The crime of direct and public incitement to commit genocide before the ictr: a case of ngeze hassan

NATIONAL UNIVERSITY OF RWANDA

FACULTY OF LAW
P.O. BOX 117

THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO
COMMIT GENOCIDE vis-à-vis PRESS FREEDOM BEFORE
THE ICTR: A CASE STUDY OF NGEZE Hassan

This dissertation was written and presented in partial fulfillment of the academic requirement for the award of a Bachelor's Degree in law.

By: Yassin TUSINGWIRE

Supervisor: Dr. Bruno ZEHNDER

Huye, October 2007

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DECLARATION

I TUSINGWIRE Yassin, here by declare that the work presented in this dissertation is to the best of my knowledge original. It has never been presented any where before, either in the National University of Rwanda or in any other University or Institution of higher learning for an award of a degree. Where other people's works have been used here in, references have been given and in some instances, quotations have also been made. Accordingly, IÕm proud to declare that this dissertation is mine, researched, written and presented in partial fulfillment for an award of a bachelor's degree in law.

Student's signature

Date

Supervisor's signature

Date

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EPIGRAPH

Strange! that a man who has wit enough to write a satire should have folly enough to publish it» no writer should be so foolish as to expose himself to the risk of humiliation and financial ruin by publishing material that might rouse the libel lawyers to action.

Benjamin Franklin 1706 - 1790 Writer

Were it left to me to decide whether we should have a government with out news papers, or news papers without a government, I should not hesitate a moment to prefer the latter»

Thomas Jefferson (1787) United States President

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DEDICATION

I dedicate this dissertation to the family where I belong and to all victims of genocide in general and to victims of hate speech in particular.

ACKNOWLEDGEMENT

I hereby, acknowledge the facilitation, in terms of financial loan (scholarship) extended to me by the government of Rwanda through the national university of Rwanda. It's only the government of Rwanda's good education policy that; with out which I would never have attained university education.

I'm highly indebted to extend my sincere appreciation to my brother Sheikh MUHIRE Bashir who was always next to me whenever I needed him dearly.

I'm most grateful to the pieces of advice I did get and still receive from NTAGANIRA Richard Suleiman.

I was particularly privileged to have known at a friendly level Mr. Charles Kabonero, Mugisha Furaha, and Gasana Didace. I'm proud to mention that among others, it was through these personalities that I was exposed to the media in which this topic of research falls.

I'm also happy to dedicate some few words of appreciation to NUWAGABA Stephens, TAREMWA Daniel, NIYONSENGA Michel, ASIMWE Abel, SIKULIBO Jean de Dieu and all who played a special role through out my academic life.

I'm pleased to extend my sincere acknowledgement to the families of RUGWIZANGOGA Abdul- Gafar and BARWANA Assuman. I do appreciate the welcome, love and care they offered to me at a time I needed it dearly.

I'm very grateful to appreciate the brotherly welcome and support I did get from MUSONERA Straton, MUNYAZIKWIYE Mbaga, and to all the staff of ICTR library in Arusha. Their welcome and support was so important that it created a beautiful academic atmosphere that I speeded up my research work.

Finally, my whole hearted thanks go to Dr. BRUNO Zehnder, his assistance as my research supervisor was so precious at the very time I needed it most.

LIST OF ABREVIATIONS AND ACRONYMS

§ : Sub section

CDR : Coalition pour la Défense de la République,

ECHR : European Court of Human Rights

et al. : et alii (and another or, and others)

Ex. : Example

http : hyper text transfer protocol

Ibidem : same author, work or source and page

ICCPR : International Covenant on Civil and Political Rights

ICTR : International Criminal Tribunal for Rwanda

ICTY : International Criminal Tribunal for the former Yugoslavia

Idem : same author, work or source but a different page

IMT : International Military Tribunal

Inter alia : among others

No : Number

O.G.R.R : Official Gazette of the Republic of Rwanda

P. : Page

Para : Paragraph

PARMEHUTU : Parti du Mouvement d'Emancipation Hutu

RTLM : Radio Télévision Libre des Mille Collines

Supra : Latin for (already seen)

TC : Trial Chamber

UDHR : Universal Declaration of Human Rights

UN : United Nations

US : United States

V. : Versus

Vol. : Volume

www : World Wide Web

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TABLE OF CONTENTS

DECLARATION i

EPIGRAPH ii

DEDICATION iii

ACKNOWLEDGEMENT iv

LIST OF ABREVIATIONS AND ACRONYMS v

TABLE OF CONTENTS vi

GENERAL INTRODUCTION 1

(i) Background 1

(ii) Statement of the problem 1

(iii) Objectives of the research topic 4

(iv) Scope of the research 4

(v) Research Methodology 5

CHAPTER ONE: 6

THE NOTION OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO

COMMIT GENOCIDE 6

Section one: The notion of the crime of direct and public incitement to commit genocide 6

Section 2: The concept of the crime of genocide 7

§1 Elements of the crime of genocide 8

a) Physical acts (Actus reus) 8

b) Intent (mens rea) 8

c) The group victim requirement 9
Section 3: The concept of the crime of direct and public incitement to commit genocide..10

§1 Definition of the crime of direct and public incitement to commit genocide 10

a) Incitement to commit genocide 10

b) Direct incitement to commit genocide 11

c) Public incitement to commit genocide 11

§2 The character of direct and public incitement to commit genocide 12

a) Material element (actus reus) 12

b) Mental state (mens rea) for inciting genocide 13

CHAPTER TWO: 14

GENERAL CONCEPT OF PRESS FREEDOM 14

Section one: Definition of press freedom 14

Section 2: Press freedom 15

§1. Press freedom under International law 15

a) Press freedom as a right to information 18

b) Press freedom as a basic element of democracy 18

§2. Press freedom under national laws 19

a) The media before the genocide 23

b) The media during the genocide 24

c) The media after the genocide 25

CHAPTER THREE: 27

REPRESSION OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO

COMMIT GENOCIDE vis-à-vis PRESS FREEDOM	27
Section one: Introduction	27
Section 2: Case law on hate speech prior to Hassan NGEZE	28
§1. Robert Faurisson v France (Article 19 of the ICCPR)	28
§2. The International Military Tribunal at Nuremberg	28
a) Julius Streicher's case	28		b) Hans Fritzsche's case
30
§3. European case law	30
§4. The ICTR case law before Ngeze Hassan	31
a) The Prosecutor v. Akayesu	32
b) The prosecutor v. Ruggiu	33
Section 3: the Hassan NGEZE case	34
§1 Historical background	.34
§2 Judgment of the Trial chamber I	35
§3 Challenges met while prosecuting Ngeze Hassan	36
a) Temporal jurisdiction of the ICTR	36
b) Translation of Kangura newspaper	37
c) Position of rights advocates on the judgment of the media case	37
§5 Importance of the NGEZE case.	38

FINAL CONCLUSION 40

RECOMMENDATIONS 41

BIBLIOGRAPHY 43

GENERAL INTRODUCTION

(i) Background

The history of the law of the media has witnessed a constant battle between on the one hand, the desire of societies to be fully informed of the events and matters of interest and on the other hand the need of individuals to be protected against invasions of personal privacy and the publication of untrue or damaging remarks.

Unfortunately, each modern case of genocide has been preceded by a propaganda campaign of political leaders since Hitler's rise to power in 1933, until recently in Rwanda where radio RTLM and Kangura news paper «touched down».

However, until recently only Julius Streicher, the Nazi Editor of «Der St·rmer» newspaper, has been convicted for incitement to commit genocide by an International Tribunal.

The question of press freedom has however created a vacuum opportunity to rights activists and case ¹

some legal scholars attack

to the so called media in which NGEZE Hassan is

accused. This has made the case the most complicated filed at the ICTR making it a land mark case in a developing body of international jurisprudence on incitement to commit genocide.

(ii) Statement of the problem

«Strange! that a man who has wit enough to write a satire should have folly enough to publish it» no writer should be so foolish as to expose himself to the risk of humiliation and financial ruin by publishing material that might rouse the libel lawyers to action. Benjamin Franklin wrote some 300 years ago.²

¹Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Case No. ICTR-99-52-T, (TC), 3 December, 2003, para. 1017.

² P. CAREY, Media Law, 2 ^nd edition, London, Great Britain, 2001, p. 9

Hassan Ngeze and his co-accused Jean Bosco Barayagwiza and Ferdinand Nahimana were the first journalists to be accused of media crimes against humanity since Julius Streicher editor of Der Stürmer a Nazi publication that propagated the Jewish Genocide.

Where as some defenders of a free press say the three went beyond the pale, Joel Simon, the deputy director of the Committee to Protect Journalists an organization devoted to press freedom once noted, «to me, this was essentially a form of military communication to coordinate these attacks. Its speech that helped makes it possible to carry out genocide.»³

On the other hand, other free speech advocates and some legal scholars agitate that the media trial could give a global ammunition to those who think press freedom has gone too far.

Even when Julius Streicher was found guilty of crimes against humanity because he incited
the extermination of the Jews in his newspaper, even to day, critics of the decision say that

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the verdict could be twisted to suppress press freedom.They argue that Streicher, while reprehensible, should not have been sentenced to death for his ideas. Actually the same concern cast a challenge over the media case.

John Floyd, the Defense counsel for NGEZE Hassan is worried that if the judges decided that the connection between broadcast and massacre was enough to prove incitement, which he calls a «tenuous relationship», the case could set stunningly international standard for prosecuting hate speech. To Floyd, «this is dangerous stuff É if these three (Ngeze, Nahimana and Barayagwiza) are found guilty, then press freedom in the world is in peril.»⁵

Press freedom activists and lawyers including Floyd advocated for the application of the United States law on the protection of the media to the media case of Ngeze Hassan because it defines incitement narrowly and protects speech freedom more broadly than any other body of law.

Indeed it's argued that the fact that the genocide convention codifies the crime of incitement
to commit genocide was one of the main reasons why the United States Senate refused to

³ D. TEMPLE-RASTON, Journalism and genocide, Columbia journalism review, 2007

⁴ E. BAKER, Genocide, press freedom and the case of Hassan Ngeze, university of Pennsylvania, paper

28 ^th

presented on 17 ^th June 2004 ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=480762) last consulted on

September 2007

⁵ Ibid

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ratify the treaty until 1986 (for 38 years).This portrays a challenge to prosecute incitement to genocide visa-avis press freedom before any International tribunal. A challenge in here is that some scholars have argued⁷ in the media case of Ngeze that the legitimacy of the international jurisdiction to condemn crimes that offend basic standards of humanity may well depend on the crimes committed being universally condemned by civilized nations.

Further still, Press freedom advocates argue that governments have an almost reflexive tendencies to suppress press freedom in ways that undermine democracy and social justice, that governments blame bad situations on press abuses rather than government failures to enforce decent laws or develop decent and effective policies a situation that calls for legal redress to reconcile the two above.⁸

Viewed from the Rwandan perspective, whereas press freedom advocates outside Rwanda worry about the case's press freedom issues, Rwandans' concern remained very fundamental, in case the accused persons were acquitted; it would prove to Rwandans that the culture of impunity, which reigned in Rwanda before the genocide emerged untouched under the blanket cover of press freedom causing yet another controversy.

The crime of direct and public incitement to commit genocide remains an obscure visa -avis press freedom. Based on the United Nations Universal Declaration of Human Rights adopted in 1948, especially in its article 19, and the International Convention on Civil and Political Rights ratified by about 150 nations, freedom of speech defendants affirm that any serious conception of what a free press requires must include the right of the press to «advocate»- to put before the public - any and all responses to the circumstances of the day⁹

Other activists have insisted that incitement is codified in the statutes of the international
tribunals as well as the genocide convention as «direct and public incitement to commit
genocide»; the authors of the convention did not explain what they meant by «direct» and the

⁶ S. BENESCH, world policy journal, volume xxi, No 2, 2004

⁷ E. BAKER, supra note 4

⁸ Ibid

⁹ C. BAKER, genocide, press freedom and the case of Hassan Ngeze, university of Pennsylvania law school, 17 June 2004

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task was left to the courts- a situation press freedom advocates assume could jeopardize press freedom.

More still, the temporal jurisdiction of the ICTR has been under attack. Freedom advocates

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argue that the tribunal went beyond its competences. Referring to Article 7of the ICTR Statute, press advocates, legal scholars and right groups argue that the Tribunal had no jurisdiction over Kangura issues published before 1994.

Given all the above challenges, the crime of direct and public incitement to genocide erodes press freedom according to freedom advocates. Legal scholars and rights groups however say the ICTR has set up a land mark judgment in The Prosecutor v. Ferdinand Nahimana, Jean Bosco Barayagwiza and Hassan Ngeze (the 'Media Trial')

(iii) Objectives of the research topic

The main objective of this research topic will be to find out how much is press freedom in relation to the crime of direct and public incitement to genocide.

Another objective of this research is to produce a legal manual for reference on how to counter future war propaganda and speeches that jeopardize the lives of minority groups without jeopardizing press freedom.

As a legal scholar on one part and a media practitioner on the other hand I hold a strong belief that the content of this research will be an object of reference to both National and International academic legal scholars and journalists.

Lastly, the objective of this research is to fulfill one of the academic requirements to be awarded a bachelors degree in law.

(iv) Scope of the research

¹⁰ S. BENESCH, supra note 6

¹¹ Article 7 reads as follows: «The territorial jurisdiction of the international criminal tribunal for Rwanda shall extend to the territory of Rwanda including its land surface and airspace as well as the territory of the neighboring states in respect of serious violations of international humanitarian law committed by Rwandan citizens. The temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994.»

The research will cover only the legal aspect of this topic. However, other pertinent materials from other disciplines related to this research topic may be incorporated.

(v) Research Methodology

The research was mainly a documentary based research where International laws and Conventions, books, journals, reports were consulted.

Electronic research was further consulted, and the International criminal Tribunal for Rwanda documented files on decided cases was also accessed. The ICTR references relating to the topic of research in general and the case study in particular with undisputable importance were also consulted.

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CHAPTER ONE:
THE NOTION OF THE CRIME OF DIRECT AND PUBLIC
INCITEMENT TO COMMIT GENOCIDE

Section one: The notion of the crime of direct and public incitement to commit genocide

The convention ¹²

genocide (UN 1948) in its article III states that; the following acts shall be

punishable:

a) Genocide;

b) Conspiracy to commit genocide;

c) Direct and public incitement to commit genocide;

d) Attempt to commit genocide;

e) Complicity in genocide.

This article has been incorporated into the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda as well as into the Statute of the permanent International Criminal Court (ICC).

The crime of direct and public incitement to commit genocide is punishable under Article 4(3) (c) of the ICTY Statute and Article 2(3)(c) of the ICTR Statute.

The crime of direct and public incitement to commit genocide is an inchoate offence, which means that it is punishable even when the underlying crime is not committed. The prosecution does not need to prove any result as long as it can be established that the act of direct and public incitement took place and was intentional.

Definitions and elements of the crime of direct and public incitement to commit genocide will be dealt with in the proceeding sections of this chapter.

Section 2: The concept of the crime of genocide

Article 2(2) of the ICTR Statute defines genocide as «any of the following acts committed with intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such»:

> killing members of the group,

> causing serious bodily or mental harm to members of the group,

> deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,

> imposing measures intended to prevent births within the group,

> Forcefully transferring children of the group to another group.

The term genocide was invented in 1943 by the polish jurist Raphael Lemkin. He created the term genocide out of the Greek word genos, referring to race, or tribe and the Latin term cide, meaning murder. He thus defined genocide as «a coordinated strategy to destroy a group of people, a process that could be accomplished through total annihilation as well as strategies that eliminate key elements of the groups basic existence, including language, culture, and economic infrastructure»¹³.

Lemkin's definition of genocide emphasizes that any policy undertaken with the intention of bringing about the dissolution and ultimate disappearance of a targeted human group, as such:

Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killing....it is intended rather to signify a coordinated plan of different actions aiming at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themse lves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion and the economic existence of national groups, and destruction of personal security, liberty, health, dignity, and even the lines of individuals belonging to such groups. Genocide is directed against the

¹³ D. L. SHELTON, Encyclopedia of genocide and crimes against humanity, 2005, p.395 -396; K. KITTICHAISAREE, International criminal law, 2001; W. A. SCHABAS, genocide in international law, 2000 p.24

national group as an entity, and the actions involved are directed against individuals, not in their individual capacity but as members of the national group. (Lemkin, 1944:79, emphasis added)¹⁴

Genocide is also defined as the «promotion and execution of policies by a state or its agents that result in the deaths of a substantial portion of a group. Genocide may be retributive, institutional, utilitarian, monopolistic, or ideological. In a genocidal situation there is targeted group identified as an enemy or potential enemy. The group is accused of collective guilt. The targeted group is demonized, dehumanized and denigrated.¹⁵

§1 Elements of the crime of genocide

a) Physical acts (Actus reus)

The genocide convention enumerates five acts that are distinct to an existing group: killing, causing serious harm and creating destructive conditions. The other two specified acts are aimed at destroying the possibility of the group's continued existence, preventing reproduction and the forcible removal of children.

Genocide however does not require the actual extermination of a group; genocide is committed once any one of the acts enumerated above is committed with the requisite mens rea.¹⁶ Genocide can be committed by acts or omissions. In the Prosecutor v. Kambanda, the accused was found guilty of genocide for his omission to fulfill his duty as prime minister of Rwanda to take action to stop ongoing massacres which he had become aware of, or to protect children and the population from possible massacres, after he had been personally asked to do so and this omission resulted in massacres.¹⁷

b) Intent (mens rea)

Article 30 of the Rome statute declares that the mens rea or mental element of genocide has two components; knowledge and intent.

¹⁴ A. JONES, genocide war crimes and the west, history and complicity, 2004, p.80

¹⁵ E. L. NYANKANZI, genocide Rwanda and Burundi, 1st Edition, 1998, p.1

¹⁶ K. KITTICHAISAREE, International criminal law, 2001, p.71

17 th

The Prosecutor v. Jean Kambanda, case no. 67 -23-SICTR judgment, Trial C hamber1, 4September 1998, Para 39(xii)

It's the intent mens rea (to destroy in whole or in part) which gives genocide its specialty and distinguishes it from an ordinary crime and other crimes against International humanitarian law.¹⁸

In order to convict an accused of genocide, it must be proven that the accused had the specific
intent (dolus specialis) or a psychological nexus between the physical result and the mental

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state of the perpetrator.

The mens rea must be formed prior to the commission of an act of genocide in the sense that

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the act should be done to further the genocidal intent .

The trial chamber wrote in Akayesu; the moral element is reflected in the desire of the accused that the crime be in fact committed.²¹

The issue of intent (mens rea) can be present as an official policy, or it may be expressed through the coordinated and systematic nature of state sponsored terror.²²

c) The group victim requirement

The encyclopedia of genocide and crimes against humanity defines "The group victim» as genocide is a unique crime that is directed not against individuals per se, but instead targets victims because of their membership in a national, ethnic, racial, or religious group.²³

In the opinion of the Trial Chamber I in the Akayesu case, there is no doubt that considering their undeniable scale, their systematic nature and their atrociousness, the massacres committed in Rwanda in 1994 were aimed at exterminating the group that was targeted.²⁴

Confronted with the challenge that none of the four group categories in the definition would
apply to the Tutsi genocide as categorization of Tutsi ethnicity, since it could not be
«meaningful distinguished from the majority Hutu population»,²⁵ the ICTR concluded by

¹⁸ Ibid.

¹⁹ Ibid.

²⁰ ibid.

²¹ W. A. SCHABAS, Genocide in international law, first edition, Cambridge University

press, 2000, p. 207

²² D. L. SHELTON, supra note 13, p.306

²³ D. L. SHELTON, supra note, 13

²⁴ Prosecutor v. Akayesu, case no. ICTR-96-4-T judgment, Trial chamber I, 2 September 1998

Para. 118

²⁵ S. TOTTEN, genocide at the millennium, volume 5, printed in the United States, 2005 2005, p. 171

referring to the travaux preparatoires of the genocide convention that the convention could still extend to certain groups;²⁶

The prohibition of the crime of genocide is widely accepted as jus cogens (compelling or higher law that transcends the limitations of individual national laws and which no country can violate with impunity). For this reason, genocide is prohibited even in those states that have not adopted the convention. Furthermore, there is no statute of limitations for the crime of genocide and it is subject to universal jurisdiction.²⁷

Section 3: The concept of the crime of direct and public incitement to commit genocide

The concept of the crime of direct and public incitement to commit genocide is still disputed. Different media theories adopted by different countries have contributed to this complexity.

In the Akayesu case, Trial Chamber I held that »genocide fell with in the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even when such incitement fails to produce the result expected by the perpetrator».²⁸ However, in countries which adopted the libertarian theory, (ex.: the United States) expression is protected in a sense that incitement is only prosecuted where a direct causal link to violence has been proved.

In this research however, the concept of the crime of direct and public incitement will be defined based on our case study hence the definition rendered by the international criminal tribunal for Rwanda will be emphasized.

§1 Definition of the crime of direct and public incitement to commit genocide a) Incitement to commit genocide

Incitement is defined in common law systems as soliciting, inducing, procuring and counseling²⁹

²⁶ Summary records of the meetings of the sixth committee of the general assembly, 21^st September - 10^th December 1948, official records of the general assembly,

W. A. SCHABAS, genocide in international law, supra note 21, p.131

²⁷ D. L. SHELTON, supra note 13, p.306

²⁸ Prosecutor v. Akayesu, supra note 24, Para 560

³⁰ Prosecutor v. Akayesu, supra note 24, Para. 555

³² Ibid

The trial chamber in the case of Akayesu held that incitement is defined in common law as encouraging or persuading another to commit an offence. It was further added that «one line of authority.... would also view threats or other forms of pressure as of a form of incitement»³⁰

According to the civil law system, direct and public incitement is punished assuming the form of provocation, which is defined as an act intended to directly provoke another to commit a crime or a misdemeanor through speeches, shouting or threats or any other means of communication

b) Direct incitement to commit genocide

Incitement must «assume a direct form and specifically provoke another to engage in a criminal act. Under civil law systems, provocation the equivalent of incitement is regarded as...direct where it is aimed at causing a specific offence to be committed. The prosecution must prove a definite causation between the act characterized as incitement or provocation in this case, and a specific offence»³¹

Direct incitement includes cases in which the perpetrator does not call for commission of genocide expressly, but does so in a way that is unmistakable to the addressee;³² perpetrators frequently use euphemistic, metaphorical or otherwise coded language that is nevertheless perfectly clear to the audience.³³

c) Public incitement to commit genocide

According to the trial chamber decision in Akayesu's case, «public incitement should be evaluated on the basis of two factors; «the place where the incitement occurred and whether or not assistance was selective or limited»³⁴

In civil law systems, words are public where they are spoken aloud in a place that is public by
definition» «according to international law commission, public incitement is characterized by

a call for criminal action to a number of individuals in a public place or to members of the public at large by such means as the mass media, for example, radio or television.³⁵

Thus, In the Akayesu case, the trial chamber 1 defined the crime as follows:

«Direct and public incitement to commit genocide must be defined... as directly provoking the perpetrators to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings or through the public display of placards or posters, or through any other means of audiovisual communication»³⁶

The trial chamber maintained «the crime of direct and public incitement to commit genocide like conspiracy is an inchoate offence that continues in time until the completion of the acts contemplated»³⁷.

§2 The character of direct and public incitement to commit genocide a) Material element (actus reus)

The material element of direct and public incitement to commit genocide can be analyzed
from Akayesu's case. In Akayesu's trial chamber decision, incitement is a crime regardless of

38

whether it has the effects it intends to have . The chamber noted that the international jurisprudence does not include any specific causation requirement linking the expression at issue with the demonstration of a direct (physical) effect. In the Streicher case for example, there was no allegation that the publication Der Stümer was linked to any particular violence. Much more generally, it was found to have `infected into the minds of thousands of Germans `a' poison' that caused them to support the national socialist policy of Jewish persecution and extermination³⁹.

Contrary to the above, the United States jurisprudence set a slightly different standard for incitement: the «Brandenburg incitement standard»⁴⁰.

In Brandenburg v Ohio (1969) the court in response to the lower court conviction of Clarence Brandenburg, a Ku Klux Klan leader with a penchant for publicity, established that speech was protected unless it advocated imminent illegal action and was effective or persuasive enough to be likely to produce such action⁴¹.

b) Mental state (mens rea) for inciting genocide

The crime of inciting genocide requires the intent to directly prompt or provoke another to commit genocide. This 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 this means that the person who is inciting to commit genocide must himself have the special intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such⁴².

⁴⁰ N. C. CORNWELL, freedom ofpress, rights and liberties under the law, first edition, Santa Barbara (Calif.): ABC-CLIO, 2004, p. 89

⁴¹ Ibid

⁴²Prosecutor v. Akayesu, supra note 24, Para. 560

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CHAPTER TWO:
GENERAL CONCEPT OF PRESS FREEDOM

The concept of press freedom is perceived differently in different societies, has different ranges of freedom and operates differently in varying societies

In western democracies, press freedom is generally associated with the characteristics of libertarian theory of the press.⁴³ The purpose of this is to portray the role of a free press to inform, entertain and sell but chiefly to help discover the truth. In this context, the press is subject to rights of publishing as it pleases with no anticipated concomitant responsibilities.

The ideas of democracy vis-à-vis dictatorship and the level of development have also shaped the concept of press freedom. In most cases, dictatorship governments have tended to embrace the authoritarian media theory. Developing countries in turn tend to integrate a recent developed «development press theory»⁴⁴ with libertarian theory.

However, across all the differences, the concept of press freedom does have a core meaning, which commits all societies; a right to inform and the right to be informed.

The proceeding sections of this chapter will therefore deal with the definition of the concept of press freedom and the legal nature of press freedom will be discussed under both international and national understanding of press freedom.

Section one: Definition of press freedom

There is no universal definition of press freedom. However, the United Nations' definition of press freedom, contained in article 19 of the Universal Declaration of Human Rights⁴⁵ is commonly accepted. The spirit of this freedom which is synonymously linked with freedom of speech contained in the above article stipulate as; «every one has the right to freedom of

⁴³ The press is privately owned by any one who has the money to start the newspaper or other media outlets. Its objective is not to further the agenda of the state or those in power but instead to inform, to entertain and to sell. See N.C. CORNWELL, freedom of the press, rights and liberties under the law, 2004, p.8

⁴⁴ Idem p.7

⁴⁵P. GHANDHI, Blackstone's International Human Rights documents, 3^rd edition, 2002, p. 24

opinion and expression; this right includes freedom of opinions with out interference and to seek, receive and impart information and ideas through any media and regardless of frontiers» Therefore, many states take article 19 as the principle of press freedom.

According to a human rights watch report, freedom of press implies the freedom to circulate and distribute, as well as the right to determine the format in which the published material is presented. The same freedom implies a number of other assumptions, among them that access to information should not be hampered by the authorities; this includes freedom of access to official information and the rig ht of the public to be informed the exercise of freedom of the press also implies the capacity of journalists to protect their source.⁴⁶

Section 2: Press freedom

§1. Press freedom under International law

The concept of press freedom under international law cannot be discussed in isolation of freedom of expression.

The United Nations have endorsed and promoted the philosophy of press freedom in its international humanitarian law simultaneously with the concept of freedom of speech. Therefore, the concept of press freedom in this section will be presented interchangeably with freedom of expression. This is mainly because all international legal instruments on press freedom have been either related or referred to freedom of expression.

The spirit of free expression which constitutes the first reference standard of press freedom is contained in article 19 of the UN Universal Declaration of Human Rights stated as:

Every one has the right to freedom of opinion and expression; this right includes; freedom to hold opinions with out interference and to seek, receive and impart information and ideas through any media and regardless of any frontiers.

⁴⁶ Human Rights Watch; Limits of tolerance: freedom of expression and public debate in Chile, November 1998, printed in the United States of America

The above UN general assembly resolution especially its article 19 is widely regarded as having acquired the legal force of customary international law since its adoption in 1948 ⁴⁷

The International Covenant on Civil and Political Rights (ICCPR) adopted in a UN general assembly imposes formal legal obligations on state parties to respect its provisions and elaborate on many of the rights included in the ICCPR.⁴⁸

Article 19 of the ICCPR guarantees the right to freedom of expression in terms very similar to those found in article 19 of the universal declaration of human rights.

Freedom of expression is further protected in the three continental regional legal instruments. The African Charter on Human and People's Rights guarantees freedom of expression in its article 9 as;

a) Every individual shall have the right to receive information.

b) Every individual shall have the right to express and disseminate his opinions with in the law.⁴⁹

The European Convention on Human Rights in its article 10 stipulates that;

Every one has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas with out interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.⁵⁰

Lastly, the American Convention on Human Rights in its article 13 provides that; Every one has the right to freedom of thought and expression, this right includes freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of ones choice.⁵¹

⁴⁷ Ibid.

⁴⁸ Ibid.

49 th

African charter on human and people's rights, adopted on 28June 1981 by heads of state and government of the Organization of African Unity in its 18^th assembly, in Nairobi,

st

Kenya and entered into force on 21October 1986

⁵⁰ European convention on human rights, concluded by the ministers of the council of Europe convened in Rome, on 4^th November 1950 and entered on 3 ^rd

into force September 1953

⁵¹ American convention on human rights, adopted at San Jose on 22^nd November 1969 by the Inter-American specialized conference on human rights, and entered into force on 18 ^th July 1978

The right to freedom of expression is however not absolute. For example, article 19(3) of the International Covenant on Civil and Political Rights stipulate that; the exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

> for respect of the rights or reputations of others;

> For the protection of national security or of public order (Ordre public) or of public health or morals.

A similar formulation is found in all continental regional instruments; the European and American regional human rights treaties and the African Charter on Human and People's rights.⁵²

Consequently, the degree of press freedom varies greatly. Industrialized countries also have varying approaches to balance freedom with order. For example, the United States first amendment theoretically grants absolute freedom of press.⁵³

Generally, it appears that in many western democracies, it is generally recognized that restrictions should be the exception and free expression the rule; nevertheless, compliance with this principle seems to be often lacking.

However, given the restrictions stipulated in the above conventional treaties and constitutional approaches of different countries towards press freedom, one can assert that even among liberal democracies, there is no agreement about the fine points of press freedom.

It's therefore pertinent to assert that in almost all countries, freedom of press is balanced against other social values such as cit izens rights to privacy, justice and the nation's security or any other factors relating to the nations even in the United States, freedom of press is questionable when it comes to embedment of journalists during war times.

⁵² European convention on human rights, supra note 50, American convention on human Rights, supra note 51 and African charter on human and people's rights, supra note 49

⁵³ N. C. CORNWELL, supra note 40.

a) Press freedom as a right to information

«Every one has the rightÉto seek, receive and impart information and ideas through any media,»⁵⁴ The United general assembly of 9 ^th

Nations in its September 1946 held in London

declared that «freedom of information was a fundamental human right and the touchstone of all freedoms to which the UN is consecrated»⁵⁵

b) Press freedom as a basic element of democracy

Democracy and press freedom are strongly connected and mutually reinforcing. This is because mass media fulfill an essential function in democracy as a link between the citizens and their political representatives. The information and representation function of the media is thought to be best performed if the media are free, that is to say autonomous. In all dissident movements in Eastern-Europe the demand for democracy was accompanied by the demand for a free press.⁵⁶

A free press is a cornerstone of (liberal) democracy. It is essential for holding government accountable, and for citizens to get informed, communicate their wishes, to participate in the political decision making. In principle, and on the analogy of democracy, press freedom has been accepted world wide as the norm.⁵⁷

The democratic tradition of special reference for freedom of the press has been taken up by international human rights jurisprudence. For example, the European court of Human Rights has emphasized in numerous rulings that, «not only that the press have the duty to impart information and circulate ideas, but the public also has the right to receive them»⁵⁸

Freedom of press as broadly understood gives the public the best means to learn the opinion
and attitude of its political leaders and to form an opinion; at the same time, it allows
politicians the opportunity to reflect on the concerns of public opinion. In effect, it allows the

⁵⁴ Universal declaration of human

rights, adopted by the United Nations General Assembly in

th

its resolution 217[III] of 10December 1948

⁵⁵ E. LAWSON, encyclopedia of human rights, second edition, 1996 p.536

⁵⁶ Hedwig de SMAELE, political communication, the mass media and the consolidation of democracy, Ghent University, Turin, 22 -27^th march, 2002

⁵⁷ Ibid

⁵⁸ Human Rights Watch, supra note 46.

participation of all in an open political debate that is the very basis of the concept of democratic society⁵⁹

The Inter-American court of Human Rights also linked freedom of the press with democracy and added that «journalism is the primary and principle manifestation of freedom of expression and thought»⁶⁰

§2. Press freedom under national laws

This section will highlight the general situation of freedom of press under national laws of different countries. Three countries will be chosen as examples basing on different approaches or theories adopted. This will further be seen from the level of democracy and economic development since different press theories are related to both economic and democracy levels. The United States of America will be considered because of its high level democracy and the strong protection it attributes to freedom of the press. Russia will be considered due to its strong measures against freedom of the press and basing particularly on the fact that it is renowned for post communism whose keen eye on journalism is purely authoritarian. Rwanda will be considered as a fine example from developing countries who have integrated both liberal and development press theories. Most importantly however, the media case prosecuted at the ICTR, which is the core of this research, is based on crimes committed in Rwanda.

Ex. 1 Press freedom in the United States of America

According to Thomas Jefferson (1787), United States President «Were it left to me to decide
whether we should have a government without news papers, or newspapers without a

61

government, I should not hesitate a moment to prefer the latter»

The United States laws have a strong legal protection of freedom of press. All the laws defining press freedom in the United States are derived from the first amendment of the United States constitution.

⁵⁹ Ibid.

⁶⁰ Ibid.

⁶¹ Thomas Jefferson on politics and government, freedom of the press,

( http://etext.virginia.edu/jefferson/quotations/jeff1600.htm )last consulted on 5th October 2007

The first amendment to the U.S constitution, which constitutes the bill of rights, provides that;

«Congress shall make no lawÉabridging the freedomÉof the press»

Practically, all the laws that define press freedom in the United States result from the first amendment of the U.S constitution.

The scope of US press freedom has thus been determined principally by court decisions in reference to the importance the first amendment attributed to press freedom.

Generally, US laws indicate that press freedom plays a «watchdog» role to the government and therefore should not be subject to prior government censorship.

The acquittal of John Peter Zenger in New York v. John Peter Zenger set a dramatic precedent and law protecting press freedom in America. The case confirmed the role of the press as a watchdog against oppressive government... the jury decided that a printer could not be guilty of sedition because his newspaper's criticism of the British government was, in fact, true»⁶²

In the US, the Supreme Court considers a free press as an instrument to official power. For

63

example in New York Times co v. United Statescommonly referred to as the «pentagon papers» the Supreme Court ruled that; «The united states which brought these actions to enjoin publications in the New York times and in the Washington post of certain classified material, has not met the heavy burden of showing justification for the enforcement of a prior restraint»⁶⁴

Several Supreme Court decisions have been ruled in favor of press freedom. As a practical
matter, expression of opinion, however caustic or hurtful is protected under US laws. For
example in Hustler Magazine v. Falwell, the Supreme Court held that; even «outrageous» and

⁶² E.M.MURROW, journalism at its best, freedoms watchdog: the press in the US ( http://usinfo.state.gov/products/pubs/murrow/crawley.htm posted April 2006, consulted July 12, 2007

⁶³ New York times co v. United States, 403 U.S. 713, Certiorari to the United States Court of Appeals for the Second Circuit No 1873. Argued June26 1971, decided 30 June 1971

⁶⁴ Ibid

deliberate attacks on public figures may not be the basis for a lawsuit claiming emotional distress.⁶⁵

Concerning incitement, which is the core subject of this research, the US Supreme Court set a stunning precedence. In Brandenburg v. Ohio the Supreme Court reversed the conviction of a Ku Klux Klan leader who at a public rally during his speech made derogatory statements about African Americans and Jews and threatened the president, congress and Supreme

66

Court.

In this litigation involving incitement to criminal acts, the court ruled that; «the constitution guarantees of free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action»⁶⁷

Generally, basing on the above case laws, press freedom is pampered in the US. Many case laws involving press freedom have been ruled in favor of freedom of the press. It's by this reason that John Floyd an American defense lawyer to Ngeze Hassan always advocated for reference to the US laws on freedom of the press because that freedom is protected jealously.

Ex.2 Press freedom in Russia

Nikolai Lenin a Russian communist president once questioned «why should freedom of speech and freedom of the press be allowed? Why should a government which is doing what it believes to be right allow itself to be criticized? It would not allow opposition by lethal weapons. Ideas are more fatal things than guns. Why should any man be allowed to buy a printing press and disseminate pernicious opinions calculated to embarrass the government»⁶⁸

⁶⁵ HUSTLER MAGAZINE, et AL v. FALWELL, 485 U.S.46, Certiorari to the United States Court of Appeals for the fourth circuit, No 86-1278, argued December 2, 1987, decided February 24,1988

⁶⁶ N.C. CORNWELL supra note 40, p. 89&278

67Brandenburg th

v. Ohio , 492 U.S. 444, Supreme Court of the United States 395, argued February 271969, decided June 9^th 1969

⁶⁸ J. W. FRIEDHEIM, Speaking of a Free Press, Published in 1987 by American Newspaper Association Foundation ( http://www.capitalnewspapers.com/pdf/speaking_of_a_free_press.pdf) last consulted on

5th October 2007

The above statement describes partially the press situation during the communist Russia of Lenin, The post communist Russia has however not escaped the authoritarian brand due to its strong control and censorship with in the media laws.

Freedom of expression is stipulated in the constitution of the Russian federation. Article 29 states that;

1. Every one shall be guaranteed the freedom of ideas and speech.

2. The propaganda or agitating instigating social, racial, national or religious

hatred and strife shall not be allowed. The propaganda of social, racial, national, religious or linguistic supremacy shall be banned.

3. No one may be forced to express his views and convictions or to reject him.

4. Every one shall have the right to freely look for, receive, transmit, produce and distribute information by any legal way. The list of data comprising state secrets shall be determined by a federal law.

69

5. The freedom of mass communication shall be guaranteed. Censorship shall be banned

Press freedom is further guaranteed in Article 3 of the law of the Russian federation on «mass media» which is a legal document that elaborates the freedom, organization and functioning of the media in Russia. Article 4 of the same law list a number of inadmissibility of misuse of the freedom of mass communication⁷⁰

According to a memorandum on amendment to the Russian federal laws on mass media, basing on International and comparative constitutional standards «several of the provisions are unacceptable, vague, failing to give the media sufficient notice of what is prohibitedÉunnecessary inasmuch as they are unduly broad, prohibiting a wider range of expression than is legitimate»⁷¹

⁶⁹ The Constitution of the Russian Federation ( http://www.constitution.ru/en/10003000-03- htm)

70 th

Law No 2124 -1of December 271991 of the Russian federation on mass media, as amended December 8^th 2003

⁷¹Article 19, global campaign for free expression, memorandum on amendments to the Russian federal laws on mass media and combating terrorism, November 2002, London

Article 151 of the 1995 Civil Code and Article 43 of the Statute on the Mass Media lay the responsibility for the correctness of the information with the defendant (i.e., the journalist or the editors of the media outlet). This has created problems for many publishers and broadcasters, who have to prove the accuracy of the allegations in order to avoid liability.⁷²

Ex.3 Press freedom in Rwanda

The Rwandan media have often been blamed for being a major cause of the genocide because of the role some media played in propagating the genocide in which about a million Tutsis and moderate Hutus lost their lives.

Examining the current media situation in Rwanda compels us to look into the evolution of the media in Rwanda to an extent of setting international standards of measuring press freedom.

a) The media before the genocide

The evolution of the media in Rwanda can be traced back to 1933 when the Catholic Church produced Rwanda's only print outlet «Kinyamateka». The paper was firmly established and had gained a wide range distribution in 1955 under Gregoire Kayibanda as its chief editor who was later Rwanda's first president.

In 1961, one year prior to Rwanda's independence, radio Rwanda started broadcasting. Being a government mass media, it exerted all forms of pressure and strict control and censorship from the government. Being a government mouth piece, the radio propagated the PARMEHUTU ideology party system of president Kayibanda, through the second republic of President Juvenal Habyarimana until the genocide.

Radio Rwanda was proceeded by Imvaho and «La rèleve» both government publications and later in 1967 the church created a second bi-monthly publication «Dialogue». To note however, the church publications enjoyed maximum protection from the government because the church was always considered powerful.

It was during 1988 when «Kanguka» emerged, a critical private independent newspaper,
which countered the government's authority. Though working under minimum freedom due

to the government's pressure, the independent press quickly expanded with the legalisation of multi-party politics. By 1992 there were about 30 newspapers in Rwanda.

With the emergence of a number of private publications in 1991, the necessity of a press law was apparent. Accordingly, a law regulating the press was adopted in 1991. Article 3 of the law stipulated that; the press shall ensure sincere and/or fair, independent and responsible reporting»⁷³ the same law «established a national commission on the press which could warn or revoke a journalist for failure to observe the press-laws»⁷⁴

The same law further required newspapers to deposit copies of all issues to the administrative and judicial authorities. Several articles could give way to any interpretation.

b) The media during the genocide

While the new independent press struggled to survive from 1991 and onwards, another press
was emerging. That press backed by officials and the president's close circles practiced

75

undisguised hate -speech against Tutsi.

Kangura newspaper was first created to contest Kanguka newspaper by publishing articles
answering the new press which was becoming more and more critical to the president. The
mission of Kangura was further to mobilise people on the basis of an ethnic ideology to

76

exclude the Tut si. Kangura published the «Hutu ten commandments»as a true incitement to hatred and discrimination of the Tutsi. For example, the commandment held that;

«Any Hutu must know that a Tutsi woman, wherever she is works for her Tutsi ethnic group. Therefore is a traitor any Hutu who marries a Tutsi woman or who has a Tutsi concubine or who hires a Tutsi secretary, or protects a Tutsi woman. The tenth commandment concluded that; every Hutu must widely disseminate this ideology. Any Muhutu who persecute his Muh utu brother for having read, spread and taught this ideology is a traitor»⁷⁷

Kangura was not the only paper promoting hatred. Other hate-media included Umurava a government aided, supported by extremist party CDR or by the militias.

⁷³ M. ALEXIS, IMS consultant, I. MPAMBARA, the Rwanda media experience from the genocide, International media support report, march 2003

⁷⁴ Ibid

⁷⁵ Ibid

⁷⁶ KANGURA Newspaper

⁷⁷ Ibid

Besides inciting, Radio RTLM played a considerable role in helping the killings; the station helped militias in managing the roadblocks, assisted the militias to search, identify and find people who were supposed to be killed.

Whereas radio Rwanda is considered not to have played a direct role in directing and assisting in genocide, it was a platform for extremist politicians and government officials for inciting genocide by calling the population to help the militias to defend the country against the enemy.

c) The media after the genocide

Rwandan media and press freedom remains haunted by the role some media played in the 1994 genocide and therefore, government control and self censorship dominate the post genocide media in Rwanda.

The Rwandan constitution stipulates an abstract provision relating to freedom of press, article 18 states that; ...liberty of conscience, as well as liberty of expressing one's opinion about any subject, shall be guaranteed, except for the punishment of infractions committed during the exercise thereof.⁷⁸

79

The Transitional Assembly adopted in 2002 a media law.Article 10 stipulates that the media shall be independent.⁸⁰ The law provides that, the freedom of press shall include the right to disseminate opinions, gather, receive and distribute the information or opinions through the media. The law further prohibits censorship of the story.

However, some articles within the law are ambiguous and some lay down restrictions, article 57 provide that the right to know or to publish materials from the executive, the judiciary or the legislative may be limited when necessary.

According to article 88, any one involved in production and circulation of a newspaper is
potentially liable for criminal sanctions. The article states that; persons are held individually

⁷⁸ Constitution of the republic of of 4 ^th

Rwanda June 2003, as amended up to date, O.G,

special number of 04/06/2003

⁷⁹ Law no 18/2002 of 11/05/2002 governing the media, official gazette no 13 of 01/07/2002

⁸⁰ Ibid.

responsible for crimes committed in print media in the following order; the director of the publication or the publisher, failing that, the editor in chief, failing that, the authors, failing that, the printers, and failing that, the seller, distributors or bill posters. This put to vendors who have no connection with the published materials to a criminal responsibility.

The law requires a journalist to reveal his sources of information on demand from the judicial organs. This dilute the essence of the right to professional secrets of a journalist as stipulated in article 65 paragraph 2.

Generally, the post genocide press freedom in Rwanda is dictated by the history of the media during the genocide. It is therefore easy for the government to arbitrary justify press censorship on grounds the role of some media played in Rwanda.

Today, the current media law is tabled before the parliament to usher in some modifications. Basing on the draft of the media law, journalists, especially independent journalists, are worried of the possible strict control of the media by the law.

CHAPTER THREE:

REPRESSION OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO COMMIT GENOCIDE vis-à-vis PRESS FREEDOM Section one: Introduction

There is an inherent tension between the right to be free from discrimination and the right to freedom of expression. International law protects both rights. The Universal Declaration of Human Rights provides for example the equal protection against any discriminationÉand against any incitement to such discrimination in its article 7.⁸¹ Article 19 of the same declaration stipulates that every one has the right to freedom of opinion and expression

The ICCPR in its article 19(2) states on one hand that «every one shall have the right to freedom of expression»⁸² on the other hand the same covenant in its article 20(2) provide that «any advocacy of national, racial or religious hatred that constitute incitement to discrimination, hostility or violence shall be prohibited by law.

The dynamics in the above international legal instruments are further manifested in the in regional legal instruments. For example the European convention on human rights provides for the right to freedom of expression in its article 10 at the same time the very right is restricted in article 10(2) on the grounds that the right carries with it duties and responsibilities that may subject it to certain formalities, conditions, restrictions or even penalties.⁸³

As noted from the above, the crime of direct and public incitement to commit genocide knocks against the right to freedom of press in particular and of expression in general and vice versa. The challenge remains how to counter future war propaganda and speeches that jeopardize the rights of others without restricting press freedom. The media case in which Ngeze Hassan belongs will help to establish the parameters laid down in international law on the responsibility of journalists in relation to hate speech.

⁸¹ ÒÉall are entitled to equal protections against any discrimination in violation of this declaration and against any incitement to such discrimination».

⁸²International Covenant on Civil and Political Rights, UN GENERAL ASSEMBLY Resolution 2200 A [XXI] adopted on 16^th December 1966, entered into force on

23 March 1976

⁸³ European Convention on Human Rights, done at Rome, 14^th November 1950 entered into force on 3^rd September 1953.

Section 2: Case law on hate speech prior to Hassan NGEZE

§1. Robert Faurisson v France (Article 19 of the ICCPR)

The case of Robert Faurisson v. France⁸⁴ affirmed the need to restrict the right to freedom of expression. In Faurisson v. France, the plaintiff (Faurisson) challenged as a violation of his right to freedom of expression under article 19 of the ICCPR by the French government for publishing his view doubting the existence of gas chambers for extermination purposes in the Nazi concentration camps.⁸⁵ The defendant (French government) argued that; racism did not constitute an opinion but an aggression, and that every time racism was allowed to express

86

itself publicly; the public order was immediately and threatened.

severely In its judgment,

the committee tocross check held that the restriction on publication of these views did not violate the right to freedom of expression in article 19 and in fact that the restriction was necessary under article 19(3)⁸⁷

§2. The International Military Tribunal at Nuremberg

Among the defendants tried at the International Military Tribunal at Nuremberg (IMT) were Julius Streicher, a publisher of «Der Stürmer» newspaper and Hans Fritzsche, head of a radio station of the Nazi propaganda ministry. The Streicher and Fritzsche cases are the most significant Pre-ICTR international precedents regarding the crime of direct and public incitement to commit genocide.

a) Julius Streicher's case

The IMT sentenced Streicher to death for the anti Semitic articles he published in his weekly newspaper «Der Stürmer». The prosecution placed in evidence a number of damning items that indicated Streicher knew what was going on in the war time death camps yet continued to urge extermination. The judges viewed Streicher as «an extremely distasteful creature and some what of a raving madman»⁸⁸

⁸⁴ Robert Faurisson v. France, Communication No. 550/1993, U.N. Doc.

CCPR/C/58/D/550/1993(1996).

⁸⁵ Prosecutor v. Nahimana et al supra note 1, Para 988

⁸⁶ Ibid

⁸⁷ Ibid

⁸⁸G. S. GORDON, A war of media, words newspaper and radio stations: ICTR media trial and a

new chapter in International law ofHATE SPEECH, Virginia journal if international law,

In its judgment, the IMT quoted numerous instances where «Der Stürmer» called for the extermination of Jews⁸⁹

In a September 1938 article in «Der Stürmer», Editor Julius Streicher described the Jew «as a germ and a pest not a human being, but a parasite, an enemy an evildoer and a disseminator of diseases who must be destroyed in the interest of mankind»⁹⁰

The tribunal found that twenty-six articles published between august 1941 and September 1944 of which twelve were signed by Streicher himself «demanded annihilation and extermination in unequivocal terms»⁹¹

One of the excerpts from Streicher's writings introduced by the prosecution declared that «the male sperm in cohabitation is partially or completely absorbed by the female and thus enters her blood stream. One single cohabitation of a Jew with an Aryan woman is sufficient to poison her blood forever. Never again will she be able to bear purely Aryan children, even when married to an Aryan. They will all be bastards. Now we know why the Jew uses every artifice of seduction in order to ravish German girls at as earl y an as possible; why the Jewish doctor rapes his female patient while they are under anesthetic»⁹²

It is important to note that the judgment in Streicher's case did not establish a causal link between Streicher's publications and any specific acts of murder; instead it referred to his work as a poison that was injected into the minds of Germans.

The charges presented by lieutenant colonel J.M Griffith-Jones of the British prosecution held that «it may be that this defendant is less directly involved in the physical commission of the crimes against JewsÉthe effect of this man's crimes of the poison that he has injected into the minds of millions and millions of young boys and girls and young men and women

2000 (west law, 45a. J.Int'l L. 139)

⁸⁹B. F. SMITH, Reaching judgment at Nuremberg, the untold stories of how the Nazi war

criminals were judged, 1977, first edition p.201

⁹⁰E. DAVIDSON, the trial of the Germans, an account of the twenty two defendants before the International Military Tribunal at Nuremberg, 1966, first university of Missouri press

paper back edition 1997, p.47

⁹¹ W. A. SCHABAS, supra note 21, p.39

⁹² R. E. CONOT, justice at Nuremberg, first Carroll and graft edition, 1984, p.382

lives on. He leaves behind him a legacy of almost a whole people poisoned with hate, sadism and murder, and perverted by him»⁹³

The tribunal concluded that «Streicher's incitement to murder and extermination at the time when the Jews in the east were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes as defined by the charter, and constitutes the crime against humanity»⁹⁴

b) Hans Fritzsche's case

Also charged with incitement as a crime against humanity, Hans Fritzsche was acquitted by the IMT. He was head of the radio section of the propaganda ministry during the war. Accused of incitement to commit genocide, Fritzsche defended himself that he had turned down requests from Goebbels to incite antagonism and arouse hatred and that he had never voiced the theory of the «master race» In his testimony, Fritzsche disclosed that he expressly prohibited the term from being used by German press and radio that he controlled. He further testified that he had expressed his concern over the content of the newspaper «Der Stürmer» and that he had tried twice to ban it.

In its judgment for acquittal, the tribunal found that Fritszche had not had control over the formulation of propaganda policies, that he had merely been a conduit to the press of directives passed down to him. Concerning the charge that he had incited the commission of war crimes by deliberately falsifying the news to arouse passion in the German people, the tribunal found that «although he had some times false news, it had not been established that he new it to be false.»⁹⁵

§3. European case law

The European Court of Human Rights (ECHR) has also developed jurisprudence on the
proper balancing the right to freedom of expression. For example in Jersild v. Denmark⁹⁶ a
case in which a journalist held an interview with «Greenjackets» members of a racist youth

⁹³ Idem Para 384-385

⁹⁴ W. A. SCHABAS supra note 21, p.41-42

⁹⁵ Prosecutor v. Nahimana et al supra note 1, Para. 982

⁹⁶Jersild v. Denmark, European Court of human rights, series A no 298, judgment of 23 September1994.

group in Denmark. In the interview, the Greenjackets identified themselves as racists and made extremely offensive remarks about black people and immigrants⁹⁷

Those who were interviewed in the program were prosecuted for their speech, along with Jersild over violation of Denmark's law prohibiting «dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin».⁹⁸

Jens Olaf Jersild took his case through the Danish domestic procedures to the European Court of Human Rights which finally ruled that; «the media should be free to report on hate speech and should not be prosecuted for transmitting expression, even if that expression is unlawful in the country concerned. This is particularly so when, as in this Danish case, the program was made in the public interest to expose a problem»⁹⁹. The Court found that «Jersild's right to freedom of expression and information as protected in Article 10 of the European Convention on Human Rights had been violated»¹⁰⁰

§4. The ICTR case law before Ngeze Hassan

Responding to the Rwandan genocide in which about a million Tutsis and moderate Hutus were massacred in 1994, the Security Council acting under chapter VII of the UN, created the International Criminal Tribunal for Rwanda (ICTR) by resolution 955 of 8 November 1994. The Tribunal was established for the prosecution of the perpetrators of the Rwandan genocide

101

and other serious violations of international humanitarian law. It's by this Tribunal that Jean Paul Akayesu¹⁰² and George Ruggiu¹⁰³ were convicted and sentenced for, inter alia, the crime of direct and public incitement to commit genocide.

⁹⁷ Prosecutor v. Nahimana et al, supra note 1, Para 992

⁹⁸ Ibid

⁹⁹ Helen Darbishire, hate speech: new European perspective, European commission 2007, visited 9 ^th

www.errc.org/cikk.php?cikk on July, 2007

100 Ibid

101 Articles 1-4 of the ICTR Statute

102 Prosecutor v. Akayesu supra note 24

103 Prosecutor v. Ruggiu, case no ICTR-97-32-I, trial chamber 1, judgment, June 2000

a) The Prosecutor v. Akayesu

The ICTR set a precedent for the interpretation of the crime of direct and public incitement to commit genocide. In its findings, the ICTR held that «whatever the legal system, direct and public incitement must be defined for the purposes of interpreting Article 2(3)(c), as directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication»¹⁰⁴.

Defining the mens rea of the crime of direct and public incitement, the trial chamber found that «The mens rea required for the crime of direct and public incitement to commit genocide lies in the intent 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. That is to say that the person who is inciting to commit genocide must have himself the specific intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious group, as such»¹⁰⁵

The Akayesu judgment also considered whether the crime of direct and public incitement to commit genocide can be punished even where such incitement was unsuccessful, and concluded that the crime should be considered as an inchoate offence (acts constituting an offence per se irrespective of their results) under common law or an infraction formelle under civil law, the fact that «such acts are in themselves particularly dangerous because of the high risk they carry for society, even if they fail to produce results warrants that they be punished as an exceptional case».¹⁰⁶

104 The prosecutor v. Akayesu, supra note 24, Para 559

105 Idem Para 560

106 Idem, Para 562

The tribunal held that «genocide clearly falls with in the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even when such incitement failed to produce the result expected by the perpetrator»¹⁰⁷

The trial chamber also found that the «É direct element of incitement should be viewed in the light of its cultural and linguistic content» and that «a particular speech may be perceived as direct in one country and not so in another, depending on the audience»¹⁰⁸

b) The prosecutor v. Ruggiu

George Ruggiu, a Belgian national, was found guilty of the crime of direct and public

109

incitement to commi t genocide and was consequently sentenced to 12 years imprisonment.

In its judgment, the trial chamber noted that the accused, who was a journalist, «had played a critical role in the incitement of ethnic hatred and violence that RTLM vigorously pursued.» 110

The trial chamber found: «Through his broadcasts at the RTLM, Ruggiu encouraged setting up roadblocks and congratulated perpetrators of the massacres of the Tutsis at these roadblocks» 111

After examining the relevance of Streicher's case to the one of Ruggiu, the tribunal remarked that «Streicher's case was particularly relevant since Ruggiu like Streicher, infected peoples minds with ethnic hatred and persecution» 112

The trial chamber further noted that his broadcasts «continued to call upon the population particularly the military and the Interahamwe militia to finish off the 1959 revolutionÉan incitement to massacre the entire Tutsi population» 113

107 Ibid

108 Idem , Para 557

109 The prosecutor v. Ruggiu, supra note 90, para 81

110 Idem, Para 50

111 Ibid

112 Ibid

113 Idem Para 44(ii)

As an aggravating factor, the trial chamber found that «the accused became aware that the broadcasts from the RTLM radio station were contributing to the massacres perpetrated against Tutsis, yet the accused made a deliberate choice to remain in Rwanda and to continue his employment with the RTLM. The accused's radio programs incited hatred against Tutsis Hutu political opponents and Belgians»¹¹⁴

Section 3: the Hassan NGEZE case

Hassan Ngeze, editor-in-chief of the notorious Kangura newspaper was, inter alia, convicted of the crime of direct and public incitement by Trial Chamber I of the ICTR on 3 December 2003.

§1 Historical background

th

Hassan NGEZE was born on 25 December 1957 in Rubavu commune, Gisenyi prefecture, Rwanda. From 1978, he worked as a journalist, and in 1990 he found a newspaper Kangura and held the post of editor-in-chief. Prior to this, he was the distributor of Kanguka newspaper in Gisenyi. Ngeze was also a founding member of the Coalition pour la Defence de la Republique (CDR) party¹¹⁵

rd

Hassan Ngeze was charged pursuant to an earlier indictment of 3 October 1997 with genocide, direct and public incitement to commit genocide and crimes against humanity. An amended Indictment (ICTR -97-27-1) of November 1999 charged him with seven counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide and crimes against humanity (persecution, extermination and murder) pursuant to Articles 2 and 3 of the statute of the ICTR.¹¹⁶

He was charged with individual responsibility under article 6(1) of the statute for these
crimes and was also charged with superior responsibility under article 6(3) in respect of all

114 Idem Para 51

115 Prosecutor v. Nahimana et al, supra note 1, Para 7

116 Idem Para 10

but one of the crimes-conspiracy to commit genocide. He was charged mainly in relation to his activities as an Editor-in-Chief of Kangura.¹¹⁷

Hassan Ngeze was arrested Kenya 18 ^th

in on July 1997 and transferred to the tribunal's

detention facility the same day, pursuant to an order for transfer and provisional detention issued by judge Laity KAMA on 16^th July 1997.

On 30^th September 1997, Ngeze Hassan made his initial appearance and pleaded not guilty to all crimes.

§2 Judgment of the Trial chamber I

In its findings, the Trial Chamber held that «Hassan Ngeze wrote many articles and editorials, and made many statements that openly evidence his genocidal intent».¹¹⁸

The trial chamber found that Ngeze Hassan in his writings incited the Hutu population into killing the Tutsi. The chamber held that «the appeal to the conscious of the Hutu and the ten commandments published in Kangura no. 6 in December 1990 conveyed contempt and hatred for the Tutsi ethnic group»¹¹⁹ The cover of Kangura no 26 promoted violence by conveying the message that the machete should be used to eliminate the Tutsi once and for all: «this was a call for the destruction of the Tutsi ethnic group as such through fear mongering and hate propaganda. Kangura paved the way for genocide in Rwanda, whipping the Hutu population into a killing frenzy» 120

In determining Ngeze's genocidal intent, the trial chamber quoted an article that Ngeze published in Kangura in January 1994¹²¹

The trial chamber referred to the cover of Kangura no 26 where statements like «what
weapons shall we use to conquer Inyenzi once and for all? With a depiction of a machete,
«what about re-launching the 1959 Bahutu revolution so that we can conquer the Inyenzi

117 Ibidem

118 Idem Para 968

119 Idem Para 245

¹²⁰G. S. GORDON, supra note 74

121 Let's hope the Inyenzi will have the courage to understand what is going to happen and realize that if they make a small mistake, they will be exterminated; if they make a mistake of attacking again, there will be none of them left in Rwanda, not even a single accomplice. All the Hutus are united...

Ntusi and the lead cover headline «the Batutsi, God's race!» as a clear manifestation of Ngeze's genocidal intent to incite the Hutus against the Tutsis.¹²²

In determining the relationship between speech and the physical materialization of the crime of genocide, the trial chamber held that «...international jurisprudence does not include any specific causation requirement linking the expression at issue with the demonstration of a direct effect...»¹²³

The tribunal, after examining the content of the articles of Ngeze, reviewed international

124

humanitarian legal instruments as well as the existing international case laws, framing its

analysis in terms of reconciling the coherent tension between freedom of speech and freedom from discrimination.

The trial chamber found that, based on the fact that Ngeze was the owner and editor of Kangura newspaper and that he directly controlled the publication and all of its content, Ngeze acted with «Intent»¹²⁵ through his publication to «instill hatred, promote fear and incite genocide»¹²⁶. The Chamber also found that «it was evident that Kangura played a significant role and was seen to have played a significant role, in creating conditions that led to acts of genocide»¹²⁷

§3 Challenges met while prosecuting Ngeze Hassan a) Temporal jurisdiction of the ICTR

Article 7 of the ICTR statute stipulates that «the territorial jurisdiction of the international criminal tribunal for Rwanda shall extend to the territory of Rwanda including its land surface and airspace as well as the territory of the neighboring states in respect of serious violations of international humanitarian law committed by Rwandan citizens. The temporal

122 Prosecutor v. Nahimana et al, supra note 1, Para 160

123 See supra, first chapter, section 2, §3 (a)

124 See, Supra, section I chapter 3

125 Prosecutor v. Nahimana et al, supra note 1, Para 969 & 1038

126 Ibid

127 Ibid

jurisdiction of the international tribunal shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994» 128.

st

As noted above, the temporal jurisdiction of the tribunal is limited to the period 1

between

January and 31^st December 1994. However, most issues of Kangura were published prior to the stipulated jurisdiction of the ICTR. For example, the famous Hutu Ten Commandments were published in 1990 and Kangura issue no 26 was published prior to the ICTR jurisdiction. The counsel for Ngeze contended that the chamber had no jurisdiction over Kangura issues published before 1994.

In its judgment the trial chamber noted that «while many of the events referred to in the indictment precede 1^st January 1994, such events «provide a relevant background and a basis of understanding the accused's alleged conduct in relation to the Rwandan genocide of 1994.»¹²⁹

b) Translation of Kangura newspaper

Kangura was widely printed and circulated in Kinyarwanda language. Counsel for Ngeze repeatedly submitted that «it was necessary for the tribunal to translate the 71 Kinyarwanda issues of Kangura from the original Kinyarwanda to French and English (the working languages of the tribunal) in order for the accused, who stands charged mainly in relation to the contents of the newspaper, to have a fair trial»¹³⁰ the Chamber however held that the translation of the Kangura newspapers would stretc h the resources of the tribunal beyond it's capacity.

c) Position of rights advocates on the judgment of the media case

th

According to a report from open society justice initiative received on 12January 2007 by
the ICTR, there were some ambiguities and errors in the trial chamber's legal reasoning.

128 The statute of the ICTR adopted by resolution 955 of the United Nations Security Council

129 Prosecutor v. Nahimana et al supra note 1, Para 100

130 Idem Para 44

According to the report, «hate speech which does not call to violence should not be assimilated to the international crime of direct and public incitement to commit genocide».¹³¹

Open society justice initiative further noticed that the trial chamber erred to consider earlier events to 1^st January 1994 in order to establish the responsibility of Ngeze.¹³²

§5 Importance of the NGEZE case.

The most significant achievement of the Ngeze case is that, it helped define the parameters of freedom of press vis-à-vis freedom from discrimination through establishing the role of newspapers like Kangura and their respective operators like Ngeze Hassan in relation to the crime of direct and public incitement to commit genocide.

In the tribunals reasoning, ethnic speech transmitted through the mass media during the genocidal atmosphere put a heavy risk the transmitter to be prosecuted even when the intended crime does not materialize.

The inchoate¹³³ doctrine introduced by the tribunal in the media case set another international jurisprudence of prosecuting hate speech.

The «media case' is important in that it provided an invaluable guidance for future international courts to examine the content of hate speech. For example, the tribunal in Ngeze's case laid down some criteria tests to determine both material and mental elements of the perpetrators by examining the purpose, text, context and relationship between the perpetrator and the subject.

The fact that the media case is the first case involving journalists, in which the crime of direct and public incitement to commit genocide has been prosecuted, tried and sentenced since the codification of the genocide convention, its case law will be very important to the international criminal courts jurists in prosecuting, defending and judging such cases. In fact

¹³¹Hirondelle News Agency, ICTR/MEDIAS- A REPORT WARNS ICTR AGAINST CONCLUSION OF THE

th

MEDIA JUDGEMENT, Arusha, Tanzania, 29January 2007

132 Ibid

133 See, supra, first chapter, section 2, §1 (c)

the same case law will play an important role in the trial of Simon Bikindi 134 who is accused, inter alia, of direct and public incitement to commit genocide. The tribunals ruling represent a historical expansion of international legal responsibility with respect to hate speech.

134 Simon Bikindi v. Prosecutor, Case No. ICTR-2001-72-I, Trial Chamber 1, 2001

FINAL CONCLUSION

The role of hate media facilitates genocide to take place. The impact that follows this facilitation is what motivated the codification of the crime of direct and public incitement to commit genocide into the genocide convention.

The impact of hate speech is devastating in as far as it calls for the extermination of targeted groups. For example the call of Streicher where he wrote that «if the danger ofÉreproduction of that curse of God in the Jewish blood is finally to come to an end, then there is only one way - the extermination of that people whose father is the devil». As well as Kangura issue no 26 with titles like what arms shall we use to conquer the Tutsi once and for all?, is a clear manifestations of a need to check on the right to freedom of the press.

In fact, the tension in between the right to be free from discrimination and the right to freedom of expression is closing up because most innovative legal reasoning concerning the relationship between the crime of direct and public incitement are expressive in a more restricted sense on the right to freedom of expression and more protective on the right to be free from discrimination (hate speech). The question now remains in designing parameters between opinions constitu ting ethnic consciousness and ethnic consciousness that constitute the crime.

Furthermore, there is a pending ideal that exists between the diminishing freedoms of expression in general and of press in particular as protected in international law and the beginning of international criminal responsibility relating to hate speech.

The effective use of the media requires assessing the stage that the genocidal situation has reached and devising a response strategy appropriate to that stage.

The Rwandan genocide media portrays the fate of the freedom of press vis-à-vis incitement. In the first instance, the media played a major role in inciting Rwandans to commit genocide. However, the media behavior during the genocide should be examined to describe the fate of the general post genocide media situation. During the genocide, both Kangura newspaper and radio RTLM were closely connected to the ruling political party of the Rwandan government and the extremist pro government CDR political party through stock ownership, seats on the board of directors, and cross consultation.

Remembering that since Hitler, genocide has been a state manufactured phenomenon, preceded by propaganda campaigns of political leaders, no doubt that an authoritarian media whose self-censorship is to win the government's sympathy will automatically lend a hand in situations of genocide perpetrated by governments or politicians.

It can therefore be concluded that, it is impossible for the crime of direct and public incitement to take place without strong political partnership between government and political parties and the media.

It should also be noted that poor developing nations, struggling to move from authoritarian and arbitrary rule to establish liberal democratic foundations of civil society, are particularly vulnerable to genocide. Such societies have few competing media outlets, Journalism in such societies possess no tradition of independent media, with lack of professional standards for journalists and pursue a media culture that exhibits a lot of self censorship. The lack of a serious independent media Journal ists in such societies are frequently influenced and enticed by the dominant political party, are dependent on stereotyping and sensationalism for the opinion of their news stories and are subjective to possible news stories that would compromise professional ethics.

On the other hand, good, trained and objective journalists with high professional standards are frequently subjected to threats and, in panic of facing arbitrary laws, beatings and even assassination, may compromise to manipulation and intimidation of purveyors of fear who are regularly government agents.

To this end, a vibrant libertarian independent media, free from both self and government censorship will fight genocide where as the authoritarian, government and ruling political parties mouth piece media will propagate genocide ideology.

RECOMMENDATIONS

In conflict situations, national and foreign monitoring of the media, training programs on codes of conduct to raise the skills and standards of local editors and journalists and strengthening of the local independent media should be emphasized. The benefits of interethnic cooperation, the real benefits of cooperation and peaceful solutions to problems are also useful methods for conflict resolution.

In a genocidal atmosphere where massacres are insistent and due to government threats and intimidation make it impossible for local independent journalists to counter the force behind massacres, nongovernmental organizations (NGOs) should intervene effectively against media promoters of hate speech.

Foreign governments and NGOs, regional associations of states and international organizations like the United Nations, the African Union and the European Union must place the disseminators of hate propaganda on notice so that to enable the prosecution and punishment of guilty media owners, editors and journalists.

Foreign and international broadcasters should broadcast accurate, targeted news in local languages to counter hate speech and distortions of domestic information sources and to complement whatever material domestic anti-hate broadcasters are able to transmit to their listeners.

Persistence to transmit hate speech on one hand should require destroying the transmitters and printing presses of the hate propagandists especially where effects of hate speech are evident. On the other hand, Foreign broadcasters should supplement their news broadcasts with frequent warnings that genocide is being prepared, report realistic threats designed to deter the perpetrators from further killing, provide accurate information to discourage potential victims from congregating in perpetrator -targeted locations, like the churches which became killing-grounds in Rwanda, and appeal to ordinary citizens to hide and protect members of the victim group.

Government's role and attitude in repressing and censuring the media should be rectified not only to check on the role of the government as architecture of genocide but also as an approach to build strong democratic institutions.

Lastly, I strongly recommend governments not to suppress independent press under the disguise of the role of the media in Rwandan genocide as its very evident that only the government sponsored media in the history of genocide participated in one way or the other in facilitating genocide and its ideology when on the contrary independent press was countering the genocide propaganda.

BIBLIOGRAPHY I. LEGAL TEXTS

A. National legal texts

1. Constitution of the republic of Rwanda of 4^th June 2003, as amended up to date, in the O.G.R.R, special number of 04/06/2003

2. Law no 18/2002 of 11/05/2002 in the O.G.R.R 13 of 01/07/2002 governing the media

3. Law No 2124-1 of December 27^th 1991, as amended December 8^th 2003

B. International legal texts

th

1. The statute of the International Criminal Tribunal for Rwanda adopted on 8 November by resolution 955 of the United Nations Security Council (ICTR)

2. The statute of the international criminal tribunal for the former Yugoslavia adopted on 25^th May 1993 by resolution 827 of the United Nations security Council as amended in April 2004

3. The Rome statute of the International Criminal Court (ICC) which entered into force on 1^st July 2002

C. International conventions

1. Convention on the prevention and punishment of the crime of genocide, approved by the United Nations General Assembly in its Resolution 260(III) of 19 December 1948

2. Universal declaration of human rights, adopted by the United Nations General

th

Assembly in its resolution 217[III] of 10December 1948

3. International covenant on civil and political rights, adopted by the United Nations General Assembly in its on 16 ^th

resolution 2200 A [XXI] Decemb er 1966 and entered

into force on 23^rd March 1976

4. African charter on human and peoples rights, adopted on 28 ^th June 1981 by heads of state and government of the organization of African Unity in its 18^th assembly, in Nairobi, Kenya and entered into force on 21^st October 1986

5. European convention on human rights, concluded by the ministers of the council of

th

Europe convened November entered on 3 ^rd

in Rome, on 4 1950 and into force

September 1953

6. 22 ^nd

American convention on human rights, adopted at San on

Jose November 1969

by the Inter-American specialized conference on human rights, and entered into force on 18^th July 1978

II. CASE LAW

A. The ICTR case law

1. ICTR, The Prosecutor v. Akayesu, case no. ICTR-96-4-T judgment, Trial chamber 1, 2 September 1998

2. ICTR, The Prosecutor v. Jean Kambanda, case no. 67-23-SICTR judgment, trial chamber 1, 4^th September 1998

3. ICTR, The Prosecutor v. Ruggiu, case no ICTR-97-32-I, trial chamber 1, judgment, June 2000

4. ICTR, The Prosecutor v. Nahimana, Barayagwiza, and Ngeze, case no. ICTR-99-52- T, trials chamber 1, 3 December, 2003,

B. Other case law

1. ECHR, Jersild v. Denmark, European Court of Human Rights, series A no 298, judgment of 23 September1994.

2. HUSTLER MAGAZINE, et AL v. FALWELL, 485 U.S.46, Certiorari to the United States Court of Appeals for the fourth circuit, No 86-1278, argued December 2, 1987, decided February 24,1988

3. New York times co v. United States, 403 U.S. 713, Certiorari to the United States Court of Appeals for the Second Circuit No 1873. Argued June 26 1971, decided 30 June 1971

4. Brandenburg v. Ohio, 492 U.S. 444, supreme court of the United States 395, argued February 27^th 1969, decided June 9^th 1969

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st

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