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

The contribution of the International Criminal Tribunal for Rwanda 77
Regarding the assertion by Appellant Barayagwiza that ‘the country was
under attack, and it could therefore be expected that the virulence of the
broadcasts would increase in response to fear of what the consequences
would be if the RPF invasion were successful’, this has no impact on the
finding that the RTLM broadcasts in fact targeted the Tutsi population. As
the Trial Chamber noted, RTLM broadcasts exploited ‘the fear of armed
insurrection, to mobilize the population, whipping them into a frenzy of
hatred and violence that was directed largely against the Tutsi ethnic group’.
Moreover, the political or community affiliation of the author may not
change the approach taken in construing a statement to determine whether
it constitutes a call for the commission of genocide. 63 Finally, the ICTR
has contributed to the development of international criminal law by
elucidating distinctions between the crime of direct and public incitement
to commit genocide from hate speech as understood under international
human rights law.
While hate speech (incitement to discrimination or violence) is nonprotected
speech under international human rights law, the ICTR has
explained that hate speech per se is not equivalent to direct and public
incitement to commit genocide. The ICTR recognises that direct and
public incitement to commit genocide may be characterised or
accompanied by hate speech, but only hate speech publicly and directly
inciting the destruction of an ethnic, religious, national or racial group, in
whole or in part, amounts to the crime of direct and public incitement to
commit genocide. 64
The distinction between hate speech that transcends mere calls for
hatred to advocate violence against an ethnic, racial, religious or national
group, vis-à-vis the crime of direct and public incitement to commit
genocide, appears minimal. It follows that careful attention needs to be
taken in construing such hate speech to ensure that only speech falling
short of incitement to eliminate protected groups is excluded from the
scope of the crime of direct and public incitement to commit genocide.
6 War crimes in non-international armed conflicts
In addition to the crime of genocide and crimes against humanity, the
ICTR is empowered to prosecute war crimes committed in the 1994 noninternational
armed conflict in Rwanda. Under article 4 of its Statute, the
ICTR is mandated to prosecute serious violations of article 3 Common to
the Geneva Conventions of 12 August 1949 for the Protection of War
Victims, and of Additional Protocol II thereto of 8 June 1977. The
violations include: violence to life, health and physical or mental well-
63 Nahimana et al v Prosecutor paras 712-714.
64 Nahimana et al v Prosecutor paras 692-703.