Complicity of Social Media Companies in Inciting Genocide Hakim began taking down Tatmadaw accounts in 2018. The operative question would be whether, pending further investigation, these notices illuminated an effort by the Tatmadaw to incite genocide. If so, a prosecutor could potentially argue that by providing the Tatmadaw with a massive platform, with knowledge of the campaign, managers at Facebook satisfied the bar for complicity in inciting genocide. The mere possibility of this argument suggests that managers could face substantial risk of criminal liability. While managers akin to senior executives risk criminal liability where the facts support a finding of complicity in incitement, the case is likely weaker for managers at lower tiers of the company. The foregoing analysis has used the term “manager” as a proxy for executives with authority similar to Weinbacher in The Zyklon B Case. Therefore, a mid-level supervisor at Facebook would not necessarily face substantial risk, as the actus reus and mens rea for incitement might be harder to satisfy for such an employee. 3. The content moderator Having examined the CEO and the manager’s potential exposure to international criminal liability, this Comment examines whether a social media company’s content moderator could be complicit in inciting genocide. The moderator is a low-level employee responsible for reviewing user-generated content and making daily decisions as to whether certain content violates the company’s community standards. As social media companies have increasingly globalized their services, it has become more common for moderator responsibilities to include translation.211 With respect to assistance, the moderator helps maintain the health of the online community.212 While the failure of a moderator to remove an incitement or an inciter from the platform might indirectly assist perpetrators, the moderator does not decide whether certain countries, or individuals therein, will be granted initial access to the platform. This lack of material decision-making authority makes the moderator most comparable to Joachim Drosihn in The Zyklon B Case, the gassing technician who was acquitted.213 As the Court acknowledged in that case, low rank in the corporate hierarchy provides some degree of immunity with respect to complicity when the assistance rendered stems from business dealings involving more senior executives. 211 212 213 See, for example, Maggie Fick & Paresh Dave, Facebook’s Flood of Languages Leave It Struggling to Monitor Content, REUTERS (Apr. 23, 2019), http://perma.cc/CNR3-6KNJ. See David Cohen, Facebook Published Its Internal Content Review Guidelines and Added an Appeals Process, ADWEEK (Apr. 24, 2018), http://perma.cc/73UB-GZJN. See The Zyklon B Case, Case No. 9, 1 Law Reports of Trials of War Criminals 93, 102 (British Military Court, Hamburg, Germany Mar. 1–8 1946), http://perma.cc/GU9K-GLH6. Summer 2020 115