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

The contribution of the International Criminal Tribunal for Rwanda 75
the supervision of roadblocks cannot form the basis for the Appellant’s
conviction for direct and public incitement to commit genocide; while such
supervision could be regarded as instigation to commit genocide, it cannot
constitute public incitement since only individuals manning the roadblocks
would have been the recipients of the message and not the general public.
Therefore, the Appeals Chamber sets aside the Appellant’s conviction under
Article 6(1) of the Statute for direct and public incitement to commit
genocide.
The Appeals Chamber provides no elaboration explaining why at
roadblocks that were established in public places, and which were
accessible by the public, only those manning them were necessarily the
ones who received the incitements. Like the notion of ‘direct’, in dealing
with the ‘public’ notion, there is need for judges to take into account the
specific realities and contexts under which the incitement is alleged to have
occurred. Probably unlike normal situations and unlike some countries
where ‘roadblocks’ may be overly restrictive in terms of those accessing
them, during Rwanda’s genocide of 1994, overall, roadblocks were
accessible to the general public. Moreover, given that for the most part,
roadblocks had been established to intercept members of the general
public, and indeed members of the public were intercepted, the Appeal
Chamber’s conclusion that only individuals manning the roadblocks
would have been the recipients of the incitements is contentious.
The ICTR’s contribution in delineating the crime of direct and public
incitement from protected freedom of expression is also noteworthy.
Overall, its jurisprudence has identified boundaries defining permissible
free speech and the crime. Similarly, the jurisprudence clarifies the
distinction between hate speech and the crime of direct and public
incitement to commit genocide in international law. In a nutshell, the
ICTR’s jurisprudence underscores that the crime constitutes non-protected
expression in the nature of criminal advocacy for the commission of
genocide.
It is clear from the jurisprudence that not all expressions or criticisms
with ethnic or other perspectives amount to the crime. For instance,
individuals or the media may carry out historical or other forms of research
and disseminate news and information highlighting problems existing in a
given society, such as pervasive or widespread racial, ethnic or religious
discrimination. 58 Moreover, individuals or the media may play a role in
discourses on how to deal with inequities in society, such as discrimination
on ethnic, religious, national, ethical or other grounds, and may mobilise
the people or the civil defence in support of the government efforts to deal
with rebellion or conflict. 59 In so doing, however, individuals or the media
must act responsibly, and under no circumstances must they directly call
58
Prosecutor v Nahimana et al para 1008.
59 Prosecutor v Nahimana et al para 1025.