Complicity of Social Media Companies in Inciting Genocide Hakim The Chamber went on to note that because Kanyabashi’s speech occurred after the incitement, it could not have substantially contributed to its commission— suggesting that if the prosecution had shown that Kanyabashi substantially contributed to the inciting speeches, he could have been complicit in inciting genocide.138 Nyiramasuhuko therefore clarifies that an aider and abettor can be complicit in the direct and public incitement to commit genocide, notwithstanding incitement’s status as an inchoate crime. The extension of complicity to incitement is undoubtedly controversial, as it dramatically expands the scope of criminal conduct associated with a speech act. But there are two points that ought to curb this controversy to some extent. First, genocide is the only substantive offense in all of ICL for which incitement is also criminalized.139 Article 25 of the Rome Statute makes this clear.140 While the knowing contributor to direct and public incitement to genocide may be implicated in an international crime, the same cannot be said for he who knowingly or purposefully contributes to the vast array of expressive conduct that falls short of incitement to genocide (for example, incitement to non-genocidal violence). This unique criminalization of complicity reflects the distinctive place that genocide holds in ICL. It also provides the ICC prosecutor with a powerful tool to punish those who knowingly contribute to inciting genocide, where the inciters are coordinating as a group. Second, the ICC prosecutor has constrained resources and thus selects cases according to limiting principles, including the gravity of the crimes, the degree of responsibility of the alleged perpetrators, and the potential charges.141 Accordingly, consistent with the degree of culpability, those complicit in incitement may be less of a prosecutorial priority than those who incite genocide, who may be less of a priority than those who commit genocide. This may not be the case, however, with respect to social media companies, given their profound influence over the dissemination of information today.142 IV. C ORPORATE C RIMINAL L IABILITY Thus far, this Comment has discussed the most relevant international crimes (Section II) and the modes of liability most pertinent for later analysis (Section 138 139 140 141 142 Id. CLICC, supra note 56, at 271 n.272. See Rome Statute, supra note 29, at art. 25(3)(e). Int’l Crim. Court, The Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, 12–13 (Sept. 15, 2016), http://perma.cc/CW3M-X35H. See Section V. Summer 2020 103