Complicity of Social Media Companies in Inciting Genocide Hakim (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime.127 Accordingly, common purpose liability lowers the requisite mens rea from purpose to knowledge, while preserving the same actus reus as aiding and abetting liability. In addition to the mens rea of knowledge and the actus reus of material contribution, common purpose liability introduces the element of group criminality. The substantive offense to which liability attaches must have been committed by a group of persons acting with a common purpose. In other words, it must be a group crime. Because genocide and incitement to genocide are, by their nature, almost always committed by groups—specifically, state entities or media organizations—common purpose liability will almost always apply to these crimes.128 Therefore, in many cases, complicity in genocide or in incitement, under the Rome Statute, only requires that the defendant knowingly contributes to the substantive offense. C. Complicity in Incitement Incitement’s status as a crime raises the question of whether it permits secondary liability. As scholars and commentators have acknowledged, incitement is often considered an “inchoate crime,” a punishable step toward the commission of another substantive offense (for example, the crime of attempted murder).129 As complicity does not generally attach to inchoate crimes, some contend a person cannot be complicit in inciting genocide.130 Indeed, the ICTR Trial Chamber suggested as much in Akayesu, noting in a footnote: It appears from the travaux préparatoires of the Genocide Convention that only complicity in the completed offence of genocide was intended for punishment and not complicity in an attempt to commit genocide, complicity in incitement to commit genocide nor complicity in conspiracy to commit 127 128 129 130 Rome Statute, supra note 29, at art. 25(3)(d) (emphasis added). Common purpose liability would not apply to genocide or incitement where such crimes are committed by one person. For example, if the perpetrator, acting alone, directly and publicly incites genocide, the prosecution would need to show that the aider and abettor purposefully contributed to the incitement. A showing of knowledge would not warrant a complicity conviction. See Timmerman, supra note 57, at 846 (contending that incitement is widely accepted to be an inchoate crime). See, for example, Jens David Ohlin, Attempt, Conspiracy, and Incitement to Commit Genocide, CORNELL L. FAC. PUB. 173, 184 (2009), http://perma.cc/R5YV-J2MU. Summer 2020 101