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

74 Chapter 3
particularly in light of differing cultural or linguistic contexts. Thus, in
adjudicating incitement perpetrated in Rwanda’s context, the ICTR has
confirmed that, 51
the culture, including the nuances of the Kinyarwanda language should be
considered in determining what constitutes direct and public incitement to
commit genocide in Rwanda. For this reason, it may be helpful to examine
how a speech was understood by its intended audience in order to determine
its true message.
Therefore, 52
[T]he principle consideration is (…) the meaning of the words used in the
specific context: it does not matter that the message may appear ambiguous to
another audience or in another context. On the other hand, if the discourse is
still ambiguous even when considered in its context, it cannot be found
beyond reasonable doubt to constitute direct and public incitement to commit
genocide.
The ICTR thus effectively prosecuted the crime by closely examining
perpetrators’ use of coded languages, or use of euphemisms in inciting the
killing of members of the Tutsi group. For instance, instead of using the
word ‘kwica’ which directly means ‘to kill’, many perpetrators used the
term ‘ogukora’ (‘to work’) which was understood by the audiences in
Rwanda during the 1994 events to mean ‘killing’ of the Tutsi. The
perpetrators also widely referred to the ‘Tutsi’ as ‘Inyenzi,’ ‘enemy,’ or
‘accomplices of the enemy’ or ‘infiltrators’. 53
With respect to the ‘public’ notion of the crime of direct and public
incitement, the ICTR has explained that ‘private’ incitements fall outside
the scope of the crime. 54 The ICTR has elucidated the factors delineating
‘public’ from ‘private’ incitements. In determining whether the incitement
is ‘public’ and not private, the ICTR has identified two principle factors,
namely, the place where it is perpetrated, 55 and whether assistance was
selective or limited. 56 While use of the mass media, such as radios and
televisions, may be non-contentious, incitements at other locations may.
The criteria identified provide guidance, but in some cases the ICTR’s
approach raises some questions, which calls for further revisiting in the
future. For instance, the Appeals Chamber recently overturned a
conviction of an accused for incitement committed at roadblocks.
According to the Chamber 57
51
52
53
Nahimana et al v Prosecutor para 700.
Nahimana et al v Prosecutor para 701.
Prosecutor v Niyitegeka (Case ICTR-96-14-T) Judgment and sentence 16 May 2003 paras
54
55
432-437; Prosecutor v Akayesu paras 673-674.
Prosecutor v Akayesu paras 480 & 556.
According to the ICTR, words would be regarded as public where they are spoken
56
57
aloud in a place that was public by definition Prosecutor v Akayesu 556.
Prosecutor v Akayesu para 556; Prosecutor v Nahimana et al para 1011.
Nahimana et al v Prosecutor para 862.