Tag: genocide

Platforming Violence? Incitements to Genocide on Social Media Platforms: a Legal Analysis

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Claudia Hyde

[Claudia Hyde holds an LLM (Hons) in Public International Law from the London School of Economics and is a legal researcher.]

Introduction

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.

Direct

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 

Public

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.

Incitement

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.

Conclusion

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. 

The Attacks against the Brazilian Amazon and its Native Populations: Are We Witnessing Crimes that Fall under the Jurisdiction of the ICC?

Posted in International Criminal Law, Public International LawTagged , , , , , , , 2 Comments

By Melina Lima, Gabriela Silva, and Maria Clara Pontes.

[Melina Lima is an International Law Professor at IBMEC in Brazil. She leads a research group on International Law and the Amazon. Gabriela Silva and Maria Clara Pontes are undergraduate law students and researchers at International Law and the Amazon research group.]

The Amazon and its native populations have been under attack since the beginning of the European colonization, which means that they have endured invasions, diseases, and deforestation, among many other threats for centuries. Nowadays, however, their situation is deteriorating rapidly, as the current Brazilian administration shows literally no concern for the environment or for the indigenous populations. This article intends to analyze this situation through the lens of international law, but before doing it we shall present some of the facts and numbers concerning the Brazilian Amazon and its autochthonous populations.  

Addressing the deforestation topic, the Brazilian Amazon has lost 34% more of its forest in 2019 than in the year before, according to INPE (country’s space agency). From 2005 on, deforestation had decreased significantly, but since 2015 it has been on the rise again. Soybean production for world markets and industrial-scale cattle ranching are two of the main reasons for the deforestation of the Amazon. The deforestation in indigenous lands has increased 64% during the first months of 2020, which is the biggest rate in the last 4 years according to INPE. Federal policies that weakened monitoring institutions and stimulate the invasion of lands that are still in process of demarcation contributed to this exponential growth. 

When it comes to demarcation of indigenous land, which is a constitutional provision in Brazil, the current demarcation figures show a significant setback. Although this constitutional norm has never been a guarantee that the demarcation would happen as it should, the situation has become even more alarming in the last two years. The former and the current administrations have not demarcated any new indigenous land. The Brazilian President, Jair Bolsonaro, stated right before being elected ‘I will not demarcate one square centimeter of indigenous land. Period’. He not only has been fulfilling his campaign promise; he is also paralyzing demarcation processes that were in the final stage. 

Other facts and figures also show that the Brazilian native peoples’ safety is in serious jeopardy. According to CIMI, out of 19 categories of systemic violence, there has been an increase in 16 of them. The cases of invasions and illegal exploitation rose from 109 to 256 in 2019. With respect to the COVID pandemic, the numbers are also disproportionate when compared with the non-native population. For instance, the mortality rate is 150% higher among indigenous. 

The facts and statistics presented above are only a portion of what is happening daily in the Brazilian Amazon and they engender many issues that relate directly to the international law field. In this text we will analyze the repercussions on the realm of International Criminal Law by examining the claim that the Amazon destruction constitutes ecocide and the possibility of describing the recent attacks against the Brazilian indigenous peoples as genocide. The analysis will reveal that the attacks against the native population is more likely to fall under the International Criminal Court’s (ICC) jurisdiction than the ecocide situation.     

The destruction of the Amazon and Ecocide

According to Polly Higgins, the crime of ecocide was supposed to be the fifth crime foreseen in the Rome Statute, along with war crimes, genocide, crimes against humanity (CAH) and crime of aggression. Although 50 out of 54 countries negotiating the treaty supported its inclusion, the crime of ecocide was removed in 1996 without much explanation. From then on until she died, Higgins dedicated her life to the endeavor of including this crime in the Rome Statute. To this end, the environmental lawyer and advocate proposed an amendment to the Rome Statute in 2010, which was submitted to the UN’s International Law Commission (ILC), but the same has not been added to the Rome Statute up until now. 

Without an express provision of the crime of ecocide in the Rome Statute and taking into consideration the principle of strict legality—which is one of the foundations of criminal law—it becomes controversial to affirm that ICC could have jurisdiction over a case whose foundation rests on actions and facts that have not been typified. The only explicit reference to environmental crimes in the Rome Statute is in the war crimes section, in Article 8(2)(b)(iv), which reads ‘[…] long-term and severe damage to the natural environment […]’. Given that the situation related to the Amazon is not connected with an armed conflict, this provision cannot be applied.   

Therefore, the best scenario in the context of the Amazon deforestation would be for the Rome Statute to adopt a text that expressly addresses environmental issues in peacetime. The concept of ecocide that Higgins suggested to the ILC—‘The extensive damage to, destruction of or loss of ecosystems of a given territory, whether by human agency or by any other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished’— would describe well what is happening now in the Brazilian Amazon and could be pertinent to other situations in the world where entire ecosystems may also be deliberately destroyed. 

In practice, it takes only one signatory country to propose such an amendment to the Secretary-General of the UN and, if the proposal is accepted, two thirds of the State parties have to vote in favor in order for the text to be added to the Rome Statute. Vanuatu has already expressed the intent to present the ecocide amendment and it is possible that it will become the fifth crime in the short to medium term. While it does not happen, the deforestation alone will probably not be the basis for a complaint before the ICC, but it can certainly make the genocide case undermentioned stronger.   

The attacks against the Amazonian indigenous peoples and the crime of genocide

The situation is different regarding the attacks against the Brazilian indigenous peoples and the crime of genocide, for it is clearly typified in Article 6 of the Rome Statute as an act ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. As the data presented in the first section of this text shows, the attacks against the Brazilian indigenous populations have increased significantly in the last two years. The word attack, in this context, may include many acts, such as the murder of indigenous leaders, government’s encouragement of mining in indigenous lands, encouragement of religious missions targeting even isolated indigenous populations and the deliberate neglect of this population during the COVID crisis. It is worth mentioning that the destruction of the rainforest analyzed before also counts as an attack against indigenous peoples because it affects them disproportionally, as it represents not only the dismantling of their home and way of life, but it also seriously endanger the preservation of their own identity as an ethnic group.

These facts among many others are the foundation of an Informative Note to the Prosecutor against the Brazilian President Bolsonaro before the ICC. The document addresses a supposed ‘incitement to genocide and widespread systematic attacks against indigenous peoples’, laying its basis both in articles 6 (genocide) and 7 (CAH) of the Rome Statute. Regarding the COVID-19 pandemic and the indigenous people, even a Judge from the Brazilian Supreme Court—Gilmar Mendes—mentioned the word genocide to describe what was happening with this population. 

It normally takes long for the Prosecutor of the ICC to decide whether or not an informative note or a complaint will actually become a case and go into trial. Regardless the time it may take for it to reach the ICC’s Chambers, many relevant elements for admissibility are apparently present in the situation of the indigenous. Firstly, Brazil is a State party of the ICC and the facts that support the informative note have been happening mainly in the last two years in the Brazilian territory. This means that the Court would have temporal, territorial and personal jurisdiction to analyze the case. Secondly, although one could argue that the ICC should be guided by the complementary principle and that states parties should have priority in judging cases under their national jurisdiction, there is no current investigation taking place in Brazil or any other state party regarding the indigenous situation in the Amazon. Finally, as for the merits, it would require a careful investigation, but the murders, the increased systemic violence, the land invasions and forced evangelization at unprecedented levels indicate that there might be grounds for a CAH and/or genocide trial before the ICC. 

Conclusion

On the one hand, the international environmental regime becomes stronger with every passing year, with institutions and rules biding an increasing number of countries; on the other hand, it is difficult to hold accountable a violator, as these same rules often do not come with enforcement mechanisms. In this context, international criminal law and its main institution (ICC) appear as a potential path, despite indirect, to accountability, since the Amazon deforestation will be a powerful reinforcement for the genocide case if charges are confirmed before trial. Ecological conscience is constantly growing and there might come a time when the destruction of an ecosystem will be considered as horrifying as genocide. But right now the fact is that it is not typified in the Rome Statute and the ICC would have to be quite audacious to try a case on this basis. As far as for the indigenous situation, the most uncertain issue is to determine if the acts against the indigenous and the forest fit in the criminal description of genocide and/or CAH as foreseen in the Rome Statute. Only a detailed investigation can tell if the facts brought into light in this text, among others not mentioned, meet the requirements in the Rome Statute. If the answer is yes, it would set a historical precedent, as the ICC has never tried a case involving autochthonous populations and environmental issues.    

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]