Complicity of Social Media Companies in Inciting Genocide Hakim Article 22(2), which provides that “[t]he definition of a crime shall be strictly construed” and that ambiguities should be “interpreted in favour of the person being investigated, prosecuted or convicted.”61 The implications of this approach are significant. If Davies is correct, the Rome Statute substantially reduces the scope of criminal conduct under ICL.62 For example, if direct and public incitement is a crime, it creates “various forms of secondary liability to hold a range of individuals responsible beyond those who directly commit the incitement.”63 Davies points to examples of who might be prosecuted for complicity in incitement—the speechwriter who pens a genocideinciting speech or the manager of a radio station that airs inciting broadcasts.64 But if incitement is not a crime, it cannot generate secondary liability. Those who assist inciters would be immune from prosecution. Davies recognizes this as a drawback. To “correct the problem,” he recommends the Rome Statute be amended.65 While an amendment would satisfy a strict textualist approach to the Rome Statute, the treaty as currently written can and should be interpreted as criminalizing incitement to genocide. Article 21 entitled “Applicable law” requires the ICC to first apply the Rome Statute, but it also forecloses disregard for broader principles of international law.66 Specifically, upon review of the Rome Statute, Article 21(1)(b) requires the ICC to apply, where appropriate, “applicable treaties and the principles and rules of international law.”67 One such rule, already applied by ICC judges, is the “General Rule of Interpretation” codified in Article 31 of the Vienna Convention on the Law of Treaties.68 Article 31 states, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”69 61 62 63 64 65 66 67 68 69 Rome Statute, supra note 29, at art. 22(2); see also Davies, supra note 48, at 263. If Davies’ theory is correct and incitement was made a mode of liability by the Rome Statute, social media companies would be, in effect, immunized from criminal liability because there would be no underlying substantive offense to which liability could attach. Davies, supra note 48, at 256. Id. at 257. Id. at 246. See Rome Statute, supra note 29, at art. 21. Id. Vienna Convention on the Law of Treaties art. 31, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 340 [hereinafter Vienna Convention]; Caroline Davidson, How to Read International Criminal Law: Strict Construction and the Rome Statute of the International Criminal Court, 91 ST. JOHN’S L. REV. 37, 54 (2017) (“ICC judges already have invoked the principles of the Vienna Convention in interpreting the Rome Statute, in particular the basic or ‘general rule’ of the Vienna Convention.”). Vienna Convention, supra note 68, at art. 31. Summer 2020 93