Complicity of Social Media Companies in Inciting Genocide Hakim nature.21 As of June 2019, the ICC prosecutor was considering the launch of a formal investigation into the actions of Tatmadaw officials.22 But even as international courts and organizations contemplate whether the Tatmadaw committed genocide, there is confusion around how to address Facebook’s involvement in the massacre. The U.N. identifies the company’s role as “significant,” noting in a fact-finding report that the platform “has been a useful instrument for those seeking to spread hate” and that Facebook’s response “has been slow and ineffective.”23 Nonetheless, in the same report, investigators did not identify Facebook as criminally responsible.24 The confusion around Facebook’s role in Myanmar raises broader questions about whether social media companies risk international criminal liability when their platforms are used by bad actors to incite offline violence—and more specifically, genocide. These questions are of increasing importance, as up to seventy governments and political parties across the globe actively use social media to spread disinformation.25 Notwithstanding the myriad of procedural obstacles (for example, exercising jurisdiction) that stand in the way of prosecution, this Comment focuses on the more narrow, substantive question of whether social media companies can be criminally complicit in direct and public incitement to genocide.26 This Comment concludes social media companies can be criminally complicit in incitement. In arguing that social media companies may risk international criminal liability where their platforms are used to incite genocide, this Comment proceeds in four parts. Section II discusses the substantive international crimes of genocide and direct and public incitement to commit genocide. This analysis focuses primarily on the latter crime of incitement but nonetheless discusses genocide to shed light on the basic principles underlying incitement. In Section III, this Comment identifies relevant modes of liability, including aiding and abetting and common purpose liability. These modes of liability stipulate the requirements which, if satisfied, would attach criminal responsibility to social media officials for the commission of a substantive offense. Section IV analyzes how contemporary 21 22 23 24 25 26 Toby Sterling, International Criminal Court Says It Has Jurisdiction over Alleged Crimes Against Rohingya, REUTERS (Sept. 6, 2018), http://perma.cc/MWV9-S6SU. ICC Prosecutor Seeks Bangladesh and Myanmar Investigation, REUTERS (June 26, 2019), http://perma.cc/SM3C-SHKY. Report, supra note 6, at ¶ 74. See id. at ¶¶ 90–94. See Mary Hanbury, Facebook Is the Most Popular Social Network for Governments Spreading Fake News and Propaganda, BUSINESS INSIDER (Sept. 27, 2019), http://perma.cc/R8QY-962C. For brevity, this Comment refers to this crime interchangeably as “direct and public incitement to genocide,” “incitement to genocide,” or “incitement.” Summer 2020 87