u201cArmenian Prisoner of War Video\u201d"},"meta_box":{"doi":"10.17176\/20230414-190055-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/19778","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=19778"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/19778\/revisions"}],"predecessor-version":[{"id":19794,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/19778\/revisions\/19794"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=19778"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=19778"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=19778"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=19778"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=19778"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=19778"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}