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Chicago Journal of International Law

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83

Abstract

This Comment examines whether social media companies risk international criminal liability when they provide a platform for direct and public incitement to commit genocide. To answer this question, this Comment makes three findings of law. First, pursuant to the Rome Statute, the Genocide Convention, and caselaw from the International Military Tribunal at Nuremberg and the International Criminal Tribunal for Rwanda, incitement to genocide is a crime, not a mode of liability. Second, the mens rea for complicity, according to the Rome Statute, is knowledge, if the crime in question is coordinated by a group (for example, a social media campaign to incite genocide). Third, while corporations generally cannot be subjected to international criminal liability as distinct entities, individuals conducting business on behalf of a corporation are susceptible to liability. This Comment applies the foregoing legal principles to employees at social media companies at various levels of the corporate hierarchy, at times through the example of Facebook in Myanmar. Ultimately, this Comment concludes that individual employees at social media companies may be complicit in incitement to genocide where certain legal requirements are satisfied. This conclusion compels a broader discussion about reforming international criminal law to stem the global propagation of disinformation, where such propagation constitutes incitement to genocid

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