Through frequent posting and an understanding of what emotionally moves her followers (which she already has, since she has managed already to amass millions of followers who consistently engage with her content), Trinity would be able to create in her followers the desire to commit genocide against the target group. Once she has cultivated the genocidal attitude she wants, she will have potentially thousands of people across the world who share her desire to destroy the group. At this point, she will be able to begin the process of inciting real violence toward the group.

This hypothetical relies on the efforts of one individual with a large following, but the use of social media by terrorist groups in order to spread the group’s message, and even to incite violence, has been already occurred. ISIS, for example, has used social media to recruit and to spread propaganda.2 Propaganda has of course been used in the incitement of genocide in the past, but what makes the use of social media to incite genocide particularly dangerous is the fact that it can reach greater amounts of people across the world. This hypothetical focuses on one person who already has a large follower base rather than a group for the sake of simplicity and clarity.

B. Hypothetical B

Imagine an individual who desires not to incite genocide through the use of social media, but instead, to commit genocide. The individual’s goal is to use social media to reach members of the target group and cause serious mental harm, with the end goal of destroying the target group. He would create content that mentally manipulates members of the target group with the ultimate goal of leading members of the target group to commit self harm and suicide. For the sake of clarity, this individual will be referred to as Thomas.

Like the first hypothetical, this act would require some kind of a large following, or, in this case, any way to spread the content that would make sure it reaches members of the target group. Content that harms the target group enough that it could eventually lead to physical harm to the group would have to be very serious. It would need to be more than mere hate speech, and would be specifically tailored to achieve a significant reaction among members of the group. For this hypothetical, imagine that Thomas utilizes videos meant to influence young members of the target group, teens and young adults, to commit suicide. Studies on the effects of social media on youth show that the graphic and frequent portrayal of self harm leads to increased likelihood that teens and young adults will engage in these behaviors.3 By creating videos that appeal to individuals of the target group or by manipulating the social media pages of those in the target group to ensure that they see the content, Thomas could show young members of the target group videos that depict self harm and methods of committing suicide with enough frequency to lead the members of the target group to engage in those practices. Alternatively, he could create a series of posts or videos similar to the blue whale challenge. Using the formula of the blue whale challenge, Thomas would create videos that give tasks to viewers, which in Thomas’s case would be members of the target group, that culminate in the viewers being led to commit suicide.

The blue whale challenge has been reported as a game on social media that targets youth. The game directs participants through a series of videos to secretly complete tasks which become progressively more harmful, ultimately ending with the participants being directed to commit suicide in order to finish the game.4 Discussions of this game do not indicate that it was targeted at any particular group other than young people in general, but content like the blue whale challenge could be used to target members of a certain group by someone who wished to commit genocide against them. This could be done by posting content of the game on forums or social media groups aimed at the target group, or by taking advantage of social media algorithms to reach members of the target group on their accounts. Once the game is shown to those in the target group, it could be conducted similarly to the blue whale challenge, and members of the target group rather than youth in general would be encouraged to engage in self harm and eventually suicide. This is the method that Hypothetical B focuses on.

II. Hypothetical A Could Fall Under the Rome Statute’s Definition of Genocide

Article 25(3)(e) of the Rome Statute states that:

[I]n accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: […] (e) in respect of the crime of genocide, directly and publicly incites others to commit genocide.5

Hypothetical A, depending on the circumstances of the act, could fall under this definition. Trinity (the celebrity from Hypothetical A) could be found to be criminally liable for committing genocide if she directly and publicly incited others to commit genocide, which she would do through her social media accounts.

The Genocide Convention’s definition of incitement to commit genocide requires that the incitement be direct and public.6 International courts like the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia (ICTY) have interpreted the meaning of these terms in prosecuting incitement to commit genocide. In The Prosecutor v. Pauline Nyiramasuhuko et al., the International Criminal Tribunal for Rwanda stated that in order for the incitement to be direct, it must specifically provoke another person to engage in acts that qualify as genocide under the statute:

It must be more than a vague or indirect suggestion, and an accused cannot be held accountable for this crime based on hate speech that does not directly call for the commission of genocide.7

This means that Trinity would have to do more than create posts that make hateful or derogatory comments about the target group. It would not be enough to post often about Trinity’s hatred for the target group or to make negative statements about the target group.

However, the Tribunal did emphasize that the call to the commission of genocide does not have to be explicit if in the context of the statement, it is clear that the meaning of the statement was a direct appeal to commit genocide.8 For example, if Trinity posted one day that “we should all start treating [the target group] the way they really deserve to be treated” that would not be a direct incitement to commit genocide because it does not necessarily suggest the commission of any genocidal act. That statement is so vague that it could refer to anything. On the other hand, Article 6 of the Rome Statute states that killing members of the target group (with the requisite intent to destroy the group) is genocide.9 If Trinity posted videos of members of the target group being killed and said “when I say you should treat [members of the target group] the way they deserve to be treated, this is what I mean,” then in context, that could be considered direct incitement to kill members of the target group. However, in order for this statement to qualify as direct incitement, the statement would have to not be ambiguous within that context.10 If Trinity posted about “treating them the way they deserve to be treated” and it was very clear in context that she meant to kill members of the target group, then that could qualify as direct incitement. If it was ambiguous, either because she only used the term as a euphemism for kill once and it was not clearly meant to convey that meaning, or because she also used the term “treat them the way they deserve to be treated” to mean other things in other posts, it would likely not qualify as direct incitement.

In order to tell the difference, the Tribunal offered one way to determine what the speech means in context. It suggested that the speech be evaluated based on how it was understood by the intended audience. If there were thousands of comments from her followers expressly stating that they understood she meant kill when she used the term “treat them the way they deserve to be treated” (for example, if followers had discussions about how Trinity had to use the term “treat them the way they deserve to be treated” when she meant kill in order to not be removed from the social media platform), then the context of her statements would make it clear that she was engaging in the direct incitement to commit genocide because her followers understood her to be directing them to kill. Therefore, whether or not her incitement was direct could be easily understood if her language was clear, or it could be ascertained using the context of her statement and the way it was understood by her followers. Both could result in her statement being found to be a direct incitement to commit genocide.

In addition to being direct, Trinity’s statements would also have to be public in order to fit under the definition of incitement to commit genocide. The Appeals Chamber in The Prosecutor v. Pauline Nyiramasuhuko et al. stated that:

[A]ll convictions before the Tribunal for direct and public incitement to commit genocide involve speeches made to large, fully public assemblies, messages disseminated by the media, and communications made through a public address system over a broad public area.11

Under this definition of public, the public requirement for incitement to commit genocide would be relatively easy to meet for this hypothetical. When Trinity posts, her content is seen by her millions of followers as well as anyone with whom those followers might share her posts. Although social media posts are not made through the traditional media or the other public sources utilized by perpetrators convicted of genocide in the past, it is likely that Trinity’s posts would quality because they would be seen by just as many if not more people. Her posts would also be available to viewers across the world rather than limited to one area the way a speech given to a large, public assembly would be. Her posts would almost certainly meet the definition of public.

The hypothetical in which Trinity is a celebrity with millions of followers would make it possible for her posts to meet both the direct and public requirements, but if a different individual, someone with only a thousand followers, or only five followers, made posts with the intention of inciting genocide, the analysis might be different. For someone with only a few followers, the speech would have to be more explicit to be considered a direct incitement, because with a smaller audience, or no audience participation at all, it would be more difficult to rely on context and the way the audience understood the message. Still, a post made by someone with only five followers could still qualify as direct, because it could explicitly tell others to commit acts that would fit the definition of genocide.

The public requirement would be the more serious challenge for prosecuting a poster with a small number of followers. Trinity is clearly making a public statement when she addresses millions of followers. Not every follower is going to see her post, but many of them will, and many people who do not follow her will see her posts when the posts are shared or interacted with by her followers. Someone with only a few followers, however, might make a post that is only seen by those five followers, only a few of them, or even none of them. Given that the requirement is that the incitement be public, not simply that it be heard by someone other than the speaker, it seems unlikely that someone who had five followers would be thought of as making a public statement. This is especially true considering the fact that all of the convictions for the International Criminal Tribunal for Rwanda, which has played a role in interpreting these terms, involved speeches given to a large public audience, broadcasted by the media, or made through a public address system over a large area. Making a post on social media that will probably only be seen by a few followers would be akin to making the statement at a small party, and that would probably not be enough to amount to a public statement.

If five followers is not enough, however, the question becomes how many are enough? Would one thousand followers be enough, taking into account the fact that not every follower is going to see the post? If someone like Trinity shared the post made by someone with only a few followers, would the original poster’s statement then be considered public because it had the capacity to be shared to a wide group and then actually was, even though the poster did not choose for that to happen? Due to the nature of social media, namely the fact that posts can be shared, it is not clear what would meet the public requirement and what would not.

One aspect of the Rome Statute that might limit the practical importance of these questions is the gravity requirement. Article 17(1)(d) states that a case will be inadmissible where “the case is not of sufficient gravity to justify further action by the Court.”12 Even if a post made by someone with five followers might qualify as public due to the potential for the post to be shared and then seen by many more people, the Prosecutor might find that the post is so unlikely to gain any traction that it would not justify further action by the Court. However, the gravity requirement is argued to be a very low threshold, meant to keep out offenses such as small, isolated war crimes, rather than excluding crimes like genocide that are grave per se.13 Marco Roscini, a professor of international law at the University of Westminster Law School argues that “cyber conduct constituting, instigating or facilitating an act of genocide will not need to result in a high number of casualties to be considered admissible.”14 Thus, the legal gravity requirement is thought to be very low, and is arguably likely to be met by any incitement to genocide should the Prosecutor use his discretion to take the case.

In fact, it is the Prosecutor’s discretion that offers another reason to think that a post technically inciting genocide in a direct and public way still might not meet the gravity requirement. In addition to the legal gravity requirement in Article 17(1)(d), there is also the practical consideration that the Prosecutor has limited resources and cannot, and arguably should not, take on every case that falls under the jurisdiction of the Court. The Prosecutor has to make decisions about what cases, according to his own judgment, best serve the interests of justice and the Court. Therefore, there is a relative gravity requirement as well in choosing what cases to take on.15 The relative gravity requirement is higher than the legal gravity requirement; not every case that technically qualifies as incitement to genocide would be considered worthy of pursuit by the Prosecutor. The relative gravity requirement would probably make it unlikely that the Court would indict someone for incitement of genocide if he made a social media post that would only be seen by five followers. Even once a certain number of viewers was deemed “public” for the purpose of the definition, it would be up to the Prosecutor’s discretion to determine how many viewers (among other circumstances) would be enough to make the case important enough to pursue.

Posts inciting genocide made by Trinity, which would potentially meet the direct and public requirements, would be subject to the same discretion of the Prosecutor. If Trinity reached a large audience in her incitement to genocide but there was no loss of life in the target group, then the Prosecutor might find that, given the seriousness and high death toll of other crimes under his jurisdiction, this case did not warrant investigation by the Court. On the other hand, he might find that given the publicity of Trinity’s posts and the rise in attention to cyber crimes across the world that investigating Trinity’s crimes would be an important deterrent of future cyber crimes of this nature.16 In that case, a low death toll, or no death toll at all, might still warrant investigation and indictment by the Court. Therefore, it is certainly possible that Hypothetical A would meet the Rome Statute ’s definition of genocide and be investigated by the International Criminal Court, assuming that the case met the intent requirement.

III. Hypothetical B Could Qualify as Genocide Under the Rome Statute

Article 6(b) states that:

[F]or the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: […] (b) Causing serious bodily or mental harm to members of the group.17

Hypothetical B focuses on how Thomas could use social media to cause harm to members of the target group by making videos similar to the blue whale challenge that influence those members to commit serious bodily injury to themselves.

If Thomas’s conduct meets the definition of genocide under the Rome Statute, it would most likely be because it falls under Article 6(b), causing serious mental harm to members of the target group. Many scholars argue that for mental harm to qualify under the Statute, it must be manifested physically.18 Nema Milaninia, a trial attorney with the Office of the Prosecutor for the International Criminal Court, argues that nothing in the Genocide Convention states this requirement, and such a requirement would render the rule redundant. Thomas’s content would qualify as serious mental harm that does manifest physically, so under either interpretation, Thomas’s content could potentially be an act of genocide. Courts have recognized “threats of death and knowledge of impending death; acts causing intense fear or terror; surviving killing operations; forcible displacement; and ‘mental torture’ ” as causing mental harm under the Statute.19 A series of videos or posts that encourage the target group to engage in self harm or suicide would likely qualify as mental harm.

In addition to qualifying as mental harm, the harm also has to be considered serious. The analysis of whether an act of mental harm is considered serious is done by looking at the totality of the circumstances, in which the Court will look at all of the related acts together to evaluate whether the acts caused serious mental harm, rather than looking at the acts one by one.20 For example, in The Prosecutor v. Rukundo, the International Criminal Tribunal for Rwanda did not have direct evidence of the mental state of a victim of sexual assault, but they looked at the circumstances of the assault to determine whether serious mental harm existed.21 The Court considered the victim’s relationship to the accused, her sexual inexperience, and the fact that the perpetrator had carried a weapon.22 Using all of these factors considered together, the Court determined that the victim would have suffered serious mental harm from the assault.

If Thomas made a series of videos each progressing in seriousness that were meant to be viewed in succession by a member of the target group (a system where the victims watched the first video, did the assigned task, and then progressed to the next video), then the Court, in evaluating whether serious mental harm had been inflicted on the victim, would have to look at all of the videos together, as well as any other posts or circumstances that would play a role in the victim’s mental state. The Court might take into account what the videos said, whether any graphic content in the video would be particularly disturbing for the victim, and any potentially harmful effects of the videos being aimed at the target group in particular, to decide if under these circumstances the mental harm would be serious. Alternatively or in addition, of course, the Court could use victims’ own statements of the harms that they suffered. In The Prosecutor v. Popovićet al., the Court relied on other circumstances because it had very little evidence of the victim’s mental state from her own words. If victims were willing and able to come forward, then their testimony would help the Court determine the seriousness as well.

The Trial Chamber for the ICTY suggested in its analysis of the case The Prosecutor v. Tolimir that in order to find serious mental harm that qualifies as genocide, the perpetrator’s act must be a proximate and direct cause of the mental harm.23 For Thomas’s content to be considered to have caused serious mental harm, his content would have to be the direct cause of the harm, meaning that the harm would not have occurred but for his act of posting the content. His content would also have to be the proximate cause of the harm, meaning that the mental harm done to the victims was a foreseeable consequence of Thomas’s actions. If victims participated in Thomas’s challenge and sustained serious mental harm as a result, that would make his actions a but-for cause of the harm. Also, since the purpose of his content is to cause members of the target group to sustain harm, it would be very difficult to argue that such harm was not foreseeable, so his actions would also be a proximate cause. Therefore, Thomas’s actions would likely fit the causal requirements implicit in the Trial Chamber’s analysis.

One potential argument against this hypothetical qualifying as serious mental harm is the fact that victims can choose at any point to disengage from the game, or not to take part in it in the first place. It could be argued that if the harm they were suffering really was serious, then they could at any time log off and not watch the videos. This makes it very different from a situation in which victims of a target group are tortured or forcibly removed from their homes, because in those situations, the victims have no opportunity to escape the treatment. However, psychological studies on youth have shown that social media can contribute significantly to suicidality in teens and young adults, especially those with pre-existing mental health issues.24 These harms occur despite the fact that users can cease their use of social media at any time. Whether or not the victims could stop viewing Thomas’s content at any time should be irrelevant to the analysis, because if the victims have viewed it, and they suffered serious mental harm as a result, it is still Thomas’s genocidal act that caused their harm. The victims’ choice to view the content has not prevented the individual with genocidal intent from causing serious mental harm to the target group. There is nothing in the Statute that requires that the victims be unable to escape the harm.

Nonetheless, the Prosecutor could consider the existence of choice in his analysis of the relative gravity of the crime. He might find that the Court’s resources are better spent on instances of genocide in which the victims did not have any avenues of escape, allowing responses from other governmental agencies or organizations to respond to social media attacks like Thomas’s. Perhaps due to the choice involved in these kinds of challenges, outreach efforts created to spread awareness of the attacks and warn potential victims how to spot and avoid this content would be sufficient to protect the target group. The existence of this possibility may lead the Prosecutor to determine that there are other cases that more warrant the resources of the Court. On the other hand, researchers have found that even posts attempting to spread awareness of the blue whale challenge in order to protect people from its content still have the potential to contribute to the self harm contagion, a phenomenon in which internet users with mental illness are influenced to engage in more self harm or suicide ideation due to the way these topics are addressed in media and on social media.25 The potential for attempts at spreading awareness to cause more harm than good might lead the Prosecutor to find a case like Thomas’s to be worth pursuing.

The potential for an attack like Thomas’s to be committed anonymously raises further issues for the Prosecutor to consider in investigating the case. Cyber attacks can be more difficult to prosecute than more traditional forms of genocide because the perpetrator can make the attack without revealing his identity to anyone. Attribution is a difficult problem in prosecuting cyber attacks in general because it is difficult to find the source and perpetrator of the attack.26 This obviously increases the costs of prosecuting the attack, but it could be argued that it makes it more worthy of pursuit. Since anonymity makes a cyber attack more appealing for would-be perpetrators, it may be even more important for the Court to make an example out of the perpetrators that they are able to identify. By pursuing instances of genocide conducted through social media, the Prosecutor can send a message that there is a lot of risk in such attacks because the Court will make the effort to find and punish the perpetrators. Still, knowing that they can act anonymously may cause perpetrators to feel that even if someone else is convicted by the Court for a social media focused cyber attack, the risk of getting caught is low and the act is still worth attempting. These are the kinds of issues that the Prosecutor will have to take into account in considering whether a case like Thomas’s should be investigated by the Court.

Although Hypothetical B focuses on posting content similar to the blue whale challenge, it is not difficult to imagine other uses of social media that might lead to serious mental harm and fall under the Statute ’s definition of genocide. Given that cyberbullying has been shown to have a significant adverse effect on the mental health of victims,27 it might be argued that if a perpetrator targeted individual members of a target group through cyberbullying that that might qualify as genocide as well. The constant posting of extremely graphic videos depicting violence against the target group, especially when sent to the members of the target group themselves rather than posted publicly, might also be found to be a serious enough harm. What makes Hypothetical B a useful example, however, is that it would likely qualify as genocide even if a physical manifestation of the harm is required, since it clearly leads to physical harm to the target group. Therefore, it shows how social media could be used to commit what would qualify as genocide under the Rome Statute.

IV. Both Hypotheticals Could Meet the Intent Requirement Depending on the Circumstances

To prosecute a perpetrator for genocide, the Rome Statute requires more than proof that the act was committed and that the perpetrator intended to commit that act. In addition, there is the dolus specialis, the requirement of a special intent to destroy a protected group in whole or in part.28

It is not enough that Thomas in Hypothetical B wanted to create a program like the blue whale challenge in order to influence teens and young adults to commit self harm. In order for that act to qualify as genocide, the Prosecutor must prove that Thomas created this program to influence teens and young adults of the target group to commit self harm because he wanted to destroy the target group in whole or in part. The Prosecutor must prove that Thomas actually intended for the content to reach the target group and cause them harm because he had the desire for his content to contribute to the destruction of the target group.

The acts must be committed against members of the target group because they are members of the target group. The International Law Commission stated that the “[t]he action taken against the individual members of the group is the means used to achieve the ultimate criminal objective with respect to the group,”29 and that “the intention must be to destroy the group ‘as such’, meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group.”30 For Trinity in Hypothetical A, for example, this means that the Prosecutor would have to prove that Trinity wanted her followers to commit acts of violence against members of the target group, not only because she wants harm to be caused to be members of the target group, but because she has a desire to destroy the target group itself.

Intent is a difficult requirement in prosecuting the crime of genocide because it requires that the mental state of the perpetrator be proven when the defendant may not have ever admitted such a mindset.31 In fact, Josef Kunz has stated that:

[I]t has been said that this specific criminal intent makes the Convention useless; that governments, less stupid than that of National Socialist Germany, will never admit the intent to destroy a group as such, but will tell the world that they are acting against traitors and so on.32

He argues that it is very unlikely that perpetrators of genocide will admit that they had the requisite intent. Further, it can be difficult to prove someone’s mental state when their words claim a different motivation. However, even without a confession as to the intent of the crime, international tribunals have found the intent to commit genocide using other evidence. The International Criminal Tribunal for Rwanda has looked at factors like “the scale of atrocities committed, their general nature, a local region or country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups” in order to find intent.33

Instances of genocide committed through the use of social media face this same requirement and some of the challenges that it brings. Like other perpetrators of genocide, perpetrators using social media to incite others to commit genocide or to commit acts of genocide themselves may deny having a genocidal intent, and in that case the Prosecutor would need to find other evidence to establish the requisite intent. However, in certain situations, proving genocidal intent for an act conducted through social media might be easier than proving intent for more traditional forms of genocide. In the case of more traditional forms of genocide, there are often other possible motivations for the potentially genocidal behavior. Perpetrators who murder members of the target group could be doing so due to a desire to destroy that group, or they could be doing so because they are at war with the people in that area over a piece of land, and the people involved in that war happen to be of the target group. In that case the reason for the behavior would not be to destroy the target group but something else entirely. For example, in The Prosecutor v. Tolimir, the Appeal and Trial Chambers found that the Bosnian women and children had suffered serious mental harm as a result of forced displacement and the harmful circumstances involved in that displacement.34 In a case like Tolimir that involves forced displacement, a tribunal might find the dolus specialis of intent to destroy the target group, but that same act by a different perpetrator might have been motivated by concerns that are not related to genocide. It could be a matter of the perpetrators wanting to remove the group in order to take land for themselves.

In the case of genocide committed through social media, however, it might be easier to prove that the motivation was genocidal. When perpetrators are explicit about their hatred of the target group and their desire to destroy that group, it is obviously easier to prove intent. The large amount of documentation by German leaders of their intent to eradicate Jewish peoples during the Holocaust is an unusual example of perpetrators of genocide being forthcoming with their intent.35 In cases like that, it is easy to prove the dolus specialis. Genocide committed through social media might be another instance of genocidal intent being broadcasted more openly. Because the internet is not limited to one’s own region of the world, users can reach people outside of their own country or area. If perpetrators seek out members of the target group regardless of where in the world they are living, then it will be much harder to argue that the perpetrators only tried to harm those particular people because they are at war with them or because they have certain territory that the perpetrators want. By using the internet to connect with members of the target group around the world, perpetrators will make it more clear that destroying the target group was their intention.

In Hypothetical A, Trinity’s posts call for violence against members of the target group. Since her posts can be seen by viewers all over the world, it will be clear that the reason she is targeting these individuals is because of their membership in the target group and not for reasons related to their location, like her desire to remove a group from land that she wants to occupy. Her intent to target this group may also be clearly proven because her posts specify that group itself. She does not call for violence against people who do not support her, or people who engage in certain behaviors. She explicitly calls for violence against members of the target group, so her intent to cause harm to members of the target group will be clear from her posts. The Prosecutor would still have to prove that her intent in inciting violence against members of the group was specifically to destroy the group itself and not just to harm individual members of the group, but the fact that she has already made her intentions to cause harm to the target group clear would make the proving a lot easier.

In Hypothetical B, whether it would be easier to prove Thomas’s intent to destroy the group than it would be to prove the intent of any other perpetrator of genocide depends on how Thomas goes about reaching the members of the target group. If Thomas’s videos are explicitly labeled as being aimed at the target group, or if the content of the video addresses members of the target group directly, then it would be reasonably easy to prove his intent to destroy members of the group. Depending on what is said in the videos, it might even be easy to prove that he is trying to destroy the group itself rather than just individual members of the group. If Thomas does not explicitly refer to the target group in the videos and has other methods of ensuring that they are the ones who view his content, like manipulating the algorithms on whatever social media site he uses to make sure that his videos are shown to the desired group members, that might make proof more difficult. Still, the Prosecutor could introduce evidence of whatever efforts Thomas makes to reach the target group in order to prove that he intended for them to be harmed specifically.

For both hypotheticals, the fact that the genocidal act is being done through social media helps to make proving the dolus specialis of intent easier than it would be with more traditional forms of genocide like murder, displacement, and other acts of violence. The fact that the perpetrators in these hypotheticals use words rather than physical violence provides useful evidence of intent.

V. Conclusion

As use of the internet progresses, the world will have to contend with the proliferation of cyber crimes by state actors and by individuals. In the Preamble to the Rome Statute, the State Parties declared their determination to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”36 In order to live up to this goal, the International Criminal Court must be prepared to address the crimes under its jurisdiction in all forms, including in the form of cyber crime. Genocide, perhaps the most serious crime over which the Court has jurisdiction, may be perpetrated through cyber attacks, and the Court ought to be prepared. Perpetrators with the intent to commit genocide may choose to do so using social media. As long as the act falls under the definition of genocide under the Statute, the crime should be considered genocide by the Court even though it is undertaken through social media rather than through more traditional means.

Hypothetical A may fit under the definition of genocide as an incitement to commit genocide. Social media offers perpetrators a platform to directly and publicly incite violence against a target group because it allows posters with a large follower base to reach millions of people with their message. Such behavior could fall under the definition of genocide depending on the particular circumstances of the case.

Hypothetical B also has the potential to fall under the Statute ’s definition of genocide. By making videos similar to the blue whale challenge that influence viewers to commit self harm and even suicide and using this content to cause serious mental harm to members of the target group, a perpetrator may commit an act of genocide using social media.

Although social media has the potential to offer perpetrators the opportunity to reach a larger group of victims from the target group, it may also be easier for the Prosecutor to prove the dolus specialis of intent to destroy the target group in whole or in part and prosecute the perpetrators.

In order to fulfill its mission of punishing perpetrators of genocide and deterring future genocidal acts, the Court ought to be aware of the possibility that genocidal actors may seek to harm others through the use of social media. Awareness of this potential threat may allow the Court to adjust to the world of cyberspace and prevent the perpetration of these crimes.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 5, available online. ↩

2. 2.

   Piotr Łubiński, Social Media Incitement to Genocide: ECHR Countries’ Perspective, in The Concept of Genocide in International Criminal Law 262, 268 (Marco Odello & Piotr Łubiński eds., 2015), available online. ↩

3. 3.

   Amro Khasawneh, Kapil Chalil Madathil, Emma Dixon, Pamela Wiśniewski, Heidi Zinzow & Rebecca Roth, Examining the Self-Harm and Suicide Contagion Effects of the Blue Whale Challenge on YouTube and Twitter: Qualitative Study, 7 JMIR Mental Health (Sep. 6, 2020), available online, doi. ↩

4. 4.

   Id. ↩

5. 5.

   Rome Statute, supra note 1, Art. 25(3)(e). ↩

6. 6.

   Łubiński, supra note 2. ↩

7. 7.

   Id. at 269 quoting The Prosecutor v. Pauline Nyiramasuhuko et al., ICTR-98-42-T, Judgement and Sentence, n.5986 (TC II, Jun. 24, 2011) [hereinafter Nyiramasuhuko], available online. ↩

8. 8.

   Id. ↩

9. 9.

   Rome Statute, supra note 1, Art. 6(a). ↩

10. 10.

    Łubiński, supra note 2, quoting Nyiramasuhuko. ↩

11. 11.

    Id. ↩

12. 12.

    Rome Statute, supra note 1, Art 17(1)(d). ↩

13. 13.

    Marco Roscini, Gravity in the Statute of the International Criminal Court and Cyber Conduct that Constitutes, Instigates or Facilitates International Crimes, 30 Crim. L. Forum 247, 269–70 (2019), available online, doi. ↩

14. 14.

    Id. at 270. ↩

15. 15.

    Id. ↩

16. 16.

    Id. ↩

17. 17.

    Rome Statute, supra note 1, Art. 6(b). ↩

18. 18.

    Nema Milaninia, Understanding Serious Bodily or Mental Harm as an Act of Genocide, 51 Vand. J. Transnat’l L. 1381, 1393 (2018), available online. ↩

19. 19.

    Id. at 1394. ↩

20. 20.

    Id. at 1397. ↩

21. 21.

    Milaninia, supra note 18, at 1397 quoting The Prosecutor v. Rukundo, ICTR-2001-70-T, Judgement, ¶ 388 (TC II, Feb. 27, 2009), available online. ↩

22. 22.

    Id. ↩

23. 23.

    Milaninia, supra note 18, at 1398 quoting The Prosecutor v. Tolimir, IT-05-88/2-A, Judgement, ¶ 761 (TC II, Dec. 12, 2012), available online. ↩

24. 24.

    Khasawneh et al., supra note 3. ↩

25. 25.

    Id. ↩

26. 26.

    Gary D. Brown & Keira Poellet, The Customary International Law of Cyberspace, 6 SSQ 126, 133 (2012), available online. ↩

27. 27.

    Khasawneh et al., supra note 3. ↩

28. 28.

    Article 17. Crime of Genocide in Report of the International Law Commission on the Work of its Forty-eighth session, 6 May-26 July 1996, U.N. Doc. A/51/10, 44, ¶ 19 (1996), available online. ↩

29. 29.

    Id. ¶ 6. ↩

30. 30.

    Id. ¶ 7. ↩

31. 31.

    Habtamu Dugo & Joanne Eisen, Proving Genocide in Ethiopia: The Dolus Specialis of Intent to Destroy a Group, 10 A:JPAS 133, 135 (Sep. 2017), available online. ↩

32. 32.

    Id. quoting Josef L. Kunz, The United Nations Convention on Genocide, 43 Am. J. Int’l L. 738, 743 (Oct. 1949), available online, doi. ↩

33. 33.

    Id. ↩

34. 34.

    Prosecutor v. Tolimir, supra note 23. ↩

35. 35.

    Dugo & Eisen, supra note 31, at 143. ↩

36. 36.

    Rome Statute, supra note 1, at Preamble. ↩