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

76 Chapter 3
for the destruction of any racial, ethnic, religious or national group in
whole or in part.
The ICTR has identified some factors that may be considered in
distinguishing genocidal incitement from freedom of expression (or mere
hate speech). Overall, the ICTR jurisprudence suggests a careful and
objective approach that examines an expression or statement as a whole
and in the light of the totality of the circumstances, and evaluating the
intent or purpose of the speech; the actual language or tone, the content
and accuracy of the statement and the totality of the surrounding context
in which it is made. For instance, the ICTR has found the following
statements as such (or when certain coded language embedded in some of
them, such as ‘Inkotanyi’ is construed against a context of widespread
violence against Tutsis between 6 April and July 1994 in Rwanda) to
constitute direct and public incitement to commit genocide targeting the
Tutsi group: 60
In the 13 May 1994 RTLM broadcast, Kentano Habimana spoke of
exterminating the Inkotanyi so as ‘to wipe them from human memory’, and
exterminating the Tutsi ‘from the surface of the earth … to make them
disappear for good’. In the 4 June 1994 RTLM broadcast, Habimana again
talked of exterminating the Inkotanyi, adding ’the reason we will exterminate
them is that they belong to one ethnic group’. In the 5 June 1994 RTLM
broadcast, Ananie Nkurunziza acknowledged that this extermination was
underway and expressed the hope that ‘we continue exterminating them at
the same pace’. On the basis of all the programming he listened to after 6
April 1994, Witness GO testified that RTLM was constantly asking people to
kill others, that no distinction was made between the Inyenzi and the Tutsi,
and that listeners were encouraged to continue killing them so that future
generations would have to ask what Inyenzi or Tutsi looked like.
In the context surrounding the incitement, such terms as Inkotanyi meant
members of the Tutsi group, and not members of the Rwandan Patriotic
Front (RPF) that was fighting with the government. With respect to
incitement perpetrated through Kangura newspaper in 1994 in Rwanda,
the ICTR also carefully examined them holistically and in the context of
the surrounding circumstances. The Tribunal concluded, inter alia, that
calls for the population to eliminate the Inyenzi, or accomplices, of the RPF
constituted, in the surrounding context, calls for the extermination of the
Tutsi group. 61
The mere fact that there was an ongoing conflict does not justify
incitement to eliminate a protected group, nor does it impact on the court’s
approach in construing statements calling for the extermination of a group.
The Appeals Chamber of the ICTR has put it clearly as follows: 62
60 Nahimana et al v Prosecutor para 756.
61 Nahimana et al v Prosecutor paras 771-773.
62 Nahimana et al v Prosecutor para 757.