Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint The second element of the crime is that communication must be “public.” 145 This generally contemplates “speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication.” 146 The speaker need not speak in large public assemblies to qualify the communication as “public.” It is sufficient if statements are communicated to “smaller audiences,” so long as these were made in a public space to an “unselected audience.”147 This interpretation is supported by the travaux préparatoire of the Genocide Convention, from which the crime of direct and public incitement to commit genocide in the ICTR and ICTY Statutes was lifted. 148 “Private” incitement is not penalized. 149 These elements are important to keep in mind for my later discussion on how crime can operate as a cognitive constraint in understanding corporate involvement in mass atrocity crimes. For now, I will proceed to discuss the corporate responsibility framework under the UNGPs and its implications for social media platforms operating in mass atrocity contexts. C. Corporate responsibility The UNGPs do not impose on corporations any legal obligation and do not result in legal liabilities. 150 Instead, the corporate “responsibility” Sentence, ¶¶ 491, 493, 531, 676, 823, 856, 897 (Dec. 1, 2003); Prosecutor v. Niyitegeka, ICTR-96-14-T, Judgement and Sentence, ¶ 257 (May 16, 2003). 145. Genocide Convention, supra note 6, art. III(c). 146. Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, ¶ 559 (Sept. 2, 1998). 147. Kalimanzira v. Prosecutor, ICTR-05-88-A, Judgment (Oct. 20, 2010). 148. Id. ¶ 158 (referring to “public speeches or in the press, through the radio, the cinema or other ways of reaching the public”). 149. Private incitement can be prosecuted as instigation, but not direct and public incitement as an inchoate crime. Prosecutor v. Akayesu, ICTR 964-A, Judgement, ¶ 480 (June 1, 2001). 150. The mandate of the UN Special Representative of the secretary-general on human rights and transnational corporations and other business enterprises was, among others, “to identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights,” and did not include the drafting of a legally binding instrument that would impose legal obligations on states and corporations. Special Representative of the Secretary-General on Human Rights and Transnational Corporations and Other Business Enterprises, UN OFF. OF THE HIGH COMM’R FOR HUM. RTS. 168