Roundtable #28: The Limits of ‘Never Again’: Modern Challenges to Genocide Prevention
Section I: In Light of Hope: Discussion On The Implementation of International Law For Domestic Application
In the 20th century, the travesty and weight of the two World Wars devastated the world and humanity. Together, the states saw to it that an international framework was built and implemented so that atrocities like the Holocaust and the Rwandan genocides would not go unnoticed and that perpetrators of such violence would be held accountable. This is why, in 1946, the United Nations declared genocide a crime under international law. They adopted the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) in 1948, outlining its framework of articles. The articles most relevant here are Article 1, stating that the states that are parties to the Convention recognize genocide as a crime and commit to prevent and punish such acts. The other relevant article is Article 2, further outlining actions that constitute genocidal actions.
In this Roundtable, I first outline brief accounts of states’ ineffectual recognition and implementation of the Convention. Then, I give examples of successful implementations. I then take into account contemporary thought surrounding models of domestic integration of international laws. With respect to the successful examples, I argue how international laws like the CPPCG can be implemented in domestic frameworks, specifically within the United States. Moreover, a principle we must keep in mind is that it is the mere existence of a risk that genocidal actions have taken place that ought to promote accountability measures by governments or individuals, whether they are individuals or corporations.
First, the legal measures that are implemented in the international framework provided by the CPPCG fall short in domestic frameworks. For instance, in the United States, actors who are contributing to violence abroad that possibly fall under Article 2 are not considered for accountability under United States’ legal system in light of Article 1’s outlining that states prevent genocide. Consider the case Defense For Children Int’l-Palestine v. Biden, the plaintiffs attempted to hold United States’ executive branch officials accountable for sales of arms to Israel and prevent further material and financial support to the nation. The plaintiffs alleged that these accusations rested on Article 1 of the Genocide Convention as well as encoded in 18 U.S.C. § 1091, which holds genocide as a federal crime. The appeals court dismissed the case on account of the “political question doctrine,” which outlines a stance that the courts should not hear cases that raise politically charged questions. Further, the doctrine is a by-product of the court’s perspective that such cases breach the constitutional separation of powers. This case outlines how decision-making regarding United States’ arms sales is largely up to the Executive Branch and Congress. This lack of implementation of international law keeps actions contributing to violence from legal scrutiny by the United States public. Thus, actors abroad and domestically are enabled to contribute to unnecessary harm to innocent civilians in conflicts around the world.
Other countries have carried out legal obligations from international law within their domestic legal systems. There is a newfound ruling in Belgium, a country in the European Union (EU), that prevents arms shipments by referencing the obligations states have under the CPPCG Articles. The 2024 case against the Belgian government by human rights groups to prevent arms shipments to Israel in its conflict in Gaza found success. It grounded its conclusions on the ICJ ruling that statements of genocidal and dehumanizing effect have been made by senior officials, and destruction of civilian life and infrastructure has taken place, which thus constitute a plausible risk of genocidal actions having taken place. The specific harms at issue potentially fall under Articles 1 and 2 of the CPPCG. Further, the court asserted its ruling on the fact that Article 1 of the Genocide Convention only asks States to prevent actions where there is a risk that atrocities are happening. Undergoing subsequent appeals, referencing Flemish law, the UN Arms Trade Treaty, and EU regulations, the Belgian Supreme Court concluded that the appeals court’s ruling was founded on multiple international organizations that made it apparent that there was “a clear risk of serious violations of international humanitarian law,” including genocide and crimes against humanity were occurring. In Europe, as was seen to be the case in the United States, arms exports are largely thought to be decisions made by the executives of government branches. Thus, the decision marks a precedent to keep legal accountability of government bodies. It also paves the way for other European courts to hold governments accountable under international law using the same grounds and legal frameworks.
These rulings, both in the EU and the US, are made possible by the generalized frameworks through which these states implement international law into their domestic systems. There are two such frameworks: monist, where the law has a “self-executing” nature without domestic law being written; the other, dualist, where international law must be translated into domestic law to be effective. The United States is thought to be a hybrid system, implementing some aspects of international human rights law, and other aspects are prevented from being self-executing by the federal branches in declarations of ratification of treaties containing the law.
Here, I argue that it is through these legal frameworks that avenues are to be found to execute the international standard. As Belgium did, the United States would recognize violations of human rights law contained in treaties to which the United States would be a party through its hybrid system. So, through a similar approach, using the general frameworks and international conventions, the United States could implement international law into its system. For example, if the United States becomes a party to the ATT, the United States and its exports become subject to the law outlined only in accordance with its sovereignty in implementing it into domestic law. Once a party to the Arms Trade Treaty, there are recognitions, such as those ruled about in the Belgium case, that one could make the case arguing the state is infringing on its legal commitments in light of Article 6 of the ATT, which references crimes against humanity, including genocide. Thus, an avenue opens up to limit the export of arms along the same structure that European organizations took advantage of in order to hold their governments accountable to their obligations under such structures.
In conclusion, I want to make common ground apparent that there are general lines of reasoning. One, a person can rationally conclude that any person would find a commitment to not partake in actions of genocide reasonable. Two, that apparent risk of genocidal actions having taken place is what grounds the United Nations’ Convention, and that it ought to find ground in one’s reasoning to likewise prevent such actions in light of the apparent risks. Now, it is largely argued elsewhere that ought does not imply can. But, in what is considered Western canonical thought, largely at the behest of Immanuel Kant, our oughts, our moral obligations arising from reasoning, ground our ability and obligation to implement our rational conclusions. My only further argument in this context lies in how we can do so, in light of current realities arising from conflicts involving allies and from our allies in the EU. I argued we can do so along the same reasoning and structures as those in the EU did to recognize and prevent atrocities from happening. Finally, in the United States, our collective union can ground itself in light of the events of history to guide ourselves in our future, as we did post-WWII and the atrocities lying there and elsewhere in the world’s past, so that they may never occur again.
By Victor Odom
Edited by Reesa Calderón Venterea
Section II: Invoking a Threat While Denying a Court: The Domestic and International Law Defects of Executive Order 14203
The International Criminal Court (ICC) has long endured criticism for both its lack of enforcement power and for its potential threat to the United States’ judicial sovereignty. The standing international court was officially charted by the Rome Statute, a United Nations treaty pioneered by middle-power democracies, signed by 124 countries, and endorsed by hundreds of non-governmental organizations dedicated to protecting human rights in areas of the world where traditional forms of justice are upended due to internal strife or institutional shortcomings. Both of these, it is important to note, are often manifestations of Western colonialism’s enduring legacy in developing nations. This humanitarian focus has granted the court jurisdiction over crimes against humanity, war crimes, genocide, and aggression. The belief that the ICC threatens national sovereignty grounded the United States’ decision to abstain from signing onto the Rome Statute and to subsequently pass the American Service-Members’ Protection Act, which formally codifies the domestic legal framework. This specifically states that the ICC is an illegitimate institutional body: not only does the United States reject the ICC’s ability to prosecute American citizens unless authorized, but it bars almost all forms of government assistance to ICC operations. The ASPA has remained integral to 21st-century American foreign policy and statutory posture. It is often invoked to cut military aid to ICC member states lacking Bilateral Immunity Agreements, to block cooperation with ICC investigations (e.g., Sudan, Uganda), and to prohibit the extradition of Americans. In February 2025, the Trump Administration made the unprecedented move to invoke the theoretical framework of ASPA alongside the International Emergency Economic Powers Act (IEEPA) via Executive Order 14203, declaring a national emergency to justify targeted sanctions against certain members of the ICC. In this article, I analyze the domestic and international legal deficiencies underlying Executive Order 14203 and demonstrate how the order reveals longstanding inconsistencies in U.S. foreign-affairs doctrine and its treatment of the ICC.
The Trump Administration is specifically responding to the ICC’s issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Minister of Defense Yoav Gallant, who were charged in November 2024 with war crimes and crimes against humanity for their salient involvement in Palestine’s ongoing humanitarian crisis. For Netanyahu and Gallant, this includes the use of starvation as a method of warfare, attacks on civilians, and other gravely inhumane acts. The Trump Administration claims that these charges “infringe upon the sovereignty of the United States and undermine the critical national security and foreign policy work of the United States government and [its] allies,” citing potential harassment, abuse, and arrest of personnel as “security” concerns.
The nature of Executive Order 14203 requires further interpretation in relation to the IEEPA. The legal basis for evaluating a sufficiently threatening national security concern is both “unusual and extraordinary,” as outlined by the IEEPA, 50 U.S.C. § 1701(a). ICC judges simply do not pose a national security threat to American citizens or military personnel. The order provides no data or evidence of impending ICC investigations that would lead to “harassment” of American military personnel or officials, and it starkly departs from legal precedents that crystallize the thresholds of both rarity and severity. The Executive has invoked the IEEPA “when those words mean what they say” for almost five decades. For instance, it enabled executive authority to freeze the assets of potentially hostile governments, organizations, and individual actors during the Iranian hostage crisis, the fallout of the September 11th attacks, the South African apartheid, and following malicious cyberattacks against the United States by China, Russia, and North Korea. In other words, the IEEPA was invoked in instances where further harm was an unquestionable concern, unlike the ICC, which often prosecutes the harmful actors in question without posing a direct threat.
The ICC, as an independent adjudicator of international human rights violations, bears no resemblance to these historical targets: it is neither a foreign adversary, nor a coercive state actor, nor an entity capable of inflicting economic harm on the United States. One sanctioned ICC judge, Kimberly Prost, elaborated on the ICC’s lack of enforcement capacity against non-member states, lamenting that the ICC intends to compel these states to prosecute convicted individuals rather than “coercing” them or “usurping their sovereignty.” In short, the Trump Administration finds itself in a legal catch-22: on one hand, it embraces the ASPA’s wholesale rejection of the ICC’s legitimacy in relation to non-member states, yet on the other, it must depict the Court as sufficiently potent to satisfy the IEEPA’s high “unusual and extraordinary threat” threshold. To manage this tension, the Trump Administration now oscillates between dismissing the ICC as jurisdictionally void and elevating it into a national-security menace, a framing that stretches the IEEPA beyond its textual and historical limits.
However, jurisprudence denotes the practice of deference towards executive judgment of an “extraordinary and unusual” threat, meaning that historical precedent and intuitive judgment may not be enough to legally ground the Order 14203’s shortcomings. Concerning executive judgment, Dames & Moore v. Regan (1981) affirmed that courts “largely defer to the Executive in matters of foreign affairs.” Similarly, Regan v. Wald (1984) cemented executive agency in determining national security threats that warrant the invocation of a national emergency under the IEEPA, explicitly referencing the majority opinion in Harisiades v. Shaughnessy (1952), which observed that “such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”
Therefore, a more civil rights-based legal framework becomes necessary to deconstruct Trump’s pretextual executive order, which is the exact approach taken by the prosecution in Smith v. Trump (2025). This recent district court challenge is currently pending after the issuance of a preliminary injunction. Here, the prosecution highlighted how sanctions may violate First Amendment rights by deterring individuals from engaging with the ICC and its members. The ACLU elaborates on this “chilling effect,” underscoring how it is generally against the law for anyone to work with or for someone who is sanctioned, as penalties can amount to hundreds of thousands of dollars in fines. As a result, software providers, banks, academic institutions, and even nonprofit organizations may avoid associating themselves with the ICC to avoid facing retaliation from the US government.
Humanitarian assistance continues to be criticized. While it is too early to distinguish the scope of these effects in relation to the Trump Administration’s recent actions, it is clear that even expression via well-intentioned humanitarian assistance is still blatantly punishable, as demonstrated by the Supreme Court’s decision in Holder v. Humanitarian Law Project (2010). In this case, the court ruled that a humanitarian organization could not authorize specialized training and logistical assistance to the Kurdistan Workers’ Party (PKK), a registered terrorist organization, even though the assistance was intended to aid the PKK in resolving its disputes with the Turkish government through peaceful, lawful means. Regardless of the ICC’s benevolent intentions, sanction law––as it remains––is unambiguous and severe, conditions that exacerbate the aforementioned chilling effect. And in order to trigger strict scrutiny, the government’s action does not need to explicitly penalize collaborators: an effectual chilling of speech is sufficient to sustain the plaintiffs’ claims. Alena Douhan from Yale’s Journal of International Law elaborates on this idea, furthering that criminal and civil penalties, broad interpretations of sanctions, reputational risks associated with collaboration, and the prospect of fines are gradually “contributing to the growth of zero-risk policies by private actors.” In other words, even if speech or association with the ICC is not explicitly outlined by Order 14203, actors prefer not to engage with victims of sanctions regimes for fear of legal or financial jeopardy.
While the prosecution seems to have a clear-cut route to victory in Smith v. Trump, their reliance on domestic legal frameworks in a case centered around foreign affairs underscores the justice system’s failings in relation to questions of international law. Rather than crystallizing the dynamic between the judiciary and the executive in cases of potential executive overreach, it is procedurally easier to trigger strict scrutiny, an inherently high standard that burdens the government with proving how it has a “compelling interest” to protect its citizens amidst accusations of civil liberties violations. As observed by University of Pennsylvania law professor Jean Galbraith, domestic lawyers are left with little guidance in treating questions about international law, which remains “under-theorized and inconsistent, with little settled guidance on how it should be interpreted or enforced.” The scarcity of precedent means that courts often decide international-law questions ad hoc, in the absence of a stable doctrinal framework. Hence, there is a strategic advantage to the approach taken by the plaintiffs in Smith v. Trump: extensive jurisprudence and strict scrutiny’s near-fatal nature simply makes the case more winnable.
The current legal avenues that could bolster mechanisms for prosecuting international questions within our court system are shaky, at best, especially given the government’s unclear classification of the ICC. Some legal scholars maintain that ICC officials should be treated as international diplomats and thereby afforded immunity from arrest, detention, and prosecution, as guaranteed by the Vienna Convention on Diplomatic Relations. This classification, though, generates a plethora of seemingly unanswerable questions. Does diplomatic immunity extend to sanctions, or is it only applicable in a court of law on civil and criminal convictions? Does the United States still have an obligation to abide by international legal norms, even if it hasn’t formally accepted them? Many legal scholars would answer yes to this question, asserting that the United States has an obligation to abide by the long-standing international-law principles—later affirmed by the International Commission of Jurists’ Practitioner’s Guide after the Vienna Convention—that internal law does not absolve states of their international obligations. This outlook suggests that, even as a non-signatory, the United States would still have to respect the international legal landscape that arises from Article 70 of the Rome Statute. This endorsement would lead to the maintenance of criminalized retaliation against ICC officials and consequently preserve the ICC’s institutional independence and functional autonomy. Yet, a “theoretical obligation” won’t hold up in a court of law in a scenario, especially when the jurisprudence is underdeveloped, and the classification of key actors like the ICC is ambiguous. This unresolved status of ICC personnel under U.S. law highlights the deeper doctrinal inconsistency that arises from the ASPA. Non-ratification may excuse the United States from enforcing ICC warrants, but it does not allow the government to erase the Court’s legal personality on the global stage altogether, especially when the order references that same institution’s supposed power to justify a national emergency.
Ultimately, the litigation strategy in Smith v. Trump reflects both the promise and the limits of domestic constitutional law in checking executive overreach in foreign affairs. Critiquing the order as a First Amendment “chilling effect” against actors who engage with the ICC may be the most effective litigation route due to the low threshold necessary to trigger strict scrutiny. Yet, this pragmatic choice fails to respond to the lack of established theory between domestic and international law, as well as how the sovereignty of an international judicial body can still be acknowledged within the court of a non-member state. Executive Order 14203 exposes a structural contradiction at the heart of U.S. foreign-affairs law: the United States seeks the freedom to repudiate international institutions while simultaneously relying on their perceived authority to justify the declaration of a national emergency. An apt legal response, therefore, requires not only the clear-cut civil-liberties arguments now prevailing in federal court, but also a clearer recognition of how international norms should constrain the conduct of the state toward foreign judges. Until we reconcile our domestic constitutional framework with the realities of an interconnected international legal order, the United States may remain trapped in the very paradox it has created.
By Patrick Dugan
Edited by Reesa Calderón Venterea
Section III: Ecocide and the Genocide Convention in Argentina
As Sergio Rojas remembers from his childhood, he would see bulldozers coming through Argentina’s Gran Chaco region, his home, leveling vast areas of forest. Rojas is a member of Argentina’s indigenous Qom community, a nomadic indigenous group that relied on the forest and woodlands in the Gran Chaco region for shelter and food. The Chaco forest has become a hotspot of deforestation, driven by consumer industries worldwide, especially soya production. Rojas has effectively described this destruction to the Gran Chaco region as an “ecocide.”
Ecocide is a term that has been increasingly used over the last decade to refer to the deliberate destruction of the environment and ecosystems on which indigenous groups depend. The destruction of the Chaco region and its impacts on indigenous groups such as the Qom community raise questions within international human rights law, particularly related to Article II(c) of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Here, they define genocide as “deliberately inflicting on the group [national, ethnical, racial or religious] conditions of life calculated to bring about its physical destruction in whole or in part.” It also raises concerns about the right to life and an adequate standard of living, as defined by the 1948 United Nations Universal Declaration of Human Rights, as well as the right to a healthy environment. Indeed, the Inter-American Court of Human Rights recognized it as a universal right in its advisory legal opinion both in 2020 and in July of this year. However, ecocide has largely remained undefined in international law, effectively leaving the environment without legal protection. This, in turn, allows for the targeting of indigenous lands, such as the Gran Chaco Region, to occur without international law holding nations accountable.
In 1992, as their living spaces continued to deteriorate and the Argentinian government failed to act, thirty-five Indigenous communities, including the Qom, created the Lhaka Honhat Association to reclaim ownership of their ancestral lands. Since their creation, they have worked to take cases, such as Lhaka Honhat v. Argentina, to both domestic and international courts to challenge the deliberate destruction of their environment that violates their human rights. This form of ecocide disproportionally targets indigenous groups, which represents a contemporary extension of the Convention on the Prevention and Punishment of the Crime of Genocide, given its intentional destruction of the space and living conditions vital for indigenous peoples' survival. Even so, in the last year, Argentina reversed key legislation such as Lhaka Honhat v. Argentina (2020) that the Lhakha Honhat Association fought for, dismantling protections for indigenous groups. Through the example of the Lhakha Honhat case, along with Argentina’s legislative reversals, this article explores how the destruction of the Gran Chaco region reflects a gap between environmental destruction and current international legal frameworks, raising questions about the relationship between ecocide and genocide, and ultimately, indigenous rights to a healthy environment.
Lhaka Honhat v. Argentina was a landmark case in Argentina as it set a precedent of holding nations accountable for their environmental destruction and directly linked ecological destruction to the right to life of indigenous people. In this case, the Inter-American Court of Human Rights ultimately found that Argentina violated key rights of indigenous communities under the American Convention on Human Rights, as outlined in the United Nations Universal Declaration on Human Rights, including the rights to life and to an adequate standard of living. As explained by Laura Pensa, author for the Penn-Mellon Just Futures Initiative, this judgment provides a precedent for looking at environmental destruction through the lens of being a human rights violation and ultimately genocide. The conclusions of this case reveal that the Argentinian government's actions deprived indigenous communities like the Qom access to water, food, and their cultural spaces, violating Article II(c) of the Genocide Convention. In turn, the Inter-American Court’s reasoning makes explicit the causal relationship between here showcases ecocide and genocide: the destruction of habitat leads to the deprivation of necessary resources for indigenous groups, and ultimately, the endangerment of the physical survival of these groups. Nevertheless, the Court’s findings have had limited practical effect, as ecocide remains unrecognized as an autonomous international crime; there exists no real international enforcement to protect indigenous groups, granting Argentina and other nations with similar practices a degree of legal impunity.
From June 2024 until January of 2025, the Argentinian government implemented reforms that have allowed large-scale investment in mining, forestry, and energy to grow, ultimately weakening protections for indigenous people’s rights. These reforms illustrate a direct reversal of the principles established in Lhakha Honhat v. Argentina and opened the door to violations of the Genocide Convention. According to the International Work Group for Indigenous Affairs, the government now grants new benefits to infrastructure and mining investors, removing environmental and territorial protections for indigenous communities. This very trend accelerated at the end of 2024, when Argentina repealed the Indigenous Territorial Emergency Law, removing the suspension on evictions from lands that Indigenous peoples depend upon. Together, these legislative changes demonstrate that environmental degradation is being enabled by the state, producing “conditions of life” that can lead to group destruction under Article II(c) of the Genocide Convention. The case of Argentina ultimately reflects a broader global pattern: in the absence of ecocide’s recognition as an international crime, states face little accountability for their actions and can continue to prioritize extraction over the rights and survival of Indigenous peoples.
Right now, a clear gap exists between landmark, protective frameworks, like Lhaka Honhat v. Argentina, and Argentina’s recent legal reversals, highlighting the need for stronger international mechanisms when domestic systems fail to hold themselves accountable. The future of ecocide law depends on the ability of international legal and human rights systems to hold nations accountable for environmental destruction that threaten human survival. Formally recognizing ecocide as an autonomous international crime and form of genocide would establish that the intentional destruction of ecosystems creates “conditions of life” that specifically endanger indigenous communities. Achieving this recognition would require concrete legal actions, such as amending the Genocide Convention or the Rome Statute, to achieve greater consistency in state practices and explicitly name ecocide as a crime. The International Law Commission, a group within the United Nations tasked with the codification of international law, could also play a role by formally recognizing ecocide and thereby developing opinio juris, or states’ recognition of a legal obligation, to prevent ecocide. States need to be held accountable in international law for ecocide, to ensure that indigenous communities, like the Qom, and their survival, become a matter of global importance.
By Jemma Granite
Edited by Reesa Calderón Venterea
Section IV: From Print to Digital: Applying the Genocide Convention to the Online World
The fear pertaining to misinformation is greater than ever in 2025, but its spread has remained an ongoing process. As digital technologies evolve, the methods by which misinformation circulates have expanded in scale and sophistication, transforming what was once a contained challenge into a global governance issue. In 2019, in response to growing global concern about government-sponsored online disinformation, a University of Oxford report found that seventy countries had at least one political party or government agency that depended on social media to shape public attitudes. With platforms such as Facebook undergoing intense scrutiny due to social media manipulation, the researchers examined how digital platforms, widely used by governments for public communication, can be used to exploit political dialogue.
In today’s world, as global governments increasingly use social media platforms to promote collective behavior, political discourse has become closely intertwined with digital systems. Now that this political communication is at the tip of our fingers, in this article, I explore how legal questions arise about how existing international criminal law, such as the Genocide Convention, can be adapted to address digital incitement. The expansion of hate speech and incitement to genocidal violence in Myanmar and Ethiopia on digital platforms such as Facebook underscores a critical gap in international legal frameworks. While the Genocide Convention criminalizes “direct and public incitement to commit genocide,” its application to digital platforms and social media companies remains highly undeveloped in contemporary society.
Adopted in 1948, Article III of the Convention on the Prevention and Punishment of the Crime of Genocide criminalizes “direct and public incitement to commit genocide.” Addressing the atrocities of the Holocaust and World War II, this provision was originally drafted in the context of the mid-20th century media and communication practices. Nearly eighty years later, as our daily forms of media and public communication have shifted to algorithm-driven platforms, the exact wording of Article III has become more relevant to understanding how incitement is criminalized today.
While Article III was originally written with twentieth-century media in mind, in today’s digital era, the shift to algorithm-based social media systems now complicates the legal definition of “direct and public incitement” as online platforms spread genocidal rhetoric to the public at unprecedented rates. Among the defendants convicted for crimes against humanity post World War II, Julius Streicher, a publisher of an antisemitic German newspaper, was executed for his role in using the media to call for the destruction of European Jews. At the time, incitement to murder and extermination was considered a form of persecution on political and racial grounds, being punishable as a crime against humanity. Streicher’s death not only set a precedent of synonymizing provocative speech and criminal action, but also led to international law establishing direct and public incitement as a crime.
The legal framework of digital incitement would not be used until 1994, when international law saw its first conviction related to direct and public incitement through the Rwanda Media Case. This case found three radio station employees responsible for purposely broadcasting media that dehumanized the Tutsi, establishing two core principles. First, incitement does not require physical participation; it can occur through digital systems. And secondly, incitement is criminal if the speaker seeks to provoke others to commit genocidal acts, distinguishing the crime from general hate speech. These special distinctions prove to be relevant under today’s digital landscape: if broadcasts in the twentieth century met the legal requirements for “direct and public incitement,” then algorithm-driven platforms, which have the capability of spreading genocidal content in unprecedented ways, raise complex questions on how Article III should be interpreted today. Algorithms themselves do not have identifiable speakers and operate by product design, but they have the power to circulate information faster than the drafters of the Convention could have ever imagined. Therefore, the fundamental components of Article III, “direct,” “public,” and “intentional,” are difficult to apply to Article III in a world of algorithmic dissemination, creating a legal disconnect in international law.
With the rise of social media platforms such as Facebook and Telegram, holding social media companies accountable under Article III requires expanding the concept of intent to include algorithmic design and platform policies. This transformation, however, reveals the difficulty of applying traditional legal frameworks. In 2017, the Myanmar army, Tatmadaw, launched a series of “clearance operations” committing genocidal actions against the Rohingya ethnic minority by unwarrantedly killing thousands of Rohingya, burning entire villages, perpetuating sexual violence, and displacing more than 700,000 people. Facebook served as the main source of communication for anti-Rohingya content, as Tatmadaw groups used the platform to call for the elimination of the Rohingya. On a self-reported human rights assessment, Facebook Product Policy Manager Alex Warofka admitted that Facebook has not been doing enough to prevent the platform from inciting offline violence. Further, Warofka also stated that although the company attempted to filter through the genocidal content by removing content, it lacked the employees to filter the content and mistranslations.
Ethiopia serves as another example of Facebook’s struggles, as the company admitted that their “current mitigation strategies are not enough” in response to viral posts of specific ethnic groups as "terrorists,” “killers,” and “weed.” Consequently, these failures all culminated in a lawsuit against Meta in Kenya’s High Court, arguing that the company did not hire enough content moderators and instead prioritized hateful content. Unlike traditional media, algorithmically-driven content can spread at unprecedented rates, even without necessarily harmful intentions. That said, with minimal accountability, it creates a difficult legal dilemma for determining complicity. Although companies themselves do not generate genocidal content, their lack of action and delayed response to addressing the spread of harmful content raises questions on how responsibility and intent should be redefined under international law. Together, the Myanmar and Ethiopian cases illustrate how social media platforms fail to mitigate the spread of dangerous rhetoric, highlighting the need to modernize international legal standards.
Facebook’s system and shortcomings raise a critical issue for interpreting Article III in the digital era: proving intention becomes blurred when a company lacks control over its systems, but still does not implement sufficient mitigation strategies to stop the facilitation of genocidal content. These examples of genocidal digital content raise a clear legal question: does a company’s failure to regulate its system that facilitates the spread of genocidal content constitute complicity under Article III? As explained by the University of Chicago Law School Journal of International Law, to determine whether content falls under genocidal incitement, social media companies should utilize content moderators. Furthermore, these content moderators should understand the language of the countries in which their platform is available, but also understand the cultural context to decide when implicit statements may be indicative of calls for genocide. The legal elements of a crime, actus reus (the physical act) and mens rea (the criminal intent), become important here. The article argues that the CEO of a social media company, in this case Mark Zuckerberg, satisfies actus reus by providing a platform to individuals executing a systematic propaganda campaign. However, the CEO would not appear to satisfy mens rea if the CEO did not personally know about the attempt, in this case, the dehumanization of the Rohingya. It is only if a defendant intentionally (mens rea) commits a genocidal act (actus reus) to exterminate a group that the defendant is guilty of genocide, highlighting the difficulty of proving both legal elements in cases today. Therefore, Article III's failure to consider corporate negligence and programmed algorithms raises concerns about the adequacy of international criminal law in today’s age.
In a world where the internet is accessible within seconds to billions of people, recognizing digital incitement is essential when understanding the Genocide Convention today. As our communication becomes more reliant on constantly evolving digital structures, their influence over political information continues to grow. This newfound power forces us to examine how international law can apply established legal principles to modern communication systems and what we can do to hold companies accountable. As the Carnegie Endowment for International Peace suggests, our society must hold social media companies accountable under a multi-part solution: moderation, regulation, and remediation. From hate speech detection systems to including more employees with human rights knowledge to companies compensating victims of violence originating from their platforms, there are a multitude of measures that can be taken to ensure accountability and change. Ensuring accountability in today’s world through international law requires recognizing technological capabilities and adapting legal frameworks to fully address genocidal violence. Ultimately, expanding our legal understanding of the genocide convention is not just redefining law today, but about preventing the same genocidal actions the Convention was designed to criminalize.
By Chloe Lee
Edited by Reesa Calderón Venterea
This piece was reviewed and finalized by Qizhen (Kiara) Ba, Ananya Bhatia, and Lukas Roybal.