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The crime of direct and public incitement to commit genocide before the ictr: a case of ngeze hassan( Télécharger le fichier original )par Yassin Tusingwire National University of Rwanda - LLB 2007 |
NATIONAL UNIVERSITY OF RWANDA FACULTY OF LAW
THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO 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 i 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 ii 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 iii 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 vi TABLE OF CONTENTS DECLARATION i EPIGRAPH ii DEDICATION iii ACKNOWLEDGEMENT iv LIST OF ABREVIATIONS AND ACRONYMS v TABLE OF CONTENTS vi GENERAL INTRODUCTION 1
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
§1 Definition of the crime of direct and public incitement to commit genocide 10
§2 The character of direct and public incitement to commit genocide 12
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
§2. Press freedom under national laws 19
CHAPTER THREE: 27 REPRESSION OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO
FINAL CONCLUSION 40 RECOMMENDATIONS 41 BIBLIOGRAPHY 43 GENERAL INTRODUCTION
«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 4 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 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 6 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 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 10 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 11 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')
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. 6 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:
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 genocideArticle 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
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 19 state of the perpetrator. The mens rea must be formed prior to the commission of an act of genocide in the sense that 20 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 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, 21st September - 10th 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
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 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 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 14 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. |
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