Speech and Genocide: The Rwanda Media Case
“Direct Incitement” Violates the Genocide Convention. “Hate Speech” Does Not, Nor is it Evidence of Genocidal Intent.
It has become a part of the popular perception of the Rwandan nightmare that the State media, especially the Radio Télévision Libre des Mille Collines (RTLM) radio station, played an important part in the killings. The film Hotel Rwanda (2004) features this dimension, and many histories of the disaster do as well. The “hate radio” thesis originated at the time and was tested by the International Criminal Tribunal for Rwanda (ICTR) in the “Media Case”, where judgment was rendered in 2003 and appeals finished in 2007. The charge at the centre of the case was “public and direct incitement to commit genocide”, which is featured in the Genocide Convention.
The ICTR acknowledged in the original judgment that there was a tensions between the incitement charge and the concept of a right to free speech, and did not do a particularly good job of explaining the basis for restrictions it described as part of “evolving universal standards”. Interestingly, while the defendants argued for taking the United States, described by the ICTR as “the most speech-protective” jurisdiction, as the baseline, the Trial Chamber had a greater preference for the European Court of Human Rights (ECHR), specifically a series of rulings related to Turkey’s war with the Kurdistan Workers’ Party (PKK) that had given Ankara broad latitude to suppress terrorist incitement.
What the Trial Chamber was clear about, and the Appeals Chamber even more so, was that “direct incitement” was separate from heated or even hateful rhetoric by wartime leaders. The Prosecutor himself specified that “hate speech” was not the target of the indictments. Criminal speech was held to be that which in “ordinary meaning” qualified as incitement to genocide, meaning there was a dolus specialis (special intent) for the speech to translate into genocidal actions, and a reasonable expectation “considered in context” that the genocidal utterances would be actualised. (Where a “specific causal connection” could be established between the speech and murders, further charges flowed.)
A difficulty with this—one the appellants relied on—was whether each statement charged had to be explicitly genocidally inciting, or whether an individual demonstrated to have genocidal intent could be charged for statements that were not in themselves inciting but occurred in a context where they were understood as such. The Trial Chamber’s opacity was ostensibly rectified by the Appeals Chamber saying it had to be the former, though the Appeals Chamber then reasoned in a way that blurred the standard. There was also an issue with a lot of the charges relating to “command responsibility”, where the accused were not held to have personally written or spoken the incitement, but presided over institutions that were engaged in genocidal incitement where they could have prevented these activities. The Appeals Chamber partly addressed this by criticising the Trial Chamber for its generalisations about RTLM and other media outlets, and its failure to adequately explain which media items constituted incitement to genocide.
At all events, the crucial finding upheld in the Rwandan Media Case, consistent with precedent since Nuremberg and the decisions that would follow in Jugoslavija and elsewhere, was that the Genocide Convention was only concerned with speech if the speech itself was the crime. If the speech did not reach the threshold of public and direct incitement to commit genocide, the Convention did not come into play. What speech, even “hate speech”, absolutely was not, and could not be, was evidence of genocidal intent to secure a conviction for another crime under the Articles of the Convention because a conviction for incitement presupposes that intent has been proven.
The three men on trial in the Media Case were:
Jean-Bosco Barayagwiza, a founder of the Coalition for the Defence of the Republic (CDR), a Hutu extremist party aligned with the government, and chairman of RTLM’s executive committee, was cleared of “all … convictions relating to RTLM broadcasts”, including public and direct incitement to genocide. Barayagwiza was also cleared of conspiracy to commit genocide and convictions related to his alleged activities in collaboration with the Impuzamugambi, the CDR militia, a participant in the killings, though at a much lower level than the Interahamwe. Barayagwiza’s convictions for instigating genocide, and extermination and persecution as crimes against humanity, were upheld because he was found to have been involved in the massacres, notably by directing the distribution of weapons and overseeing Impuzamugambi atrocities at roadblocks.
Hassan Ngeze was the editor of the Gisenyi-based newspaper Kangura, where he published the infamous “Hutu Ten Commandments” in December 1990. Kangura ceased to be published when the civil war reignited on 6 April 1994, after the assassination of President Juvenal Habyarimana, but Ngeze was convicted nonetheless for incitement because the Trial Chamber judged he had responsibility for “all of its contents” back to January 1994—the period covered by the trial—and that the paper had “played a significant role in creating the conditions that led to acts of genocide”. Ngeze was convicted on other counts relating to resultant atrocities.
Ngeze was cleared on appeal of many convictions related to his work at the newspaper, since the finding of fact about the institutional responsibility of the paper relating to the genocide was reversed. The part of Ngeze’s incitement conviction related to the claim he “often drove around with a megaphone” calling for Hutus to attend CDR meetings and exterminate Tutsis was also overturned as the evidence was hearsay, but ultimately his conviction for incitement to genocide was upheld for some select personal writings at Kangura. It was acknowledged there had been serious irregularities in the handling of his trial and this had a part in other convictions, for conspiracy to commit genocide and persecution as a crime against humanity, being nullified. The convictions for aiding and abetting genocide, and extermination as a crime against humanity, were upheld, because, like Barayagwiza, Ngeze was found to be present at actual atrocities.
Ferdinand Nahimana, a historian, was ruled to “effectively control” RTLM through financial means and setting editorial policy. The evidence for this was surprisingly weak: Nahimana did not have de jure control—the RTLM president was Félicien Kabuga, albeit he was out of the country during the crisis—and the primary evidence Nahimana was “the top man” was that on one occasion he successfully lobbied for RTLM to cease broadcasts against the United Nations Assistance Mission for Rwanda (UNAMIR) and its head, Roméo Dallaire. Be that as it may, Nahimana was initially convicted of genocide, public and direct incitement to commit genocide, conspiracy to commit genocide, and crimes against humanity (extermination and persecution).
On appeal, only the incitement to genocide and persecution convictions were upheld against Nahimana, related RTLM broadcasts after 6 April 1994. Unlike Ngeze, Nahimana was not convicted for anything he had personally said or written: he was judged to have “failed to take necessary and reasonable measures to prevent or punish direct and public incitement to murder Tutsi in 1994 by RTLM staff”. Nor was Nahimana convicted for actually killing anybody or causing anybody to be killed. The convictions for genocide and conspiracy to same, as well as extermination, were quashed because the inciting broadcasts he was held responsible for could not be tied to any resulting genocidal actions.
SOURCES
ICTR (2003, Dec. 3), The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze (“Media Case”), pp. 317-318, 325-326, 329-333, 336-337, 345-348. Available here.
ICTR (2007, Nov. 28), Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze v. The Prosecutor, pp. 215-229, 272-273, 281-285, 302-306, 322-323, 327-329, 340-347. Available here.