Impediments in Prosecuting Direct and Public Incitement to Genocide at the ICC
Article by Nidhi Pratap Singh,
The United Nations fact-finding Report on Myanmar recognized that Facebook played a “significant role” in facilitating large scale atrocities. In 2018, hundreds of military personnel created troll accounts, news and celebrity pages on Facebook and flooded them with incendiary comments on Rohingyas. In response to public outcry about Facebook’s lack of a response, the social media giant admitted that it did not do enough to prevent the spread of hate speech and false news in Myanmar. A Reuters report suggests that human rights activists in Myanmar had brought the proliferation of incendiary and misinformation to the attention of Facebook officials, including Mia Garlick (facebook's then-director of Asia Pacific Policy), who later admitted that they were slow to respond to the warnings. Facebook’s role in fueling hatred against Rohingyas has brought forth the question of whether social media controllers risk criminal liability for facilitating incitement to genocide before the International Criminal Court (ICC). While inaction against hate speech and misinformation on a global scale seems intrinsically wrong, the Rome Statute is limited in two ways which impede prosecution of direct and public incitement to genocide (DPIG) as an inchoate crime.
DPIG as an Inchoate Crime and the Causal Nexus Element
Article 25(3)(e) of the Rome Statute criminalizes DPIG, explicitly punishes “direct and public incite[ment] [of] others to commit genocide.” However, some scholars argue that the Rome Statute weakens the prohibition of DPIG because ‘incitement’ has been relegated to a mode of participation in the final crime of genocide, contrary to the International Criminal Tribunal for Rawanda (ICTR) and International Criminal Ttibunal for the former Yugoslavia (ICTY) statutes. The ICTR and ICTY codify ‘incitement’ as a distinct crime. Article 2(1) of the ICTR states that “the International Tribunal for Rwanda shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this Article or of committing any of the other acts enumerated in paragraph 3 of this Article.” Paragraph 3(c) punishes direct and public incitement to commit genocide. Article 4(1) of the ICTY Statute is identical to Article 2(1) of the ICTR.
Conversely, Article 5 of the Rome Statute, which lists the core crimes over which the ICC has jurisdiction, does not mention DPIG. Article 6 of Element of Crimes, which describes the elements of genocide, also carries no mention of incitement to genocide. Consequently, the DPIG is only a mode of participation, the prosecution of which as a standalone crime is effectively impossible at the ICC. In order to convict someone of DPIG, the prosecutor would have to (a) prove that genocide occurred, and (b) establish a causal link between incitement and the genocide, in addition to proving that the accused incited genocide. Proving causation can be the most difficult part of the trial, especially in cases of incitement on social media.
The relegation of DPIG as a mode of participation is problematic for several reasons. Firstly, it negates the objective of criminalizing DPIG, which is to forestall the occurrence of genocide. Secondly, a necessary causal nexus between incitement and the subsequent crime of genocide contradicts the inchoate nature of the crime of incitement, which is punishable regardless of success. Authors argue that the DPIG remains an inchoate crime under the Rome Statute because, unlike other modes of participation such as those in Article 25(3)(a)-(c), DPIG “breaks with the [factual] dependence of the act of complicity on the actual crime” and is an “expansion of attribution.” The difficulty, however, arises from the fact that the ICC has never prosecuted a person for DPIG, either as a mode of responsibility or a standalone crime. In the absence of any precedent, the court is likely to rely on ICTR and ICTY rulings on incitement. Although incitement features as a standalone crime in their respective statutes and ICTR and ICTY have reiterated the inchoate nature of DPIG in their rulings, in several cases they have contrarily relied on the actual occurrence of genocide to substantiate that incitement did in fact occur. In some cases, the causal link between the incitement and the subsequent act of genocide is a legal inquiry, while in others, it is a factual inquiry. The discrepancy in courts’ treatment of the analysis as either a question of law or of fact signifies that the prosecution of incitement as an inchoate crime at the ICC is difficult at best.
The Gravity Threshold
The Rome Statute was enacted to end impunity for the most serious crimes of international concern. Its preamble describes these crimes as "unimaginable atrocities" that “deeply shock the conscience of humanity.” The Rome Statute’s gravity threshold language ensures that only grave crimes are prosecuted before the court. First, Article 5 provides an inherent gravity threshold which limits the jurisdiction of the court to “the most serious crimes of concern to the international community as a whole” of genocide, crimes against humanity, war crimes, and the crime of aggression. Second, Article 17(1)(d) provides an additional gravity threshold which states that a case may be declared inadmissible when it “is not of sufficient gravity to justify further action by the Court.” In order to assess the gravity of a case, the ICC relies on certain qualitative and quantitative factors. Qualitative factors include the scale, nature, manner of commission, and impact on the victims and the quantitative factor includes the number of victims. Quantitative factors are assessed on the means employed to commit the crime, systematic nature of the crimes, number of victims, among others. Specific elements of crime such as killings and rapes add to the gravity of the crime.
The problem with the qualitative and quantitative factors is that they are largely inapplicable to speech crimes such as DPIG. Existing jurisprudence shows that the ICC has applied the factors only in the context of murder, rape, persecution, and other physical crimes. Factors such as scale, nature, and impact of the crime require evidence of physical and bodily harm. Since DPIG is a speech crime and does not in and of itself result in any physical crimes or violations, the gravity threshold can potentially require the prosecutor to assert a finding of genocide, to which the qualitative and quantitative factors can be made applicable. In order to prove genocide in connection with incitement, a prosecutor would have to establish a causal link between the incitement and the genocide, which increases the burden of proof and contradicts the prosecution of DPIG as an inchoate crime.
DPIG was criminalized under international criminal law to forestall the occurrence of genocide. Ad hoc tribunals such as the ICTY and ICTR have consistently reiterated that DPIG is an inchoate crime punishable in itself, whether or not a perpetrator completes the “actual” crime. However, under the Rome Statute, DPIG features as a mode of participation rather than as a standalone crime. ICTR rulings, which have often relied on the occurrence of genocide to confirm that DPIG did, in fact, occur suggest that DPIG is a mode of participation in the final crime of genocide. Another impediment to the prosecution of DPIG is the gravity threshold under Article 17(1)(d). The ICC’s gravity threshold jurisprudence emphasizes the importance of qualitative and quantitative factors of scale, nature, manner and impact of crimes. These factors have been applied only to physical crimes and remain largely inapplicable to speech crimes such as DPIG. A strict application of the gravity threshold factors could pressure the prosecutor to assert a finding of genocide, to which these factors can be applied, in order to satisfy the gravity threshold. However, a finding of genocide to prove DPIG would negate the inchoate nature of DPIG and contradict the purpose of its criminalization under the Rome Statute.
One way to resolve the tension between the purpose of DPIG’s criminalization and the ICC’s treatment of the crime is to grant the prosecution sufficient discretion to define and modify the application of the gravity threshold on speech crimes. Gravity, in the specific context of DPIG, must be assessed on the systematic nature of calls for violence, the content of challenged speech, the degree to which they were repetitive and dehumanizing, the criminal history of the group inciting genocide, and the predisposition of the group’s its audience to commit violence against the victims. Such factors have been historically prevalent, for example, in the Rwandan genocide and in Nazi Germany, and can give effect to prosecuting incitement to genocide as an inchoate crime.
Nidhi Pratap Singh is a fourth year law student at National Law University, Delhi. The author has previously written on domestic criminal law, constitutional law and international criminal law. Their work can be accessed here, here, here, here and here. They have a keen interest in International Law and its intersection with minority rights.