Symposium on Myanmar and International Indifference: A Deeper Dive Into International Criminal Liability for Internet Shutdowns – The Case of Myanmar (Part 2)

[Caroline Stover is a lawyer focusing on human rights and refugee law and is currently the acting Head of Asia Programme at ARTICLE 19. Michael Altman-Lupu is a human rights lawyer working with ARTICLE 19 to protect and defend freedom of expression in Southeast Asia.]

The Argument for the Investigation of Those Ordering Internet and Telephonic Shutdowns Under Articles 25(3)(c) and 25(3)(d) of the Rome Statute

Given the findings of investigations conducted by groups like Athan, it is arguable that internet shutdowns have sufficiently contributed to the commission of international crimes that those responsible for the shutdowns could potentially themselves be liable under either Article 25(3)(c)—by aiding and abetting—or 25(3)(d)—based on other contributions—of the Rome Statute. Of course, any actual liability would depend on the specific circumstances of each case and highly depend on the evidence available. But based on existing reporting, we highlight two ways in which internet shutdowns are relevant to the commission of the international crimes committed in Myanmar, noting that further research could reveal more:

• First, communications cuts deny civilians an important line of defense highlighted by those speaking to communities facing the Tatmadaw’s brutal attacks. In its report, Athan interviewed individuals from areas affected by long-term internet shutdowns, who explained that social media platforms allow for the crowdsourcing of vital safety information, including troop movements. As a result, removing access to social media platforms leaves civilians less informed about the possibilities of attacks where they live. Further, internet restrictions, particularly those that limit 3G and 4G services, can result in individuals being unable to even send certain cellular text messages, such as MMS and group text messages, leaving them less able to effectively communicate with each other in a defensive manner. The result, according to one individual interviewed, is that communities in a communications blackout fear they do not have sufficient time to flee a Tatmadaw attack. It is therefore likely that the loss of communications capabilities in the lead-up to the commission of murder, torture, imprisonment, enforced disappearances, forced population transfer, and persecution has hastened the occurrence of these crimes.

• Second, the internet shutdowns in Myanmar have likely made it easier for the junta to persecute dissidents. As noted above, cutting communications makes it more difficult for protesters, activists, and other targets of the military to securely share information necessary to defend themselves against persecution. In addition, internet shutdowns tend to herd those who would otherwise use encrypted internet-based communications apps like Signal and WhatsApp into unencrypted phone and messaging apps, thereby making it easier for the military to intercept their communications, track, arrest, and detain protesters. Without individual-specific facts, it would be difficult to argue to what extent these internet shutdowns have in fact facilitated persecution, particularly arrest. However, the military’s push to increase surveillance capabilities indicates that the military sees this tool as increasingly important in achieving its objectives, pointing to the conclusion that the Tatmadaw itself believes that controlling the internet can facilitate persecution.

Contribution Liability Under Article 25(3)(d)

In view of the above, prosecutors could consider investigation under Article 25(3)(d) of the Rome Statute, under which an individual may be held criminally liable if he or she “in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i)  Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii)  Be made in the knowledge of the intention of the group to commit the crime.”

It is arguable that Article 25(3)(d) is sufficiently expansive to include liability for internet shutdowns that facilitate the commission of international crimes, including those that do so by covering up crimes.

In The Prosecutor v. Germain Katanga, the ICC has held that contribution liability presupposes that: (1) a crime within the jurisdiction of the Court was committed; (2) the persons who committed the crime belonged to a group acting with a common purpose; (3) the accused made a significant contribution to the commission of the crime; (4) the contribution was intentional; and (5) the accused’s contribution was made in the knowledge of the intention of the group to commit the crime.

As mentioned above, there is significant evidence that numerous crimes within the ICC’s subject matter jurisdiction—ratione materiae—have been committed. We further believe that a court could have enough grounds to find that those responsible for ordering shutdowns are part of the group acting to further a common purpose of committing an attack against civilians. Element 4 of the Katanga test relates to intentionality to commit the act, and we assume here that acts to shut down the internet have been, in fact, intentional.

And as argued above, we believe the contribution of an internet shutdown is sufficiently significant to make a case for contribution liability under element (3) of the Katanga test. The loss of additional defense mechanisms for civilians has likely had “a bearing on the occurrence of the crime and/or the manner of its commission”—meeting the relatively low bar set out by Katanga.  

Moreover, in Mbarushimana, the ICC determined that, while ex post facto contributions were specifically excluded from aiding and abetting liability under the Rome Statute, cover-ups could nevertheless be prosecuted under Article 25(3)(d) of the Statute, “so long as contribution had been agreed upon by the relevant group acting with a common purpose and the suspect prior to the perpetration of the crime.” Hence, liability could also accrue to those who agreed to the cover-up of crimes before they were committed. The possibility of communications cuts as a mode of cover-up is explicitly considered in Gaddafi, and this line of reasoning is likely relevant in the case of Myanmar as well.

Courts have made clear that liability under section 25(3)(d) of the Rome Statute does not require the perpetrator to have specific intent to commit a crime; knowledge of the group’s intention to commit a crime is sufficient. Given the volume and wide geographic spread of international crimes documented across the country, we believe it would be difficult for anyone to argue that those responsible for implementing the internet shutdowns lack knowledge of Tatmadaw’s intention to commit crimes. It is important to note that while the Tatmadaw’s intentions behind internet shutdowns may also include the targeting of legitimate military objectives, this does not exclude potential liability for their contributions to the commission of crimes against humanity or war crimes. 

To illustrate,  it is helpful to review how element 5 was determined in Katanga itself. Inthat case, the defendant was found guilty on a contributory liability theory for his role in providing weapons to an armed group that later committed crimes against humanity. The court reasoned that Katanga’s knowledge of the modus operandi of this group committing the attack—enabling him to predict how the attack would play out—was sufficient to meet the mens rea requirement despite his absence at the attack itself. In Myanmar, the Tatmadaw has repeatedly and consistently preceded attacks on civilian populations with internet restrictions. As even an outside observer can glean a modus operandi that has emerged from Myanmar’s attacks following internet shutdowns, it is unlikely that someone implementing internet shutdowns at this stage could successfully claim ignorance of this pattern.

Aiding and Abetting Liability Under Article 25(3)(c)

In addition, prosecutors could also consider investigation under Article 25(3)(c) of the Rome Statute, which holds criminal responsibility for those who, “[f]or the purpose of facilitating the commission of . . . a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.”

In The Prosecutor v. Jean-Pierre Bemba Gombo, the ICC makes clear that there is no need for the aid to have had a substantial effect on the principal crime—rather, any effect is enough to satisfy the actus reus of aiding and abetting under the Rome Statute. However, though there is some disagreement as to the proper ­mens rea in aiding and abetting cases, the ICC in Bemba indicated that, to be held criminally liable for aiding and abetting, the official responsible for the internet shutdown must have lent her assistance with the aim of facilitating the offense. Moreover, as stated by the ICC in The Prosecutor v. Callixte Mbarushimana, it is not enough that the official knows the conduct will assist the principal perpetrator. Rather, the internet shutdowns in Myanmar must have been ordered with the express intent that the conduct would facilitate crimes. Whether the requisite intent exists would be therefore important for future investigation, and cannot be addressed without individual facts. However, given the timing of internet shutdowns across Myanmar, and the commission of crimes in those regions immediately preceding those shutdowns, it is certainly possible that the officials who ordered those shutdowns intended for the internet shutdowns to facilitate the commission of the crimes.

Conclusion

Courts determining international criminal liability will increasingly be faced with evidence of internet shutdowns amidst the commission of crimes against humanity or other international crimes, such as genocide or war crimes. In Myanmar, we believe that there is compelling evidence to show that internet shutdowns not only cover up and interrupt the collection of evidence about crimes, they ex ante facilitate the commission of those crimes. We also believe that existing case law provides a road map for prosecutions for the internet shutdowns themselves. While international criminal case law has yet to consider this precise question, there is a strong case to pursue accountability for communications interference. In this article, we have presented two such possible avenues.

Further, while drawing on existing research from documentation groups such as Athan, we note that further research on the impacts of internet shutdowns for those living in areas affected by crimes against humanity would greatly facilitate discussion on this topic. In the future, the work of groups documenting internet shutdowns will be crucial in shedding light on the actual impacts of internet shutdowns on communities and their efforts to defend themselves against war crimes and crimes against humanity.