A New Window In? Social Media and the UN Commission of Inquiry on the 2018 Protests in the Occupied Palestinian Territory

[Emma Irving is an Assistant Professor of Public International Law at the Grotius Centre for International Law, Leiden University and Nicholas Ortiz is a Research and Teaching Associate at the Kalshoven-Gieskes Forum on International Humanitarian Law.]

On 18 March 2019, the UN Commission of Inquiry on the 2018 Protests in the Occupied Palestinian Territory (‘CoI’) published its detailed findings of its investigation of violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory (OPT). The CoI found that from March to December 2018, over 6,106 Palestinians who participated in the Great March of Return were shot, with 183 killed. It determined that the conduct of Israel, the Palestinian Authority, and the Gaza de facto authorities allegedly violated different aspects of international law with differing degrees of severity, and that each was obliged to investigate the allegations of unlawful conduct by their security forces.

In coming to these conclusions the CoI relies, in large part, on traditional sources of information, including eyewitness reports, medical reports, satellite images, and public statements from governmental authorities. However, it also makes significant use of posts, photos, and videos gathered from social media, a source that has until recently not been explicitly relied on by UN fact finding bodies. In this respect the CoI for Gaza joins the OHCHR Fact Finding Mission on Myanmar (FFM), which recently used information acquired from social media (principally Facebook) as a source of support for its finding that genocide took place in Myanmar (full report; analysis). In utilising information from social media, the CoI for Gaza has taken advantage of the window that these channels can provide into violent situations made otherwise inaccessible due to political or security factors.

Given the novelty of using social media in the pursuit of accountability for violations of international humanitarian, criminal, and human rights law, it is worth setting out a number of observations on how the CoI report on Gaza contributes to the small but growing practice in this area.

Some Observations

The first observation concerns the CoI’s approach to the question of the standard of proof for social media content. The CoI divided the information it relied on into ‘direct information’ and ‘corroborating information’, and set out lists of what can constitute each. Social media content, in cases where it can be authenticated, would seem to fall into the category of ‘authenticated video and photographic material’, and as such qualified as a direct source of information. Statements made by State authorities through social media would also count as direct information. To reach the level of ‘reasonable grounds to believe’ set out by the CoI as the relevant standard of proof, direct information needed to be corroborated by other credible sources. Corroborating information included witness affidavits provided by human rights organisations and the UN, expert reports, and public reports, submissions and documentaries; not the types of information that one would derive from social media. Based on this, it seems clear that the Commission was not ready to rely on social media information alone, even if the video or photo in question had been authenticated (on the question of authentication, the CoI provides no guidance). To support a factual determination to the standard of ‘reasonable grounds to believe’, social media content would need to be independently corroborated by other types of credible information. Given the problems surrounding social media content verifiability this is to be expected, but does inevitable limit the role of such material.

The second observation concerns the way in which social media content was used to support factual findings, which in turn enabled the CoI to make findings on the legality of certain killings. Two incidents in particular highlight this point. Firstly, when making a factual finding regarding the death of a 20-year-old paramedic, Razan al-Najjar, the CoI relied upon, among other sources, a New York Times investigation which reconstructed her death using a 3D architectural model of the scene. The model took into account over 1000 “crowdsourced videos and photographs” to conclude that Razan did not pose an imminent threat of death or serious injury to Israeli Security Forces (‘ISF’), making her killing unlawful. Secondly, with regards to the killing of Abed El Fatah Nabi, the CoI indicated specifically that Abed’s killing was captured on multiple videos and circulated widely on social media. In its factual assessment, the CoI placed a great deal of weight on what the video footage showed. The footage was described as showing Abed El Fatah Nabi running away at the time he was shot, leading the Commission to conclude that he did not pose an imminent threat of death or serious injury to ISF soldiers. As these two incidents show, social media was an important source of primary information in establishing the underlying facts of an incident, upon which the Commission could make a determination of whether the killing was lawful or not.

A third matter to note is how the Commission highlighted the use of social media by all parties to the protests to spread misinformation. The report sets out three instances of Israeli and Palestinian misinformation, in order to show how this negatively affected public debate and hindered the work of the CoI. One example the report covers is the misinformation surrounding the death of the medic Razan al-Najar (discussed above), with videos being circulated on social media that had been edited so as to falsely suggest she was acting as a human shield for Hamas. However, despite highlighting the issue of misinformation and describing particular examples of it, the CoI does not explore the issue of the dehumanising and hateful language that such misinformation gave rise to. Contrary to the approach of the FFM for Myanmar (which discussed at length the role of social media and misinformation online in inciting genocide and violence), CoI takes note of the issue but does not delve further into potential connections between this and the violence surrounding the Gaza protests.

A final observation concerns the way in which social media videos have been used in the CoI’s media outreach. Along with the report, the Commission released a four and half minute video containing a collection of videos showing protestors being shot in the area near the separation fence. While it does not expressly attribute these videos to a particular source, it is possible (even likely?) that some of them originated from social media. The individuals in the outreach video are also mentioned in the report, and in relation to two of them at least (Ahmed Abu Hussein and Abed El Fatah Nabi) the report notes that footage of them being shot was available from public sources and circulated on social media. By using material of this type in its media outreach, the CoI allows social media to act as a window into violent situations for the wider public, and not just to fact finding bodies engaged in accountability work. One can further note, that this video was itself circulated on social media.

Some Conclusions

While it is still too early for a comprehensive analysis of the practice of UN fact finding bodies in relation to social media, its use by the CoI represents another step towards developing an understanding of its use, value, and limitations in this field. In that regard, it is important to mention that social media content – and its use as a source in this context – remains very much situation specific. The two fact finding bodies that have made notable use of social media – the CoI on Gaza and the FFM on Myanmar – have carried out their mandates in different ways, dictated in part by situation specific factors such as the nature of the violations they were tasked with examining, the digital penetration present in each country, and ultimately the designated objective of the body. The CoI on Gaza report identified a list of specific individuals who have been unlawfully killed, and described the events surrounding their deaths. Social media is one of the sources of information used to understand the circumstances of those deaths, and to support the conclusion that the individuals posed no imminent threat. The FFM on Myanmar by contrast, focused on larger patterns of attacks against particular ethnic and religious groups, and used social media to demonstrate the movement of armed forces and the presence in the leadership of genocidal intent.

What both Gaza and Myanmar have in common is that they were situations where the staff of the fact findings bodies had no access to areas under investigation. The CoI was denied on the ground access to the Gaza strip by Israel and Egypt, and the FFM was denied on the ground access in Myanmar. While both bodies were still able to speak to witnesses remotely – and where witnesses were located outside the territory, in person – social media offered an important window into events on the ground as they happened. With respect to the killing of Razan al-Najjar, the New York Times noted that nearly every minute of the day she died was filmed.

At a time when it is increasingly difficult, or outright impossible, for investigations to be carried out at the site where violations are said to have taken place, the windows afforded by social media provide fact finding bodies with a new perspective. Yet, as noted above, social media content is not, at this stage, being used as the sole basis for making factual and legal assessments. For both the CoI and the FFM, social media content was part of a web of information, having been filtered through long-standing methodological frameworks of each body and used in connection with other direct and corroborating information. This indicates that such bodies are beginning to test what role social media content can play in accountability processes. While only time and practice will ultimately show how well and in which contexts social media content can and should be used by fact finding bodies, it is noteworthy that the CoI chose to include (or was unable to ignore) social media content for these purposes.