A Critique on the Crime of Direct and Public Incitement to Genocide Under Article 23(3) (E) of the Rome Statute

A CRITIQUE ON THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO GENOCIDE UNDER ARTICLE 23(3) (E) OF THE ROME STATUTE.

BY:

MARIA SIAMOYA

003-116

A Dissertation submitted to the Faculty of Law of the Cavendish University in partial fulfillment of the requirements for the award of the Degree of Bachelors of Laws (LLB).

SUPERVISOR:

MR. NKWAZI NKOSI NDLOVU

JUNE, 2020

LUSAKA ZAMBIA

DECLARATION

I, MARIA SIAMOYA, do hereby declare that this dissertation is my authentic work, and to the best of my knowledge, information and belief, no similar piece of work has previously been produced at Cavendish University Zambia or any other institution for the award of Bachelor of Laws Degree. All other works in this essay have been duly acknowledged.

…………………………………………………

Candidate’s signature

I recommend that the Directed Research Essay prepared under my supervision by:

MARIA SIAMOYA

(003-116)

Entitled:

A CRITIQUE ON THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO GENOCIDE UNDER ARTICLE 23(3) € OF THE ROME STATUTE.

Be accepted for examination. I have checked it carefully and am satisfied that it fulfills the requirements pertaining to format as laid down in the regulations governing Directed Research Essays.

Supervisor…………………………. Date…………………………………

Mr NkwaziNkosi Ndlovu

DEDICATION

I dedicate this thesis to my beloved mum Commissioner Margeret Siamoya and my siblings for their prayers, support, encouragement, love and resources rendered to me throughout my study period in law school and during this research. You are an inspiration to me and I will forever be grateful. To my lecturers, for your encouragement has kept me through this research era, your time and your contributions have made this research successful. I really appreciate. Indeed your investment in me is for a lifetime.

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ABSTRACT

The purpose of this thesis was to enquire whether the full effectiveness of the criminalization of incitement to Genocide is threatened by the Rome Statute of the International Criminal Court, which reduces the status of incitement from a crime in its own right to a mode of criminal participation in genocide. Further this research was to suggest reforms or recommendations which might be considered by parties to the Rome statute to put incitement to Genocide as an independent crime and not a form of participation. This study also brought about the importance of the public element of incitement to Genocide and how this element has been varied and interpreted differently in a case by case basis at a very successful degree. Thus a clear interpretation of what “public” means must be established so as to end impunity.

This research was conducted through the Ministry of defense, Ministry of home affairs and the private sector in relation to criminal law that provided the study with analytical data which was interpreted in the study. Data was collected through documentary analysis, questionnaires and interviews. Quantitative data were analyzed by means of descriptive statistics Qualitative data were subjected to content analysis.

Based on the findings and analysis on the data, it can be concluded that Zambia has been a party to the ICC since 1998 when it signed to be a member and 2002 when it ratified to be a member. However, during the 2006 meeting the minister of justice expressed the willingness of Zambia to implement the Rome statute but this has not been possible because of constitutional changes that have not been successful. Therefore as of now there is no specific law governing incitement of Genocide in Zambia and the legislature should consider formulating or including one.

ACKNOWLEDGEMENTS

First and foremost, special gratitude goes to the Almighty God, for the successful completion of the research and the paper. Further thanks also goes to my mother Commissioner Margaret Siamoya, for her prayers and unwavering support rendered during the period of this research. You are an inspiration and am proud to be your Daughter.

I wish to acknowledge my profound gratitude to my Supervisor Mr. Nkwazinkosi Ndlovu for the guidance and direction in the preparation of this work. I am grateful.

I am perpetually grateful to my siblings and friend Catherine Siamoya, Gloria Siamoya and Blessed Siamoya for their encouragement, motivation and prayers rendered during my academic life and family moments.

Special thanks to the Ministry of Justice and Ministry of Home Affairs for providing me with relevant information during the period I was conducting interviews with their respective personnel.

I further want to extend my well founded and heartfelt gratitude to Mr. Brighton Masheke, who was there for me inclusive of crucial moments from the time I enrolled into law school till my completion thank you for your support and love during this period.

May the good Lord bless you All.

LIST OF ABBREVIATIONS

AC Appeals Chamber

Art. Article

Arts. Articles

Doc. Document

Genocide Convention Convention on the Prevention and Punishment of the Crime

of Genocide

ICC International Criminal Court

ICG Incitement to Commit Genocide

ICCSt Rome Statute of the International Criminal Court

ICJ International Court of Justice

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the Former Yugoslavia

Id. Ibidem

NMT Nuremberg Military Tribunal

Nuremberg Charter Charter of the International Military Tribunal

OPT Office of the Prosecutor, International Criminal Court

PCIJ Permanent Court of International Justice

PTC Pre-Trial Chamber

PARA Paragraph

TC Trial Chamber

UN United Nations

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LIST OF STATUTES

Rome Statute of the International Criminal Court 17 July 1998

Convention on the Prevention and Punishment of the Crime of Genocide 12 January 1951

Penal Code, CAP 87 Of the Laws of Zambia November 1931.

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CONTENTS

DECLARATION…………………………………………………………………………………..ii

DEDICATION……………………………………………………………………………………. iii

ABSTRACT………………………………………………………………………………………. iv

ACKNOWLEDGEMENTS……………………………………………………………………… v

LIST OF ABBREVIATION……………………………………………………………………… vi

LIST OF STATUTES…………………………………………………………………………….. viii

CHAPTER ONE………………………………………………………………………………….. 5

1.1 Introduction…………………………………………………………………………………….. 5 1.2 Background…………………………………………………………………………………….. 5 1.3 Statement of the Problem………………………………………………………………………. 7 1.4 Scope……………………………………………………………………………………………8 1.5 Objectives……………………………………………………………………………………… 8 1.6 Hypothesis……………………………………………………………………………………... 8 1.7 Research Question……………………………………………………………………………... 8 1.8 Justification Of Significance…………………………………………………………………… 9 1.9 Outline of Chapters…………………………………………………………………………….. 9 1.10 Chapter 1: Introduction …………………………………………………………………… 9

Chapter 2: Literature Review………………………………………………………………………. 9

Chapter 3: Research Methodology…………………………………………………………………. 10

Chapter 4: Data Presentation and Data Analysis ………………………………………………….. 10

Chapter 5: Conclusion and Recommendations…………………………………………………..… 10

1.11 Conclusion...... 10

CHAPTER TWO…………………………………………………………………………………. 11

LITERATURE REVIEW………………………………………………………………………... 11

2.1 Introduction………………………………………………………………………………………… 11 2.2 The need for an international criminal court and the creation of the ICC…………………………. 11 2.3 Crimes under the Jurisdiction of the ICC…………………………………………………………... 12 25 “Individual Criminal Responsibility in Article 25 of the Rome Statute…………………………… 13 2.3.1 Direct and Public incitement to commit genocide under Art 25(3) (e) of the Rome statute…... 15 2.4 The Primary Factors of incitement to commit Genocide……………………………………….….. 16 2.5.1 The meaning of direct incitement for the purposes of criminal liability under Art.(25)(3) (e)………………………………………………………………………………………………. 17 2.5.2 The meaning of public incitement for the purposes of criminal liability under Art.(25)(3) (e)……………………………………………………………………………………………….. 18 2.6 The requisite Men’s Rea under Art.25 (3)(e) of the ICCSt…………………………………….. 19 2.7 The Mens rea need not to match the actus reus of the crime……………………………………….. 20 2.8 When does private incitement become public? ………………………………………………...... 20 2.9 Incitement as interpreted by the International Criminal Tribunals ………………………………… 21 2.10 A Distinction between Incitement and hate speech. …………………………………………….22 2.11 Conclusion………………………………………………………………………………………. 23 CHAPTER THREE…………………………………………………………………………………….. 24 RESEARCH METHODOLOGY……………………………………………………………………… 24 3.1 Introduction……………………………………………………………………………………… 24 3.2 Research Methodology and Approach…………………………………………………...……… 24 3.3 Research Design…………………………………………………………………………………26 3.4 Time Horizon………………………………………………………………………………….….26 3.5 Sources of Data………………………………………………………………………………..….26 3.6 Primary Data…………………………………………………………………………………….. 26 3.7 Secondary Data……………………………………………………………………………...... 26 3.8 Sampling Frame…………………………………………………………………………………. 27 3.9 Sampling Technique…………………………………………………………………………….. 27 3.10 Purposive Sampling…………………………………………………………………….. 27 3.11 Dimensional Sampling………………………………………………………………….. 27 3.12 Data Collection Techniques…………………………………………………………….. 28 3.13 Questionnaire………………………………………………………………………….…28 3.14 Interviews………………………………………………………………………………..28 3.15 Reliability and Validity……………………………………………………………….….29 3.16 Ethical Consideration………………………………………………………………..….. 29

3.17 Limitations of The Study…………………………………………………………… 30 3.18 Conclusion………………………………………………………………………….. 30 . CHAPTER FOUR…………………………………………………………………………………... 31 DATA ANALYSIS AND INTERPRETATION…………………………………………………… 31 4.1 Introduction………………………………………………………………………………………. 31

4.2 Insight On the Framework and Interpretation of the Questionnaire……………………………… 31

4.3 Presentation, Analysis and Interpretation of the Questionnaire………………………………….. 31

4.4 Ministry of Justice and Home affairs Questionnaire Response Rate…………………………...... 31 4.5 Law Firms Questioner Response Rate…………………………………………………………… 33 4.6 Presentation, Analysis, And Interpretation of Interviews………………………………………… 34 4.7 Why doesn’t Zambia have any Specific Law that regulates incitement of Genocide?...... /... 34 4.8 Summary of the Modern Legal Framework …………………………………………………….... 35 4.9 The problem of the “Public” element of incitement to commit Genocide………………………... 35 4.10 Incitement Under The Genocide Convention, Ictr Statute,And Icty Statute……………….… 36 4.11 Incitement is Redundant if It Is Not a Separate Crime……………………………………….. 37 4.12 The Challenge of proving causation………………………………………………………….. 38 4.13 Cases of incitement by the ICTR and the possible obstacle of proving the causation……….. 39 4.14 Challenges the ICC has faced in trying perpetrators of Incitement to Genocide …………...... 43 4.15 Conclusion………………………………………………………………………………….….44

CHAPTER FIVE…………………………………………………………………………………….… 45

CONCLUSION AND RECOMMENDATIONS………………………………………………….…. 45

5.1 Overview……………………………………………………………………………….…………... 45 5.2 General Conclusion…………………………………………………………………………….……45 5.3 Recommendations…………………………………………………………………………………...47

BIBLIOGRAPHY……………………………………………………………………………………... 49

CHAPTER ONE

1.1 Introduction 1. This chapter will discuss the background of the problem, statement of the problem, purpose of the study, objectives of study, and research questions. The researcher will by all means read various literatures globally, African and those in Zambian context, on the public nature of the crime incitement to commit Genocide and whether placing incitement to commit genocide as a mode of participation under the Rome statute and not a crime on its own weakens the effectiveness and prohibition of this crime. 1.2 Background 2 The need for an international criminal court was brought about by the fact that international law did not have sufficient instruments to punish those who committed grave international crimes. Violations of human rights law at the international level could go unpunished due to the lack of legal framework. As a result, punishment for these international crimes was left to national courts. International crimes are serious breaches of international law; thus international courts are the most appropriate judicial system to adjudge them as they are best suited to know and apply international law. 1In this regard, Prof. William A. Schabas argues that national courts are often incapable of being impartial when it comes to dealing with international crimes, such that, even the most developed nations in the World do not have penal codes which provide for the prosecution of international crimes.2 3 A distinct and particularly egregious form of hate speech, namely, direct and public incitement to commit genocide, represents a recognized exception. It is firmly established as an international crime under the Genocide Convention and the Rome Statute as well as under customary international law.3 The process began with the creation of a Secretariat draft and Article II (2) proposed that “direct and public incitement to any act of genocide, whether incitement be successful or not” was a punishable international criminal offense.

1 Francois- Xavier Bangamwabo, ‘International Criminal Justice and the Protection of Human Rights in Africa’. 2 William A. Schabas, an Introduction to the International Criminal Court (2nd ed., 2004) Cambridge University Press. 3 Art III(c) of the Genocide Convention

4 Incitement to genocide dates to the International Military T ribunal at Nuremberg, following the Holocaust.4 Prosecutors accused German defendants Julius Streicher and Hans Fritzsche of speech crimes, at the time categorized as a crime against humanity.5 Streicher, editor of the anti-Semitic publication Der Stürmer, 6 was convicted of “incitement to murder and extermination” for “persecution on political and racial grounds.”7 He was the only IMT defendant executed exclusively for crimes against humanity8.Fritzsche was a senior Nazi official and radio announcer known for his radio program9. He was acquitted.10 Streicher, specifically, set the foundation for modern international criminal liability for incitement to commit genocide.11 After the Nuremburg tribunal, the United Nations drafted the modern day Genocide Convention, defining genocide for the first time. 12Incitement to commit genocide has been one of the most controversial areas of international criminal law in the last twenty five years.13 5 Susan Benesch, founder of the Dangerous Speech Project, explains that it is critical to clearly define it properly 14 and Richard Wilson has approached incitement by clarifying its causation.15

4 Wibke Kristin Timmermann, Incitement in International Criminal Law,88 INT. REV. RED CROSS 823, 827 (2006) 5 Richard Wilson, Inciting Genocides with Words, 36 MICH. J. INT’LL. 277, 293 (2015) 6 Ronald Koven, Put Your Own House in Order First, 35 INDEX ON CENSORSHIP 177 (2006) 7 International Military Tribunal (Nuremburg), Judgment and Sentences, 41 AM. J. INT’L L. 172, 295 (1946) [Hereinafter Nuremberg Decisions]. 8 Supra note 7 at 283 9 Supra note 7 at 328 10 Supra note 7 at 326 11 Supra note 7 at 283 12 Samantha power, a problem from hell: America and the age of genocide 29, 40–45, 54–60 (2007) 13Richard Wilson, Inciting Genocides with Words, 36 MICH. J. INT’LL. 277, 293 (2015) 14 Susan Benesch, Vile Crime or Inalienable Right: Defining Incitement to Genocide, 48 VA. J. INT’L L. 485, 487 (2008) 15 Supra note 5 at 281

6 Meanwhile, international criminal bodies continue to develop speech crimes16 and despite attempts to clarify incitement to genocide, defendants have exploited the public element with 7 varying degrees of success.17 Direct and public incitement to commit genocide is established in Article III(c) of the Genocide Convention,18 Article II(3)(c) of the, International Criminal Tribunal for Rwanda (ICTR) statute,19Article IV(3)(c) of the International Criminal Tribunal for Yugoslavia(ICTY) statute, 20and Article 25(3)(e) of the Rome Statute of the International Criminal Court (ICC).21 1.3 Statement of the Problem 8 In 1996, the International Criminal Tribunal for Rwanda (ICTR) became the first legal institution to hand down a conviction for direct and public incitement to commit genocide in Prosecutor v Akayesu.22 The TC in the Akayesu judgment never established which places are public by Definition. This introduces a lacuna into the jurisprudence. Articulating a method for deciding whether places are public or private would alleviate that ambiguity. This is why the ICTR remains the only international criminal tribunal that has ever indicted an individual for this crime. Neither the ICC 23nor ICTY24 has had occasion to contribute to the crime’s case law. 9 Although incitement to genocide is now also criminalized in many domestic legal systems, the prosecution is almost without precedent even on the domestic level of Zambia.25

16 Supra note 5 at 282 17 Callixte Kalimanzira v. Prosecutor (Kalimanzira English Appeals Judgement), Case No. ICTR-05-88-A, Judgement, ¶ 152 (Oct. 20, 2010) 18 Genocide Convention, article III(a)-(e), Dec. 9, 1948, 102 Stat. 3045, 78, U.N.T.S 277. 19 S.C. Res. 955, Annex art. 2(3), U.N. Doc. S/RES/955 (Nov. 8, 1994). 20 S.C. Res. 25704, Annex art. 4(3), U.N. Doc. S/RES/25704 (May 25,1993). 21 Rome Statute of the International Criminal Court, U.N. Doc.A/CONF.183/9 (1998) [hereinafter Rome Statute]. 22 ICTR Prosecutor v Akayesu (Trial Chamber: Judgment) Case No ICTR-96-4-T, 2 September 1998 (hereafter Akayesu). 23 Thomas Davies, Note, How the Rome Statute Weakens the International Prohibition on Incitement to Genocide, 22 HARV. HUM. RTS. J. 247 (2009) 24 William Schabas, genocide in international law: the crime of crimes 326 (2d ed. 2009) 25 Basebya District Court of The Hague, Case No 09/748004-09, 1 March 2013.

10 Thus there is a need to assess and evaluate whether placing incitement to commit genocide as a mode of participation under the Rome statute weakens the effectiveness and prohibition of this crime. 1.4 Scope 11 This paper will focus on assessing the public nature of the crime of Genocide and evaluating the extent of how the full effectiveness of the criminalization of incitement is threatened by the Rome Statute of the International Criminal Court, which reduces the status of incitement from a crime in its own right to a mode of criminal participation in genocide. This paper will not focus on the subsequent acts or the actual act of genocide. 1.5 Objectives;

My research’s aims:

a. To analyze the existing legal and policy frame work in regards to incitement to commit Genocide under the Rome Statute b. To explain direct and public incitement to Genocide as a mode of participation? c. To explain the Problem of incitement to Genocide been a mode of participation and not a crime on its own.

1.6 Hypothesis a. The ICC was established to end impunity, to prosecute the perpetrators of the “most serious crimes of concern to the international community.” b. It is a permanent international criminal court established by its Statute to enforce international humanitarian and human rights law by bringing those responsible for gross violations of these laws. c. However, despite the establishment of the Court and the provisions of the Rome Statute, the Court has not been very effective. There are certain gaps that need to be filled in order to ensure the Court is effective in its role of Prosecuting Incitement to commit Genocide.

1.7 Research Question a. What are the existing legal and policy frame work in regards to incitement to commit Genocide under international law

b. What is direct and public incitement to Genocide as a mode of participation? c. What are the Problems of incitement to Genocide been a mode of participation and not a crime on its own. 1.8 Significance of the study 12 The criminalization of incitement to genocide serves at least two important goals. First, it helps to ensure that the people who may bear the greatest responsibility for bringing about genocide can be punished; second, it gives the international community the opportunity to prevent future genocides by prosecuting individuals who incite genocide before their incitement is successful. 13 However the full effectiveness of the criminalization of incitement is threatened by the Rome Statute of the International Criminal Court, which reduces the status of incitement from a crime in its own right to a mode of criminal participation in genocide and effects of this crime depend on the status of incitement as a separate crime rather than a mode of criminal participation. Therefore the importance or significance of this study is to end the impunity in the international criminal law forum. The findings of this study will provide evidence and recommendation on how the crime under Art 25(3) (e) of the Rome statute should be included on the list crimes under Art 5 of the Rome Statute. 1.9 Outline of Chapters

Chapter 1: Introduction

14 This chapter presents the study of the crime Direct and Public incitement to Genocide. The impact of this crime has been weakened by the Rome statute which places it as a form of participation and not a crime on its own. Other sections include statement of the problem, general objective, specific objectives, significance of the study, and scope of the study as well as delimitation of the study

Chapter 2: Literature Review

15 This chapter of the study presents both theoretical and empirical literature reviews on how the Rome statute weakens the crime of incitement to commit Genocide and the dangers as well as negative impacts of listing this crime as a mode of participation. The chapter aim’s at

identifying existing literature materials which formed the basis for further research in terms of data collection and analysis.

Chapter 3: Research Methodology

16 This chapter presents research methodology guided this study. It comprises the following subheadings; the research design, population, sample and sampling technique, data collection instruments, validity and reliability of the instrument, research procedure and data analysis.

Chapter4: Data Presentation and Data Analysis

17 The chapter presents data and findings of the study on direct and public incitement to Genocide as well as how the Rome statute has weakened this crime. The study findings were presented according to the research objectives as stated in chapter one.

Chapter 5: Conclusion and Recommendations:

18 This chapter contains discussion of the research findings. The discussion relates to the purpose of the study and questions as well as the research findings. The analysis also draws on theoretical stances and empirical studies contained in the review of related Literature- Chapter Two. The researcher’s point of view and comments are also given. 1.10 Conclusion 19. In conclusion, the need for an international criminal court was brought about by the fact that international law did not have sufficient instruments to punish those who committed grave international crimes. “Direct and public incitement to any act of genocide, whether incitement be successful or not” is a punishable international criminal offense. The goal of prohibiting incitement to Genocide is to end impunity. Thus the ICC should adopt the ICTR legal framework as placing incitement to Genocide under modes of participation weakens the prohibition of this crime.

CHAPTER TWO

Literature Review

2.1 Introduction

This chapter of the study presents empirical literature of how the Rome statute weakens the strength of incitement to commit Genocide and how the public factor of this crime is of great importance when prosecuting the crime. The chapter aim’s at identifying existing literature materials which formed the basis for further research in terms of data collection and analysis.

2.2 The need for an International Criminal Court and the creation of the ICC 21 “The International Criminal Court (ICC or “the Court) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Some of the most heinous crimes were committed during the conflicts which marked the twentieth century. Unfortunately, many of these violations of international law have remained unpunished. The Nuremberg and Tokyo tribunals were established in the wake of the Second World War. In 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, the United Nations General Assembly recognised the need for a permanent international court to deal with the kinds of atrocities which had just been perpetrated”. 26 22 “The idea of a system of international criminal justice re-emerged after the end of the Cold War. However, while negotiations on the ICC Statute were underway at the United Nations, the world was witnessing the commission of heinous crimes in the territory of the former Yugoslavia and in Rwanda. In response to these atrocities, the United Nations Security Council established an ad hoc tribunal for each of these situations. These events undoubtedly

26 Thomas Davies, Note, How the Rome Statute Weakens the International Prohibition on Incitement to Genocide, 22 HARV. HUM. RTS. J. 247 (2009)

had a most significant impact on the decision to convene the conference which established the ICC in Rome in the summer of 1998” . 23 “When a State becomes a party to the Rome Statute, it agrees to submit itself to the jurisdiction of the ICC with respect to the crimes enumerated in the Statute. The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. Also, a State not party to the Statute may decide to accept the jurisdiction of the ICC. These conditions do not apply when the Security Council, acting under Chapter VII of the United Nations Charter, refers a situation to the Office of the Prosecutor. 24 The ICC prosecutes individuals, not groups or States. Any individual who is alleged to have committed crimes within the jurisdiction of the ICC may be brought before the ICC. In fact, the Office of the Prosecutor’s prosecutorial policy is to focus on those who, having regard to the evidence gathered, bear the greatest responsibility for the crimes, and does not take into account any official position that may be held by the alleged perpetrators” . 2.3 Crimes under the Jurisdiction of the ICC 26 “The mandate of the Court is to try individuals (rather than States), and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity, and the crime of aggression, when the conditions for the exercise of the Court’s jurisdiction over the latter are fulfilled . 27 According to the Rome Statute, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group:  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;  Forcibly transferring children of the group to another group”. 28 “Crimes against humanity include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

 murder;  extermination;  enslavement;  deportation or forcible transfer of population;  imprisonment;  rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;  Persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds”. 29 “War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:  murder  mutilation,  cruel treatment and torture;  taking of hostages;  intentionally directing attacks against the civilian population;  Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals“ .27 2.4 Individual Criminal Responsibility in Article 25 of the Rome Statute 29 Committing crimes under international law typically entails the cooperation of a large number of persons. This generally occurs by way of an established network that is organized. However, the collective nature of crimes under international law does not absolve the need to determine individual responsibility. 30 Most of such crimes are not the product of single individuals' criminal behavior but are manifestations of organized crime: the crimes are mostly committed by groups of individuals working in the service of a common criminal plan. While certain group members may be

27 Supra note [21]

actively perpetrating the illegal act, the presence and participation of the other group members is also crucial in promoting the execution of the crime in question. 31 It follows that the moral gravity of such participation is often no less than or indeed no different than that of those who actually perform the acts at issue. 32 Whereas the need and complexities of allocating individual criminal liability were already clear at the advent of international criminal law, the rules on involvement were only vague and fragmentary. 28 The Nuremberg Charter had rather archaic participatory rules. For example it was a felony to 'participate in a collective scheme or plot' to wage a war of aggression.29 33 Under Article 6(c) of the Nuremberg Charter, ‘leaders, organizers, instigators and accomplices’ who took part in the formulation or execution of a common plan or conspiracy to commit a crime against international law were responsible even for acts performed by others in execution of the plan.30 This complex provision has, however, not met with much practical value. The obvious aim of the Nuremberg Trial and subsequent trials was to subject those responsible to criminal prosecution, and to do so as comprehensively as possible. Therefore, early adjudicators of international criminal law did not pay much attention to identifying various types of activity or separating principal from accessories, but rather introduced a so-called uniform model of offenders. However, the transition to a more complex participation doctrine was achieved by the ad hoc Tribunals.31With the wording of Article 7(1) ICTY Statute and Article 6(1) ICTR Statute as a starting point, they distinguished between committing, planning, ordering, instigating and aiding and abetting. 34 The classification of a mode of involvement as a form of accessory liability implies that a person's act had a significant impact on someone else's execution of a crime, whereas the crime is related to one's own actions in the case of execution as a principal. This distinction is given growing emphasis by the ad hoc tribunals, not only as a matter of clarifying individual

28 A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), at 180; The Rome Statute of the International Criminal Court: A Commentary,Vol.1 (Oxford: Oxford University Press, 2002) 767^822, at 784 29 Art. 6(a) Nuremberg Charter; see also Art. 5(a) Tokyo Charter. 30Nuremberg Tribunal, Judgment of 1 October 1946, in The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany (London: HMSO, 1950), Part 22, at 449. 31 Prosecutor v Tadic Judgement (IT-94 1-A), Appeals Chamber, 15 July 1999, p191

criminal liability, but also in sentencing. For example, the ICTY Appeals Chamber has stated in Prosecutor v Vasiljevic that ‘aiding and abetting is a form of responsibility which generally warrants a lower sentence than is appropriate to responsibility as a co- perpetrator’.32 35 Therefore, the distinction between modes of Participation is no longer simply symbolic, but reflects the weight of individual responsibility. This is also confirmed by recent decisions of the ad hoc Tribunals on cumulative convictions. 36 In Semanza, the Appeals Chamber held that, where the conduct of an accused in the commission of a crime fulfills the requirements of both aiding and abetting and ordering, it must be qualified as ordering.33 2.4.1 Direct and Public incitement to commit genocide under Art 25(3) (e) of the Rome statute 37 Article 25(3) (e) of the ICCSt criminalizes direct and public incitement of others to commit genocide. 34 It is in substance identical to Article III(c) of the 1948 Convention on the prevention and Punishment for the Crime of Genocide.35These articles provide that a person shall be criminally responsible and liable for punishment if that person in respect of the crime of genocide, directly and publicly incites others to commit genocide. International criminal law has, to a certain extent, claimed retribution as one of its aims, it has been largely shaped by deterrence and prevention.36In international criminal law, speech is prohibited when it can be distinguished from legitimate expression, when it directly and publicly incites the

32Prosecutor v Vasiljevic ,Judgment (IT-9832-A), Appeals Chamber, 25 February 2004, p182 33 Prosecutor v Semanza, Judgment, (ICTR-97-20-A), Appeals Chamber, 20May 2005, p355 34 Art.(25)(3)(e) ICCSt 35 Art. III(C) of the Genocide Convention 36 ECOSOC,‘Rule of Law,Crime Prevention and Criminal Justice in the United Nations Development Agenda Beyond 2015’ (16 May2014) UN Doc E/CN.15/2014/L.6/Rev.1, 4; UNSC Res 2150 (16 April 2014) UN Doc S/RES/2150;Prosecutor v Kunarac (Sentencing Judgment) IT-96-23 (22 February 2001) 844; Allison Marston Danner, ‘Constructing a Hierarchy of Crimes in International Criminal Law Sentencing’ (2001) 87 (3) 444; Ralph Henham, ‘Some Issues for Sentencing in the International Criminal Court’ (2003) 52 International and Comparative Law Quarterly 81, 88; James Meernik, ‘Victor’s Justice or the Law? Judging and Punishing at the International Criminal Tribunal for the Former Yugoslavia’ (2003) 47 (2) the Journal of Conflict Resolution 140, 144.

commission of genocide. Punishing incitement recognizes the desirability of preventing a crime before it can take place, imposing liability for acts that fall short of the substantive act of genocide but come sufficiently close to pose a threat to public order. 37 38 Incitement to commit genocide is a notoriously problematic international crime,38it involves ‘encouraging or pressurizing another to commit an offence.39 Genocide does not ever have to occur for a defendant to be convicted. 40To make a conviction, a criminal chamber must find perpetrated action that constitutes direct and public incitement to commit genocide. 41Genocidal intent is assumed to be present when a judge finds intent to commit direct and public incitement to commit genocide. 42 39 Genocidal intent is considered a dolus specialis or special intent. Special intent as applied to genocide requires that “the acts must be done with intent to destroy the group as such in whole or in part.” 43 Directness and publicness are elements of genocidal incitement. 44 Establishing the public element requires not only that the accused publicly incited (actus reus), but also that the accused had the intent to incite publicly (mens rea)”).45 2.5 The Primary Factors of incitement to commit Genocide 40 The two "primary" factors, also set out by the Akayesu Court, are crucial to modern research. 46The first factor is "the place where the incitement occurred" (the "location" factor). 47 The place factor appears intuitive, but has two aspects:(1) the geographic place where a speaker spoke and; (2) whether a type of setting is typically public however the TC found that that a

37 Jonathan Herring, Criminal Law (7th edn, Palgrave Macmillan 2011) 321. 38Richard Wilson, Inciting Genocides with Words, 36 MICH. J. INT’L L. 277, 293 (2015) 39 R. Geary, Essential Criminal Law (2nd Edn., London: Cavendish Publishing Ltd., 1998), 36. 40 Thomas Davies, Note, How the Rome Statute Weakens the International Prohibition on Incitement to Genocide, 22 HARV. HUM. RTS. J. p245, 268(2009) 41 Callixte Kalimanzira v. Prosecutor (Kalimanzira English Trial Judgement), Case No. ICTR-05-88-T, Judgement 42 Supra note 24 43 Bosnia and Herzegovina v. Serbia and Montenegro 2007 I.C.J. 43, Para 187 44 Prosecutor v. Jean-Paul Akayesu (Akayesu English Trial Judgement), Case No. ICTR-96-4-T, Judgement, Para 556–57 (Sept. 2, 1998) 45 Nzabonimana Appeals Judgement, Case No. ICTR98-44D-A, Para 129 46 Ibid[42] 47 Ibid[44] (“The public element of incitement to commit genocide may be better appreciated in light of . . . the place where the incitement occurred”).

place is public when it is public by definition. The second factor is "whether or not a large or small audience" (the "large or / and restricted" factor).48 41 A finding that an audience is selective and small means that an incitement audience was private, not public and the defendant could not be convicted of incitation.49 42 In addition, later decisions are followed by two other variables to determine whether select and limited audience. Such considerations include the "number of people" (the "number" factor) and the "medium" (the "medium" factor) by which the message is transmitted. No ICTR chamber of trial or chamber of appeal discussed how to apply the selected or limited factor until the defendant Barayagwiza was acquitted in 2007 by the Nahimana Appeal Chamber. 50 In the case of Jean-Bosco Barayagwiza the ICTR built the select and restricted factor more thoroughly. The Chamber of Appeals overturned Barayagwiza 's conviction of incitement on the grounds that the audience was chosen and confined.51 2.5.1 The meaning of direct incitement for the purposes of criminal liability under Art.(25)(3) (e) 44 To incite "directly" means that another person is concretely urged or specifically provoked to take immediate criminal action.52 The crime is completed as soon as the discourse in question is uttered. 53 In determining whether a speech constitutes “direct” incitement to commit genocide, the principal consideration is the meaning of the words used in the specific context.54

48 Ibid (“The public element of incitement to commit genocide may be better appreciated in light of . . . whether or not assistance was selective or limited.”); Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement and Sentence, Para 851 (Dec. 1, 2003). 49 Ibid [39] 50 Prosecutor v. Nahimana, Barayagwiza, Ngeze (Nahimana Trial Judgement), Case No. ICTR-99-52-T, Judgement and Sentence (Dec. 3, 2003); Nahimana, Barayagwiza, Ngeze v. Prosecutor (Nahimana Appeals Judgement), Case No. ICTR-99-52-A, Judgement (Nov. 28, 2007). 51 Ibid[48] at 862 52Prosecutor V Akayesu (Judgment) Ictr-96-4-T (2 September 1998) [557], Prosecutor V Nahimana (Judgment) Ictr- 99-52-A (28 November 2007) [ 692]. 53 Ibid [59] 54 Ibid[5] Para 698-701

45 The TC in Prosecutor v Nzabonimana and the Prosecutor v Nyiramasuhuko simultaneously stated that when determining direct and public incitation, the principle considerations are that; for “Direct incitement” it must be a direct appeal to commit genocide meaning the crime is complete as the discourse in question is uttered. 46 Further the meaning of the words used must be interpreted in relation to how the speech was understood by its intended audience. 55 However the TC found Nyiramasuhuko innocent because there was no evidence that her presence at the ceremony substantially contributed to the incitement pronounced by the minister and the president.56 47 Contrary, the TC found Nzabonimana guilty of incitement to commit genocide because in his explicit speech at Butare, he told the audience to kill the Tutsi and take their belongings, an incontestably direct call on those assembled to commit genocide.57 2.5.2 The meaning of public incitement for the purposes of criminal liability under Art.(25)(3) (e) 47 To incite "publicly" means that the call for criminal action is communicated to a number of persons in a public place or to members of the general public at large, in particular by using technical means of mass communication.58 Brendan Saslow notes that the public element plays a role in each international incitement case and hence there is a need to determine when does incitement to commit genocide become public. 48 In determining public incitement, two factors must be taken into account namely, “the place where the incitement occurred” 59 and “whether or not an audience is select or limited” 60In order to ascertain whether an audience is select and limited, two more factors must be taken

55 The Prosecutor v Nzabonimana, (Judgment and sentence), Case No.ICTR 98-44D-T, (31 May 2012) Para 1751- 1754, The Prosecutor v Nyiramasuhuko, (Judgement and sentence), Case No.ICTR-98-42-T, (24 June 2011) Para 5986-5987. 56 ibid 57 Ibid [48], Para 1759-1762. 58 Prosecutor V Akayesu (Judgment) Ictr-96-4-T (2 September 1998) [557], Prosecutor V Nahimana (Judgment) Ictr-99-52-A (28 November 2007) [ 692]. 59 Ibid [50] 60 Prosecutor V. Juvénal Kajelijeli, Case No. Ictr-98-44a-T, Judgment And Sentence, 851 (Dec. 1, 2003)

into account namely, the “number of persons “and the “medium through which the message is conveyed”.61 49 For instance, the TC in the case of Nzabonimana V Prosecutor, found audiences, where a defendant’s speech was deemed public, to be of 20 individuals.62An audience need not be large; a small group may also be public.63 The TC in the case of Prosecutor v Akayesu cited the International Law Commission 64as having characterized "public" incitement as "a call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media.65 50 Thus public incitement means ‘public speeches or in the press, through the radio, the cinema or other ways of reaching the public,’ It expressly excludes ‘private’ incitement. Therefore a defendant cannot be convicted for inciting genocide in private. 66 An example of private incitement is that which was illustrated in Prosecutor v Kalimanzira when the definition adopted by the Sixth Committee differentiated acts such as instructions from officials to subordinates or heads of organizations to members from ‘direct public incitement.’67 2.5.3 The requisite Men’s Rea under Art.25 (3)(e) of the ICCSt 51 The crime of incitement to commit Genocide must be accompanied by the intention "to directly prompt or provoke another to commit genocide.In the case of Prosecutor v. Muvunyi, the Tribunal outlined the mens rea element to mean the inciter must possess ‘‘the intent to directly prompt or provoke another to commit genocide’’ with the specific intent to destroy, in whole or in part, a protected group.68 Intention to commit Genocide means that a person who directly and publicly incites the commission of genocide is punishable for the incitement

61 Augustin Ngirabatware V. Prosecutor , Mict-12-29-A, Judgment, 52 (Dec. 18, 2014) 62Nzabonimana V Prosecutor, Appeals Judgement, Case No. Ictr-98-44d-A,Para 1760. 63 Callixte Kalimanzira V. Prosecutor (Kalimanzira English Appeals Judgment), Case No. Ictr-05-88-A, Judgment,152, 165 (Oct. 20,2010) 64General Assembly, UN DOC A/51/10(1996) 65 Art.2 ICCPR 66 Nzabonimana Appeals Judgement, Case No. ICTR-98-44D-A, Para 126 67 Ibid [52] 68 Prosecutor V. Muvunyi, Case No. Ictr-2000-55a-T, Decision On Tharcisse Muvunyi’s Motion For Judgement Of Acquittal Pursuant To Rule 98 Bis (Trial Chamber), 13 October 2005, Para. 61

even if the crime of genocide is never actually committed.69 Incitement to commit genocide “must be punished as such, even where such incitement failed to produce the result expected by the perpetrator".70 Genocide does not ever have to occur for a defendant to be convicted.71 52 Genocidal intent is assumed to be present when a judge finds intent to commit direct and public incitement to commit genocide.72The rationale is that,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 measure. 73 The concern is not merely with the occurrence of harm but also with its prevention.74 53 Thus, in proving the elements of Art 25(3) (e), there is no need to prove the elements of Genocide because it is sufficient for the perpetrator to be punished for incitement even if such incitement did not result or resulted to the actual crime of Genocide. 2.5.4 The Mens rea need not to match the actus reus of the crime. 54 The crime of incitement to genocide requires the intent to destroy a protected group and the actus reus of the offence does not require the actual destruction of the group. 75It is an “inchoate crime” meaning, a proof of result is not necessary for the crime to have been committed, only that it had the potential to spur genocidal violence. It is the intent of the speaker that matters, not the effectiveness of the speech in causing criminal action. 76 2.6 When does private incitement become public? 55 A speech recorded in a private place, may be found public only if it is broadcasted or disseminated. 77 The Nzabonimana appeal judgment, about the Murambi meeting,

69 M. Ch. Bassiouni , Commentaries On The LLC’s 1991 Draft Code (1993), 115–116 70 Supra note[51] Para [561-562] 71 Thomas Davies, Note, How The Rome Statute Weakens The International Prohibition On Incitement To Genocide, 22 Harv. Hum. Rts. J. (2009), 245, 268 72 William Schabas, Genocide In International Law: The Crime Of Crimes 326 (2d Ed. 2009) 73 Frank Chalk and Kurt Jonassohn, the History and Sociology of Genocide: Analyses and Case Studies (Yale University Press 1990) 28. 74 A. Ashworth, Principles Of Criminal Law, 4th Edition, Oxford University Press, Oxford, 2003 P.[446] 75 W.A. Schabas, Genocide In International Law (Cambridge: Cambridge University Press, 2000), 154–5 76United States Holocaust Museum, Incitement To Genocide In International Law ,Oct 21, 2019 ,Washington, Dc 77 Brendan Saslow, the Public Element of Direct and Public Incitement to Commit Genocide, (2016), Volume 28, Case Western University.

demonstrates how this idea applies. Although the Trial Judgment noted the presence of a journalist and convicted Nzabonimana, the Appeal Chamber found the conviction an error. 78Instead, it held that the discussion was not public because the journalist never disseminated the message. 79 The Chamber drew a line designating that a private conversation only becomes public once it is broadcast. 56 Furthermore, in Prosecutor v. Georges Ruggiu a Belgian social worker and radio personality for Radio Television Libre de Milles Collines (Radio RTLM) pled guilty to incitement to commit genocide. His speech was made public because his "messages" had been broadcast in a media forum and to the general public.80 If speech is transferred into a recorded medium but is never broadcast, then the factor is not satisfied.81 2.7 Incitement as interpreted by the International Criminal Tribunals 57 “The International Criminal Tribunals have generally drawn a distinction between incitement or instigation generally and direct and public incitement to genocide. In the following discussion, the term ‘‘incitement’’ will be used to refer to public incitement, and ‘‘instigation’’ to describe incitement in the more general sense Instigation has been considered to be punishable only where it leads to the commission of the substantive crime, which means that it is not an inchoate crime; the instigation must be causally connected to the substantive crime in that it must have contributed significantly to the commission of the latter, the instigator must act intentionally or be aware of the substantial likelihood that the substantive crime will be committed, and he must intend to bring about the crime instigated . 58 By contrast, direct and public incitement has been held to be an inchoate crime, which is applicable only in connection with the crime of genocide. Both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have addressed instigation, provided for in Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute, which lists forms of individual criminal responsibility, in several cases”

78Nzabonimana V Prosecutor, Appeals Judgement, Case No. Ictr-98-44d-A, Para 382-383 79 ibid[61],Para 385-387 80 Prosecutor v. Georges Ruggiu (Ruggiu English Judgement), Case No. ICTR-97-32-I, Judgement and Sentence, ¶ 17 (June 1, 2000). 81 Supra note [61]

59 “In Blasˇkic´, an ICTY trial chamber defined instigating as ‘‘prompting another to commit an offence’’, while the ICTR understood it to mean ‘‘urging, encouraging or prompting’’ another person to commit a crime. There must be a ‘‘causal connection between the instigation and the Actus Reus of the crime; this has been held to mean that the instigation must have ‘‘directly and substantially contributed to the other person’s commission of the substantive offence, or must at least have been a clear contributing factor. However, ‘but for’’ causation is not required, that is, the Prosecutor need not prove that the crime would not have been committed had it not been for the accused’s acts. As regards the required mens rea, the instigator must act intentionally, that is, must have ‘‘intended to provoke or induce the commission of the crime’’, or must at least have been aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts. At the same time the accused must again be proven to have ‘‘directly or indirectly intended that the crime in question be committed” 2.8 A Distinction between Incitement and hate speech. 60 As the empirical findings illustrate in the cases of Kambanda, Ruggiu and Akayesu, comments made by a single public official can have a huge impact on people,82much greater than similar statements made by numerous private individuals acting in concert.83A pure racist could be convicted of a crime which amounts to genocide without a reliable distinction and expression could be unduly and dangerously limited. 61 The AC is of the view that there is a distinction between general hate speech (or incitement to bigotry or violence) and overt and explicit incitement to commit genocide. Clear incitement to commit genocide presumes that the speech is a clear appeal to commit an act referred to in Article 25(3)(e) of the Statute; it must be more than a mere vague or indirect suggestion. 84 On the other hand, hate speech targeting a population on the basis of ethnicity,

82 Kambanda, ICTR-97-23-S, Para 39, Prosecutor v. Jean-Paul Akayesu, Judgement, ICTR-96-4-T, T 12-14 (1998) , Riggiu, ICTR-97-1, 44 83 Benesch, Susan, Vile Crime or Inalienable Right: Defining Incitement to Genocide. Virginia Journal of International Law, Vol. 48, No. 3, 2008. 84 Akayesu Trial Judgement, Para 557 ; Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2S.C.R. , Para 100

or any other discriminatory ground, violates the right to respect for the dignity 85of the members of the targeted group as human beings,[2] and therefore constitutes “actual discrimination”. The AC further explains that speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security 86of the members of the targeted group and therefore constitutes “actual discrimination”. 62 In most cases, direct and public incitement to commit genocide can be preceded or accompanied by hate speech, but only direct and public incitement to commit genocide is prohibited under Article 2(3)(c) of the Statute. For most cases, direct and public incitement to commit genocide may precede or be followed by hate speech, but under Article 2(3) (c) of the Statute, only direct and public incitement to commit genocide is prohibited. More so, To the extent that not all hate speeches are direct incitation’s to commit genocide, the jurisprudence on incitement to hatred, discrimination and violence does not apply directly in determining what constitutes direct incitement to commit genocide.

2.9 Conclusion 63 The public element is more complicated than it appears. It captures an example of how the ICTR has impacted international criminal law. The element has, at times, led to acquittals and reduced sentences. Although the ICTR adopted factors in 1998, it is still having some trouble efficiently applying them. Although the Rome Statute includes direct and public incitement to commit genocide, along with other forms of individual responsibility, it is generally accepted that Article 25(3)(e) “direct and public incitement to commit genocide” is consistent with earlier formulations of incitement to genocide.

85 Universal Declaration on Human Rights, the Preamble of which expressly refers to the recognition of dignity inherent to all human beings, while the Articles set out its various aspects. 86 Ibid[83]

CHAPTER THREE RESEARCH METHODOLOGY 3.1 Introduction 64 This chapter will outline and describe research methods and techniques that will be used in conducting this research. Chapter three discusses: the research methodology and approach, research design, sources of data, sampling frame, sample size, sampling techniques, data collection techniques, reliability and validity, ethical considerations, and limitation of the study.

3.2 Research Methodology and Approach 65 This study is a mixed methods study, which combines the qualitative and quantitative research methods. Mixed methods research is a research design with philosophical assumptions as well as methods of inquiry. As a methodology, it involves philosophical assumptions that guide the direction of the collection and analysis of data and the mixture of qualitative and quantitative data in a single study or series of studies. Its central premise is that the use of quantitative and qualitative approaches in combination provides a better understanding of research problems that either approach alone. It is important to note the difference between mixed methods and multiple methods. The distinction between these is described by Leech et al. as follows:

66 mixed methodologies is distinguished from multiple methodologies, wherein mixed methodologies refers to approaches in which quantitative and qualitative research techniques are integrated into a single study, whereas multiple methodologies refer to approaches in which more than one research method or data collection and analysis technique (including two or more methods within the same paradigm) is used to address research questions. 67 The origins of mixed methods lie in the two major research paradigms: quantitative and qualitative. Qualitative studies rely on description and interpretation, instead of making measurements like in quantitative studies . Qualitative purists support a constructivist (construction of a personal reality or realities) or interpretivist (understanding based on interpretion) paradigm . Qualitative research is usually described as allowing a detailed exploration of a topic of interest in which information is collected by a researcher through

case studies, survey, interviews, and so on. Quantitative research as a type of research that is `explaining phenomena by collecting numerical data that are analyzed using mathematically based methods (in particular statistics) . 68 Purists call for researchers to “eliminate their biases, remain emotionally detached and uninvolved with the objects of study and test or empirically justify their stated hypotheses” Integral to this approach is the expectation that a researcher will set aside his or her experiences, perceptions, and biases to ensure objectivity in the conduct of the study and the conclusions that are drawn. 69 The research performed through mixed methods implies the adoption of a strategy that involves more than one research method. Creswell speaks about three types of strategies of mixed methods: sequential mixed methods, concurrent mixed methods and transformative mixed methods . 70 Sequential mixed methods are procedures in which the researcher seeks to elaborate on or expand on the findings of one method with another method. This may involve beginning with a qualitative interview for exploratory purposes and following up with a quantitative, survey method with a large sample so that the researcher can generalize results to a population. Alternatively, the study may begin with a quantitative method in which a theory or concept is tested, followed by a qualitative method involving detailed exploration with a few cases or individuals . 71 Concurrent mixed methods are procedures in which the researcher merges quantitative and qualitative data in order to provide a comprehensive analysis of the research problem. In this design, the investigator collects both forms of data at the same time and then integrates the information in the interpretation of the overall results, . Transformative mixed methods – the researcher uses a theoretical objective as a global perspective in a design that contains both quantitative and qualitative data. This objective provides a frame for the topic, data collection methods and results anticipated through the study. Such an objective could comprise a method of data collection that involves a sequential or a concurrent approach. 72 For the purposes of this study, the concurrent mixed methods approach will be used to provide a comprehensive analysis of the research problem.

3.3 Research Design 73 Burns and Grove define a research design as “a blueprint for conducting a study with maximum control over factors that may interfere with the validity of the findings” describes a research design as “a plan that describes how, when and where data are to be collected and analyzed”. This study, qualifies to be referred to as a descriptive study. Descriptive research is devoted to the gathering of information about prevailing conditions or situations for the purpose of description and interpretation. 74 This type of research design is not simply amassing and tabulating facts but includes proper analyses, interpretation, comparisons, identification of trends and relationships. 3.4 Time Horizon 75 This study has been done over a period of five months from the identification and formulation stage in January 2020 to its conclusion in June 2020. The research problem was identified and formulated in the area of International Criminal law. It involved the critical analysis of the crime direct and public incitement to genocide under article 23(3) (e) of the Rome statute. 3.5 Sources of Data 76 In this study, a survey was conducted using a self-administered Questionnaire, and oral interviews with various organizations. To adequately address the study, both primary and secondary data are used. 3.6 Primary Data 77 Primary data refers to the information collected by the researcher who will also examine that data. Researchers collect primary data through interviews, questionnaires, focus groups, observation, the examination of primary sources such as writings or speeches, or a variety of other collection methods. For purposes of this study, a self-administered Questionnaire and one on one interview with various organizations were used to collect primary data. 3.7 Secondary Data 78 Secondary data in this study, referrers and information collected in the past for other uses by a party which is not related to this study, but is beneficial to a researcher. These sources may include, books, journal articles, internal records etc. For purposes of this study, literature review was the main source of secondary data from books, journals, reports, ICC statutes, and international instruments.

3.8 Sampling Frame 79 A sampling frame is any material or device used to obtain observational access to the finite population of interest . A population is a complete set of all items and possible observations of the type that is being investigated, such as among others, individuals, institutions, households or items from which a sample is taken . A sample is the actual group selected for a study using any appropriate sampling techniques and, it must be of sufficient size to allow the research have confidence in the inference, while the sampling technique is the process of drawing a sample from the population . 80 To carry out a critical evaluation the crime direct and public incitement to genocide under article 23(3) (e) of the Rome statute, regard was had to the International Criminal Court, International (ICC),ICTR, and the ICTY as suitable bodies to provide the population to which this research is relevant. 3.9 Sampling Technique 81 A sampling technique is the process of drawing a sample from the population. The two sampling techniques were applied to the members of the population in this study. 3.10 Purposive Sampling 82 In purposive sampling (sometimes called judgmental sampling), the researcher specifies the characteristics of a population of interest and then tries to locate the individuals who have those characteristics . Once the group is located, the researcher asks those who meet the inclusion criteria to participate in the research study. In short, purposive sampling is a nonrandom sampling technique in which the researcher solicits persons with specific characteristics to participate in a research study. 83 In this study, the characteristics of the population of interest comprises of people with a good understanding of International Criminal law. This interest comes because the study is critically evaluating the challenges parties to the Rome statute face in trying Incitement to commit Genocide as a way of crime participation and not as a crime on its own. 3.11 Dimensional Sampling 84 This is the type of selection where various factors assumed to be of importance in a survey are incorporated by the researcher into the sampling procedure in a manner that allows at least one representative of every possible combination of these factors to be included

3.12 Data Collection Techniques 85 The data collection procedure in a mixed method research will vary depending on the type of mixed method design adopted. In concurrent data collection, the quantitative and qualitative data are collected at roughly the same time. This study used two data collection techniques, namely; face-to-face interviews as the main data collection technique, and a self- administered Questionnaire.

3.13 Questionnaire 86 A questionnaire is a set of questions that are asked as a basic way of getting information on a topic of interest . Questionnaires are doubtless one of the primary sources of obtaining data in any research endeavor. However, the critical point is that when designing a questionnaire, the researcher should ensure that it is “valid, reliable and unambiguous” Both generic and specific closed-ended and open-ended questions were covered in the questionnaire. Specifically, the three questionnaires were administered to serve the purpose of extracting generic and specific information concerning the objectives of this research.

 A Questionnaire for representatives of the various Criminal law Organizations

3.14 Interviews 87 The third main type of data collection method used in this research is the interview contends that “Interviews are a popular and widely used means of collecting qualitative data.” To this end, the researcher wants to get firsthand information directly from some knowledgeable informants. 88 There are many types of interviews, the common being structured interview, unstructured interview, and semi-structured interview. Structured interview consist of a series of predetermined questions that all interviewees answer in the same order. Unstructured interview is the opposite, in that the flexibility of this type is wide open. Interviewees can elaborate, leading in unpredictable directions. In this type of interview the order of the questions can be changed depending on the direction of the interview . This research adopted a semi- structured interview approach. This type is a mix of the two types mentioned above, where

the questions are pre-planned prior to the interview but the interviewer gives the interviewee the chance to elaborate and explain particular issues through the use of open-ended questions 89 A number of people were interviewed in this study, these include, representatives from the ministry of Justice, Ministry of Home affairs as well as other related sectors. 3.15 Reliability and Validity 90 Reliability and Validity are important concepts in research as they are used for enhancing the accuracy of the assessment and evaluation of a research work . They have different meanings under the different types of research i.e. quantitative and qualitative research, Creswell . Under quantitative research, reliability refers to the consistency, stability and repeatability of results i.e. the result of a researcher is considered reliable if consistent results have been obtained in identical situations but different circumstances . 91 Validity is the extent to which any measuring instrument measures what it is intended to measure . It is possible for a measurement to be reliable but invalid; however, if a measurement is unreliable, then it cannot be valid . Under qualitative research, reliability is referred to as when a researcher’s approach is consistent across different researchers and different projects. Validity is when a researcher uses certain procedures to check for the accuracy of the research findings . In order to strengthen the validity of the research data and instruments, the researcher applied the method of triangulation. This involves the process of collecting data through several sources: questionnaires, interviews and classroom observations etc . Gathering data through one technique can be questionable, biased and weak. However, collecting information from a variety of sources and with a variety of techniques can confirm findings . Therefore, if the researcher obtains the same results, he/she can become sure that the data is valid. Certainly, through triangulation we can gain qualitative and quantitative data in order to corroborate our findings . This study adopted two data collection methods, namely; interviews and self-administered questionnaire.

3.16 Ethical Consideration 92 Respondents were informed in advance of the research and what it sought to achieve. Confidentiality of information was emphasized to the respondents to do away with the fears of victimization to allow free disclosure of information.

93 The researcher communicated the ethical issues to the various respondents and made an effort to create a climate of comfort for the respondents; letting the respondent know that participation is voluntary. 94 The respondents were assured that their responses were treated as confidential and used only for academic purposes in this study. A letter of introduction from the Faculty of Law, Cavendish University Zambia was presented together with the questionnaire and before the start of any interview to all respondents to ensure that they participate in the study voluntarily and from an informed point of view. 3.17 Limitations of The Study 95 The following limitations among others, are those generic to qualitative research which were experienced during this study: 96 Some respondents selected for the study had to be persuaded into opening up as they were either suspicious of the use of information being gathered or they thought that the study would work against them to provide much needed information because they were afraid of being implicated after responding. 97 Accessibility to information was the biggest challenge as the Ministry of Justice and Home affairs being the major institute couldn’t provide any information as the institution has little information on incitement to Genocide. 3.18 Conclusion 98 In conclusion Chapter three has discussed the methodology used in conducting this research. Which adopted a mixed method research where both qualitative and quantitative data was collected to make a comprehensive analysis of the research findings? The research used purposive and dimensional sampling techniques and adopted the following data collection methods: Questionnaire, and Interviews. The research further discussed ethical considerations, which is one of the most important parts of the study.

CHAPTER FOUR

DATA ANALYSIS AND INTERPRETATION 4.1 Introduction

99 This chapter focuses on presentation and analysis of data based on existing documents, reviews and research objectives. The main themes in this case on which data shall be presented and analyzed shall be the established research objectives. 4.2 Insight On the Framework and Interpretation of the Questionnaire 100A self-administered questionnaire was used in this study. The main purpose for using a questionnaire was to collect primary data that would complement data collected through document review technique. This strategy was used firstly to identify the legal and policy frameworks used to prohibit incitement of Genocide in Zambia, secondly to analyze the experiences of persons implementing these polices in relation to incitement to Genocide and lastly to critically analyze the measures taken by the Ministry of Justice to Review and strengthen the law in order to address incitement to Genocide .

4.3 Presentation, Analysis and Interpretation of the Questionnaire

101A total of 2 questionnaires each were distributed to respondents in two institutions which are considered to be key in this research field .And 1 questionnaires was distributed to Law firms members of the public in relation to incitement of Genocide.

4.4 Ministry of Justice and Home affairs Questionnaire Response Rate

Table 4.4.1: Whether Zambia has any law on prohibiting incitement of Genocide.

Variable YES NO

Respondents % Responden % ts

3 Is Zambia A Party to the 5 100 0 0 International Criminal Court?

4 Has Zambia Domesticated the 1 20 4 80 Law on prohibition of Incitement to Genocide. 5 If yes what laws are these Part II 0f 20 4 80 CAP 87

6 Have you received reports on 0 1 5 100 incitement to Genocide?

102Table 4.4.1 shows that 100% of the respondents representing the Ministry of Justice provided a response to the questionnaire and said yes to Zambia been a party to the ICC. Furthermore 80% of the respondents denied to Zambia having a specific law or laws regulating incitement to Genocide. The 20% responded yes to Zambia having laws regulating the prohibition of Incitement to Genocide. According to the 20% CAP 87 Part II has these laws however Part II of CAP 87 has no Specific Section that prohibits Incitement of Genocide in particular, hence it cannot be said that Zambia has any law under its statutes regulating incitement of Genocide.

Table 4.4.2: Level of frequency

Variable Very Often Often Rare Very Rare Never

Respondents % Respondents % Respondents % Respondents % Respondents %

1. If Yes, 0 0 0 0 0 0 0 5 100 how often are such cases

reporte d?

2. How 0 0 0 0 0 0 0 0 5 100 often do these cases proceed to Trial

Table 4.4.2 shows that the frequency of crime reports of Incitement to Genocide have never occurred nor experienced. It also shows that no case have ever proceeded for trial.

4.5 Law Firms Questioner Response Rate

Variable YES NO Respondents % Responde % nts 1. Does Zambia have any 0 0 3 100 Laws prohibiting Incitement to Genocide? 2. If yes what laws are these? 0 0 0 0

3. Have you received any 0 0 3 100 cases on incitement to Genocide?

5 Table 4.5 shows that no cases of incitement have been received by law firms and no specific law regulates this crime.

4.6 Presentation, Analysis, And Interpretation of Interviews

The interview approach adopted for this study was a semi-structured interview and was conducted face to face. Representatives of various government institutions were interviewed for this research.

4.7 Why doesn’t Zambia have any Specific Law that regulates incitement of Genocide?

“1st Respondent’’

During a workshop organized in 2006 by the CICC and Zambia’s national coalition, the Minister of Justice pledged to start the implementation process of the Rome statute. However, the elections and constitutional changes that followed have delayed progress eg the formation of laws prohibiting this crime

“2nd Respondent” Zambia has recognized the importance of the ICC as a mechanism for peace and international justice, and has committed to promote the ratification and implementation of the Rome Statute, to seek to take steps towards the ratification and the implementation of the Rome Some Statute, and to fight against international crime giving due regard to the Rome Statute. However it is still in the process of implementation. Hence lack of such a law should be seen as a slow progression in the implementation process.

“3 and 4” Respondent” In Zambia, we have thankfully not suffered any tragedies of Genocide or incitement to Genocide, however, like many nations, the challenge of balancing freedom of expression while also protecting the public’s peace and security is paramount. In the year 2017,They were Varied views, both for and against the motion whether Zambia should continue to be a member of ICC . The ICC has been part of the global justice system since 2002, but its concentration on African issues has led to accusations of bias. The ICC was designed to prosecute and bring to justice those responsible for the worst crimes such as genocide, crimes against humanity and war crimes. The court has global jurisdiction.

The court however, is one of last resort, intervening only when national authorities cannot or will not prosecute. The Zambian government, instead of making a decision on behalf of the nation, allowed citizens to petition and based on the consultative process outcome, a decision to either withdraw or remain a member of the ICC was given at the 29th Summit of the Assembly of the AU scheduled for June/July 2017.At this meeting Zambia resorted to Stay. Hence these are some of the delays that have drown Zambia back in implementing the Rome statute. 4.8 Summary of the Modern Legal Framework 104The modern legal framework is composed of primary and subordinate factors. A Trial Chamber should begin an analysis of the public element by considering the primary factors. First, it should examine the characteristics of the place where the speech was pronounced. If the location is a street corner, then the place is likely to be considered public. If the location is a closed room, then the place is likely to be private. Once it determines if the place is by definition public, it should move on to the select or limited factor. This primary factor incorporates the subordinate factors. It relies on a determination of the nature of an audience privy to inciting speech. 105There is no predetermined progression for considering the subordinate factors. A court may begin by evaluating how many individuals were present and composed the audience. The court may use audience size as one indicator to determine that speech is public. Audiences consisting of many individuals are more likely to be public, but small speeches do not necessarily point to a private conversation . Given the existing jurisprudence, it would be erroneous for a judgment to find that a speech is private based solely on the presence of a small number of individuals. A court should also consider whether the speech was broadcast through the media. If speech is broadcast it is likely to be public. However, if speech is not broadcast and the audience is small, judges should consider unspecified characteristics of an audience to determine whether it is public . 4.9 The problem of the “Public” element of incitement to commit Genocide 106In any ICC case, place is a factor involving the public dimension. It helps judges to easily define an incitement venue, clarify the attributes of the environment, and ultimately mark it as public or private. One example of a location generally considered public is a crossroads. 87A commercial center is a second. 88 An isolated room, on the other hand, should be deemed

87 Supra note [53],Para 323

private. The definition of the ICTR seeks to incorporate such scenarios, but is based on definitions of civil law. 89 107The Akayesu judgment makes direct reference to the French theory of law, 90 but Trial Chamber I never established which places are public by definition. That creates a lacuna in the jurisprudence. It would alleviate the confusion by articulating a method of determining whether places are public or private. The distinction between public and private genocide is particularly important for emerging mass media mediums. Twitter and Facebook raise complicated questions as they merge private messaging functions with public broadcasts. Any user may send a message to thousands of people on Facebook. One way of addressing the public dimension in this context is the naming of virtual public or private platforms. Public accommodation laws are of special significance for this purpose. 4.10 Incitement Under The Genocide Convention, Ictr Statute,And Icty Statute 108The ICTY and ICTR Statutes declare that direct and public incitement to commit genocide; attempt to commit genocide and complicity in genocide is punishable. 91 Such criminal actions form part of the articles of the statutes which define genocide. Thus, in another article, the statutes seem to list somewhat awkwardly certain forms of individual criminal responsibility in one generally applicable article and other forms, applicable only to genocide.92 109The two laws take this approach since their definitions of genocide complement the Convention on Genocide Crime Prevention and Punishment,93a document that does not make

88Prosecutor v. Callixte Nzabonimana (Nzabonimana Trial Judgement),Case No. ICTR-98-44D-T, Judgement and Sentence .Para 1760 89 Ibid [74] 90 Ibid[76] 91 Statute of the International Tribunal for Rwanda art. 3, Nov. 8, 1994, 33 I.L.M. 1602 [hereinafter ICTR Statute]; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 art. 4.3, May 25, 1993, 32 I.L.M. 1192 [hereinafter ICTY Statute]. 92 Chile Eboe-Osuji, “Complicity in Genocide” Versus “Aiding and Abetting Genocide”: Construing the Difference in the ICTR and ICTY Statutes, 3 J. INT’L CRIM. JUST. 56 (2005) (discussing the tribunals’ approaches to this issue in Akayesu, Krstic, and Semanza); see also Grant Dawson 93 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 [hereinafter Genocide Convention].

a clear separation between primary and secondary liability. The Convention essentially treats genocide, conspiracy, incitement, attempt, and complicity as five distinct crimes, each of which shall be punishable in its own right. A generally accepted benefit of this approach is that it makes it easier for states to meet the "prevention" dimension of the purposes for which the international community has adopted the Genocide Convention. A individual can be convicted of direct and public incitement to commit genocide even in a situation where there has not (yet) been a genocide. 4.11 Incitement is Redundant if It Is Not a Separate Crime 110The full impact of the criminalization of incitement is challenged by the International Criminal Court's Rome Statute, which decreases the incitement status from a crime in its own right to a form of criminal involvement in genocide. The status of incitement as a separate crime has several important effects. 111Thomas E Davies argues that there are several important effects to the status of incitement as a separate crime. First, it makes the task of arguing that a defendant has committed incitement fairly simple in that it is unnecessary for the plaintiff to carry out the often challenging task of establishing a causal connection between the incitement and a subsequent act of genocide. 112Second, in combination with the modes of criminal participation listed in the tribunals’ statutes, it makes it possible to charge a defendant with aiding and abetting the incitement of genocide. Third, it allows prosecutors to charge individuals with incitement to genocide even when it may not be possible to prove that the atrocities that were subsequently committed amounted to genocide rather than crimes against humanity or war crimes. 113Finally, it makes it possible to try to prevent genocide when it has not yet occurred by indicting and prosecuting individuals who incite genocide before the incitement comes to fruition. All these effects depend on the status of incitement as a separate crime rather than a mode of criminal participation. In addition , the author points out that the Rome Statute, by defining incitement as a form of participation rather than a crime in itself, and by not including incitement in the list of crimes under the jurisdiction of the ICC, makes the prohibition on incitement even less successful than it was in the ICTR jurisprudence. The states parties to the Rome Statute can and should address this problem by making a simple

textual change so that the Rome Statute treats incitement in the same way as the ICTR and ICTY Statutes do. 114All of these effects depend on the incitement status as a separate offense, rather than a form of criminal activity. By defining incitement as a mode of activity rather than a crime in itself, and not including incitement in the list of crimes under the jurisdiction of the ICC, the Rome Law rendered the ban on incitement even less effective than it was in the ICTR jurisprudence. 115The States Parties to the Rome Statute may and should fix this issue by making a simple textual amendment, so that incitement is handled in the same way as the ICTR and ICTY Statutes. Another advantage of this approach is that it removes what otherwise could be a difficult problem to establish a causal link between an act of incitement and a subsequent act of genocide. 4.12 The Challenge of proving causation 116Incitement is a crime in its own right; the prosecutor does not need to show that an act of incitement has any causal link to the resulting act of violence of another human, such as an assassination or a mass rape. 94The perpetrator can simply be found guilty of incitement, rather than being held secondarily responsible for an act of genocide that he incited another person to commit. Instead, if incitement were to be interpreted as a means of involvement in the underlying crime of genocide, the prosecutor would have to prove that the inciter would be held responsible for a real, subsequent act of genocide to which the act of incitement had some causal connection. 95 117 To see why this distinction is relevant, the factual settings of the cases in which the ICTR found individuals guilty of incitement are helpful to look at. In both these cases, it was apparent from the facts that the defendant had directly and publicly incited others to commit genocide. But in several cases, it would have been difficult and perhaps impossible to prove that the incitement had led to the subsequent committing of an act of genocide by any particular person for which the inciter might be held responsible.

94 Prosecutor v. Nahimana, Case No. ICTR 99-52-T, Judgment, ¶ 1015 (Trial Chamber Dec.3, 2003) (“The Chamber notes that this causal relationship is not requisite to a finding of incitement. It is the potential of the communication to cause genocide that makes it incitement.”) 95 ibid

4.13 Cases of incitement by the ICTR and the possible obstacle of proving the causation 118This Part reviews the ICTR’s groundbreaking case law on direct and public incitement to commit genocide, the first application of the UN Genocide Convention’s incitement provisions by an international criminal tribunal. This Part focuses on one key aspect of this jurisprudence: the prominent and ambiguous role of causation in the Tribunal’s incitement rulings. 119In reviewing the applicable law, the rulings tend to reiterate the standard legal formulation that as an inchoate crime, ICG may occur regardless of the consequences of a speech or broadcast. Nevertheless, as this Article discusses in greater detail below, a number of the initial ICTR judgments advanced in their findings of fact a clear causal link between speeches or broadcasts and actual genocide or other material crimes. Subsequent ICTR rulings went even further, and references to causation seeped into their legal findings and altered the way in which the ICTR Trial Chamber conceptualized the legal contours of incitement . 120Reviewing the entire corpus of ICTR case law in incitement to commit genocide, one might reasonably ask whether the ICTR judges’ attention to causation in adjudicating ICG elevated it to the level of a requisite element of the crime. Reasonable grounds exist for and against the proposition, but both sides could agree that the successive trial and appeal rulings contain a great deal of ambiguity and conflicting language.

4.13.1 The Prosecutor v. Nahimana 121In this case, two defendants were found guilty by ICTR of direct and public incitement to genocide. The two defendants were held liable for broadcasts on the Radio Television Libre des Mille Collines (RTLM) radio station and for articles in the Kangura newspaper which amounted to direct and public incitement. By closely studying the language used in radio broadcasts and newspaper articles, interpreted in the cultural and linguistic sense of Rwanda in 1994, the tribunal found the defendants guilty of incitement. If the prosecutor had to prove that the acts of incitement of the defendants had caused specific persons to commit specific acts of genocide, it would have been much more difficult and perhaps prohibitive to obtain the convictions of these three defendants. This is because, to actually prove that

communications by the Nahimana defendants had caused acts of genocide, the prosecutor would have had to establish certain key facts, each of which could pose a considerable evidentiary challenge. 96 To begin with, the prosecutor would have had to prove that a genocide suspect had actually listened to a specific RTLM broadcast, or read a specific Kangura question, in which language was used which amounted to incitement. This in itself could well be difficult because the vast majority of what was said on RTLM or written in Kangura did not amount to direct incitement to genocide, even if it did express hatred toward Tutsis. Therefore the prosecutor will first have to persuade the court that a specific statement was an incitement, and then find a way to show that the defendant actually listened to the radio at the time the statement was made (or read a particular article containing that statement). Moreover, even if it was established that a particular individual had listened to or read a communication that amounted to incitement, the prosecutor would still have to show that that individual had in fact committed an act of genocide. 122Therefore, in order to obtain a conviction for incitement to genocide, the prosecution would have to create in the actual direct perpetrator's mind the precise motive, in addition to demonstrating that he had committed the act himself after receiving a correspondence which amounted to incitement. Therefore, if incitement to genocide had been regarded as a form of criminal participation under the ICTR Statute, the Nahimana prosecution would have had to take some potentially challenging additional steps to get a conviction on that basis. It was the status of incitement as a separate crime that made it reasonably possible to reach a judgment which reflected the responsibility of Nahimana and Ngeze to use the mass media to incite genocide. 4.13.2 The Prosecutor v Jean Akayesu 123The ICTR found that Jean-Paul Akayesu, the bourgmestre of Taba commune, had used his esteemed and group influential role to commit direct and public incitement to genocide, as well as directly committing genocide and other crimes. 97 The trial chamber found that Akayesu had given a speech before a crowd of over a hundred people that he knew "would be construed as an appeal to kill the Tutsis in general." The TC held that "direct and public

96 Joshua Wallenstein, Note, Punishing Words: An Analysis of the Necessity of the Element of Causation in Prosecutions for the Incitement of Genocide, 54 STAN. L. REV. 351, 397 (2001) 97 Supra note [82]

incitement to commit genocide as such must be punished, even where such incitement has failed to produce the perpetrator's expected result." Due to the relatively small size of the audience to which Akayesu spoke, and the fact that Tutsis were subsequently massacred in the region where he was the respected community leader, it was relatively easy for the Akayesu Trial Chamber to conclude that direct and public incitement was a causal factor in the massacres. In this regard, the circumstances of the incitement in Akayesu differed from those in the case of Nahimana, where the trial chambers did not find out whether the incitement at issue had actually caused genocide to take place. 124However, the statement made by the Akayesu trial chamber that the incitement had been successful would have been more difficult to make had it been appropriate for the judgment. Maybe the tribunal could still have reached that conclusion, but it would definitely have been challenged by the defense and made the prosecution work to prove it. The prosecutor would have had to demonstrate that specific individuals in Akayesu's speech audience subsequently committed acts of genocide. This could not have been prohibitively difficult, because Akayesu spoke to a crowd of people, some of whom could well have argued that other people had heard the speech and committed acts of genocide, (Though the men's rea of those suspects would still have to be proved). Nevertheless, as the tribunal recognized that incitement was a separate crime and not a form of participation, it might abandon this kind of objective investigation and conclude in passing that the incitement had been successful. 125The researcher notes that the ICTR’s decisions on direct and public incitement to commit genocide (hereafter, ICG) exhibit some contradictory elements that warrant further attention. ICG is an inchoate crime under international criminal law: its underlying intended crime (in this case, genocide) need not actually occur for the crime to be proven. It should follow, therefore, that to prove ICG, prosecutors need not show a causal link between a speech act and subsequent genocidal acts. Demonstrating that a speech, broadcast, or publication represented a public and direct call to exterminate a protected group ought to be sufficient to establish criminal responsibility for ICG . Nonetheless, ICTR judges have repeatedly advanced robust claims about the direct, causal relationship between speeches and media broadcasts and subsequent public violence in their factual findings on the Rwandan genocide. Moreover, some judgments refer to causation in their legal analysis and suggest that

causation may be a necessary element in the legal doctrine of ICG. Such a move constitutes a radical departure from at least a century of the criminal law of inchoate crimes”. 126“In Prosecutor v. Akayesu, the ICTR erred in its treatment of indirect incitement. If directness is unclear, courts should properly focus on imminence and criminal intent in an incitement case. A precise standard to treat indirect incitement is difficult to formulate. The ICTR is not alone in its failed approach. Many scholars in the United States criticize Justice Hand's incitement standard for failing to address how the law should handle indirect but purposeful incitement such as Marc Anthony's funeral oration. Masses, Hand acknowledges that speech which urges lawless action "may be accomplished as well by indirection as expressly, since words carry the meaning that they impart. Incitement is not always a simple imperative such as kill the Tutsis”. 4.13.3 The Prosecutor v Bikindi 127Bikindi was a popular singer and a public figure of some importance among Hutus.98 He was accused of inciting Hutus to commit genocide through the lyrics of some of his songs, as well as through public speeches. The TC found that most of the acts accused of Bikindi either fell beyond the temporary jurisdiction of the tribunal or do not constitute a clear and public incitement to genocide. However, the TC held Bikindi responsible for incitement on the basis of one action in particular, in which he was traveling along a road as part of an Interahamwe militia convoy, in a vehicle with a public address system, speaking to crowds along the road through the loudspeaker and urging them to kill Tutsis. 128In these unusual circumstances, the issues of facts that would have emerged if incitement were not known as a separate offence may well have made Bikindi 's conviction unlikely. Like a radio speaker, Bikindi communicated to a substantial number of people who were not all gathered in one place. It would have been difficult to prove that any particular person heard any specific Bikindi's utterance and then acted thereon. The Prosecution would have had to prove, first, that the perpetrator of Genocide had been standing by the road when Bikindi’s vehicle drove past; second, that Bikindi had said something that amounted to an incitement at the time when he was in the earshot of that particular member of the audience; and, thirdly, that the person subsequently committed an act of genocide with the requisite men’s rea.

98 Prosecutor v. Bikindi, Case No. ICTR 01-72-T, Judgment, ¶ 41 (Trial Chamber Dec. 2, 2008)

129Conclusively, Bikindi case shows that even when incitement is not committed through the mass media, it may sometimes be quite difficult to prove a causal link between a defendant’s speech and another person’s subsequent act of genocide 4.14 Challenges the ICC has faced in trying perpetrators of Incitement to Genocide 130“A particularly serious problem for the Court is the necessary provision of protection to witnesses and victims. Far more so than in central Europe, witnesses and victims from African situation States, such as Kenya, the Democratic Republic of the Congo, Uganda or Darfur/Sudan, who are prepared to testify are often at great risk and face concrete threats . And this is where the problems start: procedural rules explicitly permit witnesses and victims to be made anonymous through “redactions” that is the blacking out of details, especially their names, and to make them unrecognizable in submissions and witness statements; however, this also fundamentally threatens the rights of the accused to a fair trial. In general, the system and excessive practice of thousands of such redactions has, in my view become, a huge problem both for the Prosecutor’s staff as for Chambers. But it is difficult, so difficult to change this, in particular if tactical advantages can be gained there from ”. 131It has also become more known in the last years that the ICC is absolutely, one hundred percent, dependent on effective cooperation with States Parties in preparing criminal cases, in particular when it comes to the key issue of arrest and surrender of the accused; this lack of any form of executive power is another weakness of the Court, its Achilles’ heel, so to speak. The matter is simple: no arrests, no trials . Another limiting factor in that is the unprecedented, indeed gigantic difficulty the Court faces, in order to obtain the evidence required, it has to conduct the necessary, complex investigations in regions thousands of kilometers away from The Hague, regions where travel is difficult, the security situation is volatile and it may be difficult to collect the evidence . 132“It is worth noting that at the ICC, there is still dispute between the Court’s chambers about the role that victims of crimes (and their organizations) can play in the various stages of the proceedings. The dilemma is clear: yes, we want victim participation as envisaged by the Statute, but how to achieve this without affecting the proceedings? The current system of victim participation is, in my view, not satisfactory. It is symbolic at best and has also been distorted, at times, by certain practices of legal representatives of victims. There is, for example, the phenomenon that lawyers collect mandates from African victims; with these

documents they apply to be admitted as legal representatives of victims and to obtain legal assistance funds from the Court, which are quite generous ‐ and it is often unclear whether, afterwards, they still inform and seek the views of the victims concerned” .

4.15 Conclusion 133In conclusion, this chapter presented, analyzed critically and interpreted the data collected for the purposes of achieving the objective of this study. The main objective of this study was to critically analyze the crime of incitement to Genocide. Taking into consideration its legal framework as well as its policy framework of the Zambian system. From the research findings, The survey revealed that there is no specific law that regulates incitement to genocide and no cases of this crime have ever been tried in Zambia. 134Having diagnosed the reasons why causation has been such a feature of ICG jurisprudence at the ICTR, it is worth weighing the possible long-term consequences of the Tribunal’s jurisprudence. One potential negative consequence relates to the challenging issue of genocide prevention . Prevention is an underlying principle of enforcement against inchoate crimes like ICG, yet thus far, no defendant has been indicted for ICG in the absence of an actual genocide. This is perplexing, especially if one considers that the overriding motivation of the drafters of the UN Genocide Convention for including ICG as a crime was genocide prevention; that is, in proscribing incitement to commit genocide, the objective was to interdict the first steps in a deadly chain of events.

CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.1 Overview 135This chapter focuses on the conclusion of the research findings in relation to the research objectives and literature review on direct and public incitement of genocide with reference to Rwandan cases. In addition, the Chapter presents recommendations aimed at enhancing responsibility and punishment for any form of direct and public incitement towards crimes of genocide. 5.2 General Conclusion 136International problems often originate at the domestic level. For this reason, the prevention and punishment of international crimes must, as far as possible, be addressed primarily from within domestic legal systems. It is now widely accepted that the future success of the project of international criminal justice is vested in the ability and willingness of states as regards the prosecution of international crimes, with the ICC acting as an institution of last resort in respect of the core crimes of international law. South Africa has, through ratification of the Rome Statute as well as adoption of the ICC Act, formally indicated its willingness to be a partner in this project. These are laudable developments. However, a willingness to prosecute international crimes domestically amounts to little without enabling the domestic legal system to do so effectively. These crimes have been created by the international community and are partly aimed at the prevention of collective violence. 137Therefore, they are pro-active legal rules requiring pro-active measures for their implementation by states. Incitement to genocide is arguably the best example of such a preventative crime, yet it is not at present clearly defined and explicitly criminalized for example in Zambian law. In general, there is a lack of recognition of the fact that words may be as dangerous as physical weapons in the context of genocide and especially in the preliminary stages thereof. To counteract this danger, another kind of 'weapon' may be used, namely, timely domestic prosecution pursuant to a clearly defined and pre-existing criminal prohibition of incitement to genocide. 138“Having diagnosed the reasons why causation has been such a feature of ICG jurisprudence at the ICTR, it is worth weighing the possible long-term consequences of the Tribunal’s

jurisprudence. One potential negative consequence relates to the challenging issue of genocide prevention . Prevention is an underlying principle of enforcement against inchoate crimes like ICG, yet thus far, no defendant has been indicted for ICG in the absence of an actual genocide. This is perplexing, especially if one considers that the overriding motivation of the drafters of the UN Genocide Convention for including ICG as a crime was genocide prevention; that is, in proscribing incitement to commit genocide, the objective was to interdict the first steps in a deadly chain of events. 139An early draft of the Genocide Convention, prepared by the Ad Hoc Committee on Genocide in April and May 1948, criminalized direct incitement in public or in private to commit genocide, whether such incitement be successful or not, and the Akayesu Trial Chamber noted that the specific crime of ICG was established in the Convention “in particular, because of its critical role in the planning of a genocide” . 140“In this light, the researcher notes that the ICTR’s elevation of causality in the determination of ICG thwarts the prevention clauses of the UN Genocide Convention. By finding directness and specific intention in outcomes, by insisting on proof of a possible causal link, and by introducing a temporality criterion that posits that incitement to commit genocide can only occur at or near an actual genocide, the existing case law could hinder a range of preventative international responses to early genocidal speech. Such responses might range from jamming radio transmissions to issuing an indictment against those most responsible as they launch a campaign of genocidal propaganda”. 141According to Jean-Fran¸cois Gaudreault-DesBeins , the concern with causation at the ICTR “forces the potential victims of hate propaganda to bear or absorb all risks” of inciting speech. If there is an unspoken condition that courts will find ICG only in the context of actual genocide, and prosecutors therefore feel they must prove a causal nexus between inciting speech and genocidal acts, then such prosecutors are likely to wait until genocide is underway before charging an individual for ICG . This formulation thwarts any preventive force that criminalizing ICG could have, and encourages the international community to adopt a wait and see approach. The central rationale of the crime of direct and public incitement to commit genocide is to deter the kind of public exhortations to commit genocide that ordinarily precede the onset of violence. International criminal tribunals have been

criticized for being reactive and failing in their prevention and deterrence functions, and the ICTR’s incitement jurisprudence only compounds this shortcoming” . 142“The researcher indicates that the problems in the international law of ICG seem to have sprung from the International Law Commission’s (ILC) 1996 criminal code for war crimes and crimes against humanity. Perhaps it falls to the ILC to reaffirm incitement as an inchoate crime and clarify how causation is relevant to speech acts that result in attempted or completed crimes. This would not be such a severe blow to the legitimacy of the International Law Commission—and over time might even enhance its authority, especially if we recall that historically, international criminal law has been constructed from a patchwork of international declarations and decisions drawn from a variety of national and international legal settings. If the international criminal law of ICG is to sharpen and cohere over time, it will no doubt do so in a piecemeal way, through future decisions handed down by international courts such as the International Criminal Court, as well as national criminal courts”.. 143Although the Rome Statute includes direct and public incitement to commit genocide, along with other forms of individual responsibility, it is generally accepted that Article 25(3)(e) “direct and public incitement to commit genocide” is consistent with earlier formulations of incitement to genocide . This wrinkle has the potential to complicate incitement jurisprudence, but, for the time being, scholars continue to consider it an inchoate crime. It is almost impossible to know precisely how the ICC will evaluate the public element, since it has never convicted anyone of incitement to commit genocide. 5.3 Recommendations 144Based on the research findings and conclusion, the research recommends:  Zambia need to Formulate a Specific Law Criminalizing Incitement of Genocide. 145The prevention and punishment of international crimes must, as far as possible, be addressed primarily from within domestic legal systems. It is now widely accepted that the future success of the project of international criminal justice is vested in the ability and willingness of states such as Zambia as regards the prosecution of international crimes.  Zambia needs a well Defined policy and Legal Framework on Incitement of Genocide.

146Zambia needs a broad system of rules that governs and regulates decision making, agreements, and laws. It needs a policy that outlines the methods and principles it will use to achieve the prohibition of incitement to Genocide so as to set out standards, procedures and principles that must be followed.  There is a need to clarify the Public Element 147“Instead of a factor, the select and limited character of an audience should be a defense. Only defendants have ever raised the argument and in many cases a judgment can be rendered without considering the character of an audience. This would also shift the burden to defendants, which is appropriate, as they are in a better position to shed light on facts relating to the composition of an audience”. 148“Another method to clarify the public element is to designate the medium and place factors. Both medium and place should satisfy the public element independently. Media is more appropriately considered at the first stage of the public element framework. This recommendation seeks to separate the medium of speech from the place factor and the select and limited defense by eliminating any connection to the number of individuals in an audience. Instead it relies on the broadcast qualities of media”.  The ICC need to adopt the ICTR framework on incitement. 149“If the ICC adopts the ICTR framework as it should, it has a wealth of case law, developed over sixty years, to draw from, as well as an opportunity to reorganize the public element by adopting measures to ease its implementation. The element is beneficial because it facilitates punishments for inciting speech, while indicating when defendants will be held accountable under the law”.  That ICC should consider the advent of new forms of communication in handling direct and public incitement to commit genocide crimes.  The ICC may also clarify the public element looking towards new forms of communication and strategies that mirror communication via the Internet. The suggestions in this paper seek to achieve that goal: treating the select and limited factor as a defense, and elevating the medium factor to primary status alongside and instead of the place factor. Under such circumstances, public incitement to genocide would remain relevant and prevent inciting speech from contributing to genocide in the future”.

BIBLIOGRAPHY

TREATIES AND CONVENTIONS

Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171

CASES

International Criminal Tribunal for Rwanda

Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, Judgement, (2 September 1998)

Prosecutor v. Ngirabatware, ICTR. MICT-12-29-A, Appeals Chamber, Judgment, (18 December 2014)

Prosecutor v. Musema, ICTR-96-13-A, Trial Chamber I, Judgment and Sentence, (27 January 2000).

Prosecutor v. Juvénal Kajelijeli, ICTR-98-44A-T, Judgment and Sentence, (Dec. 1, 2003)

Prosecutor v. Nzabonimana Appeals Judgment, Case No. ICTR-98-44D-A, (31 May 2012)

Kalimanzira v. Prosecutor (Kalimanzira English AppealsJudgment), Case No. ICTR-05-88-A, (October 20 2010)

The Prosecutor v Kambanda ,(ICTR-97^23-S),(Trial Chamber), (4 September 1998)

The prosecutor v Francois Karera, ICTR-01-74-A,Appeal Chamber, Judgement,2 February 2009

Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, (Decision on Tharcisse Muvunyi’s Motion for Judgment of Acquittal Pursuant to Rule 98), (Trial Chamber), (13 October 2005)

Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T, Judgment. and Sentence (Trial Chamber), (3 December 2003).

The Prosecutor v Simon Bikindi,ICTR-01-72-T,Judgement,(2 December 2008)

Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, Judgment and Sentence (Trial Chamber), (1 June 2000)

Prosecutor v Nyiramasuhuko, (Judgement and sentence), Case No.ICTR-98-42-T, (24 June 2011).

International Criminal Tribunal for The Former Yugoslavia

Prosecutor V. Ngirabatware, ICTR. Mict-12-29-A, Appeals Chamber, Judgment, 18 December 2014, Para. 150

Prosecutor v. Furundžija,ICTY,IT-95-17/1 -T, Trial Chamber, Judgment(‘Furundzija Trial Judgment’), (10 December 1998)

Prosecutor v Blaskic ICTY (IT-95^14-A), Appeals Chamber, (29 July 2004)

Prosecutor v Kordic and Cerkez, ICTY,(IT-95-14/2-A), Appeals Chamber, (17 December 2004)

Prosecutor v Kunarac, ICTY(Sentencing Judgment) IT-96-23 (22 February 2001) 844;

Prosecutor v. Mrkšić et al, ICTY, Case No. IT-95-13/1-T, Judgement (27 September 2007).

Prosecutor v. Perišić, ICTY, Case No. IT-04-81-T, Trial Chamber I, Judgment, (6 September 2011)

Prosecutor V. Kvočka Et Al.ICTY, It-98-30/1 -T, Judgment (‘Kvočka Trial Judgment’), 2 November 2001

REPORTS, ARTICLES AND JOURNALS.

United States Holocaust Museum, Incitement to Genocide in International Law ,Oct 21, 2019 ,Washington DC

Brendan Saslow, The Public Element of Direct and Public Incitement to Commit Genocide, (2016), Volume 28, Case Western University.

De Vos, C.M, Investigating from Afar: The ICC's Evidence Problem, Leiden Journal of International Law, (2013)

Christoph Safferling, ‘Can Criminal Prosecution be the Answer to Massive Human Rights Violations?’German Law Journal , (2004)

David Moshman, ‘Us and Them: Identity and Genocide’ (2007

James Meernik,‘Victor’s Justice or the Law? Judging and Punishing at the International Criminal Tribunal for the Former Yugoslavia’ (2003) 47 (2) The Journal of Conflict Resolution

Report of the United Nations Independent Investigation on Burundi S=24/I’(20 September 2016) UN Doc A/HRC/33/37,

OHCHR ‘Report of the Commission of Inquiry on Burundi’ (11 August 2017) UN Doc A/HRC/36/54.

OHCHR, ‘Report of the Independent International Fact-Finding Mission on Myanmar’ (24 August 2018) UN Doc A/HRC/39/64

Tonja Salomon, ‘Freedom of Speech v. Hate Speech: The Jurisdiction of “Direct and Public Incitement to Commit Genocide” (Oxford university press), 2017.

BOOKS

R. Geary, Essential Criminal Law (2nd edition)., London: Cavendish Publishing Ltd., 1998)

Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies(Yale University Press 1990)

Human Rights Watch, ‘“The Government Could Have Stopped This”: Sectarian Violence and Ensuing Abuses in Burma’s Abakan State’ ( July 2012)

W.A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000)

M. Ch. Bassiouni , Commentaries on the ILc’s 1991 Draft Code (1993)

Thomas Davies, How the Rome Statute Weakens the InternationalProhibition on Incitement to Genocide, (2009)

William Schabas, genocide in international law: the crime of crimes (2d ed. 2009)

Vaughan Lowe, Jurisdiction, in International Law 338 (Malcolm D. Evans ed., 2003).

A. Ashworth, Principles of Criminal Law, 4th edition, Oxford University Press, Oxford,(2003)

William Chester and Professor James Murray, Oxford Dictionary, Oxford University Press, (1989).

Richard Wilson, Inciting Genocides with Words, 36 MICH. J. INT’L L. 277, 293 (2015)

International Law Commission, "Draft Code of Crimes against the Peace and Security of Mankind", in Yearbook of the International Law Commission, Vol. II, A/CN.4/SER.A/1996/Add.

Francis Wade, ‘Fleas We Greatly Loathe’ (2018) 40(13) London Review of Books

Alexander Tsesis, Destructive Messages: How Hate Speech Paves the Way for Harmful Social

Movements (New York University Press 2002)

Binaifer Nowrojee, ‘A Lost Opportunity for Justice: Why Did the ICTR Not Prosecute Gender Propaganda?’ in Allan Thompson (ed), The Media and the Rwanda Genocide (Pluto Press 2007)

Daniel Goldhagen, Worse Than War: Genocide, Eliminations and the On-going Assault on

Humanity (Abacus 2012)

Allison Marston Danner, ‘Constructing a Hierarchy of Crimes in International Criminal Law Sentencing’ (2001) 87 (3)Virginia Law Review

Jonathan Herring, Criminal Law (7th edn, Palgrave Macmillan 2011) 321

Ralph Henham, ‘Some Issues for Sentencing in the International Criminal Court’ (2003) International and Comparative Law Quarterly

Darrel C. Menthe, Jurisdiction In Cyberspace: A Theory of International Spaces, 4 MICH. TELECOMM. TECH. L. Rxv. 69 (1998)

Mika Hayashi, The Information Revolution and the Rules of Jurisdiction in Public International Law, in the resurgence of the state: trends and processes in cyberspace governance (Myriam Dunn Cavelty ed., 2007).