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

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.

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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

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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

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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

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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.

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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)

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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

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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

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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

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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.