836 HASTINGS LAW JOURNAL [Vol. 71:813 B. SUBSTANTIAL ASSISTANCE TO TATMADAW’S CRIMES In an independent investigation into the Rohingya in Myanmar, the Independent Fact Finding Mission on Myanmar concluded that the actions of suspected perpetrators in the Tatmadaw military arose to crimes under international law, including genocide, crimes against humanity and war crimes.189 For Facebook, the inquiry is whether its actions aided or abetted these international crimes in a substantial matter. Marzuki Darusamn, chairman of the Mission, said social media has “substantively contributed to the level of acrimony and dissension and conflict, if you will, within the public.”190 The U.N. Report stated there is “no doubt that the prevalence of hate speech in Myanmar significantly contributed to increased tension and a climate in which individuals and groups may be more receptive to incitement and calls for violence.”191 While Darusamn’s comments and U.N. Report call Facebook’s involvement “significant,”192 it remains unclear whether such involvement arises to a level of criminal liability. Arguably, promotion of certain content did not have a substantial effect on the Tatmadaw’s campaign of genocide because there was anti-Rohingya sentiment brewing in Myanmar prior to the introduction of Facebook in the country.193 However, Facebook undeniably chose to do business in Myanmar, knowing that the country had a long-standing history of committing various human rights abuses, and chose to introduce its platform in a community with minimal preparation and little regard to potential consequences. The key issue is whether Facebook’s promotion and selection of certain content on Newsfeeds, which increased the presence of hate speech and encouraged individuals to engage in violent behavior and hateful rhetoric, amounts to a “substantial act.” A number of civil society organizations suggest that Facebook’s involvement in Myanmar actually led to the incitement of a number of violent acts.194 In a letter sent to Zuckerberg, five civil society organizations claimed that various messages over Facebook’s Messaging platform exemplified situations where Facebook’s tools were being used to incite real harm.195 The messages, translated in English, stated: 189. Report, supra note 11, at 16. 190. Christopher Woody, Facebook Official Who Oversees the News Feed Says His Team Loses Sleep Over the Site’s Alleged Role in Myanmar “Ethnic Cleansing,” BUS. INSIDER (Mar. 22, 2018, 10:18 AM), https://www.businessinsider.com/adam-mosseri-facebook-myanmar-genocide-rohingya-lose-sleep-2018-3 (internal quotation marks omitted) (quoting Marzuki Darusman, chairman of the U.N. Independent International Fact-Finding Mission on Myanmar). 191. Human Rights Council, Rep. of the Detailed Findings of the Indep. Int’l Fact-Finding Mission on Myan., U.N. Doc. A/HRC/39/CRP.2, at 343 (2018). 192. Id. 193. Barron, supra note 176 (quoting Mark Farmaner, director of Burma Campaign UK, “violence against the Rohingya would have happened with or without Facebook.”). 194. Letter from Phandeeyar, Mido, Burma Monitor Research & Monitoring, Ctr. for Soc. Integrity, Equal. Myan., & Myan. Human Rights Educator Network, to Mark Zuckerberg, CEO, Facebook (Apr. 5, 2018), https://drive.google.com/file/d/1Rs02G96Y9w5dpX0Vf1LjWp6B9mp32VY-/view. 195. Id.