[Claudia Hyde holds an LLM (Hons) in Public International Law from the London School of Economics and is a legal researcher.]
As jurisdictions such as the United Kingdom and the European Union grapple with the challenge of regulating tech giants, the use of social media platforms during mass atrocities has been brought to the fore by the protracted legal battle between Meta/Facebook and The Gambia.
In November 2019, The Gambia instituted proceedings against Myanmar at the International Court of Justice (ICJ) alleging breaches of the 1946 Genocide Convention committed against Myanmar’s Rohingya minority. At the height of the violence, Facebook emerged as a powerful tool in intensifying and spreading conflict: as many as 700 individuals were employed by the Tatmadaw (Myanmar Military) to create fake profiles on the platform and flood the fake profiles with propaganda and incitement to violence. In support of its case before the ICJ, in June 2020, The Gambia filed an application for discovery with the US District Court for the District of Columbia requesting that Facebook disclose information about the now-deleted Facebook accounts.
The legal issues raised by the dispute have received extensive comment elsewhere. What has received relatively little attention, however, is the extent to which those Facebook posts constitute breaches of international law in their own right as violations of the prohibition on incitement to genocide. This post will briefly survey the case law on incitement emanating from the International Criminal Tribunal for Rwanda (ICTR), the legal principles and their application to speech on social media.
The prohibition on incitement
Article 3(c) of the Genocide Convention prohibits “direct and public incitement to genocide.” Each of the underscored elements are essential components of the crime and will be discussed in turn.
Incitement to genocide must be “direct” to be punishable in the sense of being understood as a call to commit genocide (Timmermann, 2006). The ICTR Akayesu judgment provides the most detailed description of the “direct” requirement in case law, stating in para. 557 that the incitement must “assume a direct form and specifically provoke another to engage in a criminal act.” Speech that is “mere vague or indirect suggestion” will not constitute incitement.
Nonetheless, the ICTR has interpreted the “direct” requirement expansively with a focus on the meaning of the message in its context. In its caselaw, there have been clear-cut cases of defendants calls on others to commit genocide, unambiguously and directly. In Bikindi, for instance, the accused’s comments included “Hutus should hunt and search for the Tutsis and kill them” [para. 125]. Less direct and euphemistic language has also been held to constitute direct incitement: in Kambanda, the accused was convicted for stating “you refuse to give your blood to your country and the dogs drink it for nothing” [para. 39]. The meaning of the message in its historical, cultural and linguistic contexts determines whether the incitement is direct.
In the context of social media, the sociolinguistic nuances particular to that platform define the relevant context. Language is codified on social media platforms by users who develop similar reference points and adopt similar sentence structure, terminology and syntax, such as acronyms and “memes.” This context may be considered to determine whether a direct call to genocide has been made. For instance, users of 4chan’s /pol/ board employed triple parentheses as a coded means of referring to Jews, stylised as (((Them))) (Tuters and Hagen, 2020). The flexibility within the meaning of “direct” in “direct and public incitement” would allow for such anachronisms and coded language to be considered and is sufficiently flexible to incorporate new forms of media and ways of presenting information. This is significant in the Burmese context, where Rohingya people have been vilified as “terrorists” and “traitors” by the government to legitimate violence. These accusations pervade the portrayals of Rohingya people in the impugned Facebook posts.
More controversially, ICTR jurisprudence suggests that sharing incitement posts may be prohibited as well. In Niyitegeka, the accused was found guilty of incitement after commending a member of a militia at a public meeting for his “good work” [para. 142]. Similarly, the accused in Ruggiu was found guilty of incitement after referring to genocidaires as “valiant combatants” [para. 44]. This suggests that other speech acts in which the author endorses or glorifies acts of genocide will constitute incitement, regardless of whether the statement calls on others to partake in genocide. The logical conclusion of the decisions in Ruggiu and Niyitegeka is that the act of sharing, such as “retweeting,” a post that incites genocide would be sufficiently direct. Again, this will be context specific. A post on Twitter retweeting another’s incitement to genocide when accompanied by criticism of the message will not be understood by the audience as adopting or endorsing incitement to genocide. However, retweeting another’s incitement to genocide with an affirmative message could be viewed in the same way as the speeches in Ruggiu and Niyitegeka and be considered sufficiently direct. Thus, social media users need not be the authors of a post that incites genocide in order to commit the crime of incitement, as sharing or ‘retweeting’ would suffice
Various factors have been considered throughout the ICTR’s case law in determining the “publicness” of a statement. Most significant for this analysis is the medium of communication employed. Certain forms of communicating incitement to genocide, including through print media and radio, have been considered “public” by their very nature. For instance, in the Media case, the circulation of Kangura or the average number of listeners Radio Télévision Libre des Mille Collines (RTLM), a radio station that played a significant role in spurring on violence, were not considered in any depth by the Chamber. The fact that mass media were employed determined the publicness of the remarks. Similarly, the broadcast of violent and patriotic songs written by the defendant in Bikindi on radio waves was considered public in of itself. Relevant here is the ILC’s 1996 commentary where it was argued that “public incitement is characterized by a call for criminal action…by such means as the mass media.”
This would lead to the conclusion that speech or statements made through social media, being a mass communication platform, would necessarily be “public.” However, the publicness of social media is not so easily discerned: invite-only or “elite” social media platforms such as Raya, for instance, cannot be accessed by a “mass” audience in the sense that their audience is select or limited. Similarly, if a Twitter user with 20 followers were to incite genocide on their account, it is difficult to view this as “mass” communication. Considering that social media users’ followings and reach vary widely, it is difficult to gauge when a user’s posts will be “public” and when they will not.
The fake profiles created on the orders of Burmese generals often had thousands of followers, meaning that any posts published on those profiles would likely be considered “public” for the purposes of the Convention. But the application of these legal principles to social media posts is currently untested, and each post would need to be considered individually in the context considering all the facts of the case. It cannot be assumed that every post that is “public” on social media is “public” in the Convention sense.
The act of incitement is not defined in the Genocide Convention or subsequent instruments. In Kajelijeli, the ICTR provided some guidance by stating that in “common law jurisdictions, incitement to commit a crime is defined as encouraging or persuading another to commit the crime, including by use of threats or other forms of pressure” [para. 850]. The Chamber did not, however, endorse any particular definition of incitement.
Scholars are divided on the question of whether incitement must be linked to an act of genocide in order to be considered a crime. Benesch, for instance, has argued that a statement should be considered incitement where there is a “reasonable possibility that a particular speech will lead to genocide” (Benesch, 2008). This reading receives little support in scholarly comment (see for instance Wilson, 2017 and Scott Maravilla, 2008) and case law. In Nahimana, the ICTY confirmed in para. 981 that there is no requirement that incitement be linked to an act of genocide for it to be punishable. Such a reading better reflects one of the key purposes of the Convention: to prevent genocide from happening. It would be inconsistent with the object and purpose of the treaty for unsuccessful incitement to genocide to be considered any more lawful than successful incitement.
This conclusion is important for the purposes of incitement on social media, where the effect of a statement may be remote from the statement itself. The global nature of social media communication means that a statement in one country can have effects in another. Considering the example of Myanmar where several hundred accounts were created to incite genocide against Rohingya people, there is no way of proving which particular Facebook post or account prompted a reader to commit violence. International criminal law does not require proof that a post directly caused the reader to commit violence. It is sufficient that the post could prompt such action.
From my analysis, it is clear that incitement directed over social media is capable of being covered by the international criminal prohibition on incitement to genocide. However, the ambiguities in the law present a barrier to accountability. Social media platforms have clearly displaced other media as the new frontiers for the dissemination of hate. Considering the role that these platforms are already playing in spurring on mass atrocities, it is essential to understand where the deficiencies in the current legal framework lie and what must be remedied to hold the perpetrators to account.
Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.