Statements by Officers on Social Media as Proof Earlier than the ICJ – EJIL: Discuss! – Cyber Tech

At this time there are (a minimum of) three instances on the ICJ’s docket the place applicant States have relied on social media statements made by officers of respondent States as proof. The reliance on public statements by State officers earlier than the ICJ shouldn’t be per se a brand new growth (a infamous instance is the Nicaragua case).  Nevertheless, since these statements had been made on social media and never earlier than organs of the State or earlier than a global group, their reliance earlier than the Courtroom raises a plethora of questions concerning the load that it’ll determine to ascribe to those statements.

Statements on Social Media as Proof in Pending Circumstances

Statements made by common or high-ranking officers on Fb, X (Twitter) and Telegram have been talked about within the oral pleadings by the candidates in South Africa v Israel, Gambia v Myanmar, and Ukraine v Russia. In South Africa v Israel the counsel for South Africa offered a number of statements made by public officers on X (Twitter), particularly these of the members of the Israeli Knesset, that show genocidal rhetoric (Verbatim Document, CR 2024/1, p. 38). In an analogous vein, in Gambia v Myanmar, in its argument on urgency and irreparable hurt as a situation for the issuance of provisional measures, Gambia relied on, amongst others, an announcement made by a senior normal on Fb that, in line with it, evidenced hate narratives and genocidal intent (Verbatim report, CR 2019/20, p.13). Nevertheless, not like in South Africa v Israel, the Fb put up was documented by the UN Truth-Discovering Mission in Myanmar.

In Ukraine v Russia the general public statements had been superior on the stage of preliminary objections to show the existence of a dispute and the respondent’s consciousness of it. Particularly, Ukraine relied on, amongst others, an announcement made by Dmitryi Medvedev in his Telegram account (Verbatim Document, CR 2023/14, p. 85).

In all three instances the respondent States objected to using these items of proof. In South Africa v Israel the counsel for Israel referred to them as ‘hateful social media accounts’ and questioned the credibility of those sources (Verbatim Document, CR 2024/28, p.18). In Gambia v Myanmar the counsel for Myanmar challenged Gambia’s argument on genocidal intent on the grounds that the Truth-Discovering Mission’s report relied on a single Fb assertion made by the commander-in-chief, which can also be inclined to totally different interpretations (Verbatim Document, CR 2019/21, pp. 25-26).

In Ukraine v Russia, the latter opposed Ukraine’s reliance on social media proof and cautioned the Courtroom by saying that if social media proof, together with statements, ‘are prioritized over particular, established and particular channels’, it’s going to forged a shadow over the system of inter-State dispute settlement (Verbatim Document, CR 2023/18, p. 45). Whereas Russia doesn’t appear to oppose the admissibility of statements made on social media, its statements goes to the very coronary heart of probative worth and hierarchy of such items of proof.

What Can We Count on from the Courtroom?

The  arguments superior in pending instances have been on the stage of both provisional measures in South Africa v Israel and in Gambia v Myanmar or preliminary objections in Ukraine v Russia and most of which haven’t been addressed by the Courtroom in its orders or judgment on preliminary objections. Within the judgment on preliminary objections in Ukraine v Russia, the Courtroom needn’t have resorted to the social media assertion made by one of many officers to seek out that there’s a dispute between the events in regards to the Genocide Conference, as a result of availability of a number of different extra ‘official’ statements made in different fora, equivalent to at a session of the UNGA (para 47). But, in South Africa v Israel and Gambia v Myanmar, the statements will almost certainly be additionally introduced as proof on the deserves stage since it’s used to show genocidal intent. That is particularly the case for South Africa v Israel, the place the Courtroom had already ‘reacted’ to the arguments introduced ahead by the counsel for South Africa, within the first order that it issued. In paragraph 52 of the order on provisional measures from 26 January 2024 the Courtroom relied on, amongst different public declarations, on the assertion made by the Minister of Power and Infrastructure of Israel on X (Twitter) to help the plausibility of the rights claimed by the applicant.

This leaves us hopeful that it’s extremely possible that the Courtroom will, a minimum of, ‘react’ to any arguments of this type if these are introduced ahead on the deserves stage, which, in flip, raises the query of what we are able to anticipate from the Courtroom in its evaluation of this proof.

The primary query is whether or not or not the Courtroom will admit this proof. Usually, exclusion of proof is warranted the place, for instance, its origin or its reliability is questionable and this will usually be the case with social media proof. But, this appears to be extra problematic with respect to movies and photos, in comparison with statements, particularly when these, equivalent to within the case of these invoked in South Africa v Israel, had been discovered within the official social media accounts of respective officers. On the identical time, an issue that emerged in South Africa v Israel are statements by officers on social media that subsequent to their invocation earlier than the Courtroom had been deleted, maybe leaving the opposing counsel with a screenshot connected on file as the one proof that this assertion was ever made. Even when the info is saved by X (Twitter), as seen in Gambia’s case towards Fb (right here and right here), this may require the State to go to nice lengths to get that data. Leaving apart problems with reliability, it have to be mentioned that the Courtroom is usually fairly liberal in its admission of proof and as an alternative of excluding proof has typically ascribed decrease probative worth to specific forms of proof.

Secondly, then, with respect to probative worth, the principle query is whether or not the Courtroom will ascribe a excessive probative worth to those statements made on social media. Right here, one ought to take into account the ‘public statements as proof’ check developed within the Nicaragua case, in line with which (1) public statements are ‘of specific probative worth once they acknowledge info or conduct unfavourable to the State represented by the one who made them’ and (2) the way in which wherein ‘the statements had been made public’ issues (paras 64-65). With respect to the latter pronouncement, the ICJ additionally added that

‘evidently, it [the Court] can’t deal with them [statements] as having the identical worth no matter whether or not the textual content is to be present in an official nationwide or worldwide publication, or in a ebook or newspaper.’ (para 65)

If we apply this check, it seems much less possible that the Courtroom will ascribe a excessive probative worth to social media statements taken on their very own. The Courtroom may regard them as much less ‘official’ in comparison with different statements made by way of different (extra official) channels of communication. Nevertheless, ought to the Courtroom take such a stance, it runs the danger of (and rightfully so) being perceived as too conservative —  it’s tough to reject the analogy between ‘basic’ official statements and statements made in social media in a world the place the official presence of States and State organs may be very outstanding on social media.  On the identical time, it is necessary for the Courtroom to react to the argument made by the counsel for Israel that solely statements of these officers who’re competent to direct and outline State coverage in battle ought to be thought of, which doesn’t really cohere with the duties of the State beneath the Genocide Conference and the truth that, for functions of duty, the State is taken as a single entity and is represented by a wide range of organs, not solely those that have competence in a particular space.

In Gambia v Myanmar, the assertion on Fb relied on by Gambia was recorded in a UN Truth-Discovering Mission report and, in mild of this, it would presumably be handled in another way in comparison with the statements superior in South Africa v Israel. Particularly, it will likely be the evaluation of the reliability and probative worth of the report itself that can have spill-over results over the reliability and probative worth of the assertion made on social media. For reviews such because the one invoked on this case, the Courtroom sometimes applies a tripartite check developed within the Bosnian Genocide case, and considers the supply of proof, the method (particularly the methodology on the subject of UN reviews) and the standard or character of the merchandise (para 227).

One other query concerning the probative worth of statements, particularly in South Africa v Israel, is whether or not or not the ICJ will determine to deal with such statements as direct proof or merely corroborative proof or apt to function direct proof, particularly when what’s at stake is discriminatory or genocidal animus because the subjective component, relatively than info pertaining to the target component of genocide. Usually, proof stemming from the media – newspaper articles, books, tv broadcasts and so forth is taken as corroborative proof relatively than direct proof (Nicaragua, para 62), that means that they’re solely taken into consideration if the data they proof concords with data stemming from different sources. This, nonetheless, is often the case when these media shops confer with specific info that type a part of the target component relatively than statements.

Final however not least, maybe the principle hurdle, as mentioned by different students (for instance, right here), will likely be assembly the very excessive normal of proof that the Courtroom applies in instances involving allegations of genocide – ‘the one inference that may be drawn’. It’s unlikely that solely statements made by officers on social media, irrespective of how straightforwardly harrowing and inculpating they could be, will be capable to (ever) meet this (maybe unreasonably) excessive normal of proof. But, the prospect of success is larger whether it is introduced ahead, because it was by South Africa, along with different forms of proof.