The Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) convicted the accused of direct and public incitement to commit genocide and persecution as a crime against humanity, but in so doing blurred the distinction between hate speech and international crimes. Following an intervention by the Justice Initiative, the Appeals Chamber clarified the international legal standards on the issue. (Keywords: Incitement to Commit Genocide – Hate Speech – Freedom of Expression)
Ferdinand Nahimana and Jean-Bosco Barayagwiza founded Rwanda's Radio-Television Libre des Mille Collines (RTLM) and Hassan Ngeze edited the twice-monthly Kangura newspaper. Both media outlets were used as vehicles for promoting extremist Hutu ideology, inciting hatred, and exhorting listeners and readers to murder Tutsis during the 1994 genocide in Rwanda. On December 3, 2003, an ICTR Trial Chamber convicted the three defendants of charges including direct and public incitement to commit genocide.
Although it is widely agreed that there was sufficient evidence to convict the defendants of serious crimes, portions of the trial judgment appeared to expand the elements of direct and public incitement to genocide and persecution as a crime against humanity that raised concerns relating to freedom of speech and expression. Some portions could, for example, provide cover for the suppression of legitimate dissent through overly broad restrictions on speech and incitement.
Indeed, some governments apparently seized upon the trial judgment to justify silencing independent media. In the period after the Trial Chamber issued its judgment in Nahimana, repressive governments in Africa used the decision as an excuse to shut down any legitimate criticism by the local press or civil society. For example, the judgment has been used in Chad, Ethiopia, and Democratic Republic of the Congo to justify silencing journalists by either imprisonment or harassment.
The Justice Initiative submitted an amicus curiae brief to the Appeals Chamber, in collaboration with African and international human rights and freedom of speech and expression groups.
Hate speech and direct and public incitement to genocide. The Trial Chamber’s reliance on the treatment of hate speech in international human rights law to interpret the international crime of direct and public incitement to genocide blurred the distinctions between hate speech that did not incite violence and speech that incited violence with genocidal intent, thereby amounting to incitement to commit genocide.
Hate speech and persecution as a crime against humanity. The Trial Chamber similarly erred in concluding that hate speech can constitute the actus reus of the crime against humanity of persecution where the speech in question advocates hatred but not violence.
Incitement to genocide is not a continuing crime. The Trial Chamber improperly relied on speech that occurred before the ICTR’s temporal jurisdiction because it considered the act of incitement to continue to the time of the commission of the acts incited.
December 3, 2003. ICTR Trial Chamber issues its judgment on the case.
December 15, 2006. Justice Initiative files an amicus brief to ICTR Appeals Chamber.
November 28, 2007. ICTR Appeals Chamber issues its judgment.
On direct incitement to genocide, the ICTR Appeals Chamber held that the jurisprudence on hate speech is not directly applicable to determining what constitutes direct incitement to genocide and that a defendant cannot be held accountable for the crime of direct and public incitement to genocide for hate speech that does not directly call for the commission of genocide. On persecution as a crime against humanity, the Appeals Chamber considered that hate speech violates human rights including the right to dignity, and questioned whether, in the absence of incitement to violence, hate speech was of sufficient gravity to entail persecution as a crime against humanity, but determined that it was unnecessary to resolve the question because some speech acts included calls to violence against persons and destruction of property. The Appeals Chamber also fully agreed with the Justice Initiative that the Trial Chamber had improperly relied on speech that occurred before the ICTR’s temporal jurisdiction as part of the actus reus of crimes.