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Max Planck Encyclopedia of Public International Law [MPEPIL]

Nahimana and Others Case

Ignacio Tredici

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 26 June 2019

Crimes against humanity — Genocide — Individual criminal responsibility — International criminal courts and tribunals, composition

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Introduction

Prosecutor v Nahimana, most commonly referred to as the Media Case, was adjudicated by the International Criminal Tribunal for Rwanda (ICTR). Among other charges, the three accused, Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze, were convicted by Trial Chamber I (TC) of genocide, conspiracy to commit genocide, and direct and public incitement to commit genocide. Nahimana and Barayagwiza were found criminally responsible (Individual Criminal Responsibility), as civilian superiors (Criminal Responsibility, Modes of), for the broadcasts of the Radio Télévision Libre des Mille Collines (RTLM), of which they were founders along with other prominent Rwandans. According to the Prosecution of the ICTR the radio was used as means of propagating ethnic hatred and inciting their audience to commit genocide and persecution against the Tutsi population. Barayagwiza was also accused of having incited partisans from his extremist Hutu party, Coalition pour la Défense de la République (CDR), to commit genocide. Ngeze was charged with using the newspaper he had created, Kangura, with the same goal. The three convicts were also accused of other international crimes falling under the jurisdiction of the ICTR.

The Prosecution tried to prove during trial that each one of the accused represented an institution (RTLM, CDR, and Kangura) that had played a specific instrumental role in the commission of genocide against the Tutsi population.

The convictions were partially upheld by the Appeals Chamber (AC) of the ICTR. The relevance of this judgment, in terms of the development of international criminal law, lies in the discussion of the elements of direct and public incitement to commit genocide, the temporal jurisdiction of the ICTR, and the criminal responsibility of civilian superiors for crimes committed by their subordinates, among other issues.

On 5 December 2016, Judge Theodor Meron, President of the United Nations Mechanism for International Criminal Tribunals (‘MICT’), granted Nahimana’s application for early release.

B. Factual Background of the Case

Ferdinand Nahimana was appointed director of ORINFOR (Rwandan Office of Information) in 1990 and remained in that post until 1992. In 1992, he and others set up a comité d’initiative (steering committee) to establish the RTLM. He was also a member of the Mouvement révolutionnaire national pour le développement (MRND), the Hutu-dominated ruling party in Rwanda, before and during the 1994 genocide. Sentenced to life by the TC, his conviction was reduced to 30 years’ imprisonment by the AC.

RTLM started broadcasting in July 1993. The radio played a significant role in the social life of the Rwandan citizens. It was the most popular means of information and entertainment. Witnesses described that during the genocide the average Rwandan had a radio stuck to the ear in one hand, waiting for instructions from RTLM, and a machete in the other hand, ready to kill. The TC concluded that RTLM actively encouraged the Interahamwe (those who ‘work’ together) militias to kill Tutsis. The militia committed genocide against the Tutsi population upon hearing the message propagated by the radio.

Jean-Bosco Barayagwiza was a founding member of the CDR, an extremist party allied to the MRND, formed in 1992 in Rwanda. He was also a member of the steering committee responsible for the establishment of the company RTLM, which owned the radio RTLM. Sentenced to 35 years’ imprisonment by the TC, his conviction was reduced to 32 years by the AC on account of its findings and the violation of the accused’s fundamental rights.

The ideology promoted by the CDR was found to be discriminatory against the Tutsi population. The TC concluded that Barayagwiza played a fundamental role in the decision-making process of the party. The TC found that the killing of Tutsis in Rwanda was fuelled, among other things, by the repeated singing of the song Tubatsembatsembe (Let’s exterminate them) by the accused himself and other members of the CDR, including its extremist youth wing known as the Impuzamugambi. Barayagwiza was convicted, as a superior, for failing to prevent or to punish the crimes committed by the lower cadre of his party and for inciting genocide.

Hassan Ngeze (born 1957, Gisenyi, Rwanda) worked as a journalist since 1978. In 1990, he founded the newspaper Kangura, where he held the post of editor-in-chief. He was also a founding member of the CDR. Sentenced to life by the TC, his conviction was reduced to 35 years by the AC.

10 Kangura, a monthly publication consisting of a printed edition of approximately 1,500 to 3,000 copies, was first published in May 1990. During trial, the parties offered as evidence the reports and testimonies of linguistics experts that discussed the content of the articles and the broadcasts in the Rwandan context. Published in December 1990, the article entitled ‘Hutu Ten Commandments’ described the Tutsi population as the ambitious, dishonest, and evil enemy of the Hutu. The Hutu Ten Commandments became the motto of the genocidal regime in 1994. In issue No 40, published in February 1993, in an article entitled ‘A Cockroach (Inyenzi) Cannot Give Birth to a Butterfly’ (Kangura No 53 [February 1993] 78), the term inyenzi (cockroach) was used for the first time to refer to the Tutsi population.

C. History of the Proceedings

11 Nahimana and Barayagwiza were arrested in Cameroon in March 1996. Ngeze was arrested in Kenya in July 1997. Having found that the Prosecution had failed to prosecute the case with due diligence, the AC dismissed the indictment against Barayagwiza and ordered his immediate release in Barayagwiza v Prosecutor (Decision) (ICTR-97-19-A [3 November 1999]; ‘AC Decision’). On 22 November, the Prosecution filed a request for review and reconsideration of the AC Decision. The Rwandan government publicly reacted to the AC Decision by threatening to stop collaborating with the ICTR. On 31 March 2000, the AC reviewed its Decision and modified the remedy for the violation of the rights of the accused to providing financial compensation or, in case the accused was convicted, reducing his sentence.

12 On 6 June 2000 the TC granted the Prosecution’s request for a joint trial of the three accused. The oral hearings started on 23 October 2000 and concluded on 9 May 2003, after 238 trial days. The judgment and sentence were issued on 3 December 2003 (Prosecutor v Nahimana (Judgment and Sentence); ‘TC Judgment’). The three convicts and the Prosecution lodged appeals. The AC issued its judgment on 28 November 2007 (Prosecutor v Nahimana [Appeal Judgment]).

13 On 5 December 2016, the President of the MICT granted Nahimana’s application for early release on the basis that he had completed two-thirds of his sentence (on 27 March 2016) and that he had demonstrated ‘some signs of rehabilitation’. The early release was granted even though the President also concluded that the crimes for which the applicant had been convicted were ‘very grave’.

D. Analysis of the Judgment

14 The TC found the three accused guilty of conspiracy to commit genocide, direct and public incitement to commit genocide, persecution, and extermination as a crime against humanity (Crimes against Humanity). Nahimana and Ngeze were sentenced to imprisonment for the remainder of their lives. With respect to Barayagwiza, and on account of the violation of his right to a fair trial, his sentence was reduced to 35 years.

15 With respect to RTLM, the AC found that the TC findings were so imprecise that a re-examination of the facts of the case was necessary. For this purpose, and after concluding that only the broadcasts that fall within the temporal jurisdiction of the ICTR (ie after 1 January 1994) could constitute a crime, they divided the facts into those that happened before and those that occurred after 6 April 1994. The AC concluded that, even though the broadcasts for the period 1 January to 6 April 1994 incited ethnic hatred, it could not be established that they directly and publicly incited the commission of genocide. After examining the broadcasts for the post-6 April period, the AC held that the following broadcasts constituted direct and public incitement to commit genocide: (1) 13 May broadcast where the reporter Kantano Habimana spoke of exterminating the Inkotanyi, so as to wipe them out from human memory and exterminating the Tutsi from the surface of the earth making them disappear for good; (2) 4 June broadcast where Habimana called again for the extermination of the Tutsi; (3) 5 June broadcast where reporter Ananie Nkurunziza acknowledged that the extermination was underway and expressed hope that it would continue at the same pace.

16 With regard to Kangura, the AC concluded that the TC had failed to identify which of the articles, specifically, constituted the crime of incitement to commit genocide. Given the temporal jurisdiction of the ICTR, only the articles published during 1994 were examined. The AC considered that the articles entitled ‘As a Result of their Politics of Lies, the Inkotanyi Regret Having Started the War’ (Kangura No 54 [January 1994]); ‘Who will survive the war of March’ (excerpts at Appeal Judgment para. 772); and ‘How will the UN troops perish’ (excerpts at Appeal Judgment para. 773), constituted the crime of incitement to commit genocide and upheld Ngeze’s conviction only with respect to these criminal actions.

17 The AC held Barayagwiza responsible for instigating the commission of genocide in Kigali; instigating the commission of extermination as a crime against humanity; planning the commission of extermination as a crime against humanity in Gisenyi; and instigating the commission of persecution as a crime against humanity in Kigali. In all cases, Barayagwiza instigated the commission of the crimes by extremist members (Impuzamugambi) of his party, the CDR.

18 Some of the main issues on appeal were: (1) the temporal jurisdiction of the ICTR and its ability to try crimes committed before 1 January 1994; (2) the definition of direct and public incitement to commit genocide; (3) criminal responsibility as superiors of civilians.

1. Temporal Jurisdiction of the Tribunal

19 The issue of whether acts of incitement committed before 1994 fell within the temporal jurisdiction of the ICTR was an important matter for the Prosecution, who had argued that even those actions should serve as the basis for a conviction against the accused. According to the Statute of the ICTR, the ICTR’s temporal jurisdiction only covers the period running from 1 January until 31 December 1994. The AC held that for an action to be reproachable under the ICTR Statute all the elements of the given crime must have occurred within the temporal jurisdiction of the ICTR. The AC held that the temporal jurisdiction of the ICTR does not prevent the TC from admitting and considering evidence of facts that do not fall within its jurisdiction if this evidence is pertinent; if it has probative value; and there is no reason to exclude it. The AC gives examples of instances when this evidence could be admitted and taken into account to base a conviction: (a) when it clarifies a given context; (b) to establish by inference the elements (the AC mentions in particular the mens rea) of a pre-1994 criminal behaviour; or (c) to demonstrate a pattern of conduct.

20 The AC held that the crime of direct and public incitement to commit genocide is consummated in the moment the speech is given, the article is published, or the song is sung. Following from its conclusions on the temporal jurisdiction of the ICTR, the AC concluded that the broadcast or the articles aired or published before 1 January 1994 could not constitute the basis for a conviction for the crime of direct and public incitement to commit genocide, an inchoate offence (crime formelle in the French original), independent from the intended result. However, the AC explained that these articles and broadcasts could contribute to explain, for example, how the audience of RTLM perceived the messages and the impact they had.

2. The Definition of Direct and Public Incitement to Commit Genocide

21 When considering the elements of the crime of direct and public incitement to commit genocide the TC reviewed, among other sources, the Universal Declaration of Human Rights (1948) (in particular Arts 7 and 19), the International Covenant on Civil and Political Rights (1966) (in particular Arts 19 and 20), and jurisprudence of the United Nations Human Rights Committee (UN HRC ‘Communication No 550/1993, Faurisson v France’ [8 November 1996] GAOR 52nd Session Supp 40 vol 2, 84) and the European Court of Human Rights (Jersild v Denmark [Judgment] [ECtHR] Series A No 298). Particularly interesting is the discussion of the jurisprudence of cases against Turkey (Incal v Turkey ECtHR [Judgment] [ECtHR] Reports 1998-IV 78; Sürek and Özdemir v Turkey [Judgment] [ECtHR] App 23927/94; Zana v Turkey [Judgment] [ECtHR] Reports 1997-VII 57) for violation of Art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (right to freedom of expression).

22 The AC holds in its judgment that hate speech is speech addressed to incite discrimination or violence, and that the difference between hate speech and direct and public incitement to commit genocide is that the latter constitutes a direct appeal to commit one of the acts of genocide enumerated in Art 2 (2) ICTR Statute. A vague and indirect suggestion does not suffice. Direct and public incitement to commit genocide could be preceded or accompanied by hate speech, but only the former is a crime under Art 2 (3) (c) ICTR Statute. Speech that could appear ambiguous or that does not directly appeal to commit genocide could still amount to direct and public incitement to commit genocide depending on the particular context.

3. Criminal Responsibility as Superiors of Civilians

23 The AC upheld the TC Judgment in finding that Nahimana exercised effective control over the reporters that incited the audience of RTLM to commit genocide and, having known or having had reason to know of the actual or imminent commission of the crimes, he failed to prevent or to punish the conduct of his subordinates.

24 For the purpose of assessing the responsibility as a superior of Nahimana, the AC concluded that he exercised effective control over the reporters that incited the audience of RTLM to commit genocide. No formal superior/subordinate relationship is required. Although the AC conceded that mere membership of a collegiate board of directors does not suffice in itself to establish the existence of control, it held that such membership could have been part of the evidence showing said control. With respect to the required mens rea (knowledge and intent), the AC held that the standard ‘reason to know’ (Appeal Judgment para. 791) is satisfied when some general information, that puts him on notice of possible unlawful acts by his subordinates, is in possession of the accused. Among the factors that the TC and the AC relied upon to conclude that Nahimana had control over his subordinates are: the fact that he was the ‘number one’ of RTLM; that he represented the radio at the highest levels before the Ministry of Information; that he controlled the finances of the radio; that he was part of the steering committee (board of directors); and that he was responsible for the editorial policy of the radio.

25 Regarding the responsibility as a civilian superior of Barayagwiza for the direct and public incitement to commit genocide committed by RTLM journalists on 13 May, 4 June, and 5 June 1994, the AC reversed the TC conviction. The AC held that Barayagwiza’s effective control over RTLM personnel after 6 April 1994 had not been established to the standard required.

E. Assessment of the Decision

26 The contribution of the Media Case to the law on incitement to commit genocide, on conspiracy to commit genocide, on the criminal responsibility of civilian superiors, and on the use and admissibility of pre-temporal jurisdiction is significant and is likely to resist the passage of time. Nonetheless, the AC decision did not clearly define inchoate crimes and failed to differentiate it from attempt to commit genocide.

27 By making reference to the passages of the TC Judgment where the dicta of the International Military Tribunal (International Military Tribunals), the UN Human Rights Committee, and the ECtHR were discussed the AC upheld the principles of the human rights bodies adopted by the TC: (a) editors and publishers have generally been held responsible for the media they control; (b) it is necessary to review whether the aim of the discourse is a lawful one; (c) speech must be considered in its context when reviewing its potential impact; (d) it is not necessary to prove that the speech at issue produced a direct effect.

28 The AC made significant and pertinent corrections to the TC judgment. This, however, did not have a clear correlation with the length of the sentences for reasons impossible to identify given the lack of clear rules and practice on sentencing in international criminal law, a debt that this field of law has not yet honoured.