UPDATE: In the ongoing litigation between #TheGambia and @Facebook in the US, The Gambia has submitted its response to FB’s surreply (meaning that the application for an order compelling discovery under §1782 has now been fully briefed). Here’s a rough summary: 1/12
Recall that Facebook’s position is that the Stored Communications Act, a US privacy law, would prevent it from being able to comply lawfully with the request for documents that #TheGambia seeks (including posts by #Myanmar officials & affiliated groups that FB removed). 2/12
#TheGambia takes a dim view of @Facebook’s arguments about the dangerous precedent this could set for privacy rights & argues that Facebook should want ‘genocidal conspirators who have abused Facebook’s platform’ to know their communications will not be protected. 3/12
#TheGambia reiterates its core position that the SCA's plain meaning poses no bar to the issuance of the subpoena because it does not apply to the communications that #TheGambia seeks to have turned over for use in the #ICJ case against #Myanmar re genocide. 4/12
Among other arguments, #TheGambia doubles down on its statutory interpretation arguments, including that the SCA definition of ‘users’ does not encompass foreign officials & that the SCA does not protect communications in violation of Facebook’s terms and services rules. 5/12
In response to @Facebook’s argument that it cannot be correct that any and every minor terms & services violation removes SCA protections, #TheGambia argues that this isn’t a concern where violations are egregious (but it cites no law for making this distinction). 6/12
A more interesting argument may be what ‘electronic storage’ means under the SCA & whether 'back-up protection' is the same as 'post-transmission storage'. This line of argument suggests a path towards disclosure of public posts that Facebook took down. 7/12
#TheGambia argues that @Facebook concedes that users don't have SCA protection for communications that were previously public. I think this mischaracterizes FB's position, but it highlights that entirely private communications & public posts that FB took down are different. 8/12
Finally, #TheGambia emphasizes that the SCA does not bar the issuance of a lawful civil subpoena & that the law cannot mean that it is entirely within Facebook’s discretion to withhold from disclosure even materials that the user previously released to the general public. 9/12
#TheGambia reiterates its argument that the Court may issue a lawful subpoena where a user has consented to disclosure by configuring social media postings public, posting to large public audiences, and expressly consenting to disclosure of private communications. 10/12
So a key issue is whether public posts by #Myanmar officials that @Facebook removed are entitled to any SCA protection. It’s plausible that private communications in FB’s possession enjoy more protection & could only be disclosed through different legal channels. We’ll see. 11/12
At this stage, the court should be in a position to render a decision (unless the judge decides to hold a hearing to go into specific points). Here’s a 2017 profile of the very experienced US Magistrate Judge hearing this matter. 12/12 bustle.com/p/who-is-judge…#Rohingya
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This @BBCNews piece addresses recent confusion about the term ‘plausibility’ in ICJ decisions: . It mostly gets this right; the ICJ refers formally to plausibility of 'rights’ rather than ‘claims’. But there is some lingering confusion here. 1/8bbc.com/news/articles/…
The article discusses a debate within the UK about whether the ICJ's January order—in which the ICJ found the rights at issue to be plausible AND a real & imminent risk of irreparable prejudice to those rights—meant it was incorrect to refer to a ‘plausible risk of genocide’. 2/8
The article describes this as a debate about whether the ICJ ‘was convinced there was a risk of that happening’. But is THAT really what the debate was about? The January order made it very clear that the ICJ saw a real risk of Genocide Convention violations *going forward*. 3/8
South Africa returns to the #ICJ once again seeking urgent provisional measures against #Israel. The request asks the ICJ to order Israel to immediately withdraw and cease the offensive in Rafah and relinquish control of the Rafah & Kerem Shalom crossings to allow in aid. 1/14
Very strong language: SA describes the #Rafah assault as ‘killing the Palestinian people of Gaza, while Israel is simultaneously starving them, and deliberately denying them humanitarian aid and the basic necessities of life’ (¶19). 2/14
The focus of the request is on how new facts (namely the Rafah assault & shutting down humanitarian aid entry points) amounts to a new urgent risk of irreparable prejudice harm to the rights at issue in the case. 3/14
Re Judge Donoghue's @BBCHARDtalk interview: I realize this won't satisfy many people, but there is a difference between saying (1) that the ICJ did not decide that claims of genocide are plausible (what she said) and (2) that the Court decided that such claims are NOT plausible.
The ICJ did NOT reject South Africa's genocide claims or declare than implausible (this is consistent with Judge Donoghue's remarks). One could instead think about this (i.e., plausibility of the *claim*) as a question the Court did not need to decide in granting interim relief.
What gets lost is that the ICJ found a real & imminent risk of irreparable prejudice to the plausible rights of Palestinians in Gaza. This is forward looking. This can be reasonably construed as a finding that S. Africa established a plausible risk of genocide *going forward*.
Having now had the chance to read the Day 2 transcript in #Nicaragua v #Germany, I think Nicaragua may come up empty at the #ICJ. Not because the law means that Nicaragua’s claims are fundamentally flawed or inadmissible, but because the facts, it appears, are on Germany’s side.
Germany’s argument on prima facie jurisdiction (plus Monetary Gold) was not wholly convincing. The key difference b/w claims based on existence of a serious risk of IHL violations/genocide versus claims requiring prior establishment of violations was too easily brushed aside.
That said, I would not discount Germany’s arguments about Nicaragua’s alleged failure to have established the existence of a dispute prior to bringing the case. This case may (unhelpfully?) demonstrate why the dispute requirement (which I strongly dislike) has some merit.
In response to #SouthAfrica’s request of 6 March 2024 & the deteriorating situation in #Gaza, the #ICJ has modified the provisional measures that it indicated against #Israel on 26 January. Here are some key points and observations on the decision and the separate opinions.🧵1/20
What has the ICJ ordered Israel to do? By unanimous vote, the Court directed Israel to take all necessary and effective measures to ensure unhindered provision at scale of urgently needed aid and basic services, including by increasing the number of land crossing points. 2/20
By 15-1, the Court ordered Israel to ensure that its military does not commit acts which violate the rights of Palestinians in Gaza as a protected group under the Genocide Convention, including by preventing delivery of humanitarian aid. 3/20
The #ICJ will issue its decision on #SouthAfrica’s request for provisional measures against #Israel starting at 1 pm today in The Hague. If you are watching the live feed at UN Web TV (), here are some key points to look out for. 🧵tinyurl.com/5n6m94px
Preliminary point: The ICJ will not make any determination today about whether Israel’s actions in #Gaza amount to genocide. This is a question for the merits phase. This decision is about protecting the rights at issue while the case is pending.
First, has SA met the threshold test for the ICJ to issue provisional measures (PMs)? Points of interest: 1. Has South Africa established that a bilateral dispute about the Genocide Convention existed between it and Israel prior to filing the case? This goes to jurisdiction.