Fernando C. Saldivar, S.J.

Global Policy and Advocacy Officer – Jesuit Justice and Ecology Network Africa (JENA)

The Gambia is the smallest country within mainland Africa, entirely surrounded by Senegal with the exception of its western coast on the Atlantic Ocean. From east to west it extends approximately 330 km and less than 50 km from north to south, hugging the banks of the Gambia River along the way. Although The Gambia’s population stands at about 2.1 million, the country’s size makes it one of the most densely populated countries in Africa and its tourism and agriculture-based economy took a particularly hard hit as a result of the COVID-19 pandemic. Nevertheless these challenges of geography and finance, The Gambia punches well above its weight in the international human rights arena and a recent victory against Facebook in U.S. federal court may ultimately prove to be an important step in holding the company to account for the human rights abuses it aids and abets around the world.

On September 22, 2021, U.S. Magistrate Judge Zia M. Faruqui issued an order requiring Facebook to respond to The Gambia’s request for production of documents related to the company’s content management of accounts connected with the spreading of anti-Rohingya hate speech in Myanmar. The Gambia is looking to use these documents to prove genocidal intent in the pending case it has before the International Court of Justice (“ICJ”) against Myanmar for its treatment of its Rohingya Muslim minority. Two questions should immediately come to mind. First, how did The Gambia pull this off and, perhaps more importantly, how has one of the smallest countries in Africa become the champion for the Rohingya before the ICJ?

Holding Myanmar to Account Before the ICJ

On November 11, 2019, The Gambia lodged an Application with the ICJ, instituting proceedings against Myanmar for violations of the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) for actions taken by the government against members of the Rohingya, a distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State. Specifically, The Gambia alleges that

“from around October 2016 the Myanmar military (the ‘Tatmadaw’) and other Myanmar security forces began widespread and systematic ‘clearance operations’ the term that Myanmar itself uses against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of ‘clearance operations’ on a more massive and wider geographical scale.”

No doubt with full knowledge that a final resolution of the case could take many years, as part of its Application The Gambia asked for “provisional measures” in order “to protect the rights of the Rohingya group and those of The Gambia under the Genocide Convention, and to prevent the aggravation or extension of the dispute pending the final judgment of the Court.” On its face, this appears as a relatively straightforward request of the ICJ, albeit of a deadly serious matter, by one member state of the UN against another. However, the truth is that The Gambia is asking the ICJ to exercise its jurisdiction over the Genocide Convention in an unprecedented way. 

Article 9 of the Genocide Convention permits disputes between parties to the convention “relating to the responsibility of a State for genocide” to be submitted to the ICJ and is the basis for The Gambia’s claim. However, the ICJ has never investigated allegations of genocide on its own accord without first relying on the prior findings of another tribunal, such as was the case with the International Criminal Tribunal for the former Yugoslavia. Moreover, Article 9 has never served as the basis for ICJ jurisdiction when a State Party is alleging that the violation of the Genocide Convention affects nationals other than its own, as The Gambia is doing here. All of which adds to an audacious attempt by one of the smallest states on Earth to push the boundaries of international human rights law. 

Audacity aside, The Gambia has been remarkably successful. On January 23, 2020, the ICJ issued a decision on The Gambia’s request for provisional measures, ordering that Myanmar take “all measures within its power” to prevent acts in contravention of the Genocide Convention against the Rohingya, including control of the Tatmadaw and other irregular armed units within the country. The decision followed a hearing before the ICJ the month before which saw Aung San Suu Kyi defending the policies of the Myanmar military. Although the January 2020 decision itself did not determine the issue of whether Myanmar was guilty of genocide against the Rohingya, that issue can now be fully litigated on the merits. Moreover, it is alleged by human rights organizations that the Myanmar government and the Tatmadaw have not only failed to abide by the ICJ’s provisional measures order, but that they continue to engage in genocidal acts and are actively destroying evidence. Thus, The Gambia’s interest in the documents in Facebook’s possession in order to prove their case. 

Facebook, Myanmar, and the Rohingya

Facebook has a unique place in Myanmar society. The internet has only been widely available in the country since September 2011, when the military government relaxed censorship laws. In a relatively short period of time, due to low cost sim cards and mobile phones, Myanmar’s information-starved population plugged online and immediately connected to social media. Facebook entered the market almost at once, having quickly developed a Burmese language version of its platform. It quickly gained popularity since it came pre-installed on most phones and users were initially allowed to use the app without incurring data charges. Thus, in a short period of time Facebook achieved such a commanding market presence that it has become synonymous with the internet in Myanmar. The ubiquity of Facebook in Myanmar, and the fact that it is used as both a social media site and a search engine, means that it has tremendous power as a source of information and as a means of swaying public opinion throughout the country. This became painfully clear as Facebook became a key vehicle for spreading hate speech and calls for violence against the Rohingya, beginning perhaps as early as 2013.

However, it was not until 2018 that Facebook started banning the accounts of senior officers of the Tatmadaw, as well as other accounts used to disseminate anti-Rohingya hate speech. All of this happened nearly two years after the Tatmadaw began “clearance operations” against the Rohingya in Rakhine state. This forms the underlying conduct which The Gambia is arguing before the ICJ amounts to genocide against the Rohingya. 

A 2018 report by the UN Fact-Finding Mission to Myanmar emphasized that in the country “Facebook is the Internet” and “[i]n a context of low digital and social media literacy, the Government’s use of Facebook for official announcements and sharing of information further contributes to users’ perception of Facebook as a reliable source of information.” Therefore, records of what was posted on Facebook by senior Tatmadaw officers, as well as other government officials, in regard to the Rohingya goes a great deal towards what message the authorities were trying to send to the public at large. This is important because one of the elements of the crime of genocide, which The Gambia must prove before the ICJ, is genocidal intent. This element, which is extraordinarily difficult to prove, requires that there be a proven intent on the part of the perpetrators to physically destroy a national, ethnic, racial or religious group, as such, meaning that the target of destruction must be the group, not its members as individuals. As part of establishing genocidal intent on part of the Tatmadaw, The Gambia is interested in records of the accounts Facebook banned, specifically the content that was deleted from public view. The question then, is how to obtain those records if Facebook is not a party to the ICJ action?

The Hidden Power of Section 1782 Discovery

To obtain these records from Facebook, The Gambia filed an action in United States District Court for the District of Columbia on June 8, 2020 under 28 U.S.C. §1782. Section 1782 provides that a petitioner may obtain an order requiring a person “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” It is a remarkably powerful tool to allow litigants to obtain discovery in the U.S. for use in foreign proceedings that rarely makes headlines. 

Nevertheless, Section 1782 has been a hot topic of conversation in U.S. legal circles this year as a case addressing it, Servotronics Inc. v. Rolls-Royce PLC, was due to be heard by the Supreme Court prior to being dismissed by the parties in September. There, the Court was expected to resolve a split among federal circuits as to whether “foreign or international tribunal” includes private commercial arbitration. In this case, however, Facebook’s opposition to The Gambia’s request was not on the basis of whether the ICJ is proper tribunal under the statute, but whether under the Stored Communications Act (“SCA”) Facebook could be compelled to disclose these documents at all. 

At issue is the Rohingya-related Myanmar content which Facebook banned from public view, but which it still has records of and ready access to. Facebook contends that the SCA prohibits disclosure of its users’ content to third-parties, except under very limited circumstances, which are not met in this case. While singing a rather sanctimonious tune in public related to privacy, transparency, and cooperation with public authorities, in litigation Facebook had repeatedly wielded the 35-year old SCA as a bludgeon to quash any attempts to disclose content, even when it could be used to exonerate defendants in criminal proceedings. Its opposition to The Gambia’s Section 1782 application follows the same strategy. 

However, U.S. Magistrate Judge Faruqui sees otherwise, ruling that the Myanmar users are not “protected users” under the SCA since they violated, and were punished for, Facebook’s own terms of service. Moreover, he rejected Facebook’s contention that the SCA’s prohibition on the disclosure of user records which constitute “backup storage” applies in this case. Judge Faruqui argues that since the primary Myanmar content has been deleted and is therefore not available to the public, the records The Gambia seeks are no longer “backup storage” of anything. In effect, “[b]ecause the original content is permanently off the platform, no backup copy can exist of it.” 

Both parties, The Gambia and Facebook agree that this issue of what constitutes “backup storage” is the key for determining whether or not the SCA applies, and Judge Faruqui’s interpretation almost guarantees that his ruling will be appealed.  The District Court’s rejection of Facebook’s argument means that U.S. Supreme Court may yet hear a case in the near future premised on Section 1782, but one brought at the behest of The Gambia and which could have far-reaching implications on what Facebook must disclose for use before international tribunals.

The Problem of Holding Multinational Corporations Accountable for Human Rights Abuses

While not targeting Facebook per se, The Gambia’s action against Myanmar at the ICJ may cast light on how difficult it is to hold corporations to account for human rights abuses they commit abroad, both domestically and on the international stage. For example, Facebook not only has in its possession the deleted anti-Rohingya content which is the subject of The Gambia’s Section 1782 application, but it also has documents related to its own internal audit on its business practices in Myanmar. Even if these were documents were disclosed in some fashion, and they revealed a pattern of human rights abuses, up to and including genocide, there is no international forum where Facebook, as a corporation, could be held to account – no matter how heinous the conduct. 

The ICJ’s jurisdiction, for example, is limited to disputes between states, either member states of the UN or non-members which have joined the court. It has no jurisdiction over individuals or non-state entities, such as corporations. By the same token, neither individuals or corporations have standing to bring suit before the ICJ against a member state. While the International Criminal Court (“ICC”) does have jurisdiction to prosecute individuals for genocide, crimes against humanity, war crimes and aggression, it lacks universal jurisdiction and can only act when a matter is referred by a state party, an ICC prosecutor, or by the UN Security Council. Moreover, like the ICJ, the ICC has no jurisdiction over corporations such as Facebook, no matter how much they may come to resemble states in their operations or economic scale. 

This lack of an international tribunal with jurisdiction to hear clams against multinational corporations is a major gap in the global human rights framework and has not yet been sufficiently addressed in the ongoing negotiations for a UN Binding Treaty on Business and Human Rights, something which is of tremendous importance to states in the Global South, and to Africa in particular. 

Small Country, Big Voice on Human Rights

In addressing the UN General Assembly in September 2019, shortly before The Gambia filed its Application with the ICJ, Vice President Isatou Touray said that The Gambia is “a small country with a big voice on matters of human rights on the continent and beyond.” That is certainly the case and the small country’s big voice extends beyond its ICJ case against Myanmar. Fatou Bensouda, a Gambian, was the Chief Prosecutor at the ICC for nine years, from 2012 to June 2021. She has the distinction of being sanctioned by the Trump Administration for having had the temerity to open investigations into alleged U.S. war crimes in Afghanistan and Israeli human rights abuses in the occupied Palestinian territories. The sanctions against Bensouda were lifted by the Biden Administration as being “inappropriate and ineffective” earlier this year, but the point was made and the message clear, Gambians have the attention of the powers that be. Whether that power is the most powerful social media company in the world, or the military and government of a country accused of committing genocide against its Muslim minority, The Gambia’s big voice is a desperately needed beacon on the international human rights stage and a reminder of the virtue of the small in pushing us to bold action.