Punishing words: an analysis of the necessity of the element of causation in prosecutions for incitement to genocide.

AuthorWallenstein, Joshua

If we can create a new legal order in which there are no safe havens for those who committed human rights violations, we will have breathed new life into the Universal Declaration of Human Rights and new hope for world peace. I believe this will be the challenge for the coming century, and I believe we are making significant progress.

--Judge Navanethem Pillay, President, the International Criminal Tribunal for Rwanda

INTRODUCTION

The horrific genocide of 1994 Rwanda was neither natural nor spontaneous; it was planned by an elite group and inspired by vivid exhortations to murder. Vicious ethnic labeling taught hatred, intolerance, and fear and led to countless atrocities and the attempted genocide of an entire people. The international community, through the United Nations, has determined that those who consciously chose to do this evil must be brought to justice.

Three defendants are today being judged in the "Media Trial" occurring before the International Criminal Tribunal for Rwanda ("ICTR"). Dr. Ferdinand Nahimana, Mr. Hassan Ngeze, and Mr. Jean-Bosco Baryagwiza have been indicted as masterminds of propaganda who incited their nation's Hutus to massacre the Tutsi population of Rwanda. They have been charged with Direct and Public Incitement to Commit Genocide. Yet these three, accused of violating international law, insist that they did not incite anyone to harm others; they claim they were simply voicing their personal opinions, with which the majority in Rwanda agreed.

Courts around the world recognize a limited right to free expression. In the United States, Neo-Nazi militiamen are allowed to parade through Jewish Neighborhoods. (1) In Denmark, racist youth groups are allowed radio airtime. (2) And in the post-World War II Nuremberg Trials, the International Military Tribunal fully acquitted the Head of the Radio Division of the Ministry of Propaganda for Nazi Germany. (3) Imposing criminal sanctions on these three Rwandan men for their viewpoints would not only be hypocritical, their defense counsel argues, but also would reveal the Tribunal to be a mere kangaroo court, and its proceedings merely victor's justice.

This Note responds to these arguments and explores whether a prosecution for Direct and Public Incitement to Commit Genocide ("Incitement") should include the element of causation, i.e., whether a causal nexus is required between the word and the harm resulting from the provoked deed. (4) Part I provides a basic historical overview of the Rwandan situation. Part II explores whether the international community has developed a consensus on the elements of incitement-style prosecutions, with specific attention paid to the element of causation. (5) Part III argues that, in order for the elements of incitement to be satisfied, international law does not require specific and direct causation to be proved. Part IV shows that customary international law does not require a causal nexus when proving the elements of incitement. Part V argues that, according to general principles of law, most countries consider words having the potential to incite violence dangerous, and a causal nexus generally should not be a required element in incitement prosecutions. Finally, Part VI determines the elements of the specific charge of Incitement, and outlines a proposal for the Incitement prosecution in the Media Trial of the ICTR.

In order to determine whether international law requires the element of causation, this Note will examine three relevant sources of international law. First, it will explore the historical development of the Incitement charge from universally binding treaties and international tribunal precedent. Next, to determine international custom on the issue of causation, it will review conventions and case law from various national and international courts. Finally, to ascertain general principles of law, it will review a random and limited group of national constitutions and international agreements. It will apply the above three sources of international law to determine whether Incitement, absent a causal nexus, is truly an international crime, i.e., whether the Rwandan ICTR Incitement prosecution comports with international law.

  1. BACKGROUND ON THE RWANDAN SITUATION

    To begin the analysis, and in order to understand the context in which the Incitement charge arose, Rwanda's complexities must be explored in greater detail. Rwanda has been consistently embroiled in ethnic violence since 1959, the year of the so-called Social Revolution, when Hutu forces ejected Belgian colonial soldiers and their Tutsi Mwame. (6) Tutsis fleeing from ethnic violence settled in various countries neighboring Rwanda. Rebel Tutsi forces, united under the banner of the Rwandan Patriotic Front ("RPF"), began a long-term offensive against the Hutu regime. Major episodes of anti-Tutsi violence occurred in Rwanda in 1959, 1963, 1966, 1973, and every year from 1990 to 1994. (7)

    In 1993, various Hutu and Tutsi factions vying for control of the government united and agreed to a political power-sharing treaty called the Arusha Accords. This treaty split political power between the ruling National Revolutionary Movement for Development ("MRND") party, a generally Hutu party, and the RPF, a generally Tutsi party. Certain powerful Hutu extremists organized and conspired to oppose the Accords. This premeditated and systematic nationwide conspiracy involved politicians, the State, the military, extremist intellectuals, the media, and other elements of civil society.

    On April 6, 1994, the moderate Hutu President Juvenal Habyarimana was assassinated. Hutu extremists immediately formed an interim government with the specific goal of reversing the multi-party system agreed to in the Accords. To achieve this end, their plans included the promotion of hatred and ethnic violence; the use of the media to further division in the population along ethnic lines; the identification and the extermination of the enemy and its accomplices; the training of paramilitary groups such as the interahamwe (8) to massacre Tutsi civilians; the distribution of weapons to civilians and paramilitary groups; the erection of roadblocks at which mass executions were later performed; and the preparation, publishing, and broadcasting of lists of "enemies" to be eliminated.

    Interaharnwe militia, trained, aided and equipped by the military, ravaged the country, conducting the wholesale slaughter of entire communities and assassinating Tutsis at impromptu roadblocks. Many independent civilians also participated in the genocidal activity. The radio station Radio-Television Libre de Milles Collines ("RTLM") and the journal Kangura directed both the militia and the civilian population to specific murder sites, and encouraged the extermination of Tutsis. The propaganda attack of ethnic hatred asserted that every Tutsi was an accomplice of the RPF and constituted a military threat to Rwanda. These two organs were instrumental and fundamental in disseminating hate propaganda that fueled the genocide.

    Dr. Ferdinand Nahimana, Mr. Hassan Ngeze, and Mr. Jean-Bosco Baryagwiza were the men who created and staffed the RTLM and Kangura. Allegedly, they were in control of the media and the militia at the time the massacres took place, but they took no steps to prevent the killings. Arguably, they also had legal control over the actions of their subordinates that led to Tutsi deaths.

    Yet only one of these three men is accused of physically performing illegal deeds, (9) and none of them personally spoke on the radio. Instead, the majority of the prosecution's evidence relates to the dissemination of virulent propaganda by their subordinates, through private papers and over quasi-private radio channels (both allegedly controlled by these three men). Allegedly, this propaganda directly incited militias and community members to violence and murder. By being in de facto control of media instruments that disseminated violent and racist propaganda, did these defendants violate international law? The answer turns on the central inquiry of this Note: whether the prosecutor must prove that the propaganda directly caused harm.

    The next section will explore the definitions of international law to determine how to analyze elements of international crimes.

  2. SOURCES OF INTERNATIONAL LAW

    In theory, international law is the embodiment of the will of the international community. This "will" can be either express or implied, but generally carries more legal weight when signed conventions clearly express this will in detail. Accordingly, international law consists of three main sources of jurisprudence, in descending order of legal authority: conventions, international custom, and general principles. In addition, courts often consider the opinions of legal scholars and jurists when defining or interpreting international law.

    The United Nations, through the International Court of Justice ("ICJ"), officially sanctions this hierarchy of categories for international law. The United Nations created the ICJ in 1945 to decide international legal disputes between nations. Article 38 of the Statute of the International Court of Justice states:

    1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

    1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

    2. international custom, as evidence of a general practice accepted as law;

    3. the general principles of law recognized by civilized nations;

    4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (10)

    While it is true that the ICJ may only hear cases between states, the hierarchy it adopted reflects the jurisprudential views of the member states of the...

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