Prosecuting International Crimes in Africa - PULP - University of ...

The contribution of the International Criminal Tribunal for Rwanda 73
held that, ‘[c]onsent [in the perspective of the crime of rape] must be given
voluntarily, as a result of the victim’s free will, assessed in the context of
the surrounding circumstances’. 44
5 Direct and public incitement to commit genocide:
Protecting freedoms and punishing genocidal
speeches
The ICTR may be credited for elucidating the elements of the crime of
direct and public incitement to commit genocide in international law, and
delineating its boundaries vis-à-vis freedom of expression. The ICTR is the
first international criminal tribunal to adjudicate the crime, and to provide
the first direct precedent for the construction of this crime in international
law.
According to the ICTR, this crime is consummated by conduct which
aims at directly coercing, persuading, inducing or arousing others to
commit genocide. 45 The crime may be perpetrated through a wide range
of means not limited to a defendant’s own physical oral utterances, but also
through the dissemination of written or printed material, the public display
of placard or any other form of audio-visual communication and the mass
media. 46 Even artistic expressions, such as songs or lyrics, are covered. 47
To be culpable of the crime, an accused must have ‘directly and publicly
incited the commission of genocide' (the material element or actus reus) and
had the intent directly and publicly to incite others to commit genocide (the
intentional element or mens rea). Such intent in itself presupposes a
genocidal intent’. 48
According to the ICTR, the notion ‘direct’ requires that the speech is a
direct appeal to commit acts of genocide; 49 the speech has to be more than
mere vague or indirect suggestions. 50 The ICTR has clarified that the
notion of ‘direct’ must be examined on a case-by-case basis, taking into
account the language and culture of the people. Such an approach is also
critical in addressing speeches that are open to multiple interpretations,
44
Prosecutor v Kunarać et al (Case IT-96-23 and IT-96-23/1-T) Judgment 22 February 2001
para 460, and upheld by the Appeals Chamber Prosecutor v Kunarac paras 127-129
45
(emphasis added).
Prosecutor v Akayesu para 559; Prosecutor v Kajelijeli (Case ICTR-98-44A-T) Judgment
and Sentence 1 December 2003 para 850; Prosecutor v Nahimana et al (Case ICTR-99-52-
46
T) Judgment and Sentence 3 December 2003 para 1011.
Prosecutor v Nahimana et al (as above) paras 1011-1014; Prosecutor v Akayesu (n 1 above)
47
para 559.
Prosecutor v Simon Bikindi (Case ICTR-01-72-T) Judgment 2 December 2008 (TC) para
48
384.
Nahimana et al v Prosecutor (Case ICTR-99-52-A) Judgment 28 November 2007 (AC)
49
50
para 677.
Nahimana et al v Prosecutor para 692.
Nahimana et al v Prosecutor para 692.