The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza &

INTERNATIONAL CRIMINAL TRIBUNAL FOR TRIAL CHAMBER I CASE NO. ICTR-99-52-T (2003)

Author’s Note: This is the so-called “Radio Machete” case. It incorporates the essential history from the ICTR’s foundational case (Akayesu). The author has applied gray shading to that portion of the Akayesu case, which this tribunal includes in its account of the 1994 horror in Rwanda. The tribunal’s generous use of italics has been modified to improve readability. “Genocide” has or will be addressed in varied contexts in this textbook (§8.2 ICJ Reservations principal case; Chapter 10 Use of Force; and Chapter 11 Human Rights). It is defined here in detail, and portrayed in a modern context that illustrates the work product of the ICTR. Note the defendants’ professional backgrounds.

Court’s Opinion: CHAPTER I

INTRODUCTION

1. International Criminal Tribunal for Rwanda

1.This Judgement in the case of The Prosecutor v. Ferdinand Nahimana, Jean- Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T, is rendered by Trial Chamber I (“the Chamber”) of the International Criminal Tribunal for Rwanda (“the Tribunal”). . . . 2. The Tribunal was established by United Nations Security Council Resolution 955 of 8 November 1994 after it had considered official United Nations reports which indicated that genocide and other systematic, widespread and flagrant violations of international humanitarian law had been committed in Rwanda. The Security Council determined that this situation constituted a threat to international peace and security, and was convinced that the prosecution of persons responsible for serious violations of international humanitarian law would contribute to the process of national reconciliation and to the restoration and maintenance of peace in Rwanda. Accordingly, the Security Council established the Tribunal, pursuant to Chapter VII of the United Nations Charter. . . . 4. Pursuant to the provisions of the Statute, the Tribunal has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994. Individual criminal responsibility, pursuant to Article 6, shall be established for acts falling within the Tribunal's material jurisdiction, as provided in Articles 2, 3, and 4.

1 2. The Accused

5. Ferdinand Nahimana . . . was an assistant lecturer of history at the National University of Rwanda, and in 1978, he was elected to be Vice-Dean of the Faculty of Letters. In 1980, he was elected to be Dean of the faculty and remained in that position until 1981. From 1981 to 1982, he held the post of President of the Administrative Committee of the Ruhengeri campus of the University. He was Assistant Secretary- General for the Ruhengeri campus of the University from 1983 to 1984. In 1990, he was appointed Director of ORINFOR (Rwandan Office of Information) and remained in that post until 1992. In 1992, Nahimana and others founded a comité d’initiative to set up the company known as Radio Télévision Libre des Mille Collines, S.A. [RTLM]. He was a member of the party known as Mouvement Révolutionnaire National pour le Développement . . . . 6. Jean-Bosco Barayagwiza was . . . [a] lawyer by training, . . . [and] a founding member of the Coalition pour la Défense de la République (CDR) party, which was formed in 1992. He was a member of the comité d'initiative, which organized the founding of the company Radio Télévision Libre des Mille Collines, S.A. During this time, he also held the post of Director of Political Affairs in the Ministry of Foreign Affairs. 7. Hassan Ngeze . . . worked as a journalist, and in 1990, he founded the newspaper and held the post of Editor-in-Chief. Prior to this, he was the distributor of the Kanguka newspaper in Gisenyi. He was a founding member of the Coalition pour la Défense de la République (CDR) party.

3. The Indictments

8. Ferdinand Nahimana is charged . . . with seven counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and (persecution, extermination and murder) . . . . He is charged with individual responsibility under Article 6(1) of the Statute for these crimes, and is additionally charged with superior responsibility under Article 6(3) ... [for] public incitement to commit genocide and crimes against humanity (persecution). He stands charged mainly in relation to the radio station called Radio Télévision Libre des Mille Collines (RTLM). 9. Jean-Bosco Barayagwiza is charged . . . with nine counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, crimes against humanity (persecution, extermination and murder), and two counts of serious violations of Article 3 common to the Geneva Conventions . . . He is charged with individual responsibility under Article 6(1) of the [ICTR] Statute. . . . He is additionally charged with superior responsibility under Article 6(3) of the Statute . . . [and] stands charged mainly in relation to the radio station called RTLM and the CDR Party. 10. Hassan Ngeze is charged . . . with seven counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder), pursuant to Articles 2 and 3 of the Statute. He is charged with individual responsibility under

2 Article 6(1) of the Statute for these crimes, and is additionally charged with superior responsibility under Article 6(3) . . . [and] stands charged mainly in relation to the newspaper Kangura. . . .

CHAPTER II

HISTORY OF RWANDA

105. The Accused have conveyed to the Chamber . . . the importance of understanding the history of Rwanda, and more specifically the history of ethnic identity and inter-ethnic relations, in understanding the events that transpired in 1994 in Rwanda. . . . 106. The Chamber notes that in the first judgement of this Tribunal, the history of Rwanda was examined in detail from the pre-colonial period. The Chamber accepts the importance of this history, particularly in this case, and for this reason sets forth largely in extenso the comprehensive review of the historical context as described in the Akayesu judgement:

80. Prior to and during colonial rule, first, under Germany, from about 1897, and then under Belgium which, after driving out Germany in 1917, was given a mandate by the League of Nations to administer it, Rwanda was a complex and an advanced monarchy. The monarch ruled the country through his official representatives drawn from the nobility. Thus, there emerged a highly sophisticated political culture which enabled the king to communicate with the people. 81. Rwanda then . . . had some eighteen clans defined primarily along lines of kinship. The terms and Tutsi were already in use but referred to individuals rather than to groups. In those days, the distinction between the Hutu and Tutsi was based on lineage rather than ethnicity. Indeed, the demarcation line was blurred: one could move from one status to another, as one became rich or poor, or even through marriage. 82. Both German and Belgian colonial authorities . . . relied on an elite essentially composed of people who referred to themselves as Tutsi, a choice which . . . was born of racial or even racist considerations. In the minds of the colonizers, the Tutsi looked more like them, because of their height and colour, and were, therefore, [considered] more intelligent and better equipped to govern. 83. In the early 1930s, Belgian authorities introduced a permanent distinction by dividing the population into three groups which they called ethnic groups, with the Hutu representing about 84% of the population, while the Tutsi (about 15%) and Twa (about 1%) accounted for the rest. In line with this division, it became mandatory for every Rwandan to carry an identity card mentioning his or her ethnicity. The Chamber notes that the reference to ethnic background on identity cards was maintained, even after Rwanda's independence and was, at last, abolished only after the tragic events the country experienced in 1994. . . . 85. From the late 1940s, at the dawn of the decolonization process, the Tutsi became aware of the benefits they could derive from the privileged status conferred on them by the Belgian colonizers and the Catholic church. They then attempted to free

3 themselves somehow from Belgian political stewardship and to emancipate the Rwandan society from the grip of the Catholic church. The desire for independence shown by the Tutsi elite certainly caused both the Belgians and the church to shift their alliances from the Tutsi to the Hutu, a shift rendered more radical by the change in the church's philosophy after the second world war, with the arrival of young priests from a more democratic and egalitarian trend of Christianity, who sought to develop political awareness among the Tutsi-dominated Hutu majority. 86. Under pressure from the United Nations Trusteeship Council and following the shift in alliances just mentioned, Belgium changed its policy by granting more opportunities to the Hutu to acquire education and to hold senior positions in government services. This turn-about particularly angered the Tutsi, especially because, on the renewal of its mandate over Rwanda by the United Nations, Belgium was requested to establish representative organs in the Trust territory, so as to groom the natives for administration and, ultimately, grant independence to the country. The Tutsi therefore began the move to end Belgian domination, while the [new] Hutu elite, for tactical reasons, favoured the continuation of the domination, hoping to make the Hutu masses aware of their political weight in Rwanda, in a bid to arrive at independence . . . . Belgium particularly appreciated this attitude as it gave it reason to believe that with the Hutu, independence would not spell a severance of ties. 87. In 1956, in accordance with the directives of the United Nations Trusteeship Council, Belgium organized elections on the basis of universal suffrage in order to choose new members of local organs, such as the grassroots representative Councils. With the electorate voting on strictly ethnic lines, the Hutu of course obtained an overwhelming majority and thereby became aware of their political strength. The Tutsi, who were hoping to achieve independence while still holding the reins of power, came to the realization that universal suffrage meant the end of their supremacy; hence, confrontation with the Hutu became inevitable. 88. Around 1957, the first political parties were formed and, as could be expected, they were ethnically rather than ideologically based. . . . 89. The dreaded political unrest broke out in November 1959, with increased bloody incidents, the first victims of which were the Hutu. In reprisal, the Hutu burnt down and looted Tutsi houses. Thus became embedded a cycle of violence which ended with the establishment on 18 October 1960, by the Belgian authorities, of an autonomous provisional Government . . . , [when it was the] communal elections that gave an overwhelming majority to Hutu parties. After the Tutsi monarch fled abroad, the Hutu opposition declared the Republic of Gitarama, on 28 January 1961, and set up a legislative assembly. On 6 February 1961, Belgium granted self-government to Rwanda. Independence was declared on 1 July 1962, with Grégoire Kayibanda at the helm of the new State, and, thus, President of the First Republic. 90. The victory of Hutu parties increased the departure of Tutsi to neighbouring countries from where Tutsi exiles made incursions into Rwanda. The word Inyenzi, meaning cockroach, came to be used to refer to these [exiled] assailants. Each attack was followed by reprisals against the Tutsi within the country and in 1963, such attacks caused the death of at least ten thousand of them, further increasing the number of those who went into exile. Concurrently, at the domestic level, the Hutu regime seized this opportunity to allocate to the Hutu the lands abandoned by Tutsi in exile and to

4 redistribute posts within the Government and the civil service, in favour of the Hutu, on the basis of a quota system linked to the proportion of each ethnic group in the population. 91. The dissensions that soon surfaced among the ruling Hutu led the regime to strengthen the primacy of the MDR Parmehutu party over all sectors of public life and institutions, thereby making it the de facto sole party. This consolidated the authority of President Grégoire Kayibanda as well as the influence of his entourage, most of who came from the same region as he, that is the Gitarama region in the centre of the country. The drift towards ethnic and regional power became obvious. From then onwards, a rift took root within the Hutu political Establishment, between its key figures from the Centre and those from the North and South who showed great frustration. Increasingly isolated, President Kayibanda could not control the ethnic and regional dissensions. The disagreements within the regime resulted into anarchy, which enabled General Juvénal Habyarimana, Army Chief of Staff, to seize power through a coup on 5 July 1973. General Habyarimana dissolved the First Republic and established the Second Republic. Scores of political leaders were imprisoned and, later, executed or starved to death. . . . 92. Following a trend then common in Africa, President Habyarimana, in 1975, instituted the one-party system with the creation of the Mouvement révolutionnaire national pour le développement (MRND), of which every Rwandan was a member ipso facto, including the newborn. Since the party encompassed everyone, there was no room for political pluralism. A law passed in 1978 made Rwanda officially a one-party State with the consequence that the MRND became a "State-party", as it formed one and the same entity with the Government… 93. . . . Like his predecessor, . . . Habyarimana strengthened the policy of discrimination against the Tutsi by applying the same quota system in universities and government services. A policy of systematic discrimination was pursued even among the Hutu themselves . . . . [The president] became increasingly isolated and the base of his regime narrowed down to a small intimate circle dubbed "", meaning the "President's household". This further radicalized the opposition whose ranks swelled more and more. . . . 102. On 4 August 1993, the Government of Rwanda and the RPF [opposition] signed the final Arusha Accords and ended the war which started on 1 October 1990. The Accords provided, inter alia, for the establishment of a transitional government to include the RPF, the partial demobilization and integration of the two opposing armies . . . , the creation of a demilitarized zone between the RPF-controlled area in the north and the rest of the country, . . . and the deployment, in four phases, of a UN peace-keeping force, the United Nations Assistance Mission for Rwanda (UNAMIR), with a two-year mandate. 103. On 23 October 1993, the President of [neighboring] Burundi . . . a Hutu, was assassinated in the course of an attempted coup by Burundi Tutsi soldiers. . . . 106. At the end of March 1994, the transitional government was still not set up and Rwanda was on the brink of bankruptcy. International donors and neighbouring countries put pressure on the Habyarimana government to implement the Arusha Accords. On 6 April 1994, President Habyarimana and other heads of State of the region met in Dar-es-Salaam (Tanzania) to discuss the implementation of the peace accords. The

5 aircraft carrying President Habyarimana and the Burundian President, . . . who were returning from the meeting, crashed. . . . All aboard were killed. . . . 108. The Chamber notes the emergence of Hutu, Tutsi, and Twa ethnic group identity over the course of Rwandan history, and the concomitant ethnic prejudice that resulted from the differential distribution of social and political privilege along ethnic lines, fostered by and during colonial rule. The history of Rwanda in the twentieth century has been shaped by a complex interplay of political power and ethnic consciousness. The Chamber observes that political forces have greatly contributed to the transformation of ethnic consciousness into ethnic hatred. 109. This backdrop to the events that transpired in Rwanda in 1994 may explain in large measure the otherwise almost incomprehensible level and intensity of the violence that erupted in April 1994 and continued relentlessly for several months. However, the Chamber recalls and underscores that this history cannot be used to justify such violence. Efforts to do so contribute to the perpetuation of violence. The Chamber recalls that its fundamental purpose of holding individuals accountable for their conduct is intended to “contribute to the process of national reconciliation and to the restoration and maintenance of peace”. Justice should serve as the beginning of the end of the cycle of violence that has taken so many lives, Tutsi and Hutu, in Rwanda. . . .

CHAPTER III

FACTUAL FINDINGS

1. Violence in Rwanda in 1994 . . . 114. On 6 April, the plane carrying [Hutu] President Habyarimana was shot down, a crime for which responsibility has not been established. Within hours, killings began. Soldiers and militia began systematically slaughtering Tutsi. . . . On 7 April 1994, the RPF renewed combat with government forces. United Nations troops, in Rwanda under the terms of the peace accords, tried briefly to keep the peace, then withdrew to their posts as ordered by UN headquarters in New York. A force of French, Belgian and Italian troops came to evacuate foreigners and then departed. Ten Belgian soldiers of UNAMIR, the UN peacekeeping forces, were killed, and the Belgian troops were withdrawn. On 9 April 1994, an interim government was sworn in. . . . [T]he instructions given to the population, killing was known as “work”, and machetes and firearms were described as “tools”. . . . 115. Prosecution Witness Philippe Dahinden, a Swiss journalist . . . filmed dead bodies in the river at Kanyaru, counting the bodies as they flowed by and estimated on that basis that there were 3,000 to 5,000 dead bodies per day coming down the river. . . . 121. Following the shooting of the plane and the death of President Habyarimana on 6 April 1994, widespread and systematic killing of Tutsi civilians, a genocide, in Rwanda commenced.

6 2. Kangura

2.1 Ownership and Control of Kangura

122. The first issue of Kangura was published in May 1990, the last in 1995. . . . According to Prosecution Expert Witness Marcel Kabanda, who has researched the print media in Rwanda from 1990 to 1995, Kangura was very well known in the country as well as internationally. . . . 2.2.1 The Ten Commandments

138. The Ten Commandments were published in Kangura No. 6, in December 1990, within an article entitled Appeal to the Conscience of the Hutu. This article had five sections beginning with an introduction. The introduction stated that the attack on Rwanda in October 1990 by “Tutsi extremists”, who relied on the support of “infiltrators within the country and the complicity of Tutsi within the country”, as well as the Ugandan army, had been undertaken with the hope “to conquer the country and establish a regime based on their feudal monarchy”. Noting that the attack had been successfully repelled, the introduction warned Kangura readers and ended with the following rallying cry:

…The enemy is still there, among us, and is biding his time to try again, at a more propitious moment, to decimate us. Therefore, Hutu, wherever you may be, wake up! Be firm and vigilant. Take all necessary measures to deter the enemy from launching a fresh attack.

139. The second part of the article, entitled “The Tutsi ambition”, described the Tutsi as “bloodthirsty”, and referred to their continuing ideology of Tutsi domination over the Hutu, and to the “permanent dream of the Tutsi” to restore Tutsi minority rule. . . . The article referred to a plan of 1962, in which the Tutsi were to resort to two weapons they thought effective against the Hutu: “money and the Tutsi woman”. The third part of the article, on implementation of this plan, stated that the Tutsi used money dishonestly to take over Hutu companies or to gain control over State authorities. The fourth part of the article, entitled “The Tutsi woman”, stated that Tutsi women were sold or married to Hutu intellectuals or highly placed Hutu officials, where they could serve as spies in influential Hutu circles and arrange government appointments, issue special import licenses, and pass secrets to the enemy. The fifth part of the article, in which The Ten Commandments were included, exhorted the Hutu to wake up “now or never” and become aware of a new Hutu ideology, with roots in and in defence of the 1959 revolution. Reference was made to the historical servitude of the Hutu, and readers were urged to “be prepared to defend themselves against this scourge”. The Hutu were urged to “cease feeling pity for the Tutsi!” . . . 140. Witness GO, a Hutu who worked at the Ministry of Information monitoring the private press, testified that he had read The Ten Commandments and that they had

7 been broadcast on RTLM [aka Radio Machete]. He described the goal of mentioning them as “to ensure that the population understood that all the must become united”, that “they should have a single fighting goal that they should aim for”, and “that they should have no link or relationship between Hutus and ”. He said it was for this reason that some men started killing their Tutsi wives, or children of a mixed marriage killed their own Tutsi parents. 141. Prosecution Witness ABE, a Tutsi, testified that . . . The Ten Commandments “. . . was incitement to hatred. The Hutus were being asked to rise up against the Tutsis”. He said the commandments that really touched him were the ones prohibiting marriage to, intimate relations with, and employment of Tutsi women, which he considered to be very serious because the Hutu and Tutsi shared the same culture and lived within the same territory. With regard to the commandment that the Hutu should not take pity on the Tutsi, he understood this to mean, “In other words they can even kill them”, adding, “and that is actually what happened, and I think this was meant to prepare the killings”. Prosecution Witness AHA, a journalist who worked for Kangura, testified that the effect of the publication of The Ten Commandments was that the Hutu started perceiving the Tutsi as enemies instead of seeing them as citizens, and the Tutsi also starting seeing the Hutu as a threat. . . . 158. Several witnesses . . . characterized The Ten Commandments as “how the Hutus were supposed to get rid of the Tutsis”, and Witness GO suggested it was for this reason men started killing their Tutsi wives, or children [and] their Tutsi parents. Having studied the text of The Ten Commandments and the Appeal to the Conscience of the Hutu, the Chamber considers the views of these witnesses to be well-founded and a reasonable illustration that an anti-Tutsi message of violence was effectively conveyed and acted upon. . . . 180. In this article, the Tutsi were described as biologically distinct from the Hutu, and inherently marked by malice and wickedness. With reference to snakes, the Tutsi were portrayed as mean and vengeful, and their weapons were again defined, as in The Ten Commandments, to be women and money. . . . 182. An article published in Kangura No. 46 in July 1993, again promulgated the theme of Tutsi malice and wickedness preying on Hutu innocence and vulnerability, using the weapons of women and money:

We are trying to discover the wickedness and malice of Tutsis. When you cure the eye of a Tutsi, you will be the first to be glanced at with envy. We have started with this proverb so as to warn and awaken those who are not aware of the sadism, wickedness, malice and ingratitude of Tutsis. Tutsis think they are more intelligent than whosoever is but after analysis, it is discovered that their pretentiousness conceals their wickedness. . . .

187. The Chamber notes that the editorials and articles reviewed above consistently portrayed the Tutsi as wicked and ambitious, using women and money against the vulnerable Hutu. These themes echo the message of . . . The Ten

8 Commandments. In some articles, such as the article in Kangura No. 11, “If One Asks Generals Why They’re Favoring Tutsis”, information about Tutsi privilege and Hutu disadvantage was conveyed in a manner that appears as though intended to raise consciousness regarding ethnic discrimination against the Hutu. In many other articles, however, the intent, as evidenced by the vitriolic language, was to convey a message of ethnic hatred, and to arouse public hostility towards the Tutsi population. In articles such as “A Cockroach Cannot Give Birth to a Butterfly” the Tutsi were portrayed as innately evil. 188. The presentation of Tutsi women as femmes fatales focused particular attention on Tutsi women and the danger they represented to the Hutu. This danger was explicitly associated with sexuality. By defining the Tutsi woman as an enemy in this way, Kangura articulated a framework that made the sexual attack of Tutsi women a foreseeable consequence of the role attributed to them. . . .

CHAPTER IV

LEGAL FINDINGS

1. Introduction

944. A United Nations General Assembly Resolution [59 (I)] adopted in 1946 declares that freedom of information, a fundamental human right, "requires as an indispensable element the willingness and capacity to employ its privileges without abuse. It requires as a basic discipline the moral obligation to see the facts without prejudice and to spread knowledge without malicious intent". 945. This case raises important principles concerning the role of the media, which have not been addressed at the level of international criminal justice since Nuremberg. The power of the media to create and destroy fundamental human values comes with great responsibility. Those who control such media are accountable for its consequences.

2. Genocide

946. Count 2 of the Indictments charge the Accused with genocide pursuant to Article 2(3)(a) of the Statute, in that they are responsible for the killing and causing of serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, an ethnic or racial group as such. 947. Article 2(3) of the Statute defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

9 948. The Trial Chamber in Akayesu interpreted “as such” to mean that the act must be committed against an individual because the individual was a member of a specific group and specifically because he belonged to this group, so that the victim is the group itself, not merely the individual. The individual is the personification of the group. The Chamber considers that acts committed against Hutu opponents were committed on account of their support of the Tutsi ethnic group and in furtherance of the intent to destroy the Tutsi ethnic group. 949. The Chamber found . . . that RTLM broadcasts engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population and called on listeners to seek out and take up arms against the enemy. The enemy was defined to be the Tutsi ethnic group. These broadcasts called explicitly for the extermination of the Tutsi ethnic group. In 1994, both before and after 6 April, RTLM broadcast the names of Tutsi individuals and their families, as well as Hutu political opponents who supported the Tutsi ethnic group. In some cases these persons were subsequently killed. . . .

Kangura

950. The Chamber found . . . that The Appeal to the Conscience of the Hutu and The Ten Commandments, published in Kangura No. 6 in December 1990, conveyed contempt and hatred for the Tutsi ethnic group, and for Tutsi women in particular as enemy agents, and called on readers to take all necessary measures to stop the enemy, defined to be the Tutsi population. Other editorials and articles published in Kangura echoed the contempt and hatred for Tutsi found in The Ten Commandments and were clearly intended to fan the flames of ethnic hatred, resentment and fear against the Tutsi population and Hutu political opponents who supported the Tutsi ethnic group. The cover of Kangura No. 26 promoted violence by conveying the message that the machete should be used to eliminate the Tutsi, once and for all. This was a call for the destruction of the Tutsi ethnic group as such. Through fear-mongering and hate propaganda, Kangura paved the way for genocide in Rwanda, whipping the Hutu population into a killing frenzy.

CDR

951. The movement, spearheaded by CDR, created a political framework for the killing of Tutsi and Hutu political opponents. The CDR and its youth wing, the , convened meetings and demonstrations, established roadblocks, distributed weapons, and systematically organized and carried out the killing of Tutsi civilians. The genocidal cry of “tubatsembatsembe” or “let’s exterminate them”, referring to the Tutsi population, was chanted consistently at CDR meetings and demonstrations. As well as orchestrating particular acts of killing, the CDR promoted a Hutu mindset in which ethnic hatred was normalized as a political ideology. The division of Hutu and Tutsi entrenched fear and suspicion of the Tutsi and fabricated the perception that the Tutsi population had to be destroyed in order to safeguard the political gains that had been made by the Hutu majority.

10 . . . 953. The Defence contends that the downing of the President’s plane and the death of President Habyarimana precipitated the killing of innocent Tutsi civilians. The Chamber accepts that this moment in time served as a trigger for the events that followed. That is evident. But if the downing of the plane was the trigger, then RTLM, Kangura and CDR were the bullets in the gun. The trigger had such a deadly impact because the gun was loaded. The Chamber therefore considers the killing of Tutsi civilians can be said to have resulted, at least in part, from the message of ethnic targeting for death that was clearly and effectively disseminated through RTLM, Kangura and CDR, before and after 6 April 1994. . . . Genocidal Intent

957. In ascertaining the intent of the Accused, the Chamber has considered their individual statements and acts, as well as the message they conveyed through the media they controlled. 958. On 15 May 1994, the Editor-in-Chief of RTLM, Gaspard Gahigi, told listeners:

…they say the Tutsi are being exterminated, they are being decimated by the Hutu, and other things. I would like to tell you, dear listeners of RTLM, that the war we are waging is actually between these two ethnic groups, the Hutu and the Tutsi.

959. The RTLM broadcast on 4 June 1994 is another compelling illustration of genocidal intent:

They should all stand up so that we kill the Inkotanyi and exterminate them…the reason we will exterminate them is that they belong to one ethnic group. Look at the person’s height and his physical appearance. Just look at his small nose and then break it.

960. Even before 6 April 1994, RTLM was equating the Tutsi with the enemy, as evidenced by its broadcast of 6 January 1994, with asking, “Why should I hate the Tutsi? Why should I hate the Inkotanyi?” 961. In an article published by Kangura in January 1994, Hassan Ngeze wrote:

Let’s hope the Inyenzi will have the courage to understand what is going to happen and realize that if they make a small mistake, they will be exterminated; if they make the mistake of attacking again, there will be none of them left in Rwanda, not even a single accomplice. All the Hutus are united. . . .

962. In perhaps its most graphic expression of genocidal intent, the cover of Kangura No. 26 answered the question “What Weapons Shall We Use To Conquer The Inyenzi Once And For All?” with the depiction of a machete. . . .

11 963. Kangura and RTLM explicitly and repeatedly, in fact relentlessly, targeted the Tutsi population for destruction. Demonizing the Tutsi as having inherently evil qualities, equating the ethnic group with “the enemy” and portraying its women as seductive enemy agents, the media called for the extermination of the Tutsi ethnic group as a response to the political threat that they associated with Tutsi ethnicity. 964. The genocidal intent in the activities of the CDR was expressed through the phrase “tubatsembasembe” or “let’s exterminate them”, a slogan chanted repeatedly at CDR rallies and demonstrations. At a policy level, CDR communiques called on the Hutu population to “neutralize by all means possible” the enemy, defined to be the Tutsi ethnic group. 965. The editorial policies as evidenced by the writings of Kangura and the broadcasts of RTLM constitute, in the Chamber’s view, conclusive evidence of genocidal intent. Individually, each of the Accused made statements that further evidence his genocidal intent. . . .

Individual Criminal Responsibility

970. The Chamber has considered the individual criminal responsibility of Ferdinand Nahimana and Jean-Bosco Barayagwiza for RTLM broadcasts, by virtue of their respective roles in the creation and control of RTLM. . . . 971. The broadcasts collectively conveyed a message of ethnic hatred and a call for violence against the Tutsi population, This message was heard around the world. . . . 973. For these reasons, the Chamber finds that . . . Barayagwiza had superior responsibility for the broadcasts of RTLM. . . . For his active engagement in the management of RTLM prior to 6 April, and his failure to take necessary and reasonable measures to prevent the killing of Tutsi civilians instigated by RTLM, the Chamber finds Jean-Bosco Barayagwiza guilty of genocide pursuant to Article 6(3) of its Statute. 974. The Chamber notes Nahimana’s particular role as the founder and principal ideologist of RTLM. RTLM was a creation that sprang from Nahimana’s vision more than anyone else. It was his initiative and his design, which grew out of his experience as Director of ORINFOR [Rwandan Office of Information] and his understanding of the power of the media. . . . In a broadcast on Radio Rwanda on 25 April 1994, he said, “I am very happy because I have understood that RTLM is instrumental in awakening the majority people.” . . . RTLM did what Nahimana wanted it to do. It was “instrumental in awakening the majority population” and in mobilizing the population to stand up against the Tutsi enemy. RTLM was Nahimana’s weapon of choice, which he used to instigate the killing of Tutsi civilians. For this reason the Chamber finds Nahimana guilty of genocide pursuant to Article 6(1) of its statute. . . . 977A. As founder, owner and editor of Kangura, a publication that instigated the killing of Tutsi civilians, and for his individual acts in ordering and aiding and abetting the killing of Tutsi civilians, the Chamber finds Hassan Ngeze guilty of genocide, pursuant to Article 6(1) of its Statute. . . .

12 3. Direct and Public Incitement to Commit Genocide . . . 1008. The Chamber notes that international standards restricting hate speech and the protection of freedom of expression have evolved largely in the context of national initiatives to control the danger and harm represented by various forms of prejudiced communication. The protection of free expression of political views has historically been balanced in the jurisprudence against the interest in national security. The dangers of censorship have often been associated in particular with the suppression of political or other minorities, or opposition to the government. The special protections developed by the jurisprudence for speech of this kind, in international law and more particularly in the American legal tradition of free speech, recognize the power dynamic inherent in the circumstances that make minority groups and political opposition vulnerable to the exercise of power by the majority or by the government. These circumstances do not arise in the present case, where at issue is the speech of the so-called “majority population”, in support of the government. The special protections for this kind of speech should accordingly be adapted, in the Chamber’s view, so that ethnically specific expression would be more rather than less carefully scrutinized to ensure that minorities without equal means of defence are not endangered. . . . 1010. Counsel for Ngeze has argued that United States law, as the most speech- protective, should be used as a standard, to ensure the universal acceptance and legitimacy of the Tribunal’s jurisprudence. The Chamber considers international law, which has been well developed in the areas of freedom from discrimination and freedom of expression, to be the point of reference for its consideration of these issues, noting that domestic law varies widely while international law codifies evolving universal standards. The Chamber notes that the jurisprudence of the United States also accepts the fundamental principles set forth in international law and has recognized in its domestic law that incitement to violence, threats, libel, false advertising, obscenity, and child pornography are among those forms of expression that fall outside the scope of freedom of speech protection. In Virginia v. Black, the United States Supreme Court recently interpreted the free speech guarantee of the First Amendment of the Constitution to permit a ban on cross burning with intent to intimidate. The historical terrorization of African Americans by the Ku Klux Klan through cross burnings, in the Court’s view, made the burning of a cross, as a recognized symbol of hate and a “true threat”, unprotected as symbolic expression. Intimidation was held to be constitutionally proscribable “where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death”. In the immigration context, adherents of National Socialism have been stripped of citizenship and deported from the United States on the basis of their anti-semitic writings. . . . 1014. In determining more precisely the contours of the crime of direct and public incitement to commit genocide, the Trial Chamber notes the factual findings of the Tribunal in Akayesu that the crowd addressed by the accused, who urged them to unite and eliminate the enemy, the accomplices of the Inkotanyi, understood his call as a call to kill the Tutsi, that the accused was aware that what he said would be so understood, and

13 that there was a causal relationship between his words and subsequent widespread massacres of Tutsi in the community. . . . 1022. On cross-examination, Ferdinand Nahimana said he could not judge a statement made in Nazi Germany that the Jews have all the money. . . . The tone of the statement is as relevant to this determination as is its content. . . . The Chamber also considers the context in which the statement is made to be important. A statement of ethnic generalization provoking resentment against members of that ethnicity would have a heightened impact in the context of a genocidal environment. It would be more likely to lead to violence. . . . 1029. With regard to causation, the Chamber recalls that incitement is a crime regardless of whether it has the effect it intends to have. In determining whether communications represent an intent to cause genocide and thereby constitute incitement, the Chamber considers it significant that in fact genocide occurred. That the media intended to have this effect is evidenced in part by the fact that it did have this effect. . . . RTLM

1031. RTLM broadcasting was a drumbeat, calling on listeners to take action against the enemy and enemy accomplices, equated with the Tutsi population. The phrase “heating up heads” captures the process of incitement systematically engaged in by RTLM, which after 6 April 1994 was also known as “Radio Machete”. The nature of radio transmission made RTLM particularly dangerous and harmful, as did the breadth of its reach. Unlike print media, radio is immediately present and active. The power of the human voice, heard by the Chamber . . . adds a quality and dimension beyond words to the message conveyed. In this setting, radio heightened the sense of fear, the sense of danger and the sense of urgency giving rise to the need for action by listeners. The denigration of Tutsi ethnicity was augmented by the visceral scorn coming out of the airwaves–the ridiculing laugh and the nasty sneer. These elements greatly amplified the impact of RTLM broadcasts. . . . 1054. This evidence establishes, beyond a reasonable doubt, that Nahimana, Barayagwiza and Ngeze consciously interacted with each other, using the institutions they controlled to promote a joint agenda, which was the targeting of the Tutsi population for destruction. There was public presentation of this shared purpose and coordination of efforts to realize their common goal. 1055. The Chamber finds that Nahimana, Ngeze and Barayagwiza, through personal collaboration as well as interaction among institutions within their control, namely RTLM, Kangura and CDR, are guilty of conspiracy to commit genocide under Article 2(3)(b) and pursuant to Article 6(1) of the Statute. . . . 1074. . . . Hate speech is not protected speech under international law. In fact, governments have an obligation under the International Covenant on Civil and Political Rights to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Similarly, the Convention on the

14 Elimination of all Forms of Racial Discrimination requires the prohibition of propaganda activities that promote and incite racial discrimination. 1075. A great number of countries around the world, including Rwanda, have domestic laws that ban advocacy of discriminatory hate, in recognition of the danger it represents and the harm it causes. Theses countries include the following: The Criminal Code of Germany prohibits incitement to hatred and violence against segments of the population, including the dissemination of publications or broadcasts that attack human dignity. A press law in Vietnam prohibits the sowing of enmity among nations and people. The Russian Criminal Code prohibits incitement of hatred by attacking human dignity, insulting, or maliciously degrading segments of the population. The Criminal Code of Finland prohibits racist propaganda that threatens, denigrates or humiliates a group of persons. In Ireland it is an offence to publish threatening, abusive or insulting material likely to stir up hatred. A law in Ukraine prohibits propaganda for cruelty and the broadcast of pornography and other material that causes the demeaning of human honour and dignity. The Criminal Code of Iceland prohibits racial hatred, including mockery, insults, threats and defamation. Press that arouses scorn or hatred of some inhabitants for others is prohibited in Monaco. The Criminal Code of Slovenia prohibits incitement of inequality and intolerance. China prohibits broadcasts that incite hatred on account of color, race, sex, religion, nationality or ethnic or national origin. 1076. The Chamber considers, in light of well-established principles of international and domestic law, and the jurisprudence of . . . the many European Court and domestic cases since then, that hate speech that expresses ethnic and other forms of discrimination violates the norm of customary international law prohibiting discrimination. Within this norm of customary law, the prohibition of advocacy of discrimination and incitement to violence is increasingly important as the power of the media to harm is increasingly acknowledged. . . . 

Notes and Questions 1. Nahimana and Ngeze were sentenced to life imprisonment. Barayagwiza was also sentenced to life imprisonment. However, a deprivation of his rights resulted in a reduction of his sentence to a term of thirty-five years in prison. 2. What was the ICTR’s definition of “Genocide?” Why did the defendants’ conduct fit within that definition? 3. The tribunal refers to the importance of Rwanda’s history in deciding this case. It is possible that the ICTR wanted to restate this history for readers, who would thereby have this unique opportunity to better appreciate the reason for the apparent suddenness and intensity of the slaughter. Para. 85 of the ICTR’s Akayesu decision, for example, refers to the privileged status of the minority Tutsis during and after Belgian occupation. Does the history–on which the defendants and the court focus–justify or ameliorate the culpability of the defendants? 4. Yale law professor Amy Chua points out that: “In the contest between an economically powerful ethnic minority and a numerically powerful impoverished majority, the majority does not always prevail. Instead of a backlash against the market, another likely outcome is a backlash against democracy, favoring the market-dominant

15 minority at the expense of majority will.” Globalization and Ethnic Hatred, Introduction, A.Chua, WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS ETHNIC HATRED AND GLOBAL INSTABILITY 11 (New York: Anchor Books, 2003). Belgium’s economic and pervasive, across-the-board support of the Tutsis--largely because of their more European-like appearance--helped foment the long-term Hutu majority (84%) resentment of the Tutsis (15%). 5. The ICTR refers to the 1946 UN resolution regarding freedom of the press. The Court also referred to US law, which the defendants asserted was the appropriate International Law yardstick in for measuring the legality of their newspaper and Radio Machete broadcasts. How did the Court strike the balance between these arguably competing values? 6. Refer to para. 1075, where the ICTR compares the hate speech standards in various nations. This is an illuminating application of Customary International Law, one of the sources of International Law that you studied in textbook §1.2. 7. Para. 114 refers to Belgian, French, and Italian troops who were not sent to Rwanda to protect the Tutsis, nor to stop the genocide. In a very telling comment during the movie Hotel Rwanda, actor Nick Nolte is the Commander of the UN troops in Rwanda. He is quite agitated, as he reports this unexpected turn of events to the manager in the hotel’s then emptied bar. Nolte, in his frustration, explains the difference between individuals who are African and non-African blacks. This particular scene is critical to a better understanding of why the international community chose a tribunal over troops to react to the genocidal horror in Rwanda. One might also consider how the international community’s failure to intervene in Rwanda played out in the Darfur region of The Sudan–sometimes referred to as “slow- motion Rwanda.” The Darfur affair is described in the final subsection of §9.5, regarding the April 2005 UN Security Council reference of fifty-one Sudanese citizens and officials to the International Criminal Court.

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