Complicity of Social Media Companies in Inciting Genocide Hakim direct evidence, specific intent may be inferred from the circumstances.47 A defendant is therefore guilty of genocide if he intentionally (mens rea) commits a genocidal act (actus reus) with the specific intent to destroy, in whole or in part, a protected group. B. Incitement to Genocide In addition to genocide, international law has criminalized direct and public incitement to commit genocide. However, because the Rome Statute lists incitement in Article 25 entitled “Individual criminal responsibility” and not in Article 5 entitled “Crimes within the jurisdiction of the Court,” doubts have been raised as to whether incitement is a crime (a substantive offense independent from genocide) or a mode of liability (a means by which liability for genocide attaches).48 Notwithstanding Article 25 placement, this Comment concludes that incitement can and should be treated as a crime, not a mode of liability. History, treaty law, and relevant precedent all point towards such a reading. 1. Treaty law: the Genocide Convention, the ICTY and ICTR Statutes, and the Rome Statute The criminalization of incitement to genocide reflects the longstanding view that genocide is a multi-stage process which begins long before systemic violence occurs. Lemkin saw this process as one moving “from stigmatisation and dehumanisation through violence and terror and eventual annihilation.”49 Accordingly, to curb genocide as early as possible, the Genocide Convention criminalized not only genocidal acts, which manifest in the latter stages of the crime, but also other acts that may occur earlier.50 Those additional crimes, stipulated in Article III, are directed towards the prevention of “stigmatisation” and “dehumanisation.” Included among these Article III crimes is the “[d]irect and public incitement to commit genocide.” 51 Following the Genocide Convention, the ICTY and ICTR Statutes similarly established incitement as a crime, using the same language as Article III of the Genocide Convention. The ICTY Statute criminalizes incitement in Article 4(3)(c) 47 48 49 50 51 Dawson & Boynton, supra note 39, at 251. See, for example, Thomas E. Davies, Note, How the Rome Statute Weakens the International Prohibition on Incitement to Genocide, 22 HARV. HUM. RTS. J. 245, 260 (2009). Can the World Stop Genocide?, THE ECONOMIST (Dec. 8, 2018), http://perma.cc/HD48-CV3G. Id. See Genocide Convention, supra note 31, at art. III. Summer 2020 91