Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint the ICTR, the Media Trial defendants – Barayagwiza, Nahimana, and Ngeze – were prosecuted in their respective capacity as executive committee chairman of Radio Television Libres des Milles Collines, as broadcaster, and as Kangura’s newspaper editor. 222 In the ICC case, Prosecutor v. Ruto and Sang, Joseph Arap Sang, a radio broadcaster, was charged of contributing to the commission of crimes against humanity based on the following acts, among others: placing his show Lee Nee Emet at the disposal of [Ruto’s] organization, advertising the meetings of the organization, fanning the violence through the spread of hate messages explicitly revealing desire to expel the Kikuyus, broadcasting false news regarding alleged murders of Kalenjin people in order to inflame the atmosphere in the days preceding the elections; and broadcasting instructions during the attacks in order to direct the physical perpetrators to the areas designated as targets. 223 In all these acts, the agency of the speaker is crystal clear. In the analog era, speakers own and control the technology to be used at their disposal in committing the crime. This meant that incitement need only be spoken in order to be publicly communicated. By controlling who had access to communication, only a singular message prevailed, enabling passive reception of inciteful propaganda. The ‘public’ element of the crime was satisfied due to publishers and broadcasters’ control of the platform. This also explains why incitement to genocide has been described as “state-sponsored speech.” 224 In the analog era, the state was in the best position to co-opt radios and newspapers to deliver its message. It does not contemplate a situation where the technology is within the control of a third party removed from the speaker and the criminal statement. Enter Facebook. In the platform era, private speech intermediaries have wrested control from the state. The inciter and speech https://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-I.pdf [https://perma.cc/8UCC-SK47]. 222. See Court Finds Rwandan Journalists Guilty of Inciting Genocide, N.Y. (Dec. 3, 2003), TIMES https://www.nytimes.com/2003/12/03/international/africa/court-findsrwandan-journalists-guilty-of-inciting.html [https://perma.cc/AWD5Y2PS]. 223. Situation in the Republic of Kenya in the case of the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ¶ 355 (Jan. 23, 2012), https://www.icc-cpi.int/CourtRecords/CR2012_01004.PDF [https://perma.cc/7628-ARDX]. 224. See Susan Benesch, Vile Crime or Inalienable Right: Defining Incitement to Genocide, 48 VA. J. INT’L L. 485, 496 (2008). 180