Statements by Officials on Social Media as Evidence Before the ICJ

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Today there are (at least) three cases on the ICJ’s docket where applicant States have relied on social media statements made by officials of respondent States as evidence. The reliance on public statements by State officials before the ICJ is not per se a new development (a notorious example is the Nicaragua case).  However, since these statements were made on social media and not before organs of the State or before an international organization, their reliance before the Court raises a plethora of questions regarding the weight that it will decide to ascribe to these statements.

Statements on Social Media as Evidence in Pending Cases

Statements made by regular or high-ranking officials on Facebook, X (Twitter) and Telegram have been mentioned in the oral pleadings by the applicants in South Africa v Israel, Gambia v Myanmar, and Ukraine v Russia. In South Africa v Israel the counsel for South Africa presented multiple statements made by public officials on X (Twitter), especially those of the members of the Israeli Knesset, that prove genocidal rhetoric (Verbatim Record, CR 2024/1, p. 38). In a similar vein, in Gambia v Myanmar, in its argument on urgency and irreparable harm as a condition for the issuance of provisional measures, Gambia relied on, among others, a statement made by a senior general on Facebook that, according to it, evidenced hate narratives and genocidal intent (Verbatim record, CR 2019/20, p.13). However, unlike in South Africa v Israel, the Facebook post was documented by the UN Fact-Finding Mission in Myanmar.

In Ukraine v Russia the public statements were advanced at the stage of preliminary objections to demonstrate the existence of a dispute and the respondent’s awareness of it. In particular, Ukraine relied on, among others, a statement made by Dmitryi Medvedev in his Telegram account (Verbatim Record, CR 2023/14, p. 85).

In all three cases the respondent States objected to the use of these pieces of evidence. In South Africa v Israel the counsel for Israel referred to them as ‘hateful social media accounts’ and questioned the credibility of these sources (Verbatim Record, 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 Fact-Finding Mission’s report relied on a single Facebook statement made by the commander-in-chief, which is also susceptible to different interpretations (Verbatim Record, CR 2019/21, pp. 25-26).

In Ukraine v Russia, the latter opposed Ukraine’s reliance on social media evidence and cautioned the Court by saying that if social media evidence, including statements, ‘are prioritized over special, established and specific channels’, it will cast a shadow over the system of inter-State dispute settlement (Verbatim Record, CR 2023/18, p. 45). While Russia does not seem to oppose the admissibility of statements made on social media, its statements goes to the very heart of probative value and hierarchy of such pieces of evidence.

What Can We Expect from the Court?

The  arguments advanced in pending cases have been at the stage of either provisional measures in South Africa v Israel and in Gambia v Myanmar or preliminary objections in Ukraine v Russia and most of which have not been addressed by the Court in its orders or judgment on preliminary objections. In the judgment on preliminary objections in Ukraine v Russia, the Court need not have resorted to the social media statement made by one of the officials to find that there is a dispute between the parties concerning the Genocide Convention, due to the availability of multiple other more ‘official’ statements made in other fora, such as at a session of the UNGA (para 47). Yet, in South Africa v Israel and Gambia v Myanmar, the statements will most likely be also brought as evidence at the merits stage since it is used to prove genocidal intent. This is especially the case for South Africa v Israel, where the Court had already ‘reacted’ to the arguments brought forward by the counsel for South Africa, in the first order that it issued. In paragraph 52 of the order on provisional measures from 26 January 2024 the Court relied on, among other public declarations, on the statement made by the Minister of Energy and Infrastructure of Israel on X (Twitter) to support the plausibility of the rights claimed by the applicant.

This leaves us hopeful that it is highly likely that the Court will, at least, ‘react’ to any arguments of this kind if these are brought forward at the merits stage, which, in turn, raises the question of what we can expect from the Court in its assessment of this evidence.

The first question is whether or not the Court will admit this evidence. Generally, exclusion of evidence is warranted where, for example, its origin or its reliability is questionable and this can often be the case with social media evidence. Yet, this seems to be more problematic with respect to videos and pictures, compared to statements, especially when these, such as in the case of those invoked in South Africa v Israel, were found in the official social media accounts of respective officials. At the same time, a problem that emerged in South Africa v Israel are statements by officials on social media that subsequent to their invocation before the Court had been deleted, perhaps leaving the opposing counsel with a screenshot attached on file as the only proof that this statement was ever made. Even if the data is saved by X (Twitter), as seen in Gambia’s case against Facebook (here and here), this might require the State to go to great lengths to get that information. Leaving aside issues of reliability, it must be said that the Court is generally quite liberal in its admission of evidence and instead of excluding evidence has generally ascribed lower probative value to particular types of evidence.

Secondly, then, with respect to probative value, the main question is whether the Court will ascribe a high probative value to these statements made on social media. Here, one should keep in mind the ‘public statements as evidence’ test developed in the Nicaragua case, according to which (1) public statements are ‘of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them’ and (2) the way in which ‘the statements were made public’ matters (paras 64-65). With respect to the latter pronouncement, the ICJ also added that

‘evidently, it [the Court] cannot treat them [statements] as having the same value irrespective of whether the text is to be found in an official national or international publication, or in a book or newspaper.’ (para 65)

If we apply this test, it appears less likely that the Court will ascribe a high probative value to social media statements taken on their own. The Court might regard them as less ‘official’ compared to other statements made via other (more official) channels of communication. However, should the Court take such a stance, it runs the risk of (and rightfully so) being perceived as too conservative —  it is difficult to reject the analogy between ‘classic’ official statements and statements made in social media in a world where the official presence of States and State organs is very prominent on social media.  At the same time, it is important for the Court to react to the argument made by the counsel for Israel that only statements of those officials who are competent to direct and define State policy in war should be considered, which does not actually cohere with the responsibilities of the State under the Genocide Convention and the fact that, for purposes of responsibility, the State is taken as a single entity and is represented by a variety of organs, not only those who have competence in a specific area.

In Gambia v Myanmar, the statement on Facebook relied on by Gambia was recorded in a UN Fact-Finding Mission report and, in light of this, it might possibly be treated differently compared to the statements advanced in South Africa v Israel. In particular, it will be the assessment of the reliability and probative value of the report itself that will have spill-over effects over the reliability and probative value of the statement made on social media. For reports such as the one invoked in this case, the Court typically applies a tripartite test developed in the Bosnian Genocide case, and considers the source of evidence, the process (especially the methodology when it comes to UN reports) and the quality or character of the item (para 227).

Another question regarding the probative value of statements, especially in South Africa v Israel, is whether or not the ICJ will decide to treat such statements as direct evidence or merely corroborative evidence or apt to serve as direct evidence, especially when what is at stake is discriminatory or genocidal animus as the subjective element, rather than facts pertaining to the objective element of genocide. Typically, evidence stemming from the media – newspaper articles, books, television broadcasts and so on is taken as corroborative evidence rather than direct evidence (Nicaragua, para 62), meaning that they are only taken into account if the information they evidence concords with information stemming from other sources. This, however, is usually the case when these media outlets refer to particular facts that form part of the objective element rather than statements.

Last but not least, perhaps the main hurdle, as discussed by other scholars (for example, here), will be meeting the very high standard of proof that the Court applies in cases involving allegations of genocide – ‘the only inference that can be drawn’. It is unlikely that only statements made by officials on social media, no matter how straightforwardly harrowing and inculpating they might be, will be able to (ever) meet this (perhaps unreasonably) high standard of proof. Yet, the prospect of success is higher if it is brought forward, as it was by South Africa, together with other types of evidence.

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Nicolas Boeglin says

June 25, 2024

Dear Professor Fortuna

Many thanks for this very interesting post.

States also consider sometimes, that a simple tweet can constitute a real offense. See for example this communiqué of Mexico of Feb 2017, after a diplomatic crisis between México and Israel due a tweet:

https://www.gob.mx/sre/prensa/israel-se-disculpa-por-lastimar-a-mexico

An this note on Israeli Prime Minister´s tweet causing the crisis, in which he supported the idea of the construction of a long wall between Mexico and the US:

https://derechointernacionalcr.blogspot.com/2017/02/israel-presenta-disculpas-mexico-por.html

I take the opportunity to ask to you (and also to our dear colleagues at EJIL Talk) if there is any precedent, prior to Feb 2017, in which a simple official tweet forced a State to publicly apologize.

Yours sincerely

Nicolas Boeglin

Franck Latty says

June 30, 2024

Thank you and congratulations for this very interesting post. With Mathias Forteau, we published a book (in French) on State media communication and international law, which may interest you https://pedone.info/livre/communication-mediatique-de-letat-et-droit-international/

Nicolas Boeglin says

July 9, 2024

Dear Professor Fortuna

May I add to my previous message this long letter of South Africa to UNSC (document S/2024/419 of May 29 2024), on genocidal intent and incitement by Israel against Palestinians in Gaza.

https://documents.un.org/doc/undoc/gen/n24/151/97/pdf/n2415197.pdf?token=aTi8dHUGOV8tjX3YJz&fe=true

From page 15 to 76, tweets and messages on FaceBook and other social media (many) from different Israeli´s officials and authorities as well as soldiers on the ground are presented as evidence.

Yours sincerely

Nicolas B.

Note: please find a note on recent Spain´declaration of intervention in the case South Africa vs Israel. Been the very very (but really very) first European State in doing so, I hope our dear EJIL colleagues will bring us an analysis in coming days.

https://derechointernacionalcr.blogspot.com/2024/07/gaza-israel-espana-presenta-solicitud.html