Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint As for incitement of other Rome Statute crimes, such as crimes against humanity, there is no equivalent crime. Under the Rome Statute, speakers can be prosecuted for speech as a form of contributory liability to the main crimes against humanity charge. 129 In the ICC’s Ruto and Sang case, for instance, Sang was charged for contributing to the commission of crimes against humanity instead of being charged for a crime of incitement to commit crimes against humanity. 130 In the ICTY and ICTR, hate speech was prosecuted as a constitutive act of persecution in conjunction with other persecutory acts, but to date it is not settled whether hate speech by itself can constitute persecution. 131 In the ICTR’s Nahimana case, Judge Theodor Meron registered a strong dissent to the inclusion of hate speech as one of the bases for Nahimana’s conviction. 132 Citing US cases such as Brandenburg v. Ohio, Judge Meron opined that “every idea is an incitement” 133 and statements short of “direct threat of violence or an incitement to commit imminent lawless action” are not criminal”. 134 If anything, these disagreements signal the rugged terrain of speech prosecution under international law. 135 B. Legal responsibility for direct and public incitement to commit genocide 1. State responsibility The Genocide Convention clearly defined the role of state and natural person in regulating genocide – states have a duty to prevent 129. Rome Statute, supra note 6, art. 25(3)(d). 130. The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC01/09-01/11, Majority Opinion (April 5, 2016) [hereinafter Ruto and Sang]. 131. See Richard Ashby Wilson & Matthew Gillet, The Hartford Guidelines on Speech Crimes in International Criminal Law, HUMAN RIGHTS INSTITUTE 48–60. 132. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, ICTR 99-52-T, Judgement and Sentence (Dec. 3, 2003) 133. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-A, Partly Dissenting Opinion of Judge Meron ¶ 16 (Nov. 28, 2007) (citing Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting)). 134. Id. ¶ 4. See also Jenny Domino, Market Failure? Re-examining the Metaphor of the Marketplace of Ideas in the Philippines, STRATBASE ADR INSTITUTE (2019), https://adrinstitute.org/2019/06/04/adri-occasionalpaper-market-failure-re-examining-the-metaphor-of-the-marketplace-ofideas-in-the-philippines/ (noting the global influence of the metaphor of the marketplace of ideas, including in incitement jurisprudence of international criminal courts). 135. See INCITEMENT ON TRIAL, supra note 128. 166