ARTICLE 19 has submitted public comments to the Meta Oversight Board concerning a video that reveals the identity of an Armenian prisoner of war (POW). The video appears to be related to alleged war crimes committed by Azerbaijan in the ongoing Nagorno-Karabakh ethnic conflict. In our submission, we suggest that Meta establish and fund a long-term collaborative relationship with the International Committee of the Red Cross (ICRC) to determine how to best balance information in the public interest with international humanitarian law (IHL) that protects the safety and dignity of POWs.
In October 2022, a Facebook user posted a video depicting Azerbaijani soldiers searching through rubble and pulling out people who appear to be Armenian soldiers. In their caption, the user states that ‘the video depicts Azerbaijani soldiers torturing Armenian prisoners of war’. While the video is edited to obscure the Azerbaijani soldiers’ faces, the face of one injured Armenian soldier they pull from the rubble is visible. Though the video violates Meta’s Coordinating Harm and Promoting Crime Community Standard, Meta did not take the video down under its ‘newsworthiness allowance’. It instead referred the case to the Oversight Board, which will determine how to best moderate the video.
In our response to the Oversight Board, ARTICLE 19 acknowledges that this case raises several complex and underexplored questions, including how freedom of expression applies during armed conflicts and what the nature of the relationship is between social media companies and international humanitarian law. We urge Meta to work with the International Committee of the Red Cross to gather as much context as possible on these kinds of cases to determine the intent behind the content in question.
Additionally, we highlight that unlike international human rights law, which is explicitly binding on states, IHL is binding on states, non-state actors like Meta, and individuals. While international human rights law — including freedom of expression — still applies during armed conflicts, legal priority is afforded to the norm that is more specific which, in this case, are the protections for POWs outlined in Article 13(2) of the Third Geneva Convention: ‘[p]risoners of war must at all times be protected, particularly […] against insults and public curiosity.’ The ICRC Commentary elaborates that ‘[i]n modern conflicts, the prohibition also covers […] the disclosure of photographic and video images […].’
This prohibition is not absolute. The ICRC notes that documenting hostilities during international conflict can safeguard against enforced disappearance, unlawful execution, or other ill-treatment and can promote accountability and raise awareness. Because the video in question allegedly depicts torture, its content can be considered to constitute information in the public interest. To balance public interest with the safety and dignity of POWs, the ICRC recommends that social media platforms follow the same practices as media outlets and blur faces and alter voices to conceal identities whilst ensuring valuable information can still be shared.
To moderate appropriately with this complexity in mind, ARTICLE 19 urges Meta to explore creating and funding a standing mechanism with the ICRC to jointly assess the context and nature of specific posts and determine appropriate actions on a case-by-case basis. Meta should also cooperate with relevant accountability mechanisms to preserve any evidence of international crimes and act in the interest of accountability.