The International Criminal Court's Jurisdiction Over Incitement to Genocide in the Internet Era : Some special situations

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http://urn.fi/URN:NBN:fi:hulib-202106152637
Title: The International Criminal Court's Jurisdiction Over Incitement to Genocide in the Internet Era : Some special situations
Author: Aromäki, Tommi
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingin yliopisto
Date: 2021
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-202106152637
http://hdl.handle.net/10138/331013
Thesis level: master's thesis
Degree program: Oikeustieteen maisterin koulutusohjelma
Master's Programme in Law
Magisterprogrammet i rättsvetenskap
Specialisation: Kansainvälinen oikeus
International Law
Folkrätt
Abstract: In this Master’s thesis the aim is to examine what are the elements of direct and public incitement to genocide under the Rome Statute, and how have they been examined in international criminal jurisprudence, what is the territorial jurisdiction of the ICC in light of the recent rulings by the Court’s PTCs and how can it be applied to incitement to genocide committed through the internet as well as can a social media platform’s owner be considered responsible for incitement to genocide under the Rome Statute. The inspiration for this thesis arises from the role Facebook has had in the alleged crimes that have taken place in Myanmar and the Statutes failure to take into account crimes committed in the internet. The role social media has had in the violence against Rohingyas gives a graphic example of the impact such inciting material may have through the global outreach of social media platforms. The methodology used in the thesis is primarily doctrinal. However, the research questions are approached with the help of an article written by Michail Vagias concerning the jurisdiction of the ICC over core crimes committed through the internet. The article is discussed throughout the thesis. The thesis begins with establishing the elements of direct and public incitement to genocide. With the help of the jurisprudence of ad hoc tribunals, this thesis puts together an exhaustive definition of the crime, gathering also the most contentious issues concerning the definition and nature of the crime. Next, the territorial jurisdiction of the Court is examined. In addition to reviewing the article by Vagias, this thesis examines in-depth two recent decision by the Court’s PTCs that define the limits of the Court’s territorial jurisdiction. Through an examination of the Court’s territorial jurisdiction, the PTCs’ recent decisions and relevant legal scholarship, this thesis will provide a refined version of Vagias’ approach on the Court’s jurisdiction over crimes committed online and the hypothetical situation he uses to illustrate the issue. The crime of direct and public incitement to genocide can be considered a preliminary phase of the gravest crime known to mankind and thus has to be effectively prosecuted when appropriate. Because of the emergence of new technologies and the changes in its operational environment, the Court must, in addition to the actual perpetrator, consider the responsibility of those de facto providing the platform for incitement to genocide. Thus, this thesis also sets out to investigate under what circumstances a controlling owner of a social media platform can be 1. held criminally responsible under the Rome Statute for incitement to genocide taking place on the platform or 2. held responsible for aiding and abetting in incitement to genocide taking place on the platform. In addition to the Court’s jurisdiction over natural persons acting on behalf of a company and over proper and improper omissions, this thesis discusses elements of commission by omission and aiding and abetting by omission as they are established in the jurisprudence of the ad hoc tribunals. This thesis will contribute by proposing that an executive could be held liable if the specific elements of omission, constructed from the jurisprudence of the ad hoc tribunals and recent legal scholarship, are fulfilled. In addition, this thesis will argue that the elements of commission by omission differ from the elements of aiding and abetting by omission. Further, this thesis discusses whether an executive of a social media platform is under the legal duty to prevent incitement to genocide from taking place according to international law.
Subject: International criminal law
direct and public incitement to genocide
Rome Statute
International Criminal Court
territorial jurisdiction
cyberspace
criminal responsibility of a social media company owner


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