On Facebook’s Commitment to Human Rights, and the Right to a Remedy for the Rohingya

[Clare Brown is the Deputy Director of Victim Advocates International. She is Assistant to Counsel in a submission filed on behalf of 64 Rohingya to the International Criminal Court, requesting the court to consider holding hearings in Bangladesh.] 

On 16 March, Miranda Sissons, the inaugural Director of Human Rights for Facebook, posted an article on Opinio Juris announcing the launch of Facebook’s first corporate human rights policy. This article responds to that post. First, it sets out the context in which this policy has been adopted, including the history of Facebook’s complicity in the violence against the Rohingya. Second, it argues that the right to a remedy afforded to victims under this new policy is too narrowly construed to meet the standard set by the UN Guiding Principles on Business and Human Rights (UNGPs), with which Facebook is claiming compliance. Third, it considers the specific example of the Rohingya whose plight, and Facebook’s involvement in it, was the trigger for Facebook’s 2018 independent human rights impact assessment following which the adoption of a corporate human rights policy was recommended. It argues that although its recently adopted policy does not reflect this, Facebook has an obligation to provide a remedy to Rohingya victims of ethnic violence, in which Facebook has admitted to be complicit, under the UNGPs and customary international law. It describes how Rohingya groups living in Cox’s Bazar refugee camp have in fact requested a remedy from Facebook, in the form of an educational project in the camp, which Facebook has refused to provide. Finally, it makes three recommendations to Facebook to meet its obligations under international law, and to demonstrate the “commitment to human rights” extolled in Ms Sisson’s post.  

Facebook’s new policy in context of its past violations

Facebook’s new corporate human rights policy is the latest development in a series of steps the corporation has taken to address past complicity in mass human rights violations, in countries including Sri Lanka, Myanmar, the Philippines, Brazil, Mexico and India. The fact that Ms Sissons, a respected human rights expert, occupies the role of Director of Human Rights at Facebook is in itself a result of its efforts towards reform: the role was created in 2019, after an independent human rights impact assessment into Facebook’s role in anti-Rohingya violence in Myanmar recommended its establishment.

Facebook commissioned the human rights assessment after the Independent International Fact-Finding Mission on Myanmar (IIFFMM) found that its role in spreading hate speech that fuelled the violence in Rakhine state in 2017 was ‘significant’. Many of the Rohingya who were forced to flee Myanmar, and who now live in a sprawling refugee camp in neighbouring Bangladesh, continue to harbour resentment towards Facebook for its role in their current plight. In an open letter to Miranda Sissons sent on 29 June 2020, seven camp-based Rohingya refugee groups referenced Facebook’s complicity in violence carried out against their communities from August onwards in 2017, during which time “many people were killed, tortured and raped”, and entire “villages were burnt down”.

Facebook has acknowledged that at the time of the 2017 violence, it was not doing enough. Its recent slew of policies and new appointments are intended to remedy past failures. Ms Sissons has pointed out that Facebook has taken these actions voluntarily, given that corporations do not have obligations under international law to protect human rights. But as Mark Zuckerberg himself has acknowledged, “Facebook is more like a government than a traditional company… more than other technology companies, [it is] really setting policies.” Facebook operates in a domain previously reserved for states. It is the governing body for a space – a digital space, but a space nonetheless – populated by hundreds of millions of people for extended periods of time, and in that role regulates commerce, speech, media, debate, and yes, hate. It is the high-water mark of the decades-long creep of corporate entities into spaces in which human rights can be fulfilled or violated. International human rights law, with its inflexible conceptualisation of states as duty-bearers and citizens as rights-holders, has been ill-equipped to respond to this phenomenon. In an effort to impose parameters on corporate conduct, the UN General Assembly in 2011 adopted the UN Guiding Principles on Business and Human Rights. These principles set out the minimum standards required from corporations to ensure respect for human rights – and Facebook has committed to them. The corporate human rights policy it released last week is based on the UNGPs.

Facebook’s narrow conceptualisation of the right to a remedy

The UNGPs provide that in order for business enterprises to meet their obligations under international human rights law, they must have in place: (1) a policy commitment to meet their responsibility to respect human rights; (2) a human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights; and (3) processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. Facebook’s policy includes each of these elements. The area in which the Facebook policy falls short of its obligations under the UNGPs – and where it risks contributing to a system where victims of human rights violations are unable to obtain redress – is the section on the right to a remedy. Under customary international law, the right to a remedy is enjoyed by all victims of gross violations of international human rights law and serious violations of international humanitarian law. It is one of the idiosyncrasies of international law that while the victim may be owed this right no matter the identity of the perpetrator, only states have firm legal obligations to provide a remedy. The UNGPs contribute to closing that gap, by providing that ‘where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation’.

The most egregious violations of international human rights law and international humanitarian law in which Facebook is complicit are – as described by the Rohingya groups in their open letter – the killing, raping and torture of civilians, in Myanmar and beyond. Of all those who have been wronged by Facebook’s past mistakes, it is the groups whose lives were destroyed by violence incited on its platform that are the most in need of a remedy. But the right to a remedy in Facebook’s policy makes no mention of victims of real-world violence or discrimination. It focuses, instead, on the right to challenge Facebook’s content moderation decisions. The ‘right to a remedy’ is conceptualised in the narrowest terms possible, as the right to petition Facebook to have a banned post put back up, or to argue that a post should be removed.

The ability to challenge a content moderation decision is a valid remedy for someone who has suffered a violation of the freedom of expression as a result of Facebook’s decision to remove a post. For those who have suffered violations of the rights to life, to be free from torture, or to bodily integrity and security it is inappropriate, inadequate, and much too late. The UN’s Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law lay out the components of the right to a remedy under customary international law. They provide that remedial action may take the form of restitution, compensation, rehabilitation, satisfaction and/ or guarantees of non-repetition, depending on what is appropriate in the context of the violation.

In situations where a government is responsible for committing the violations, and where a court has jurisdiction, a judge will make a decision about which of these remedies will be most appropriate. In recent years, the victims’ rights movement has encouraged international courts to develop mechanisms and processes for providing remedies to victims that are tailor-made to their needs and priorities. At the ICC, the Assembly of States Parties to the Rome Statute set up the Trust Fund for Victims, which has the mandate to work with victim and civil society groups to provide reparations that address the harm that the community has suffered. The Inter-American Court of Human Rights has developed the most sophisticated body of jurisprudence on reparations of all the international systems, with judgments habitually ordering innovative remedies designed to redress the specific harm caused by certain violations. Common remedies include human rights training for public officials; provision of medical and psychological care for survivors; the establishment of development funds; and scholarships and educational benefits for victims who have been denied such opportunities as a consequence of the violations they have experienced.  

Rohingya groups’ request to Facebook for a remedy

In the case of Facebook and the Rohingya, the perpetrator in question is a non-state entity, and no court has jurisdiction to make findings about culpability or order a remedy. One option for the Rohingya may be to make a submission to one of the National Contact Points for Responsible Business Conduct, which receive complaints relating to violations of the OECD Guidelines for Multinational Enterprises (guidelines which are aligned with the UNGPs, but specific to countries in the OECD). These Focal Points are empowered to determine whether a breach has occurred, but they are not courts. They cannot make binding judgments, and are limited to facilitating mediation between parties and making recommendations. Even without action being taken against it, however, Facebook could provide a remedy to the victims of the violence it helped to incite. Doing so would meet its obligations under the UNGPs, and would recognise the rights of the Rohingya victims to a remedy under customary international law.

This remedy could take many forms – restitution, compensation, rehabilitation, satisfaction and/ or guarantees of non-repetition are all likely to be appropriate. A prime consideration should be the priorities of the victims themselves; and in the present case, this is something that the Rohingya community has contacted Facebook about directly. Representatives of the Rohingya groups who sent the open letter to Ms Sissons in June last year had a phone call with her in August, in which they explained that one of the most difficult aspects of their displacement into Bangladesh is that children are unable to attend high-school. They asked Facebook to fund an education project in the refugee camp in Cox’s Bazar. Ms Sissons informed the groups that if a proposal was sent to Facebook describing the logistics of such a project and requesting funding, she would send this to the relevant people for consideration.    

After this phone call, and a further three months of developing a comprehensive proposal, a concept note for a camp-based education project was sent to Facebook. The note was prepared by a prominent academic institution in Bangladesh. It proposed a million-dollar project through which educated refugees from the camp would be given materials, training and support to teach younger and less educated members of their community. Many Rohingya groups were involved in the design of the activities described in the concept note, and many of their members eager to take on teaching roles as part of the project. Its submission was accompanied by a letter requesting that Facebook support the project, signed by 21 community-based groups within the camp.

Facebook refused the request on 10 February 2021. In her email rejecting the proposal, Ms Sissons explained that Facebook does not engage in ‘philanthropic activities’, and that while it does partner on some initiatives, these ‘generally have a more direct link to [Facebook] products’.

The violence committed against the Rohingya, and the human rights they have been denied as a result, have a direct link to Facebook’s products. In July 2016, Facebook and Myanmar Post and Telecommunications jointly launched ‘Free Basics’ and ‘Facebook Flex’- phone-based versions of the Facebook platform that can be accessed without mobile data. This had the effect of drastically increasing the number of Facebook users in Myanmar, from 10 million in mid-2016 to 20 million two years later. By making Facebook cheaper to access than any other website, Facebook and Myanmar Post and Telecommunications created a situation where, as the IIFFMM put it, ‘Facebook is the internet’. Though Facebook has not made data about its earnings in Myanmar available, it seems clear that its profit climbed throughout 2017, along with its number of users, many of whom were using it to incite violence. The money Facebook made in the months of large-scale violence against the Rohingya is almost certainly many times the one million dollars requested by the Bangladeshi institution and the refugees to educate their children.

Rather than viewing support for this project as a philanthropic activity, Facebook should see this request from the victims as a demand for the reparations they are owed. The provision of educational opportunities to victims displaced by violations committed in Myanmar is a form of both restitution and rehabilitation: restitution, for those who were able to access an education before they were displaced; and rehabilitation, because it acts as a vehicle through which victims, despite what they have been through, may attain self-dependence and lead a decent life. This is exactly the kind of case in which the Inter-American Court of Human Rights might order that a government provide scholarships or an educational programme. Of course, Facebook is not a state, and the Inter-American Court has no jurisdiction. But under international law, the victims are owed a remedy and, under the UN Guiding Principles that Facebook has committed to, Facebook has an obligation to provide one.

Recommendations to Facebook

The strides Facebook has made in recent years to comply with international human rights law and standards are admirable, and the adoption of a corporate human rights policy is an important step. This post, directed at Facebook, makes three recommendations for it to demonstrate that it takes these commitments seriously, and to signify to the Rohingya victim community that it recognises their right to a remedy.

1. Facebook should recognise its obligation under the UNGPs to provide a remedy for Rohingya populations affected by its involvement in the gross violations of human rights committed in Myanmar;
2. Facebook’s corporate policy on human rights should recognise its obligation to provide remedies to populations who have experienced gross violations of international human rights law or serious breaches of international law to which Facebook’s acts or omissions have contributed;
3. Facebook should consider the request by Rohingya victims to fund an education project in the camp to be a demand for a restitutive and rehabilitative remedy, and move forward on providing this remedy in consultation with the victims.

Ms Sissons ended her post by saying that Facebook is ‘using the UNGPs and other frameworks to send the message: rights matter.’ Facebook’s engagement with the Rohingya community so far does nothing to demonstrate this. This is an opportunity for it to prove, to the Rohingya groups and to the world, that it really means it.