Criminal Responsibility of Journalists under International Criminal Law: The ICTR Experience

1. Introduction

Within a few months after the invasion of Rwanda by the Rwanda Patriotic Front (“RPF”) in October of 1990, President Habyarimana and his senior advisors knew that the RPF had been reduced by losses during the first months to a number less than half that of the Rwandan army.[1] The Rwanda government and military leaders also knew that their own army was backed by several hundred highly trained and well-armed French troops[2]. However, President Habyarimana and his advisors, with the support of the media, exaggerated the risk in hopes of increasing political support for themselves.[3] Historical conflicts between the two major ethnic groups, the Hutu and Tutsi, formed the basis of Habyrimana’s anti-Tutsi propaganda campaign.[4]

Propagandists, who included journalists, echoed and magnified the anti-Tutsi hatred and suspicion perpetrated by Habyarimana and officials around him, the so-called Akazu.[5] Under the cover of the freedom of expression, journalists and propagandists blared forth messages and disseminated, at first more discreetly by government officials and party functionaries, and later openly such as many of the conclusions about the “enemy” presented in the military memorandum of September 21, 1992 by Chief of Staff of the Rwanda Army, Col. Deogratias Nsabimana to all commanders identifying and defining the ‘enemy’.[6]  In an earlier memorandum dated 27 July 1992 to the Army Chief of Staff signed by Lt. Col. Nsengiyumva Anatole, G2 Officer at the Staff Headquarters of the Rwandan Army, on behalf of all soldiers, the enemy was defined as INKONTANYI, RPF and the Tutsi ethnic group.[7]

Propagandists developed the same themes over and over, both before and during the genocide perpetrated between April and June of 1994. One of the most virulent voices of hate was the Kangura newspaper. This particular newspaper began spewing forth attacks on the RPF and on all Tutsi civilians immediately after the October 1990 invasion.[8] Other newspapers and journals that received support from government officials, party functionaries and businessmen linked to the Habyarimana regime joined in the propaganda soon after.[9] The newspapers were published and sold in the capitol, Kigali, but urban workers who often went home for weekends carried copies of the better-known newspapers out to the hills for dissemination.[10]

Many Rwandans cannot read or write; consequently the Radio became even more effective than the newspapers in delivering the message of hate directly and simultaneously to a wide audience. In some areas, the government distributed radios free to local authorities before the genocide.[11] The number of radios available to the local population increased considerably and consequently assisted the radio journalists in efficiently disseminating the anti-Tutsi propaganda. The radio broadcasts were used to incite Hutus to kill Tutsi. For example, in March 1992, Radio Rwanda warned that Hutu leaders in Bugesera were going to be murdered by Tutsi, false information meant to spur the Hutu massacres of Tutsi.[12]

At the start of the armed conflict in October 1990, Rwanda had only one radio station. However, soon after the start of the war, and after realising the importance of disseminating propaganda through the radio, the RPF established its own station, Radio Muhabura, but its signal did not reach throughout the country. At first, many Rwandans were afraid to listen to it, but its audience grew steadily during 1992 and 1993.[13] By December 1993, as a result of the Arusha Accord between the Rwanda government and the RPF, Radio Rwanda had an obligation: to include the RPF among political parties participating in its broadcasts, although the decision to broadcast RPF propaganda had not been implemented by the time the genocide began.[14]

With the political changes taking place inside Rwanda including the imminent changes in the policy of Radio Rwanda the Hutu hard-liners decided to create their own radio – Radio Television Libre des Mille Collines (“RTLM”) and began broadcasting in August 1993.[15] Although nominally private and opposed to Radio Rwanda, RTLM in fact was linked in a number of ways with the national radio, with other state agencies and with Habyarimana’s party, the National Revolutionary Movement for Development (“MRND”). The RTLM was allowed to broadcast on the same frequencies as the national radio between 8 am and 11 am, when Radio Rwanda was not transmitting, an arrangement that encouraged listeners to see the two as linked, if not as identical.[16] RTLM also drew personnel from Radio Rwanda. The ostensibly private station used equipment from Radio Rwanda; a government owned radio station. It had access to an emergency source of electrical system of the presidential residence, across the street from its studio.[17]

Journalists and other media personnel actively and effectively participated in disseminating false information that were meant to incite Hutus to kill Tutsis and other Hutus considered opponents of the Habyarimana regime.[18] Specifically, journalists who worked at Radio Rwanda and RTLM cannot, and should not, argue that they had no knowledge, or could not have known, of a link between Habyriamana’s government and Hutu hard-liners to Radio Rwanda and RTLM.[19] Again, the journalists and other media personnel cannot seriously argue that they did not know, or could not have known that the hate messages they disseminated could adversely influence, listeners of the broadcasts, and result in the killing of thousands of civilians and other non-combatants. On the other hand, should criminal responsibility be imposed on these individuals because of their acts or omissions, as journalists or propagandists? Or should they be indicted as ordinary civilians, who participated in committing crimes stipulated in Articles 2, 3 and 4 of the ICTR Statute either as co-perpetrators, conspirators or accomplices?

2. The legal framework

Freedom of expression is a fundamental principle in international human rights law.[20] However, international law also permits restrictions on hate speech or incitement.[21] Although the Universal Declaration of Human Rights does not expressly prohibit advocacy of racial or religious hatred, the right to freedom of expression is subject to the restrictions found in the general clause, Article 29[22] as well as in Article 7.[23] These provisions prohibit incitement to discrimination.

Article 19 of the Covenant on Civil and Political Rights protects, and simultaneously limits, freedom of expression. In addition to declaring that “everyone shall have the right to freedom of expression,” Article 19 states that the exercise of that right “carries with it special duties and responsibilities.”[24] The rights guaranteed in Article 19 are subject to certain restrictions, including restrictions “necessary…for respect of the rights or the reputations of others,” and those necessary “for the protection of national security or of public order (ordre public).[25]

While Article 19 includes general standards relating to restrictions on freedom of expression, Article 20 contains a specific prohibition on two types of expressions. First, it proscribes war propaganda, and second, it proscribes the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.[26]

Legal restrictions of hate speech are best understood in the context of the concept of liberty. Liberty consists in the power of doing whatever does not injure another. Accordingly, the exercise of the natural rights of every human being has no other limits than those, which are necessary to secure to every other person the free exercise of the same rights; and these limits are determinable only by law.[27]

Before and during the 1994 Rwanda Crisis, there is compelling evidence that the local media in Rwanda was used to indoctrinate the local population and to prepare them to fight and kill their real or perceived enemies. This indoctrination of the population was disseminated through propaganda conducted directly or indirectly by journalists, government officials, party functionaries, army spokespersons, businessmen and the intelligentsia. Members of the public who received this propaganda eventually out of fear, confusion or both, and perhaps, out of misguided conviction, killed persons who were identified by the propagandists and journalists as the “enemy”.

Under the laws of war, journalists and other media personnel are not accorded combatant status. Instead, the laws of war treat them as ordinary civilians and are protected under Geneva Convention IV.[28]  Further, Geneva Convention III extends protection to journalists, prisoner of war status, if captured.[29]  This right is extended to all journalists until they lose that status by either joining the war on the side of one of the belligerents resulting in change of their status to either combatants or unlawful combatants. Once journalists are deemed combatants or unlawful combatants, they automatically lose their status as civilians.

The term “journalists” encompasses all occupations associated with the media, including reporters, cameramen, sound technicians, and photographers. The laws of war differentiate between “war correspondents” on the one hand, and “journalists engaged in dangerous professional missions” on the other hand.[30] Both categories of journalists are treated as civilians under the laws of war.

As a general rule, journalists engaged in dangerous professional missions in areas of armed conflict are protected as civilians, provided that they take no action adversely affecting their status as civilians.[31] The protection extended to journalists by law is without prejudice to the right of war correspondents accredited to the armed forces to the status of persons accompanying the armed forces without being members thereof. Under the laws of war, it is important that journalists obtain an identity card, which attests to their status as journalists, and therefore civilians and not combatants.[32]

War correspondents received some protection under the 1949 Geneva Conventions insofar as they are to be given prisoner of war status, if captured.[33] War correspondents are representatives of the media who, in the case of an armed conflict, are accredited to and accompany the armed forces of a party to the conflict, without being members thereof.[34] They accompany armed forces in the area of operations, or work in those locations to which the armed forces permit them to go. The armed forces shall provide journalists with a special identity card, which confirms their status.[35]

Once accredited, by being issued with a special identity card, the journalists have a free hand to the extent that they enjoy wide discretion in determining what they may or may not report. However, the issue whether or not war correspondents are subject to censorship is not a question for the laws of war. What they report and how they report their stories is not subject to the laws of war. War correspondents are and remain civilians at all times unless they join the war on the side of the belligerent.  They work on their own responsibility or the responsibility of their respective editors or agencies. Journalists, including war correspondents must therefore not be confused with persons working in the information services of the armed forces, which are members of the armed forces and have combatant status.[36] However, as civilians who are not members of the armed forces, war correspondents must not under any circumstances take part in hostilities. If they do so, they run the risk of being treated as unlawful combatants, and thereby lose their civilian status. Similarly, journalists who opt to work for the information services of the armed forces become combatants.

Article 79 of Additional Protocol I clearly provide that journalists shall be regarded as normal civilians. A special legal category for journalists was deliberately not adopted in Additional Protocol 1. It was however, proposed, considered and rejected.[37] Thus, under the laws of war, journalists enjoy the same rights and must abide by the same rules of conduct as all civilians.[38] Consequently, in the unlikely event that they are indicted for war crimes, journalists are prosecuted as civilians who happen to be journalists and not because of their profession as journalists. A journalist does not go on trial because of his professional work as journalist; rather, he is indicted because as an ordinary civilian, he committed crime or crimes under the laws of war.

It is necessary to note that Article 79 of Additional Protocol I to the Geneva Conventions do not apply to non-international armed conflict. There is no consensus among legal scholars whether Article 79 has attained the status of customary international law, or jus cogens and can therefore apply to journalists covering non-international armed conflicts.[39]

3.  Criminal Responsibility of Journalists during the 1994 Rwanda Crisis

Whereas the core crime committed during the 1994 Rwanda crisis is genocide, it must be noted that crimes against humanity and war crimes were also committed in the course of the non-international armed conflict between the RPF and FAR. To that extent, it is necessary to establish whether the journalists who worked for Radio Rwanda, RTLM, Kangura and other newspapers that assisted the government in disseminating hostile propaganda before or during the armed conflict in Rwanda committed crimes in their professional capacity as journalists, or whether the journalists were merely overzealous civilians who abused their official position during the armed conflict but committed no crimes as stipulated in the ICTR Statute.

It is submitted that based on the ICTR case law, there are compelling evidence suggesting that journalists who disseminated hate messages through Radio Rwanda; RTLM and Kangura newspaper may be charged, not as journalists or media personnel per se, but as  individuals who committed criminal acts. Consequently, the journalists may be charged as persons, who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime or crimes referred to in Articles 2 to 4 of the Statute.[40] In other words, the journalists may be charged for their direct participation. Again, these journalists may be charged as individual perpetrators but in their respective capacity as superiors. Some of the journalists were persons in positions of authority and members of the public believed, and acted upon, the propaganda they disseminated in support of government efforts during the Rwandan non-international armed conflict. The journalists may also be charged as accomplices or co-conspirators and held individually criminally responsible under Article 6(1) of the ICTR Statute. They may also be held responsible under Article 6(3) of the ICTR Statute if the Prosecution can establish, beyond reasonable doubt that the journalists exercised effective control over the actual perpetrators who committed acts or omissions based on the propaganda disseminated. In other words, the Prosecution must prove that the journalists knew, or in the alternative, had reason to know that the civilians over whom they exercised effective control could and did act based on the hostile propaganda, incitement or hate speech disseminated. Each journalist is charged in his capacity as an individual perpetrator and incurs individual criminal responsibility in that capacity, and not necessarily because he was a journalist at the time the offence was committed.[41]

To the extent that the accused civilians are also journalists, their professional status may be used in the process of establishing a link, or nexus, between their acts, the non-international armed conflict and the consequences of such acts. Thus, the emphasis is on the individual accused persons, as a perpetrator and as defined under international humanitarian law and not indicted because of their professional status as journalists or media personnel.

  1. The ICTR Experience

The ICTR, since its inception, has prosecuted only two cases involving journalists: the Ruggiu and the Media cases.

In Prosecutor v Georges Henry Yvon Joseph Ruggiu,[42] the accused was charged with, Conspiracy to Commit Genocide, Direct and Public Incitement to Commit Genocide, Complicity in Genocide and Crimes against humanity as stipulated in Articles 2 and 3 of the ICTR Statute.

Georges Ruggiu was born on October 12, 1957 at Verviers, Belgium and was a citizen of Belgium and Italy. Between January 1, 1994 and July 15, 1994, Geroges Ruggiu was employed as a journalist and broadcaster at RTLM, an independent radio station created with the specific objective to advance the cause of Hutu extremists. The RTLM and its radio station were founded as a private company on 8 April 1993. Its broadcasting studios were connected to the electric generators of the Presidential Palace, directly across the street, permitting it to continue to operate in case of power failure.[43]

In the latter half of 1993, the RTLM began broadcasting from Kigali across Rwanda through a network of transmitters owned and operated by Government owned Radio Rwanda. It later became a mobile station, installed in an armoured car of the Rwanda Armed Forces (FAR). It sought refuge in what later became the Turquois Zone set up in the jungle of Gikongoro and Kibuye Perfecture. Radio broadcasts by RTLM disappeared after mid-July 1994.

While employed by RTLM, Ruggiu maintained close contacts with senior officials of the FAR. He left Rwanda for Zaire, as it then was, about mid-July 1994. As an employee of the RTLM,[44] Ruggiu made broadcasts over the radio station advancing the theme that the 1959 revolution (a political change in Rwanda which resulted in the transfer of power from the minority Tutsis to the majority Hutus) was unfinished, inviting the population to finish it off. This was understood by the Hutu population as a call to exterminate the Tutsis.

On June 18, 1994 Ruggiu’s broadcast over the RTLM asserted that Tutsis in Gitwe had not yet been killed, and directed that roadblocks be reinforced so that no Tutsi would escape. Following Ruiggiu’s directives over RTLM radio, on June 20, 1994, the Interahamwe went to Gitwe Hill in Mutara Commune, in the company of Bourgmestre Georges Rutaganda and killed members of more than 70 families, mainly of the Tutsi ethnic group.[45]

In his first appearance in court, Ruggiu pleaded not guilty to all the counts in the indictment. However, on April 11, 2000, the Defence applied for leave to change the plea to guilty and filed a Plea Agreement, with the Prosecutor, in support of the Motion. On May 15, 2000, having been authorised to change his plea, Ruggiu pleaded guilty to two counts negotiated with the Prosecutor in the Plea Agreement.[46]  The two counts are Direct and Public Incitement to Commit Genocide pursuant to Article 2(3) (c), and Persecution as a Crime Against Humanity, pursuant to Article 3(h), of the ICTR Statute.

Based on his guilty plea, Ruggiu was convicted and sentenced to 12 years imprisonment on each of the two counts. The Trial Chamber ordered that the two sentences be served concurrently.

Having pleaded guilty, the Trial Chamber opted not to examine the law relating to individual criminal responsibility of journalists for violation of international humanitarian law.

The second case is the so-called “Media Case”.[47] In the Media case, the Trial Chamber comprehensively examined the law regulating individual criminal responsibility of journalists and other individuals who work in the media business. Unlike Ruggiu, all three accused persons pleaded not guilty to all the charges.

The first accused was Ferdinand Nahimana, born on 15 June 1950. From 1977, he was an assistant lecturer of history at the National University of Rwanda, and in 1978, he was elected Vice-Dean of the Faculty of Letters. In 1980, he was elected Dean of the faculty and remained in that position until 1981. From 1981 to 1982, he held the post of President of the Administrative Committee of the Ruhengeri campus of the University of Rwanda. He was Assistant Secretary-General for the Ruhengeri campus of the University from 1983 to 1984. In 1990, he was appointed Director of ORINFOR (Rwandan Office of Information) and remained in that position until 1992. In 1992, Nahimana founded a comite d’initiative to set up the radio station known as Radio Television Libre des Mille Collines, S.A. (RTLM).  He was a member of the party known as Mouvement Revolutionnaire National pour le Developpement (MRND). Naihmana was charged with seven counts of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide and crimes against humanity (persecution, extermination and murder).

The second accused, Jean-Bosco Barayagwiza was born in 1950. A lawyer by training, he was a founding member of the Coalition pour la Defense de la Republique (CDR) an extremist HUTU POWER party, a break-away from MRND and formed in 1992. He was a member of the Comite d’initiative, which organized the founding of the radio station RTLM. During this time, he also held the post of Director of Political Affairs in the Ministry of Foreign Affairs. Baraygwiza was charged with nine counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder), and two counts of war crimes.

The third accused, Hassan Ngeze was born on 25 December 1957. From 1978, he worked as a journalist, and in 1990, he founded the newspaper Kangura and held the post of Editor-in-Chief. Prior to this, he was the distributor of the Kanguka newspaper in Gisenyi. He was a founding member of CDR. Hassan Ngeze was charged with seven counts: conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (persecution, extermination and murder.[48]

After evaluating the evidence submitted by the Prosecution and Defence counsels, the Trial Chamber[49]  found that RTLM broadcasts engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population and called on listeners to seek out and take up arms against the enemy. The enemy was defined to be the Tutsi ethnic group. These broadcasts called explicitly for the extermination of the Tutsi ethnic group. In 1994, both before and after 6 April, RTLM broadcast the names of the Tutsi individuals and their families, as well as Hutu political opponents who supported the Tutsi ethic group. In some cases these persons were subsequently killed. A specific casual connection between RTLM broadcasts and the killing of these individuals – either by publicly naming them or by manipulating their movements and directing that they, as a group, be killed – has been established.[50]

The Trial Chamber also found, at paragraphs 245 and 246 that the document titled ‘The Appeal to the Conscience of the Hutu’ and ‘The Ten Commandments’ published in Kangura No. 6 in December 1990, conveyed contempt and hatred for the Tutsi ethnic group, and for Tutsi women in particular as enemy agents, and called on readers to take all necessary measures to stop the enemy, defined to be the Tutsi population. Other editorials and articles published in Kangura echoed the contempt and hatred for Tutsi found in ‘The Ten Commandments’ and was clearly intended to fan the flames of ethnic hatred, resentment and fear against the Tutsi population and Hutu political opponents who supported the Tutsi ethnic group. The cover of Kangura No.26 promoted violence by conveying the message that the machete should be used to eliminate the Tutsi, once and for all. This was a call for the destruction of the Tutsi ethnic group as such. Through fear-mongering and hate propaganda, Kangura paved the way for genocide in Rwanda, whipping the Hutu population into a killing frenzy.[51]

The Trial Chamber concurred with the Prosecution that genocidal intent was proved beyond reasonable doubt. The Trial Chamber recalled that on 15 May 1994, the Editor-in-Chief of RTLM, Gaspard Gahigi, told listeners”

“… They say the Tutsi are being exterminated, they are being disseminated by the Hutu, and other things. I would like to tell you, dear listeners of RTLM, that the war we are waging is actually between these two ethnic groups, the Hutu and the Tutsi.[52]

The Trial Chamber further concurred with the Prosecution that the RTLM broadcast on 4 June 1994 was another compelling illustration of genocidal intent:

“They should all stand up so that we kill the Ikotanyi and exterminate them … the reason we will exterminate them is that they belong to one ethnic group. Look at the person’s height and his physical appearance. Just look at his small nose and then break it.”[53]

In an article published by Kangura in January 1994, Hassan Ngeze wrote:

“Let’s hope the Inyenzi will have the courage to understand what is going to happen and realize that if they make a small mistake, they will be exterminated; if they make the mistake of attacking again, there will be none of them left in Rwanda, not even a single accomplice. All the Hutus are united…”[54]

The Trial Chamber also noted that in its most graphic expression of genocidal intent, the cover of Kangura No.26 answered the question “What Weapons Shall We Use To Conquer The Inyenzi Once And For All? with the depiction of a machete. That the Tutsi ethnic group was the target of the machete was clear from another question on the same cover: “How about re-launching the 1959 Bahutu revolution so that we can conquer the Inyenzi-Ntutsi.” The same cover also bore the headline “The Batutsi, God’s Race!”[55]

After carefully evaluating all the evidence, the Trial Chamber arrived at the only conclusion that Kangura and RTLM explicitly and repeatedly, in fact relentlessly, targeted the Tutsi population for destruction. Demonizing the Tutsi as having inherently evil qualities, equating the ethnic group with “the enemy” and portraying its women as seductive enemy agents, the media called for the extermination of the Tutsi ethnic group as a response to the political threat that they associated with Tutsi ethnicity.[56] Further, the Trial Chamber held that the editorial policies as evidenced by the writings of Kangura and the broadcasts of RTLM constitute conclusive evidence of genocidal intent. In conclusion, the Trial Chamber ruled that, individually, each of the Accused made statements that further evidence his genocidal intent.[57]

The Trial Chamber found Ferdinand Nahimana and Jean-Bosco Barayagwiza individually responsible for RTLM broadcasts because their decisions and the broadcast that followed reflected editorial policy.[58] The broadcasts collectively conveyed a message of ethnic hatred and a call for violence against the Tutsi population.[59] Nahaimana and Barayagwiza were responsible for these hate message and knew it was causing concern, even before 6 April 1994 and as early as October 1993 when they received a letter from the Rwandan Minister of Information.[60] The Trial Chamber held that Nahaimana and Barayagwiza had superior responsibility for the broadcasts of RTLM.[61] However, the Trial Chamber noted that Nahaimana was not charged with genocide pursuant to Article 6(3) of its Statute.[62] Only Barayagwiza was charged consequently the Trial Chamber convicted Barayagwiza for genocide under Article 6(3) of the Statute.[63] The Chamber convicted Nahaimana of genocide pursuant to Article 6(1) of the Statute[64] after establishing his role as the founder and principal ideologist of RTLM.[65]

The Trial Chamber then moved on to consider the elements of the crime of direct and public incitement to commit genocide. It is noted that in committing crimes of direct and public incitement to commit genocide, the role of a journalist is most significant. Consequently, the Trial Chamber commenced its deliberation by reviewing the jurisprudence of the ICTR,[66] International Military Tribunal at Nuremberg,[67] the United Nations Conventions[68] and that of the European Convention on Human Rights.[69]

The jurisprudence on incitement highlights the importance of taking context into account when considering the potential impact of expression. In Faurisson, the Human rights Committee noted that, in context, the impact of challenging the existence of gas chambers, a well-documented historical fact, would promote anti-Semitism.[70] Similarly in the Zana case, the European Court of Human Rights considered the general statement made about the massacres by the former mayor of Diyarbakir in the context of the fact that massacres were taking place at that time, which in the Court’s view made the statement “likely to exacerbate an already explosive situation…”[71]

In several cases, the European Court of Human Rights noted that a text may “conceal objectives and intentions different from the ones it proclaims.”[72]  However, other factors relating to context that emerge from the jurisprudence, particularly that of the European Court of Human Rights, include the importance of protecting political expression, particularly the expression of opposition views and criticism of the government.[73]  Thus, in applying that principle, in the Incal case, where distribution of a leaflet highlighting the particular impact on Kurdish people of regulatory measures taken by the authorities was at issue, the Court found no evidence on which to challenge the sincerity of the author.[74]

On the other hand, in cases where there are issues of national security and where statements incite to violence, a “wider margin of appreciation” is given to the discretion of authorities to restrict freedom of expression. The context is taken into account in determining the potential impact on national security and public order. In Arslan, for example, the Court distinguished the publication of a book from mass media, suggesting that a literary work would have less of an impact.[75]

Causation is another relevant factor to consider in incitement cases. The issue is whether particular expression constitutes a form of incitement on which restriction would be justified. International jurisprudence does not include any specific causation requirement linking the expression at issue with the demonstration of a direct effect. In the Streicher case, there was no allegation that the publication Der Sturmer was tied to any particular violence. Much more generally, it was found to have “injected in to the minds of thousands of Germans” a “poison” that caused them to support the National Socialist policy of Jewish persecution and extermination.[76]

After reviewing the jurisprudence, and thereafter applying it in the Rwandan context, the Trial Chamber noted that

International standards restricting hate speech and the protection of freedom of expression have evolved largely in the context of national initiatives to control the danger and harm represented by various forms of prejudiced communication. The protection of free expression of political views has historically been balanced in the jurisprudence against the interest in national security. The dangers of censorship have often been associated in particular with the suppression of political or other minorities, or opposition to the government. The special protection developed by the jurisprudence for speech of this kind, in international law and more particularly in the American legal tradition of free speech, recognise the power dynamic inherent in the circumstances that make minority groups and political opposition vulnerable to the exercise of power by the majority or by the government. These circumstances do not arise in the present case, where at issue is the speech of the so-called “majority population”, in support of the government. The special protections for this kind of speech should accordingly be adapted, in the Chamber’s view, so that ethnically specific expression would be more rather than less carefully scrutinized to ensure that minorities without equal means of defence are not endangered.[77]

Accordingly, the Trial Chamber found Nahimana guilty of Conspiracy to Commit Genocide; Genocide; Direct and Public Incitement to Commit Genocide, Crimes Against Humanity (persecution and extermination).[78] Barayagwiza was found guilty of Conspiracy to Commit Genocide; Genocide; Direct and Public Incitement to Commit Genocide and Crimes Against Humanity (Persecution and Extermination)[79] and Ngeze was found guilty of Conspiracy to Commit Genocide; Genocide; Direct and Public Incitement to Commit Genocide, and Crimes Against Humanity (Persecution and Extermination).[80]

Having considered all the relevant factors, the Chamber sentenced Nahimana[81] and Ngeze[82] to imprisonment for the remainder of their respective life. Baryagwiza was sentenced to serve twenty-seven years, three months and nine days.[83]

8.  Conclusion

International human rights law imposes restrictions on the exercise of freedom of expression. Specific restrictions include prohibition to disseminate hate speech or incitement. Article 19 of the Covenant on Civil and Political Rights proscribes war propaganda including advocacy based on national, racial or religious hatred that constitutes incitement to discriminate, hostility or violence.

It is submitted that international human rights law that provides for and regulate the exercise of freedom of expression by journalists or propagandists may not be used as a defence against criminal acts proscribed in Articles 2, 3 and 4 of the ICTR Statute. Nor can the exercise of freedom of expression be used as a mitigating factor, or to avoid individual criminal responsibility under Article 6 of the ICTR Statute.

Article 4 of the ICTR Statute incorporates Common Article 3 and Additional Protocol II to the four 1949 Geneva Conventions. Consequently, the general thrust of Article 6(1) of the ICTR Statute, including aiding and abetting covers criminal acts or omissions of journalists or propagandists who disseminate hate speech or incite others to commit crimes stipulated in Articles 2, 3 and 4 of the ICTR Statute.

Journalists and other propagandist may therefore be indicted and successfully prosecuted for violation of any of the crimes stipulated in Articles 2, 3 and 4 of the ICTR Statute. In that context, the Media Judgment is a landmark decision on criminal responsibility of journalists, freedom of expression and a positive step towards progressive development of international criminal law.

* LLD (Stockholm University-Sweden); LLM (Stockholm University-Sweden); LLB (Hons) (Makerere University – Uganda) Special Advisor, Office of the Prosecutor, International Criminal Tribunal for Rwanda. The views expressed are personal and do not reflect that of the Prosecutor, International Criminal Tribunal for Rwanda, or that of the United Nations.

[1] De Forges, A, Leave None To Tell The Story, (Human Rights Watch, New York and International Federation of Human Rights, Paris, March 1999), p.65.


[3] Ibid.

[4]Omar, R Rwanda: Death, Despair and Defiance (Africa Rights, Revised 1995 Edition) pp.1-96. See also Gerard Prunier, The Rwanda Crisis 1959-1994: history of a genocide (Hurst, London, 1995) pp. 41-90.

[5] Akazu is a group of persons linked to President Habyarimana through marriage, family, politics and business, but all dedicated to the preservation of Hutu Power.

[6] De Forges, A, Leave None To Tell The Story, supra, note 1, pp.62 – 64.

[7] See, Memorandum dated Kigali, 27 July 1992 addressed by Lt. Col. Nsengiyumva to the Army Chief of Staff and copied to H.E. President of the Republic of Rwanda and marked “Confidential” –  See  the so-called Military I Trial; Prosecutor v Theoneste Bagasora, Gratien Kabiligi, Aloys Ntabakuze & Anayole Nsengiyumva  Case No. ICTR-98-41-T. See also Alison De Forges, Leave None To Tell The Story; supra note 1, on Military Defines “The Enemy” pp.59-64.

[8]Ibid, p.66.

[9] According to Chrétien et al., Rwanda, Les Medias, p.45, (unofficial translation) at least eleven of the forty-two new journals founded in 1991 were linked to the Akazu.

[10] Some 66 percent of Rwandans are literate and those who knew how to read were accustomed to reading for others. In many cases, most of the cartoons used in the papers were graphic in a manner that they could not be misinterpreted and the cartoons underscored the written word.

[11] Chalk, F, “Hate Radio in Rwanda” in Howard Adelman & Astri Suhrke (ed) The Rwandan Crisis from Uganda to Zaire: Path of a Genocide (Transaction Publishers, New Brunswick, USA, 1999), pp.93-107.

[12] De Forges, R, Leave None To Tell The Story, supra note 1, p.68.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid. p.69.

[17] Ibid.

[18] Omar, R, Rwanda: Death, Despair and Defiance, supra note 4, pp 69-84; see also Alison De Forges, Leave None To Tell The Story, supra note 1, pp. 65-91.

[19] Ibid. For detailed discussion on the role of the media in Rwanda during the period of genocide, see Omar, R, Rwanda: Death, Despair and Defiance supra note 4, under the heading:  ‘When Journalists Become Killers; Journalists who adopted the Extremist Agenda’ pp.160-166; see also Alison De Forges, Leave None To Tell The Story, supra, note 1, pp.65-95.

[20] Freedom of expression is declared fundamental human rights in all the major human rights instruments: Article 19 of the Universal Declaration of Human Rights, Dec.10, 1948, G.A. Res.217 A (III), UN Doc. A/810, at 71(1948); Article 19 of the International Covenant on Civil and Political Rights, U.N.G.A Res.2200A (XXI), Dec.16 1966, 21 UN GAOR Supp. (No.16) at 52, UN Doc.A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976; Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov.4, 1950, 213 U.N.T.S. 222, entered into force Sept. 3, 1953; Article 13 of the American Convention on Human Rights, Nov.22, 1969, OAS Treaty Series No.36, at OEA/Ser.L/V/II.23 Doc. Rev.2, entered into force July 18, 1978; and Article 9 of the African Charter of Human and Peoples’ Rights, June 26, 1981, OAU Doc. CAB/LEG/67/3/Rev.5.

[21] See for example ibid, Articles 10 and 17 of the European Convention. The articles permit governments to prohibit hate speech. Article 20(2) of the Covenant on Civil and Political Rights; Article 4 of the International Covenant on the Elimination of ALL Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969 require governments to outlaw “all discrimination of ideas based on racial superiority or hatred” as well as “organizations … which promote and incite racial discrimination”; Article 13(5) of the American Convention.

[22] Article 29 provides, inter alia, that the exercise of the rights and freedoms in the Declaration may be subject to “such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

[23] Article 7 provides that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and against any incitement to such discrimination.”

[24] See Article 19 of the Covenant on Civil and Political Rights, supra note 20.

[25] Ibid.

[26] Article 20 of the Covenant on Civil and Political Rights provides: “1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

[27] See, for example, Article 11 of the French Declaration on Human and Fundamental Right. It states: “The unrestrained communication of thought or opinions being one of the most precious rights of man, every citizen may speak, write and publish freely provided he be responsible for the abuse of his liberty in the cases determined by law.” However, many governments have sought to justify limitations on rights because domestic law, such as penal codes, imposes limitations on rights. This has undermined the enjoyment of rights. The law must impose only limitations that are necessary in a democratic society. Derogation of fundamental rights is exercised by governments regularly during emergency or civil strife.  See Green L.C, “Derogation of Human Rights in emergency situations” Canadian Yearbook of International Law (1978) 16. Even when there are no emergencies or civil strife, governments tend to derogate from human rights treaties. See Higgins, R, “Derogation Under Human Rights Treaties” 48 British Yearbook of International Law (1975-6) 281. In some cases, principles of fair trial are not complied with. See Pieter van Dijik, “Universal Legal Principles of Fair Trials in Criminal Proceedings” in Allan Rosas & Jan Helgesen (ed.) Human Rights in a Changing East-West Perspective, (London 1990), p. 121.

[28] See, Article 4 of Geneva Convention IV.

[29] See Article 4A (4) of Geneva Convention III.

[30] Gasser, H-P, “Protection of Civilian Population” in Dieter, F, (Ed.) The Handbook of Humanitarian Law in Armed Conflicts (Oxford University Press, Oxford, 1995), pp.228-229.

[31] See Article 79 of Additional Protocol I to the four 1949 Geneva Conventions.

[32] Ibid. Article 79(3) and Annex II of Additional Protocol I.

[33] Article 4A (4) of Convention III.

[34] Ibid.

[35] Annex IV A to Convention III.

[36] Gasser, H-P, “Protection of Civilian Population” supra, note 30, p.229.

[37] Ibid. At p.230.

[38] Ibid.

[39] Meron, T, “The Time has Come for the United States to Ratify Geneva Protocol I” in War Crimes Law Comes of Age – Essays (Clarendon Press – Oxford, 1998), pp.175-186. For further reading, see:  Bothe, M Partsch, K.J  & Solf,W.A,  New Rules for Victims of Armed Conflict: Commentary on the Two Protocols Additional to the Geneva Conventions of 1949 (Martinus Nijhoff Publishers, Dordrecht, 1982); Sandoz, Y, Swinariski C & Zimmermann, B, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of non-international armed conflict (Protocol II),(ICRC Publication, Geneva 1987); Geoffrey Best, War & Law Since 1945 (Clarendon Press-Oxford, 1994) – see  Chapter on the “Making Geneva Conventions”, pp.99-168.

[40] Pursuant to Article 6(1) of the ICTR Statute which reads as follows:

“A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible”.

[41] Ibid. Article 6(3) of the ICTR Statute reads as follows:

“The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”

[42] See Amended Indictment, Case No: ICTR-97-32-I dated December 18, 1998.

[43] Ibid. Paragraph 4.1 of the Amended Indictment.

[44] Ibid. Paragraph 5.8.

[45] Ibid. Paragraphs 5.9 and 5.10 of the Amended Indictment.

[46] Prosecutor v Georges Ruggiu Case No. ICTR-97-32-I, Judgement and Sentence, dated June 1, 2000, pars. 7-12. See also para 44 of the Judgement and Sentence describing the role played by the Accused during the events in Rwanda in 1994.

[47] Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T (“Media Case”).

[48] Ibid. The Indictments are set out in full in Annex I of the Judgment.

[49] Ibid, para. 486.

[50] Ibid, para 487 and 949.

[51] Ibid, para.950.

[52] Ibid, para 958.

[53] Ibid, para 959.

[54] Ibid, para 961.

[55] Ibid, para.962.

[56] Ibid, para.963.

[57] Ibid, para. 965.

[58] Ibid, para 970.

[59] Ibid, para 971.

[60] Ibid.

[61] Ibid, para 973.

[62] Article 6(3) of the ICTR Statute reads: “The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrator thereof.”

[63] Ibid, para.973

[64] Article 6(1) of the ICTR Statute reads: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.”

[65] Ibid, para. 974.

[66] Ibid, paras. 978-980.

[67] Ibid, paras. 981-982.

[68] Ibid, paras. 983-990.

[69] Ibid, paras. 991-999.

[70] Ibid, paras. 1001 and 1004.

[71] Ibid, para.1004.

[72] Ibid, para.1005.

[73] Ibid, para 1006.

[74] Ibid, para.1005.

[75] Ibid, para.1006.

[76] Ibid, para. 1007.

[77] Ibid, para.1008.

[78] Ibid, para.1092.

[79] Ibid, para. 1093.

[80] Ibid, para. 1094.

[81] Ibid, para.1105.

[82] Ibid, para 1108.

[83] Ibid, para.1107. Baryagwiza received a reduced sentence because “The Chamber considers that a term of years, being by its nature a reduced sentence from that of life imprisonment is the only way in which it can implement the Appeals Chamber decision. Taking into account the violation of his rights, the Chamber sentences Barayagwiza in respect of all counts on which he has been convicted to 35 years’ imprisonment. Pursuant to Rule 101(D) of the Rules, Barayagwiza is further entitled to credit for time served to be calculated from the date of his initial arrest in Cameroon, on 26 March 1996. Credit for time served has been calculated as seven years, eight months and nine days. Therefore, Barayagwiza will serve twenty-seven years, three months and twenty-one days, being the remainder of his sentence, as of 3 December 2003.

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