ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

COUNSEL FOR THE PROSECUTION

Team Number: 73
Year: 2020
Total Word Count: 9.999

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Original: English Date: 16 March 2020

THE APPEALS CHAMBER

Case before the International Criminal Court:

Prosecutor v. Cersei Bannister of Valaria

The Office of the Prosecutor’s Submission in the

Appeal from the Pre-Trial Chamber’s Decision on Confirmation of Charges against
Defendant Cersei Bannister of Valaria

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................................... 5

INDEX OF AUTHORITIES ............................................................................................................. 7

STATEMENT OF FACTS .............................................................................................................. 11

ISSUES RAISED .............................................................................................................................. 14

SUMMARY OF THE ARGUMENTS ........................................................................................... 15

WRITTEN ARGUMENTS ............................................................................................................. 17

A) THE POSTS PUBLISHED BY THE DRAGOS ON STATUSPHERE CONSTITUTE

INCITEMENT OF GENOCIDE .................................................................................................... 17
I) An assessment on the legislation concerning the crime of incitement to genocide.................... 17

II) The objective element ................................................................................................................. 18

a) Dragos’ posts constitute direct incitement to commit genocide ................................................ 18

b) Dragos’ posts constitute public incitement to commit genocide ............................................... 21

III) The subjective element ............................................................................................................... 23

a) Dragos display the intent to incite to genocide ....................................................................... 24

b) Dragos display the intent to destroy the Starek ethnic group ................................................. 25

B) CERSEI BANNISTER IS CRIMINALLY RESPONSIBLE FOR PROVIDING THE

MEANS TO INCITE TO GENOCIDE AND FOR INCITING TO GENOCIDE ..................... 27
I) Bannister is responsible for aiding and abetting the crime of incitement to genocide by
omission ............................................................................................................................................. 27
a) A legal assessment on criminal liability arising from inaction ............................................... 27

b) The objective element of aiding and abetting by omission ..................................................... 28

c) The subjective element............................................................................................................ 31

II) Bannister is responsible for inciting to genocide by omission ................................................... 33

a) The objective element of inciting to genocide by omission.................................................... 33

b) The subjective element............................................................................................................ 34

C) ICC HAS JURISDICTION TO PROSECUTE CERSEI BANNISTER ............................. 36

I) ICC has jurisdiction over Bannister’s conducts due to the objective territoriality principle ...... 36

a) Interpretation of Article 12(2)(a) ............................................................................................ 37

b) Objective territoriality principle applies to Bannister’s conducts ........................................... 38

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II) ICC has jurisdiction over Bannister’s conducts due to the effects-based doctrine..................... 39

a) Effects doctrine applies to Bannister’s conducts .................................................................... 40

SUBMISSIONS ................................................................................................................................ 41

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 LIST OF ABBREVIATIONS

AC Appeals Chamber

CDR Coalition for the Defence of the Republic

CEO Chief Executive Officer

CJEU Court of Justice of the European Union

CoD Council of Defence

ECtHR European Court of Human Rights

EU European Union

GGE Group of Governmental Experts

ICC International Criminal Court

ICCMCC International Criminal Court Moot Court Competition

ICCPR International Covenant on Civil and Political Rights

ICCSt. International Criminal Court Statute

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the Former Yugoslavia

ILC International Law Commission

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IMT International Military Tribunal

OEWG Open-Ended Working Group

OTP Office of the Prosecutor

PTC Pre-Trial Chamber

RTLM Radio-Télévision Libre des Mille Collines

UN United Nations

US United States

VCLT Vienna Convention on the Law of the Treaties

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 INDEX OF AUTHORITIES

CASES

ICC Moot Court Competition

1. Case Prosecutor v. Cersei Bannister of Valaria, 2020, [ICCMCC CASE (2020)]

International Criminal Court

2. Observations Pursuant to Rule 103(1) of the Rules of Procedure and Evidence, Pre-Trial
Chamber I, 19.06.2018, [ICC-RoC46(3)-01/18-25]
3. Prosecutor v. Muthaura et al., Decision on the Confirmation of Charges, Pre-Trial Chamber
II, 23.01.2012, [ICC-01/09-02/11]
4. Request Under Regulation 46(3) of the Regulations of the Court, Pre-Trial Chamber I, 06.
09.2018, [ICC-RoC46(3)-01/18]
5. Situation in the Democratic Republic of the Congo, Appeals Chamber, 18.12.2015, [ICC-
01/04-02/06]
6. Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Pre-
Trial Chamber III, 14.11.2019, [ICC-01/19]

International Court of Justice

7. Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment,
12.11.1991, I.C.J. Reports 1991, [ICJ Guinea-Bissau]

Permanent Court of International Justice

8. The Case of the S.S. Lotus (France v. Turkey), Judgment, 07.09.1927, Series A. No. 70, [PCIJ
France]

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International Criminal Tribunal for the Former Yugoslavia

9. Prosecutor v. Milutinović et al., Trial Chamber, Judgment, 26.02.2009, [IT-05-87-T]

10. Prosecutor v. Mrkšić et al., Appeals Chamber, Judgment, 05.05.2009, [IT-95-13/1-A]
11. Prosecutor v. Orić, Appeals Chamber, Judgment, 03.07.2008, [IT-03-68-A]
12. Prosecutor v. Šainović et al., Appeals Chamber, Judgment, 23.01.2014, [IT-05-87-A]

International Criminal Tribunal for Rwanda

13. Prosecutor v. Akayesu, Chamber I, Judgment, 02.09.1998, [ICTR-96-4-T]

14. Prosecutor v. Bikindi, Appeals Chamber, Judgment, 18.03.2010, [ICTR-01-72-A]
15. Prosecutor v. Karemera, Appeals Chamber, Judgment, 29.09.2014, [ICTR-98-44-A]
16. Prosecutor v. Kalimanzira Callixte, Appeals Chamber, Judgment, 20.10.2010, [ICTR-05-88-
A]
17. Prosecutor v. Kayishema and Ruzindana, Trial Chamber II, Judgment, 21.05.1999, [ICTR-
95-I-T]
18. Prosecutor v. Mugenzi et. Mugiraneza, Appeals Chamber, Judgment, 04.02.2013, [ICTR-99-
50-A]
19. Prosecutor v. Nahimana, Trial Chamber, Judgment, 03.12.2003, [ICTR-99-52-T]
20. Prosecutor v. Nahimana, Appeals Chamber, Judgment, 28.11.2007, [ICTR-99-52-A]
21. Prosecutor v. Nzabonimana Callixte, Appeals Chamber, Judgment, 29.09.2014, [ICTR-98-
44D-A]

International Residual Mechanism for Criminal Tribunals

22. Prosecutor v. Ngirabatware Augustin, Appeals Chamber, Judgment, 18.12.2014, [MICT-12-

29-A]

European Court of Human Rights

23. Delfi AS v. Estonia, no. 64569/09, ECtHR 2013, [Delfi AS v. Estonia]

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 BOOKS

24. Cassese A., International Criminal Law, third edition. In Oxford University Press, [Cassese
(2008)]
25. Cassese A. et al., International Criminal Law: Cases and Commentary. In Oxford University
Press, [Cassese (2011)]
26. Cassese A. et al., The Rome Statute of the ICC: A Commentary. In Oxford University Press,
[Cassese (2002)]
27. Jessberger G. W. F., Principles of International Criminal Law, third edition. In Oxford
University Press, [Jessberger (2014)]
28. Schabas W. A., Genocide in International Law, first edition. In Cambridge University Press,
[Schabas (2000)]
29. Triffterer O., The Rome Statute of the International Criminal Court: A Commentary,
[Triffterer (1999)]

ARTICLES

30. Arbour L., “The responsibility to protect as a duty of care in international law and practice”,
34 Review of International Studies, [Arbour (2008)]
31. Burkell J., Fortier A., Wong L. Y. C., Simpson J. L., “Facebook: public space, or private
space?”, 8 Information, Communication & Society, [Burkell (2014)]
32. Chow Z. E., “Evaluating the Approaches to Social Media Responsibility for Prohibited
Speech”, 51 International Law and Politics, [Chow (2019)]
33. Duttwiler D., “Liability for Omission in International Criminal Law”, 6 International
Criminal Law Review, [Duttwiler (2006)]
34. Ingle J., “Aiding and Abetting by Omission before the International Criminal Tribunals”, 14
Journal of International Criminal Justice, [Ingle (2016)]
35. Stockton P. N., Golabeck-Goldman M., “Prosecuting Cyberterrorists: Applying Traditional
Jurisdictional Frameworks to a Modern Threat”, 25 Stanford Law and Policy Review,
[Stockton (2014)]
36. Vagias M., “The Territorial Jurisdiction of the International Criminal Court – A Jurisdictional
Rule of Reason for the ICC?”, 43 Netherlands International Law Review, [Vagias (2012)]

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 NOTES AND REPORTS

37. Business for Social Responsibility, Human Rights Impact Assessment: Facebook in Myanmar,
[Business for Social Responsibility Report (2018)]
38. Court of Justice of the European Union, Press Release No. 128-19, Judgment in Case C-18/18
Eva Glawischnig-Piesczek v. Facebook Ireland, [CJEU Press Release (2019)]
39. Digital Watch Observatory, UN GGE and OEWG (2019), available at:
https://dig.watch/processes/un-gge [Web-link (2019)]
40. Fortune, A.I. breakthroughs in natural-language processing are big for business, available at:
https://fortune.com/2020/01/20/natural-language-processing-business/ [Web-link (2020)]
41. International Groups of Experts, Tallinn Manual 2.0 on the International Law Applicable to
Cyber Operations, [Tallinn Manual (2017)]

42. Stecklow S., Why Facebook is losing the war on hate speech in Myanmar, available at:
https://www.reuters.com/investigates/special-report/myanmar-facebook-hate/ [Web-link
(2018)]
43. ThoughtCo, Der Stuermer, available at: https://www.thoughtco.com/der-stuermer-
newspaper-1779279 [Web-link (2020)]
44. The New Times, Dehumanisation, available at:
https://www.newtimes.co.rw/section/read/73836 [Web-link (2014)]
45. US Legal, Public Place Law and Legal Definition, available at:
https://definitions.uslegal.com/p/public-place/ [Web-link (2019)]

TREATIES AND CONVENTIONS

46. UN General Assembly, Convention on the Prevention and Punishment of the Crime of
Genocide, 09.12.1948, [Genocide Convention]
47. UN General Assembly, International Covenant on Civil and Political Rights, 16.12.1966,
[ICCPR]
48. Rome Statute of the International Criminal Court, 17.07.1998, [ICCSt.]
49. UN General Assembly, Vienna Convention on the Law of the Treaties, 22.05.1969, [VCLT]

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 STATEMENT OF FACTS

I. Background of the Situation

1. This situation pertains to the potential commission of the crime to incite genocide by the
Dragos of Nothroki ethnicity against the Stareks in Solantis, through the publishing of posts in
the social network Statusphere. It also involves the country of Valaria, who’s national is Cersei
Bannister, Executive Officer of Statusphere and charged with the crimes to incite genocide and
provide the means to incite genocide. Contrary to Valaria, the State of Solantis is a party to the
Rome Treaty; while, both countries are members of the UN and parties to the ICCPR and the
Genocide Convention.

II. Ethnic Groups in the Concerned States

2. Both States speak the same language, Valarian, but their dialects may differ. The population
of Valaria is exclusively composed of Nothrokis as during the 19th century the Stareks were
expelled; whereas, Solantis is made up of Nothrokis as major ethnic group and of Stareks, who
represent 3% of the entire population.

3. Significant violence and discrimination, perpetrated by the Nothroki ethnic group, have been
registered against the Stareks first in Valaria, prior to their expulsion, and then in Solantis to the
present day.

III. Economic and Technological Conditions

4. Valaria displays a highly technological advancement with a GDP of $25 billion and it hosts
different large tech companies. On the contrary, the State of Solantis does not indicate such level
of progress, as it is a developing country with a much more limited GDP.

5. Among the companies based in Valaria there is Statusphere, a social networking platform
similar to Facebook, established by Cersei Bannister. Its slogan is “a social network for Nothroki
people”, and it has become a well-known source to gather information, as shown by the fact it has
seven million users in Valaria and three million in Solantis.

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IV. Solantis’ Ethnic Issue

6. In 2017, a Nothroki extremist group called “Dragos” was established with the aim to achieve
ethnic purity in Solantis. They started to assault the Starek people and those attacks led to twenty-
three Starek deaths.

7. By January 2018, Dragos had set up a Statusphere affinity group (“Dragos Initiative”),
followed by subsequent ones which by today have reached four-thousand members. Violent
episodes directed against the Stareks followed the publication of each post.

V. Statusphere Involvement in the Attacks on the Stareks

8. On 26 May 2019 the President of Solantis asked Bannister to remove Dragos posts on
Statusphere, due to the UN High Commissioner for Human Rights’ findings according to which
the growing violence toward the Stareks was linked to the posts published on the social network.
Bannister closed down Dragos Initiative group according to the Community Standards Policy.

9. Subsequently, a new group was established on Statusphere (“Dragos Ambition”) but

Bannister declined to follow Solantis President’s request to remove the group’s e-bulletin board.
Only in the aftermath of the dramatic event that took place on 16 June 2019, Statusphere removed
the group from its site, claiming it did not do it previously as its content monitors could not detect
the dialect used for the messages.

10. A new Dragos group was established (“Dragos Aspiration”) characterized once again by
statements directed to Starek people. Even though the content monitors had brought the post to
the attention of Bannister, the group was removed from the platform merely after a shooting
organized by Dragos members which killed four-hundred Stareks.

11. Dragos launched subsequent groups on the social network. As in the previous cases, the posts
were followed by severe attacks, but Statusphere claimed monitors’ inability to recognize them
as a call to violence; thus, it closed the groups only after each rough episode.
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12. By 1 January 2020, one-thousand-five-hundred Stareks died and more than fifty-thousand
demanded refugee status to neighbouring States. Additionally, in Solantis several members of the
Dragos group have been arrested and investigations are ongoing.

VI. ICC’s Proceedings

13. The PTC decided, by majority, to admit the case against Cersei Bannister before the Court.
This is her appeal to the confirmation of charges.

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 ISSUES RAISED

-A-

Whether the posts published by the Dragos on Statusphere, between January 2018 and January 2020,
display the direct-public element and the genocidal intent necessary for charging incitement to
genocide under Article 25(3)(e) of the ICCSt.

-B-

Whether Cersei Bannister by way of enabling Stareks to publish posts, that may constitute incitement
to genocide, and failing to undertake proper action, can be held criminally liable for inciting genocide
under Article 25(3)(e) and providing the means to incite genocide under Article 25(3)(c) of the ICCSt.

-C-

Whether ICC has jurisdiction to prosecute Cersei Bannister under Article 12 of the ICCSt.

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 SUMMARY OF THE ARGUMENTS

-A-

1. PTC VI’s determination that the publishing of the posts on Statusphere make Dragos criminally
responsible for the crime of incitement to genocide under Article 25(3)(e) of the ICCSt. should
be upheld.

2. Firstly, the analysis of the cultural and linguistic context, the community affiliation of the authors,
their audience and how the message was understood by the intended audience demonstrate the
directness of the incitement. Secondly, the act of incitement results public due to the features of
Statusphere programming and also because the network represents a technological means of mass
communication.

3. Thirdly, the required mental elements are fulfilled as the principal displayed intention to commit
the act and to destroy wholly or partially the Starek ethnic group.

-B-

1. PTC VI was correct in treating Cersei Bannister criminally liable for providing the means to incite
to genocide under Article 25(3)(c) and for inciting to genocide under Article 25(3)(e) of the ICC
St.

2. On one side the accused had a legal duty she failed to discharge, with the intent to contribute to
the commission of the crime perpetrated by the principal and despite being aware of the essential
elements of the crime of incitement to genocide ultimately perpetrated by the Dragos.

3. On the other side, by way of intentionally omitting to take the required action and together with
the genocidal intent, the accused allowed the principal to make use of the platform and to publish
the posts aimed at inciting to genocide.

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 -C-

1. PTC VI correctly held that the Court boasts of jurisdiction over the accused under Article 12 of
the ICCSt.

2. Prosecution argues the Court has the right to exercise jurisdiction over the accused as a result of
a cyberspace connection between Valaria and Solantis.

3. First, according to the objective territoriality principle, parts of the crimes committed by Bannister
took place in Solantis.

4. Second, pursuant to the effects-based doctrine, the crimes perpetrated by Bannister had substantial
effects in Solantis.

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 WRITTEN ARGUMENTS

A) THE POSTS PUBLISHED BY THE DRAGOS ON STATUSPHERE CONSTITUTE

INCITEMENT OF GENOCIDE

1. The statements published by the Dragos on Statusphere, between January 2018 and January 2020,
constitute incitement of genocide under Article 25(3)(e) of the ICCSt., as the objective and
subjective elements are fulfilled.

I) An assessment on the legislation concerning the crime of incitement to genocide

2. Incitement to commit genocide was already prohibited by the Genocide Convention 1 under
Article 3(c) and most countries are party to this treaty which reflects customary international law.2
The provision was adopted into the ICCSt. word for word as Article 25(3)(e).3
3. As the elements of crimes of the Rome Statute do not provide detailed elements of the crime of
incitement to genocide, and there is no relevant ICC case law; international jurisprudence, namely
the case law of the ICTY and ICTR,4 will be exploited with a view to demonstrating that Dragos’
posts account for incitement to genocide. It has been recalled that the crime of incitement requires,
on one side, direct and public incitement to commit genocide as a material element and, on the
other side, the intent to incite others to commit genocide (itself implying a genocidal intent) as a
mental element.5

1
Genocide Convention, 09.12.1948.

2
L. Arbour, “The responsibility to protect as a duty of care in international law and practice”, 34 Review of International
Studies (2008), at 450.
3
G. W. F. Jessberger, “Genocide”, in Oxford University Press, Principles of International Criminal Law (2014), at 321.

4
The AC in ICC-01/04-02/06 (18.12.2015) also referred to international criminal tribunals.
5
Judgment, Nahimana (ICTR-99-52-A), Appeals Chamber, 28.11.2007, §1034; Judgment, Akayesu (ICTR-96-4-T),
Chamber I, 02.09.1998, §556 – 557, 560; Judgment, Nzabonimana Callixte (ICTR-98-44D-A), Appeals Chamber,
29.09.2014, §121; Judgment, Mugenzi et. Mugiraneza (ICTR-99-50-A), Appeals Chamber, 04.02.2013, §135; Judgment,
Bikindi (ICTR-01-72-A), Appeals Chamber, 18.03.2010, §135; Judgment, Ngirabatware Augustin (MICT-12-29-A),
Appeals Chamber, 18.12.2014, §52; Judgment, Kalimanzira Callixte (ICTR-05-88-A), Appeals Chamber, 20.10.2010,
§155.

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II) The objective element

4. In order to be considered direct and public incitement to commit genocide, a speech must be a
public and direct appeal to commit such specific act.6 To determine whether Dragos’ posts rise to
such level, context is the principal consideration, particularly: the cultural and linguistic context,
the political and community affiliation of the author, its audience, and how the message was
understood by its intended audience.7

a) Dragos’ posts constitute direct incitement to commit genocide

5. In Akayesu case the ICTR deemed that to incite “directly” means that another person is concretely
urged or provoked to take immediate criminal action (to commit genocide), as a vague suggestion
is not sufficient.8 While dealing with the interpretation of ambiguous language, the ICTR stated
that the direct element is meant to be “viewed in the light of its cultural and linguistic context”9.
6. In fact, during the Rwandan genocide, the president of the interim government exhorted to “get
to work”, and Rwandans took it as an invitation to kill Tutsis.10 The ICTR assumed to assess on
a case-by-case basis,11 by considering “whether the persons for whom the message was intended
immediately grasped the implication thereof.”12
7. Turning to the instant case concerning Dragos’ posts, there are some relevant observations to
make regarding the cultural context within which the publishing of the statements took place.
8. The ethnic group of Starek is a minority in Solantis and they have repeatedly been targeted by the
Nothroki people for being considered responsible for the high rates of crime.13 For long time the
Stareks have been subject to significant discrimination and violence by the Nothroki ethnic group,

6
A. Cassese et al., “Incitement to Commit Genocide”, in Oxford University Press, International Criminal Law, Cases
and Commentary (2011), at 413.

7
Ibid.
8
(ICTR-96-4-T), op. cit.; §557.
9
Ibid.
10
W. A. Schabas, Genocide in International Law (2000), at 277.
11
Ibid.; at 278.
12
(ICTR-96-4-T), op. cit.; §557.
13
2020 ICCMCC Problem, §4.
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 in Valaria before their expulsion in the 19th century, and in Solantis continuing to this day.14 Such
targeting reached the peak once in 2017 a Nothroki extremist group (Dragos) was established,
officially aimed at achieving ethnic purity of Solantis;15 and by knowing that the State of Solantis
displays solely of two ethnic groups, it is clear enough that their objective consisted in eliminating
the opponent minority group, namely the Stareks. Moreover, as soon as the group was set up, its
members commenced to direct attacks against the Starek people, causing the death of twenty-
three Stareks;16 and at the beginning of 2018 Dragos’ Statusphere affinity group called “Dragos
Initiative” was created,17 together with the subsequent ones with the intent to carry out their plan
of ethnic purity. This aim is deductible from the statement posted on the social platform that
defined the 16 June attack against the Stareks “a good first step toward achieving the Dragos
objective of ethnic purity in Solantis.”18
9. Considering the cultural and social context described, the linguistic tone employed by Dragos
appear much clearer.
10. Each name given to Dragos groups is characterized by the term “Dragos”, the official name of
the extremist group, followed by words (Initiative; Ambition; Aspiration; Mission; Yearning;
Dream; Desire) that denote the determination to achieve something, notably to accomplish the
objective of ethnic purity. In this way, they attract the attention of those sympathising for and
sharing their purpose who are given the opportunity to join the group. The word “widget”, read
in the context, appears to be a disparaging and offensive term referred to the Stareks, as they have
been discriminated and blamed in the past years by the Nothrokis, and they clearly represent an
enemy in Solantis. Similarly, “enemy” was one of the terms frequently used during the Rwandan
genocide to indicate Tutsis.19 Most of the times, “widget” is accompanied by verbs or terms that
imply disintegration and elimination.
11. In particular, “to break down the widgets”, “to clean up the widgets”, “to pound the widgets”, “to
put the widgets in cold storage”, “a widget roast”, “to cleanse the widgets”, and claiming “an end
to the widgets”, express orders to take action to achieve the ethnic purity. Perpetrators frequently
use euphemistic, metaphorical, or otherwise coded language that is nevertheless perfectly clear to

14
Ibid.
15
Ibid.; §7.
16
Ibid.
17
Ibid.
18
Ibid.; §13.
19
Judgment, Nahimana (ICTR-99-52-T), Trial Chamber, 03.12.2003.
19
 their audience.20 In fact, during the 16 June attack Dragos members addressed Starek worshipers
by yelling “burn, widgets, burn”.21
12. Relevant information about Stareks’ social places were shared; and some wordings express the
determination in pursuing the goal, such as claiming the 16 June attack “a good first step toward
achieving the Dragos objective of ethnic purity in Solantis.”22 By explicitly considering that event
a “first step”, they declare their ambition to further the plan. In a similar way, the wording: “do
what must be done to prevent the widgets from gaining power”23 is meant to be understood in
connection with the ongoing circumstances. In fact, the statement was written after a Solantis
politician campaigned for the Parliament supporting the taking of measures to prosecute those
responsible for inciting violence against the Stareks through internet. 24 Therefore, by publishing
that post the Nothrokis were trying to impede actions that would have prevented Dragos from
achieving their purpose. Moreover, the declaration to “do what must be done” provides room for
being interpreted in the same way CDR party’s will to defend Hutu interests from Tutsi violence
“by any means” was understood; as to “do what must be done” implicates to make use of any
means necessary to achieve the objective. In Nahimana case, the Chamber considers the meaning
of the words “by any means” in that context and assumes it referred to violence and constituted a
threat to violence.25
13. Against this backdrop, calls to the public to take up violent action against the “widgets” were
interpreted as calls to perpetrate violence against Stareks. In Akayesu case, the ICTR considered
that “there was a causal relationship between the Defendant’s speech to the crowd and the ensuing
widespread massacres of Tutsis in the community”26; even though such link is not requisite for a
finding of incitement. Dragos’ audience understood the posts in the terms analysed above, since
each post was followed by severe and dramatic events targeted towards the Starek ethnic group.

20
G. W. F. Jessberger, op. cit.; at 323.
21
ICCMCC Problem, op. cit.; §11.
22
Ibid.; §13.
23
Ibid.; §15.
24
Ibid.; §14.
25
(ICTR-99-52-T), op. cit.; §299.
26
Ibid.; §1015.
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b) Dragos’ posts constitute public incitement to commit genocide

14. In Akayesu case the ICTR argued that public incitement is qualified “by a call for criminal action
to a number of individuals in a public space or to members of the general public at large by such
means as the mass media, for example, radio or television”27; which reflects the position taken by
the ILC.28
15. In the concerned case, the posts were shared through a Statusphere affinity group, and a user must
specifically sign up for the group to view its posts. Nevertheless, posts can be viewed by
individuals who are firstly registered on the social platform and the last one can represent a public
space. The latter is commonly regarded as “generally an indoor or outdoor area, whether privately
or publicly owned, to which the public have access by right or by invitation”.29
16. The affinity group is private as non-members cannot view posts, but the group is within a public
space, as inhabitants of Valaria and Solantis have the right to freely join Statusphere. 30 It is
remarkable that the users of the platform can become members of Dragos’ groups in a very easy
and straightforward way. Firstly, because the joining process is elementary since, as claimed by
the owner of the platform in one interview31, to join a group a click is needed on the icon for
groups and then just one more click on the name of the group to join. Secondly, due to the presence
of pop-up ads on Statusphere that advertise new groups.32
17. As a result, the appeal is aimed at a non-individualizable audience, as who’s not a member cannot
know the audience and the joining member provides a fictional name; and thus, enhances the
danger of uncontrolled commission of the crime, as any (new) member can see the posts and
participate in Dragos’ mission. In Kalimanzira Callixte case, the supervision of a specific group
of individuals manning a roadblock was determined not to constitute the public element for
incitement to genocide, from the moment that “only the individuals manning the roadblocks
would have been the recipients of the message and not the general public.”33 Whereas, the posts
published on Statusphere groups display the capability to reach all users of the platform for the
reasons previously discussed, rather than solely a limited group of individuals. It follows that the

27
(ICTR-96-4-T), op. cit.; §556.
28
Ibid.
29
US Legal, Public Place Law and Legal Definition (2019), available at: https://definitions.uslegal.com/p/public-place/ .
30
ICCMCC Problem, op. cit.; Appendix 1.
31
Ibid.
32
Ibid.
33
(ICTR-05-88-A), op. cit.; §155.
21
 place where the concerned incitement occurred is neither selective nor limited, from the moment
that anybody had the right to accede to the groups, as their sign-up does not result based on any
kind of limitation.
18. Particularly relevant, proves to be a study34 by the University of Western Ontario. The project
takes a user-centric approach to the question of whether online social spaces are public venues,
focusing on how users treat their own information.35 The results reveal that online social spaces
are loci of public display as they are structured with a view that everyone can see them, even if
the explicitly intended audience is more limited.36 Similarly, anyone who is a Statusphere user
can become a member of Dragos’ groups, becoming able to view the posts shared in such groups.
19. In Eva Glawischnig-Piesczek v Facebook Ireland case, the CJEU alleged that that EU law does
not preclude a host provider, such as Facebook, from being ordered to remove identical and
equivalent comments previously declared as illegal.37 It can be inferred that the Court consider
online spaces like Facebook public, from the moment it was ruled the social media company can
be ordered by member States to remove defamatory material worldwide and therefore enabling a
court in one EU member State to issue an order that could be used to remove posts by users around
the world.38
20. Referring to the events in Rwanda, the ILC deemed that incitement could occur in a public place
or by technological means of mass communication, such as radio or television.39
21. The use of radios and televisions is not different from the social networking platform under
discussion, as in both circumstances they represent technological communication tools. In fact, in
order to get in touch with a particular information what is needed is either to join a group on the
social platform (Statusphere), or to select a radio-television channel; therefore, a selection and
action is always implied from the user to reach the interested message.
22. In Ngirabatware Augustin case it was held that “the number of persons and the medium through
which the message is conveyed may be relevant in assessing whether the attendance was selected
or limited, thereby determining whether or not the recipient of the message was the general
public.”40 This was stressed as well by the AC by recalling that “the dissemination of inciting

34
J. Burkell, A. Fortier, L. Y. C. Wong, J. L. Simpson, “Facebook: public space, or private space?”, 8 Information,
Communication & Society (2014).

35
Ibid.; at 974.
36
Ibid.
37
CJEU, Press Release No. 128-19, at 1.
38
Ibid.
39
W. A. Schabas, op. cit.; at 276.
40
(MICT-12-29-A), op. cit.; §52.
22
 messages via the media may establish the public element of incitement”41. Dragos’ posts have
been published on a social platform, and this has become a popular source of information in both
Valaria and Solantis, with seven million users in the first country, and three million in the second
one.42
23. It is visible that, even though the statements have been written on a private group, the potential
addressee of the messages was the general public of Statusphere due to the easy access to affinity
groups and the pop-up ads method already outlined. This gets clear once the growing number of
the members of Dragos’ groups is considered: when the first group was established (January
2018) there were one-thousand members, by December 2018 the size doubled and by today (2020)
the group counts four-thousand members.43 Based on those precedents, the group has the potential
to increase each year by one-thousand members.
24. As proved and established along paragraphs 5-23, the objective element to incite to genocide is
satisfied. It is direct incitement as the publishing of the posts was specifically aimed at provoking
others to commit genocide; and it is public as the incitement was qualified by a call for criminal
action to individuals in a public space and, at the same time by means of mass media.

III) The subjective element

25. The mental requirement for the crime of genocide is provided for in Article II (1) of the Genocide
Convention. This intent amounts to dolus specialis; that is, to an aggravated criminal intention,
required in addition to the criminal intent accompanying the underlying offence. 44 Article III of
the Convention on responsibility for forms of participation in the crime other than perpetration
(such as incitement) have not been taken up in the Statute’s provision on genocide. 45 For this
reason, the Prosecution resorts to international jurisprudence that confirms that the mens rea of
incitement to genocide is double: the act of incitement must be intentional and the inciter must
have genocidal intent (dolus specialis).46

41
Judgment, Karemera (ICTR-98-44-A), Appeals Chamber, 29.09.2014, §499.
42
ICCMCC Problem, op. cit.; §6.
43
Ibid.; §7.
44
A. Cassese, International Criminal Law (2008), at 137.
45
Ibid.; at 146.
46
(ICTR-99-52-A), op. cit.; §677.
23
a) Dragos display the intent to incite to genocide

26. First of all, the incitement must be accompanied by the intention “to directly prompt or provoke
another to commit genocide. It implies a desire on the part of the perpetrator to create by his
actions a particular state of mind necessary to commit such a crime in the minds of the person(s)
he is so engaging.”47 The content of the statement is used to deduce the perpetrator’s intent to
incite genocide, together with the potential of the communication, the tone of the statement and
the context where it is made.48
27. Considering the content of Dragos’ posts, they embody nouns and verbs that evoke the idea of
destruction and elimination, such as “clean up”, “pound”, “break down”, “roast”, “end”,
“cleanse”. Those terms, once interpreted in the context of Dragos’ mission and objective as
analysed under the objective element, are meant to call to action to achieve the ethnic purity of
Solantis. As the ICTR has stated in Akayesu case : “the content in which these terms are used is
critical to an understanding of their meaning”.49 When Dragos called on the people to take the
action against the “widgets”, the members of their groups understood it as a call to eliminate the
Stareks. In this way, through synonyms or words advocating for ethnic purity Dragos aim to
incite their supporters.
28. The wordings consist of short but precise sentences, they hold an imperative tone and therefore,
are to be considered as orders or tasks directed to the followers.
29. The term “widget” is used up in most of the posts, and from the moment it works as a synonym
to “Stareks” and as due to the meaning of the term itself it may be aimed at annihilating the
Stareks, it also serves to provoke the followers. Moreover, in several posts clear information has
been provided regarding the method to be used by the supporters to carry out the plan. For
instance, posts claiming to “break down” and to “pound the widgets” had been followed by attacks
where Stareks were beaten with the use of metal pipes and bats;50 or when a post announced the
“time for a widget roast”, it resulted that two-hundred Stareks died literally in fire by hand of the
group’s members.51 In one case it was published to “do what must be done”, and the following

47
(ICTR-96-4-T), op. cit.; §560.
48
(ICTR-99-52-T), op. cit.; §1015-1022.
49
(ICTR-96-4-T), op. cit.; §153.
50
ICCMCC Problem, op. cit.; §8.
51
Ibid.; §11.
24
 day some of the members shot in a voting centre and, as the best was required to be done to
“prevent the widgets from gaining power”, the shooting was carried out indiscriminately.52
30. Additionally, and this concerns also the communicational aspect employed, the time and place
where the Stareks were known to be gathering were also listed. In this way, it is visible the intent
to provide the members with all relevant information to carry out the task and therefore to prompt
them to take the action concretely. This stresses that the purpose of the communications they
channelled was not of a bona fide nature, ergo to share innocent information, but rather to engage
the members in the plan. Similarly, in Nahimana case, the ICTR recognized the sharing of some
information in Kangura magazine relevant for the occurrence of the incitement. Specifically,
names of people were published in Kangura and “the editor would focus on someone for a period
of time, saying that the person was against Habyarimana or against the Hutu, that he was against
their political line, and then after a while, that person would be killed.”53
31. The choice of the means of communication turns to be relevant as well. Dragos decided to publish
the posts on a social platform active in Valaria and Solantis and hence, they could guarantee
mounting supporters for their objective, as Nothrokis share deep discontent in regard to Stareks.

b) Dragos display the intent to destroy the Starek ethnic group

32. The ICTR Chamber found dolus specialis can be inferred either from words or deeds, together
with evidence such as the physical targeting of the group or their property, and the use of
derogatory language toward members of the targeted group.54
33. Firstly, it is essential to acknowledge the subject against whom the actions are expressed: the
widgets. As already demonstrated, it is an offensive term used to refer to Stareks to dehumanise
them, so that hardly anyone was likely to feel guilt over the killing of something so worthless. It
resembles the term “cockroaches” employed to deny the humanity of Tutsis.55 Therefore, all the
statements contained in the post are targeted against the Starek ethnic group. The genocidal intent
is not expressed through explicit phrases, such as the one urged in Rwandan genocide “let’s
exterminate them”56, but this does not lead to a lack of specific intent. Rather, it emerges from

52
Ibid.; §15.
53
(ICTR-99-52-T), op. cit.; §238.
54
Judgment, Kayishema and Ruzindana (ICTR-95-I-T), Trial Chamber II, 21.05.1999, §93.
55
The New Times, Dehumanisation (2014), available at: https://www.newtimes.co.rw/section/read/73836 .
56
(ICTR-99-52-T), op. cit.; §964.
25
 different statements, as they have unambiguously stated that the mission of the group is the
elimination of the Stareks. From these circumstances, it becomes evident that their intent was to
eliminate such ethnic group.
34. The intent gets more apparent once the attention is payed to the method exploited, in particular
Stareks are physically targeted by way of affecting their own places of gathering including
concerts, fairs, celebrations, parks and events. According to the ICTR, in Kayishema and
Ruzindana case, “the relative proportionate scale of the actual or attempted destruction of a group
[…] is strong evidence to prove the necessary intent to destroy a group in whole or in part.”57
35. Every time that information about their gathering centers have been added to the posts, attacks
followed. Consequently, the Stareks represent the focus of each attack and the whole ethnic group
is the potential target as their social places are mostly limited to Stareks and the posts aim to incite
violence against any “widgets”.
36. In fact, the perpetrator must intend to destroy a group in whole or in part,58 and this is visible by
the choice to target places where Stareks would likely meet as it shows the intent to eliminate the
minor ethnic group as such. This is particularly attested by the attack organized outside the Starek
worship center that caused two-hundred deaths; and by the shooting got in four major voting
centers which caused the death of four-hundreds of them.59 Consequently, every attack was
characterized by a growing number of deaths, and ultimately one-thousand-five-hundred Stareks
died.60
37. Additionally, to satisfy the specific intent criteria, “the victim of an act of genocide must have
been targeted by reason of the fact that he or she belonged to a protected group.”61 Starek people
have been targeted by the reason to be an ethnic group, that is a group that shares a language and
cultural traditions. In fact, they have their own language, are concentrated in Starek community
trailer parks and celebrate their own ethnic holidays.62 The target on ethnic basis is clearly evident
as Dragos are willing to achieve ethnic purity in Solantis.
38. As established along paragraphs 25-37, the subjective element of the crime of incitement to
genocide is satisfied. The act of incitement results to be intentional and the inciters displayed
genocidal intent.

57
(ICTR-95-I-T), op. cit.; §93.
58
Ibid.; §95.
59
ICCMCC Problem, op. cit.; §11, 15.
60
Ibid.; §18.
61
(ICTR-99-52-A), op. cit.; §496.
62
ICCMCC Problem, op. cit.; §4.
26
B) CERSEI BANNISTER IS CRIMINALLY RESPONSIBLE FOR PROVIDING THE
MEANS TO INCITE TO GENOCIDE AND FOR INCITING TO GENOCIDE

1. Cersei Bannister is criminally liable under Article 25(3)(c) and Article 25(3)(e) of the ICCSt.

I) Bannister is responsible for aiding and abetting the crime of incitement to genocide by
omission

a) A legal assessment on criminal liability arising from inaction

2. ICC Statute does not contain a provision which expressis verbis imposes liability for omission
other than superior responsibility. Whereas, under the case law of ad-hoc Tribunals, even crimes
that require active conduct may be committed by omission.63 The issue came to a head when the
AC in Mrkšić case explicitly stated that aiding and abetting by omission is a recognized mode of
liability under the Tribunals’ jurisdiction.64 The ad-hoc Tribunals have established a systematic
approach: there has to be a legal duty to act, the accused must have had the opportunity to take
the required action and the omission led to the commission of the crime.65
3. The lack of a provision in the ICC Statute on omission does not entail the conclusion according
to which the parties wished to rule out criminal liability in such instance. 66 ICC PTC II alleged,
in Muthaura case, that “there is nothing in the Statute that can be interpreted to exclude acts by
omission from the purview of the Court, and it would be contrary to its object and purpose to
interpret article 17(l)(d) of the Statute in a way which would reduce, as a matter of law, the
subject-matter jurisdiction of the Court.”67 An aspect visible in the Statute is the consistently used
terminology of “conduct”, generally accepted to indicate a criminal act or omission, and employed
throughout the elements of crimes.68 Similarly, the 1999 Commentary to ICCSt. alleges that

63
G. W. F. Jessberger, “General Principles”, in Oxford University Press, Principles of International Criminal Law (2014),
at 267.

64
Judgment, Mrkšić et al. (IT-95-13/1-A), Appeals Chamber, 05.05.2009, §135.
65
G. W. F. Jessberger, op. cit.; at 268.
66
Ibid.; at 269.
67
Decision on the confirmation of charges, Muthaura et al. (ICC-01/09-02/11), Pre-Trial Chamber II, 23.01.2012, § 46.
68
M. Duttwiler, “Liability for Omission in International Criminal Law”, 6 International Criminal Law Review (2006), at
58.
27
 conduct “may possibly also include an intentional omission”69, leaving the door open to prosecute
for omission.
4. Moreover, the ICC accommodates the concept of commission by omission from the moment that
liability for omission appears to be a general principle of law.70
5. Hereby, Prosecution will demonstrate that Bannister is criminally liable under Article 25(3)(c) of
the ICCSt. by way of omitting to take action despite a duty to do so.

b) The objective element of aiding and abetting by omission

6. The actus reus of aiding and abetting by omission is fulfilled “when it is established that the
failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of
the crime and had a substantial effect on the realization of the crime.”71 The conduct need not
serve as a conditio sine qua non to the commission of the crime.72
7. Prosecution will prove that Bannister had a legal obligation according to which she should have
acted; that she had the possibility to fulfil the obligation, but the accused did not and this
encouraged principal’s crime.
8. ICTR judges have declared that “the power of the media to create and destroy fundamental human
values comes with great responsibility. Those who control the media are accountable for its
consequences.”73 Bannister is completely engaged in the management of the network and boasts
of supervisory role, as she is the controlling owner and chief executive officer of Statusphere.74
This makes her responsible for the posts published on the network and for the provision of the
platform itself.
9. A review of international law on incitement to discrimination and violence is helpful as a guide
to the assessment of Bannister’s criminal accountability. Particularly, the ICCPR75 provides in
Article 19(2) that “everyone shall have the right to freedom of expression”, while noting in Article
19(3) that the exercise of this right “carries with it, special duties and responsibilities”. Certain

69
O. Triffterer, The Rome Statute of the International Criminal Court: A Commentary (1999), at 532.
70
M. Duttwiler, op. cit.
71
Judgment, Orić (IT-03-68-A), Appeals Chamber, 03.07.2008, §43; Judgment, Milutinović et al. (IT-05-87-T), Trial
Chamber, 26.02.2009, §90; (IT-95-13/1-A), op. cit.; §49.
72
J. Ingle, “Aiding and Abetting by Omission before the International Criminal Tribunals”, 14 Journal of International
Criminal Justice (2016), at 765.

73
(ICTR-99-52-T), op. cit.; §945.
74
ICCMCC Problem, op. cit.; §6.
75
ICCPR, 16.12.1966.
28
 speech not only may but in fact must be restricted: Article 20(2) provides that “any advocacy of
national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.” Therefore, from international law a legal responsibility
derives on the behalf of Statusphere users. It follows that, in case of non-compliance with the
provision, the CEO as highest-ranking individual in Statusphere is accountable and in fact, has
the legal duty to take the action according to the Community Standards Policy, under which “the
company will remove content and shut down groups in case of a genuine risk of physical harm or
direct threats to public security.”76
10. The concerned Policy reflects the 2000 EU e-Commerce Directive requiring social media
platforms to remove access to prohibited speech once they are aware of illegal activities; and in
China and Thailand platforms that fail to remove such content face fines or criminal liability.77
US does not hold social media platforms liable in case of blocking offensive content
ineffectively,78 but Bannister did not act inefficaciously; she lacked of (preventive) action.
11. Similarly, Facebook Community Standards Policy connote what is and is not allowed on the
platform,79 and legitimately CEO Zuckerberg, in April 2018, was quizzed by the US Congress
over Facebook’s failure to halt hate speech on its platform in Myanmar,80 evidencing the Policy
entails a legal responsibility.
12. ICTR has recognized that “to the extent that they acknowledged there was a problem and tried to
address it, they demonstrated their own sense of responsibility for RTLM programming.”81 When
Bannister received the email from the President of Solantis, asking to remove the posts, she
acknowledged the company’s Community Standards Policy.82 This, together with the shutting
down of the group, determines her responsibility in supervising the network, and the fact she
recognized there was a problem and addressed it by cancelling the group, shows a sense of duty
towards Statusphere programming. It is furtherly confirmed by her statement deeming that “in

76
ICCMCC Problem, op. cit.; §9.
77
Z. E. Chow, “Evaluating the Approaches to Social Media Responsibility for Prohibited Speech”, 51 International Law
and Politics (2019), at 1303-1306.

78
Ibid.; at 1301.
79
Business for Social Responsibility, Human Rights Impact Assessment: Facebook in Myanmar (2018), at 21.
80
S. Stecklow, Why Facebook is losing the war on hate speech in Myanmar (2018), available at:
https://www.reuters.com/investigates/special-report/myanmar-facebook-hate/ .

81
(ICTR-99-52-T), op. cit.; §971.
82
ICCMCC Problem, op. cit.; §9.
29
 light of their violent actions, I have instructed my staff to remove the Dragos Aspiration group
from Statusphere.”83
13. In Delfi AS v. Estonia case, the ECtHR made remarkable pronouncements concerning the
applicant company, held liable for degrading third-party comments posted on its internet news
portal. In particular, the company is a professional publisher in Estonia, it published news in
Estonian and Russian and operates also in Latvia and Lithuania. The Chamber, having regard to
this background, considered “that the applicant company had been in a position to assess the risks
related to its activities and that it must have been able to foresee, to a reasonable degree, the
consequences which these could entail.”84 Statusphere background is similar, as it has become a
popular and notorious source of a wide range of information and it operates in Solantis and
Valaria. Thence, due to the Standards Policy and Bannister’s role in the management and
supervision of Statusphere, she had been able to exercise a substantial degree of control over
users’ posts and she had been in a position to predict the nature of the posts a particular
Statusphere affinity group was liable to prompt and to take measures to prevent violent statements
from being public.
14. Simultaneously, she would have had the possibility to act due to the huge strides in creating
algorithms with unprecedented abilities at a variety of language tasks.85
15. BERT is the algorithm behind the improved Google search, released by Google Brain in 2018.
Google not only published its research, but also open-sourced the algorithm, allowing anyone to
download it and then fine-tune it for their own specific purposes.86 For instance, Microsoft and
LinkedIn by using BERT changed the way they operate.87 Facebook’s engineers modified BERT
and the result is a model called RoBERTa.88 In 2018, Facebook was forced to admit its social
network had been used to incite ethnic violence against Rohingya Muslims in Myanmar. Part of
the problem was that the company didn’t have enough people who spoke Burmese to screen the
volume of the content.89 RoBERTa offered a solution: Facebook tried having the algorithm learn
the statistical map of multiple languages simultaneously.90 By doing this, the algorithm builds up

83
Ibid.; Appendix 2.
84
ECtHR, Delfi AS v. Estonia, Appl. No. 64569/09, 10.10.2013, §62.
85
Fortune, A.I. breakthroughs in natural-language processing are big for business (2020), available at:
https://fortune.com/2020/01/20/natural-language-processing-business/ .

86
Ibid.
87
Ibid.
88
Ibid.
89
Ibid.
90
Ibid.
30
 a statistical image of what “hate speech” or “bullying” looks like in any language. That means
Facebook can now use automatic content monitoring tools for a number of languages, including
relatively low resources ones, and the company says that thanks to such technologies it was able
to increase by 70% the amount of harmful content it automatically blocked from being posted.91
16. Facebook experience clearly shows that Bannister, holding a prestigious PhD in Computer
Science and being the CEO of Statusphere whose servers are located in a technologically
advanced country,92 had the opportunity to easily resort to the algorithm to detect Valarian dialect
and consequently halt the damaging posts.
17. Her contribution, namely the failure to block in a preventive, timely and decisive manner the
posts, has proved to have facilitated the commission of the crime in a significant and substantial
way; as if she had taken the required measures, most likely Dragos would not have had the
opportunity to incite to genocide. Whereas, the posts published have been viewed and understood
by the intended audience and the incitement to genocide against the Stareks occurred.

c) The subjective element

18. Based on the case law of the ICTY, the required mens rea for aiding and abetting by omission is
that “the aider and abettor must know that his omission assists in the commission of the crime of
the principal perpetrator and must be aware of the essential elements of the crime which was
ultimately committed by the principal”93.
19. On the basis of the interviews Bannister gave, it is noticeable that she was aware of the violent
acts committed by Dragos and the posts advocating for them. This is proved by the fact she
claimed in the interview the following: “we realized that the posts may have been an instigation
to violence”94 and, “in light of their violent actions”95. By saying that, she acknowledged that the
social platform may have been exploited to incite to violence. Thanks to the report issued by the
UN High Commissioner for Human Rights she became conscious about the potential connection
between the publication of the posts and the advocation for violence against the Stareks, and the
report determined that the posts were made by members of Dragos extremist group.96

91
Ibid.
92
ICCMCC Problem, op. cit.; §5-6.
93
(IT-03-68-A), op. cit.; §43; (IT-95-13/1-A), op. cit.; §49.
94
ICCMCC Problem, op. cit.; Appendix 1.
95
Ibid.; Appendix 2.
96
Ibid.; §8.
31
20. In the wake of this relevant background information, it can be inferred that she was mindful of
the feasible occurrence of a crime perpetrated by Dragos, and this is furtherly emphasized by the
fact that each Dragos post was followed by an attack perpetrated by them. Nevertheless, the
groups’ establishment has never been challenged, prior to the happening of the violent and bloody
episodes, with a view to immediately removing the concerned posts.
21. As claimed by the ICTY in Mrkšić case, it is not necessary that the aider knows the precise crime
that was intended and was in fact committed,97 but “if he is aware that one of a number of crimes
will probably be committed, and one of those crimes is committed, he has intended to facilitate
the commission of that crime, and is guilty as an aider and abetter.”98 Even though Bannister has
no awareness about the exact crime planned by Dragos, she displays the knowledge of a crime
likely to be perpetrated, due to what has been already exhibited and given that Dragos openly
defined an attack a “good first step toward achieving the Dragos objective of ethnic purity in
Solantis”99. Thus, it can be deduced Dragos intent to eliminate Starek ethnic group, and eventually
they committed incitement to genocide.
22. It is then essential to demonstrate that Bannister knew her omission was going to assist in the
commission of the crime perpetrated by Dragos. It is visible her support for Nothrokis over the
Starek ethnic group as Statusphere tag line is “a social network for the Nothroki people” 100; and
the logo of the platform is a galloping horse,101 the same symbol worn by Dragos. Moreover, in
one interview she implicitly sympathized for their goal, as she recalled Valarian history of ethnic
purity against the Stareks and thanks to which, according to her, now Valaria is peaceful and
assumed Solantis should get rid of them as well.102
23. While in another interview, she deemed the “real tragedy” the winning of a parliamentary seat by
a candidate in favour of Stareks protection,103 therefore clearly manifesting her deep disagreement
with the enactment of laws aimed at protecting the Stareks. This explains why she intentionally
did not interpret the post published prior to the attack on 6 November 2019 as a call to violence
but rather a call to vote, despite the fact the content monitors had brought the post to her
attention.104 It is revealed her intent to omit from taking the appropriate measures and addressing

97
(IT-95-13/1-A), op. cit.; §159.
98
Ibid.
99
ICCMCC Problem, op. cit.; §13.
100
Ibid.; §6.
101
Ibid.
102
Ibid.; Appendix 1.
103
Ibid.; Appendix 2.
104
Ibid.
32
 the previous violent episodes which followed each post. Since, by knowing the events that took
place previously, their gravity and the cultural context of discrimination she’s aware of, it is
predictable what is the message behind the post itself.
24. After the attack on 16 June 2019, she justified the inactivity by assuming that monitors did not
interpret properly the dialect used in the post.105 It may be that monitors only detect Valarian
language (as she said it is only a small company and with few content monitors)106, but she is
responsible for the consequences that derive and, as previously demonstrated, she had the
opportunity to deal with the linguistic issue. From the relevant factsheets there is no information
that shows she and her staff attempted to call for help to understand the different language after
having denotated that Dragos’ posts may be violent.
25. Bannister proves to have the intent to omit from undertaking the required action, and she also has
the knowledge of the elements of the crime eventually committed.

II) Bannister is responsible for inciting to genocide by omission

26. Additionally, Bannister is criminally liable for inciting genocide under Article 25(3)(e) of the
ICCSt., as by omitting from taking the required action she let publishing the posts which constitute
incitement to genocide.

a) The objective element of inciting to genocide by omission

27. An omission is criminal if the person in question had a legal duty to prevent harm from
occurring.107
28. Prosecution will demonstrate that Bannister is charged of such crime because her failure to
promptly halt and block Dragos posts led to the publishing of the inciting statements.
29. Similarly, Julius Streicher, tried by the IMT at Nuremberg for inciting hate, founded in 1923 “Der
Stuermer” (“The Attacker”), a Nazi's antisemitic, weekly newspaper that helped Adolf Hitler
sway the German public's opinion against the Jewish people.108 Even though Streicher knew about

105
Ibid.; §12.
106
Ibid.; Appendix 1.
107
M. Duttwiler, op. cit.; at 5.
108
ThoughtCo, Der Stuermer (2020), available at: https://www.thoughtco.com/der-stuermer-newspaper-1779279 .
33
 the writing of editorials and articles calling for violence against the Jews, he condoned such
actions and let them publish.109
30. The 2003 Media case, concerning the individual criminal responsibility of Nahimana and
Barayagwiza for RTLM broadcasts, offers significant insights to deal with the concerned charge.
31. Similarly to the Rwandans accused110, even though she did not make decisions in the first instance
with regard to the publication of Dragos’ posts, these decisions reflected a Community Policy for
which she was responsible. The statements collectively conveyed messages of ethnic hatred and
a call for violence against the Stareks. Nahimana and Barayagwiza due to their role, board
members responsible for RTLM, were deemed responsible for the messages and knew those were
causing concern;111 as well as being responsible for Statusphere, including its programming,
Bannister is accountable for the posts. It is clear that she knew what was happening on Statusphere
and failed to exercise the authority vested in her to prevent the genocidal incitement caused by
Statusphere programming. Like the two accused had de facto authority to prevent the harm,
attested by a successful intervention;112 Bannister’s is evidenced by the Standards Policy.
32. Bannister can be regarded as “number one” in Statusphere management, and therefore she should
have been the first and last person to take the action to prevent Dragos from publishing the posts;
instead, she allowed their mission to be supported by Statusphere.

b) The subjective element

33. As already established, the crime of incitement to genocide requires to be intentional and to be
accompanied by the dolus specialis.
34. As Bannister is charged of the concerned crime by omission, she displays the intent to omit to
take the action in order to enable Dragos to publish the statements. When the journalist asked
Bannister what may prevent the Dragos from establishing a new group, she answered that “they
are welcome to express them [their opinions] on our social networking platform”113, therefore
revealing her willingness to continue affording them the opportunity to post the concerned
statements, despite being aware of the violence advocated for. In fact, no post has ever been
challenged prior to be correctly understood by the intended audience, even though the accused

109
Ibid.
110
(ICTR-99-52-T), op. cit.; §970.
111
Ibid.; §971.
112
Ibid.; §972.
113
ICCMCC Problem, op. cit.; Appendix 1.
34
 knew about the essential elements of the crime eventually perpetrated by Dragos (as proved under
paragraph 19).
35. The dolus specialis of the accused is visible from certain circumstances. When she alleged that
Solantis should take a leaf out of Valarian past history of ethnic purity against the Stareks due to
the resulting benefits.114 By claiming so, she recognized the need to eliminate the Stareks in
Solantis as well and this proves the intent to destroy the ethnic group in whole or in part.
36. By explicitly defining a “real tragedy” the winning of a parliamentary seat by a Solantis politician
who was determined to guarantee the safety of the Stareks,115 Bannister announced to be against
the (physical) protection of the ethnic group. The fact she did not address the 6 November post is
supportive of such genocidal intent as she knew it represented a call to violence because Bannister
was conscious of the elements of Dragos’ crime.
37. For her active engagement in Statusphere, and the intentional omission (implying the genocidal
intent) to prevent Dragos’ severe statements, Prosecution find the accused guilty of incitement to
genocide by omission.

114
Ibid.
115
Ibid.; Appendix 2.
35
C) ICC HAS JURISDICTION TO PROSECUTE CERSEI BANNISTER

1. The ICC has jurisdiction to prosecute Bannister under Article 12 of the Statute.

2. OTP is firmly on the position that this Court does enjoy, in addition to material jurisdiction,
territorial jurisdiction over the alleged crimes.

I) ICC has jurisdiction over Bannister’s conducts due to the objective territoriality principle

3. Article 12(2)(a)116 does not provide answers to the question of how little an international crime
needs to take place within a Party territory for the Court to have jurisdiction;117 and as elements
of crimes are not supportive in the interpretation of the Article, Prosecution will resort to
applicable treaties, as a form of applicable law, recognized by the Court under Article 21(1)(b) of
the Statute.
4. The rules of interpretation provided under Article 31 of the Vienna Convention118, prove essential
to derive the objective territoriality principle and to demonstrate that it can be exploited to claim
jurisdiction over the accused, due to a cyberspace connection119 between the two States.
Moreover, international law does apply to cyberspace.120
5. It is noteworthy that the ICJ stated that “Articles 31 and 32 of the Vienna Convention on the Law
of Treaties […] may in many respects be considered as a codification of existing customary
international law”121.

116
ICCSt., 17.07.1998.
M. Vagias, “The Territorial Jurisdiction of the International Criminal Court – A Jurisdictional Rule of Reason for the
117

ICC?”, 43 Netherlands International Law Review (2012), at 46.

118
VCLT, 22.05.1969.
119
Statusphere servers are in Valaria but the platform is active in Solantis as well.
120
Digital Watch Observatory, UN GGE and OEWG (2019), available at: https://dig.watch/processes/un-gge.
121
Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, 12.11.1991, I.C.J.
Reports (1991), §48.

36
a) Interpretation of Article 12(2)(a)

6. Article 31(1) of VCLT arranges a reading of the Statute’s provisions in its context and in the light
of its object and purpose.
7. First of all, “conduct” in Article 12(2)(a) has to be interpreted within the context of jurisdiction.
The latter in criminal law is based on the interests of the States, and “interest justifying
prescriptive territorial criminal jurisdiction can be invoked by different connections to a State,
including by acts, omissions, or consequences occurring on its territory.”122
8. In the context of an international criminal tribunal created by treaty, States delegate their
jurisdiction on agreed grounds, but it should include those restrictive doctrines that form the basis
of domestic jurisdiction under international law.123 The delegated-jurisdiction theory supports
ICC’s jurisdiction over nationals of non-party States, which can occur in cases of objective
territoriality.124 Article 31(3)(c) of VCLT allows recourse to “any relevant rules of international
law applicable in the relations between the parties” to complement the contextual reading, and it
implies a reference “to all recognized sources of international law” which include customary
international law.
9. The State practice and the opinio juris elements125 of the objective territoriality establish it as a
norm of customary international law, and additionally States incorporate the principle into
suppression treaties to facilitate the exercise of jurisdiction.126 Such a notion has also been set
forth in plural international instruments, including the European Convention on Extradition,
Criminal Law Convention on Corruption and the AU Convention on Preventing and Combating
Corruption.127
10. Current ICJ has found that “the territoriality of criminal law […] by no means coincides with
territorial sovereignty”.128

122
Observations Pursuant to Rule 103(1) of the Rules of Procedure and Evidence (ICC-RoC46(3)-01/18-25), Pre-trial
Chamber I, 19.06.2018, §20.
123
Ibid.; §21.
124
Ibid.; §22.
125
Some of the States that have adopted legislation on the basis of this concept: Argentina, Australia, China, Czech
Republic, Egypt, Estonia, Georgia, Germany, New Zealand, Switzerland, Afghanistan, Tanzania.

126
(ICC-RoC46(3)-01/18-25), op. cit.; §26.
127
Request Under Regulation 46(3) of the Regulations of the Court (ICC-RoC46(3)-01/18), Pre-Trial Chamber I, 06.
09.2018, §66.

128
The Case of the S.S. Lotus (France v. Turkey), Judgment, 07.09.1927, Permanent Court of International Justice, at 20.
37
11. Based on the above, Prosecution is of the view that Article 12(2)(a) cannot be interpreted as
excluding objective territoriality. Such interpretation finds support in the object and purpose of
the Statute.
12. Article 12(2)(a) results from a compromise between States to enable the Court to assert
“jurisdiction over the most serious crimes of concern to the international community as a whole”
in the wake of approaches to criminal jurisdiction that derive from international law and domestic
legal systems.129 The drafters meant to allow the Court to exercise jurisdiction in the same
circumstances in which Parties would do over such crimes under their legal systems.130 Therefore,
denying the jurisdiction because a part of a crime within the Court’s jurisdiction was committed
on the territory of a State non Party would not be in line with the object and purpose of the
Statute.131
13. The Chamber dealing with Myanmar case, deemed that “if it were established that at least an
element of another crime within the jurisdiction of the Court or part of such a crime is committed
on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of
the Statute.”132
14. If the crime is consummated either in whole or in part within the territory, there is territorial
jurisdiction.133

b) Objective territoriality principle applies to Bannister’s conducts

15. As previously assessed, Bannister is criminally responsible for providing the means to incite to
genocide by omission. According to its actus reus, the failure to discharge the legal duty “assists,
encourages or lends moral support to the perpetration of a crime and has a substantial effect on
the commission of that crime.”134 It follows that eventually a crime has to be committed, and
Prosecution already exhibited how the accused inaction encouraged the commission of the crime
perpetrated by the principal, and demonstrated that Dragos’ statements amount to direct and
public incitement to genocide. The latter crime took place in Solantis, since Dragos members

129
O. Triffterer, op. cit.; at 339.
130
(ICC-RoC46(3)-01/18), op. cit.; §70.
131
Ibid.
132
Ibid.; §74.
133
A. Cassese et al., The Rome Statute of the ICC: A Commentary (2002), at 567.
134
Judgment, Šainović et al. (IT-05-87-A), Appeals Chamber, 23.01.2014, §1677.
38
 published the posts, directed against the Stareks on the territory of Solantis, with the objective to
achieve ethnic purity.
16. It results that part of the crime Bannister is charged of took place in Solantis, as ultimately the
crime the accused had encouraged occurred in a State Party to the Statute.
17. Moreover, Bannister is criminally liable for inciting to genocide by omission, with regard to
intentionally allowing Dragos to publish statements inciting to genocide.
18. Consequently, part of the crime happened in Solantis, as Dragos posts proved to have incited to
genocide against the Stareks and Bannister is responsible due to her de facto authority to act.

II) ICC has jurisdiction over Bannister’s conducts due to the effects-based doctrine

19. The case-law of several States135 shows that they have developed different concepts of
territoriality principles according to which they are able to assert criminal jurisdiction over
conducts that have happened outside their territory.136 One of these principles is the effects
doctrine, according to which the State may assert territorial jurisdiction if the crime, taking place
outside the State territory, produces effects within the territory of the State.137
20. The nation seeking jurisdiction must demonstrate that the crime’s consequences were detrimental
and occurred within its territory.138 In the wake of the teleological interpretation of Article
12(2)(a), it would be in contrast with the Statute’s object to deny ICC jurisdiction from the
moment Bannister’s crimes held effects in Solantis.
21. Due to the novelty of the current situation concerning the commission of crimes on cyberspace,
it is also valid to take into account existing developments, such as Tallinn Manual139which
acknowledges the doctrine. It is a manual on international criminal law, created by independent
groups of experts at the invitation of the Tallinn-based NATO Cooperative Cyber Defence Centre
of Excellence. Its aim is that to analyse how existing international law norms apply to cyber
operations during peacetime and how to interpret international law in cyber context.

135
Australia, Bahrain, Bangladesh, Belgium, Brazil, Colombia, India, Hong Kong, New Zealand.
136
Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (ICC-01/19), Pre-Trial Chamber
III, 14.11.2019, §56.

137
Ibid.
138
P. N. Stockton, M. Golabeck-Goldman, “Prosecuting Cyberterrorists: Applying Traditional Jurisdictional Frameworks
to a Modern Threat”, 25 Stanford Law and Policy Review (2014), at 236.

139
International Groups of Experts, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2017).
39
22. Rule 9(c)140 specifies that a State may exercise territorial jurisdiction over cyber activities having
a substantial effect in its territory.

a) Effects doctrine applies to Bannister’s conducts

23. Even though Bannister was in Valaria at the moment of commission of the crimes she is charged
of, the effects of her conducts resulted in Solantis as the platform is active there as well. By
omitting to discharge her legal duty and by way of granting Dragos the opportunity to publish the
damaging posts, deleterious effects emerged in Solantis: the posts have not been removed in time
and Dragos were instead given carte blanche in the publication of the statements. Therefore, they
have been viewed and successfully understood by the intended audience resulting in the
incitement to genocide directed against the Stareks.

24. The substantial effects led to the commission of part of Bannister’s crimes on the territory of
Solantis, as without such effects most likely Dragos’ crime of incitement to genocide would not
have occurred.
25. It follows ICC enjoys jurisdiction to prosecute Bannister primarily because of a cyber connection
between Bannister’s conducts and their effects in Solantis.

140
Ibid.; at 55.
40
 SUBMISSIONS

Having presented all arguments, the Prosecution respectfully requests the Chamber to:

a) Maintain the PTC understanding that the statements by Dragos groups published on Statusphere,
between January 2018 and January 2020, constitute direct and public incitement to genocide;

b) Reaffirm that, Bannister’s failure to discharge her legal duty to remove the statements inciting
violence against the Stareks and, the fact she condoned the publishing of the concerned posts
render her criminally responsible for providing the means for incitement and inciting to genocide;

c) Confirm the ICC jurisdiction over the case, due to a cyberspace connection between Bannister’s
conducts and the effects in Solantis.

41
42