What if the Khmer Rouge Had Twitter?

ECCC Case 002/01 Judgment (NUON Chea and KHIEU Samphan), 7 August 2014 (referred to below as the ‘Judgment’).

This article considers customary international law, as applied at the ad hoc tribunals, such as the ICTY and the ICTR, and hybrid tribunals, such as the ECCC. The author notes that the international criminal law used at the ICC, particularly as applied in recent years, diverges from customary international law. In particular, since the ICC Trial Chamber's judgment in Prosecutor v Lubanga (ICC-01/04-01/06) Trial Judgment, 14 March 2012, [1011]-[1012] the ICC's general mens rea standard departed from that of the ad hoc tribunals, with the ICC applying a stricter (more defendant-friendly) standard. Also, it is open to debate whether the ICC's Rome Statute permits joint criminal enterprise as a mode of liability. This debate centres around the language of Article 25(3) of the Rome Statute, eg, as discussed in Cassese Gaeta : Cassese's International Criminal Law (OUP, 3rd edn, 2013) 175. As such, the likelihood of securing convictions against ISIS operatives will be dependent on whether they are prosecuted at the ICC via the Security Council exercising its authority under Article 13(b) of the Rome Statute to refer situations to the ICC, or whether a new ad hoc tribunal is set up to apply customary international law. This article discusses conduct that potentially breaches customary international law.

Judgment [1105]–[1107].

See, in particular, the ICTY Appeal Chamber's judgment in Prosecutor v Tadic, IT-94-I-A, 15 July 1999, paras 189–190. For a fuller discussion, see, eg, Cryer Robert , An Introduction to International Criminal Law and Procedure, (CUP, 3rd ed, 2014) 356–363.

Judgment, para 692. These criteria were established as customary international law by the ICTY; see, eg, Prosecutor v Krajiŝnik Appeal Judgment, IT-00-39-A, 17 March 2009 [156] and Prosecutor v Tadic Appeal Judgment, IT-94-1–A, 15 July 1999 [227].

Judgment [690], [694].

Judgment [777].

Judgment [778].

Judgment [960].

Judgment [980].

Judgment [980].

Judgment [981].

Judgment [987].

Judgment [994], [995].

Judgment [963].

Judgment [996].

Judgment [695].

Judgment [777].

Judgment [348].

Judgment [347].

Judgment [408].

Both Nuon Cheaand Khieu Samphan were found guilty under international criminal law of aiding and abetting direct perpetrators, in addition to individual criminal responsibility via JCE; Judgment [912], [1013]. It also is noteworthy that, if Person D tweeted from outside of Iraq or Syria, she could be prosecuted under the domestic law of the jurisdiction from where she tweeted. For example, in June 2015 an American teenager pleaded guilty under Virginian law to aiding others to join ISIS via his online tweets. See: Barrett Devlin , ‘Virginia Teen Pleads Guilty to Aiding ISIS’, Wall Street Journal, 11 June 2015 <http://www.wsj.com/articles/virginia-teen-pleads-guilty-to-aiding-isis-1434033362>.

For these killings to be elevated from a purely domestic concern to crimes of international concern, they would have to amount to genocide or, more feasibly, a crime against humanity. The statutes of the ICC and ad hoc tribunals set out criteria for this elevation (eg, Rome Statute, Article 7, and ECCC Statute, Article 5). If the same criteria were used at a tribunal prosecuting ISIS, a set of murders would be elevated to a crime against humanity if it were committed in the context of (a) a widespread or systematic attack, and (b) directed against a civilian population. The latter criterion is unlikely to be controversial in this context due to the civilian deaths. The former may prove more difficult to satisfy. However, the web of connections created by the Internet and social media might allow a prosecutor to successfully link seemingly separate atrocities committed across the globe to a single widespread or systematic attack. In the World War II Einsatzgruppen Case, the Nuremberg Military Tribunal held that a common purpose stretched from ‘Estonia to Crimea’ (judgment page 525, reprinted in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No 10, Vol IV, 427–433). Applying this precedent to the context of modern global communication technology, it is feasible that a common purpose can be global or, at least, a single common purpose can be geographically dispersed with individual flashpoints around the globe.

Judgment [960].