P|ease note that material in these
research papers ("Material") is
intended to contain matters which may
be of interest. The Material is not, and
is not intended to be, legal advice. The
Material may be updated and amended
from time to time. l{'e endeavour to take
care ín compiling the Material; however
the Material may not reflect the most
recent developments.
Humanitarian Law Perspectives 2008
Topic 5:
The lnternational Griminal Tribunal For Rwanda
Research paper prepared by:
Angelique Leondis & Ying-Lee Lai
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lnternational Griminal Tribunal for Rwanda
Table of Contents
2
lntroduction
3
Background
4
4.1
4.2
5
Direct and public incitement to commit genocide
4
The actus reus of direct and public incitement to commit genocide
The mens rea of direct and public incitement to commit genocide
5
6
Gonclusion
7
Reference List
I
Causation
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10
Summary
The Intemational Criminal Tribunal for Rwanda ("ICTR") is governed by the Statute
annexed to the United Nations Security Council Resolution 955 ("the Statute"). Under
the Statute, a person is punishable for incitement to commit genocide when he incites
others, directly and publicly, to:
(a)
kill
(b)
cause serious bodily or mental harm to members of the Group;
members of a national, ethnical, racial or religious group (,,Group,');
(c)
deliberately inflict on the Group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d)
imposing measures to prevent births within the Group; or
(e)
forcibly transfer children of the Group to another group,
with the intent to destroy, in whole or in part, the Group.
For the incitement to be punishable it must be "direct", "public" and the accused must
have the intent to directly prompt or provoke another person(s) to commit genocide.
In the case ofProsecutorv Jean-Paul Akayesu Case No. ICTR-96-4-T (2 September
1998) the ICTR found Jean-Paul Akayesu, bourgmestre of the Taba Commune, guilty of
the offence of direct and public incitement to commit genocide. This was the first
occasion on which an intemational tribunal had considered direct and public incitement to
commit genocide as a specific offence.
lnAkayesu, the ICTR made significant findings concerning the offence of direct and
public incitement to commit genocide, in particular that:
o
o
o
o
o
o
o
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the act of incitement must be more than a mere vague or indirect suggestion and
must specifically provoke another to engage in a criminal act;
the "direct" element of incitement needs to be considered in light of its cultural
and linguistic context;
"directness" requires establishing a causal link between the act characterised as
incitement and a specific offence;
there should be a factual inquiry into whether the persons for whom the
incitement was intended immediately grasped the implication thereof;
private incitement to commit genocide does not satisff the public element of the
offence;
the accused himself must possess the specific intent to commit genocide; and
the offence is still satisfied even
incited do not occur.
if the actual acts of genocide that the accused
These findings have been rocentþ affirmed in the case of Prosecutor v Tharcisse Muvunyi
Case No. ICTR-2000-554-T (1 2 Se'ptember 2006).
The elements of the crime of direct and public incitement to commit genocide are clearly
explainod by the ICTR n Akayesu and fr¡rtlrer affirmed and clarified n Mtmnyí. Tl¡is
jurisprudence creates a clear path for the prosecution of the offence and assists
international ribunals to prevent acts of genocide.
9324875_4
lntroduction
2
The International Criminal Tribunal for Rwanda (the "ICTR") made significant findings
concerning the crime of direct and public incitement to commit genocide (as well as
crimes of rape and sexual violence) inthe case of Prosecutor v Jean-Paul Akayesu Case
No. ICTR-96-4-T (2 September 1998)' ("Akayesu'). Eight years later, the ICTR again
examined the crime of direct and public incitement to commit genocide in the case of
Prosecutor v Tharcisse Muvunyi Case No. ICTR-2000-55A-T (12 September 2006)2
("Muvunyi"),
The focus of this paper is on the findings made by the ICTR in Akayesu and. Muvunyí
regarding the crime of direct and public incitement to commit genocide (including its
explanation of the required elements of actus reus and mens rea). This paper does not
examine in any detail the other fïndings made by the ICTR, including those with regard to
the crime of genocide generally, or any other decisions of the ICTR.
Background
3
The population of Rwanda was formerly divided into three ethnic groups, namely Hutu,
Tutsi and Twa. Between April 1994 and,July 1994, alarge number of Tutsi civilians were
attacked and killed by Hutu militiamen and soldiers in various parts of Rwanda. Those
killings began immediately following the death of former Rwandan President, Juvénal
Habyarimana, in a plane crash on 6 Apnl1994.
Various offrcial United Nations reports prepared following this violence indicated that
acts of genocide, as well as other violations of international humanitarian law, were
committed in Rwanda. The United Nations Security Council considered the situation a
threat to international peace and security, and established the ICTR in order to prosecute
persons responsible for serious violations of international humanitarian law committed in
Rwanda between I January 1994 and 3l December 1994 and to facilitate national
reconciliation and restore peace in Rwanda.
The ICTR is governed by the S^tatute annexed to United Nations Security Council
Resolution 955 (the "Statute")3. Pursuant to Article 2(1) of the Statute, the ICTR has the
power to prosecute persons who commit genocide as defined in Article 2(2) of the Sta¡¡te
or commit any of the other acts enumerated in Article 2(3) of the Statute (including direct
and public incitement to commit genocide).
Jean-Paul Aknyesu
Jean-Paul Akayesu ("Akayesu") was a bourgmestre (ie mayor) of the Taba commune, a
rural Rwandan province, from April 1993 until June 1994. As bourgmestre, Akayesu was
the most powerful figure in the Taba commune and was responsible for the maintenance
of public order, subject to the authority of the prefect.
t The Prosecutor v Jean-Paut Akayesu (1998)
Case No. ICTR-96-4-T: htto//69.94.1 I .53/default.htm.
2
3
The Prosecutor v Tharcisse Muvunyi(2006) Case No. ICTR-00-55: htto://69.94.11.53/default.htm.
Public Affairs and lnformation Unit, The lntemational Criminal Tribunal for Rwanda, 'Basic Legal Texts
of the Tribunal": http://69.94.11.53/ENGLtSH/basicdocs/statute/2007.odf.
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-
Statute
Akayesu was charged with genocide and in the altemative complicity in genocide, direct
and public incitement to commit genocide, murder, torture, rape and various other crimes
against humanity pursuant to Articles 2,3 and4 of the Statute.
The ICTR found Akayesu guilty of, ínter alia, the offence of direct and public incitement
to commit genocide. This was the first occasion on which an international tribunal had
considered direct and public incitement to commit genocide as a specific offence.
Tharcísse Muvunyí
Tharcisse Muvunyi ("Muvunyi") held the official position of Lieutenant Colonel, the
second most senior officer, atthe Ecole des sous-offìciers ("ESO") military camp in the
Butare prefecture in Rwanda from I March 1994. Muvunyi assumed the role of interim
Commander of the ESO from 7 April 1994 andheld that position until about mid-June
1994. As interim Commander, Muvunyi had authority over the ESO camp, with
responsibility for the security of the civilian population within the central sector of the
Butare prefecture and for the actions of ESO soldiers within this area.
Muvunyi was charged with genocide and in the altemative complicity in genocide, direct
and public incitement to commit genocide, rape and other crimes against humanity
pursuant to Articles 2 and3 of the Statute.
The ICTR found Muvunyi guilty of, inter alia,the offence of direct and public incitement
to commit genocide.
4
Direct and public incitement to commit genocide
The crime of genocide is defined in Article 2(2) of the Statute to mean any of the
following acts committed with the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group ("the Group"):
(a)
Killing members of the Group;
(b)
Causing serious bodily or mental harm to members of the Group;
(c)
Deliberately inflicting on the Group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d)
Imposing measures intended to prevent births within the Group; and
(e)
Forcibly transferring children of the Group to another group.
Article 2(3) further provides that the following acts shall be punishable:
(a)
Genocide;
(b)
Conspiracy to commit genocide;
(c)
Direct and public incitement to commit genocide;
(d)
Attempt to commit genocide; and
(e)
Complicity in genocide.
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This means, therefore, that a person is punishable for incitement to commit genocide
when he incites others, directly and publicly, to do one or more of the acts set out in
Article 2(2),with the intent to destroy, in whole or in part, a national, ethnical, racial or
religious group4.
The actus reus of direct and public incitement to commit genocide
4.1
InAkayesu, the ICTR, defined the actus reus of the offence of direct and public incitement
to commit genocide to mean5:
"directly provoking the perpetrator(s) to commít genocíde, whether through speeches,
shouting or threats uttered in public places at publíc gatherings, or through thà sale or
dissemínation, ofer þr sale or dßplay of written material or printed matter in public
places or at public gatherings, or through the public dßplay of placards or posters, or
though any other means of audiovisual communication"
The ICTR approved of and adopted this definiti on in Muvunyi6 . The definition has also
been approved by the Appeals Chamber of the ICTR and applied in other cases, including
Prosecutor v Niyitegeka Case No.ICTR 96-14-^(19 April 200q7 and Prosecutor v
Kajelijeli Case No.ICTR-98-444 (1 December 2003)8.
The offence of direct and public incitement to commit genocide as found in Article 2 of
the Statute, essentially replicates provisions of the Internatíonal Convention on the
Prevention and Punishment of the Crime of Genocide (the "Genocide Conventionr')e.
The "direct" element
InAkayesu, the ICTR held that the act of incitement must "specifically provoke another to
engage in a criminal act", and that "more than mere vague or indirect suggestion goes to
constitute direct incitement". This is consistent with the standard of direct and public
incitement under the Genocide Convention which distinguishes between general advocacy
and incitement; only criminalising the latterr0. General advocacy is speech that tends to
provoke genocide i,e. hate speech, whereas incitement actually calls for the commission
of acts of genocidell.
The ICTR explained inAkayesu, that the "direct" element of incitement needs to be
considered "in the light of its cultural and linguistic content" and on a "case-by-case"
basis having regard to the specific circumstances of the case. This requires the court to
analyse not only the actual language used by the accused, but also the cultural context in
a
Alexander Zahar, "The ICTR's 'Media' Judgment and the reinvention of direct and public incítement to commit
genocide", Criminal Law Forum, vol 16 (Spring 2005), p34.
5
The Prosecutorv Jean-Paul Akayesu, note 1, para 5S9.
6
At paragraph 500 of the judgment.
7
Prosecutor v Niyitegeka (2004) Case No. ICTR 96-14-A , para. 431: htto://69.94.11.53/defautt.htm.
8
The Prosecutor v Kajetijeti(2oo3) Case No. ICTR-98-444 para. 850-855: htto://69.94.11.53/defautt.htm.
e
Off¡ce of the High Commissioner for Human Rights, tnternational Convention on the Prevention and punishment
of the Crime of Genocide: http://www.unhchr.ch/html/menu3/b/p3enoci.htm.
totbid.,pgg.
tt
tbid., p1oo.
9324875 4
which the words were uttered. The question for determination is whether the audience
understood the words uttered to mean that they should commit genocidel2.
Akayesu made various speeches at a meeting attended by over 100 Hutu people in which
he clearly called on the crowd to unite in order to eliminate what he termed the sole
enemy: the accomplices of the Inkotanyi (a term used to refer to Tutsi and the Rwandan
Patriotic Front (a political organisation formed by Tutsi exiles, the "RPF")). On the basis
of evidence given by witnesses who had been present at that meeting and also an expert
witness on linguistic issues, the ICTR was satisfied beyond reasonable doubt that the
audience had construed Akayesu's call to fight against the accomplices of the Inkotanyi as
a call to kitl the Tutsi in general. At that meeting, Akayesu also read out the names of
certain individuals whom he stated were RPF accomplices. Akayesu himself admitted
before the ICTR that to label anyone in public as an accomplice of the RPF would put
such a person in danger and jeopardize their life þarticularly when made by a public
official such as the bourgmestre). The ICTR concluded that Akayesu had created a
particular state of mind in his audience necessary to lead to the destruction of the Tutsi
group.
The ICTR also held that "directness" required establishing a causal link between the act
characterized as incitement and a specific offence. After considering substantial evidence
presented during the trial that killings in Taba started after Akayesu made his speeches,
the ICTR was of the opinion that there was a causal relationship between those speeches
and the ensuing widespread massacres of Tutsi in the Taba commune.
In Muvunyi, the ICTR adopted the Akayesu elaboration of the "direct" element of
incitement and again emphasised that it was important to consider the specific context in
which the incitement took place. The ICTR stated that "cultural and linguistic factors, as
well as the kind of audience the message is addressed to, could help determine whether a
particular speech qualifïes as direct incitement. An important consideration for the
IICTRI is whether the members of the audience to whom the message was directed
immediately understood its implication".
Muvunyi had addressed a crowd of Hutu male civilians at a meeting held at Gikonko in
April or May 1994. During the address he equated Tutsis to snakes that should be killed.
ln the same speech, he also chastised the bourgmestre of Gikonko for hiding a certain
Tutsi man and asked him to produce that individual so that he could be killed. As a result,
the Tutsi man was taken from his hiding place and killed by the mob. The ICTR found
that Muvunyi's words had been directed to a group of assembled Hutu civilians and had
provoked them to kill Tutsis. The ICTR considered in the context of the language and
culture of Rwanda, that equating Tutsis to snakes was synonymous with condemning
members of this ethnic group to death. The ICTR was satisfied that Muvunyi's audience
immediately understood the genocidal implication of his words.
At another public meeting held in Gikore in May 1994, Muvunyi called for the killing of
Tutsi, the destruction of Tutsi property, associated Tutsis with the enemy at a time of war
and denigrated Tutsi people by associating them with snakes and poisonous agents. The
ICTR held that, when considered in the context of the inter-ethnic killings prevalent in
Rwanda in 1994, the war between the RPF rebels and the Hutu-dominated Rwandan
Army, as well as the culture and language of Rwanda, the audience would have
understood Muvunyi's remarks as a call to kill or othenvise eliminate members of the
12
Akayesu, paragraph 557. See also Wibke Kristin Timmermann, "lncitement in international criminal lavr'',
lnternational Review of the Red Cross vol 88 no 864 (December 2006), p841.
9324875_4
Tutsi population. Therefore, the ICTR was satisfïed that the'odirect" element of the
offence had been established.
Implicit incitement
lnAkayesu, the ICTR noted the possibility that incitement could be "implicif'yet still be
directl3. One commentator has Jugge.t.d, however, that care should be taken with the
ICTR's view that direct incitement may be implicit given that it also held that the
incitement must "specifically provoke anothef', be aimed at causing the commission of a
specific offence and not be a "mere vague and indirect suggestion"l4. Even if implicit, the
incitement must be quite explicit about the specific criminal act towards which itìs
directedl5.
Imminence
The ICTR held in bothAkayesu and Muvunyi that there should be a factual inquiry into
whether the persons for whom the message was intended immediately graspedthe
implication thereof. Commentators have suggested that the word "immediately''
indicates that a further element for establishing the crime is a finding that the incitement
produced, or was likely to produce, imminent lawless action, even though imminence
does not appear in the statutory defïnition of the crime of direct and public incitement. A
finding of imminence might be a separate requirement that is gradually developing in
tribunal jurisprudence or it could be viewed as pertinent to the direct element of incitementl6.
lnAkayesu andMuvunyi, the ICTR found that imminence flowed from the words used by
Akayesu and Muvunyi respectively. Their listeners had immediately understood the
message to kill Tutsi.
The "public" element
ln Akayesu, the ICTR pointed out that the'þublic" element of the offence of direct and
public incitement to commit genocide means that private incitement to commit genocide
does not satisff the elements of the offencerT. The ICTR elucidated as follows:
"public incitement is characterised by a call þr criminal action to a number of
índíviduals in a public place or to members of the general publíc at large by such means
as mass media,þr example, or radio or televísion"tE.
Ín Muvunyi, the ICTR provided a broader description of what it means for incitement to
The ICTR noted that in determining the'þublic" character of incitement, it
must consider the place where the incitement occurred and whether attendance lryas
selective or limited. The ICTR emphasised that "[t]here is no requirement that the
incitement message be addressed to a certain number of people or that it should be carried
through a specific medium such as radio, television, or a loud speake¡" however the
be'þublic".
13
ra
Akayesu, paragraph 557.
C Edw¡n-Baker, "Genocide, press freedom and the case of Hassan Ngze", (2003) IJniversity
Law School Journal, p24: htto://lsr.nellco.orq/uoenn/wos/oapers/3.
'5 tb¡d.
t6
t'
Supra note 8, p106
Akayesu, paragraph 556.
'8 Akayesu, paragraph 556.
9324875_4
of pennsylvania
ICTR recognised that these factors provide evidence in support of a finding that the
incitement was, in fact, "public".''
lnAkayesu and Murunyi, the ICTR was satisfïed beyond reasonable doubt that the
incitement was "public" - Akayesu made speeches to the public in a public place and
Muvunyi made speeches in a public place to a selective group (namely, Hutus).
4.2
The mens rea of direct and public incitement to commit genocide
It must, according to the ICTR inAkayesu,be proven beyond reasonable doubt, that the
person accused of the offence of direct and public incitement to commit genocide
possessed, at the relevant time, an intent to directly prompt or provoke another person(s)
io commit genocide. In other words, the accused must have had a desire to create' by his
actions, a pãrticular state of mind necessary to commit genocide in the mind(s) of the
person(s) he is so engaging. It necessarily follows that the accused himself must have the
ipecific intent to commit genocide (namely, the intent to destroy, in whole or in part, a
national, ethnical, racial or religious grouP, as such)'".
In Muvunyithe ICTR agreed with the explanation provided inAkayesu of the mens rea of
the offence. In Muvunyi, the ICTR made it clear that the mens rea of the offence is not
satisfied if the accused only possessed the intent to incite another person(s) to commit
in addition to this, the accused himself possessed the
genocide but will be satisfied
genocide2r.
The ICTR was satisfied that Muwnyi knew his
to
commit
specific intent
words would be understood by his audience as a call to kill or otherwise eliminate
members of the Tutsi population and therefore, according to the ICTR, he had the intent
to destroy in whole or in part members of the Tutsi ethnic group.
if
5
Causation
The ICTR pointed out in Muvunyi that the actus reus of the offence of direct and public
incitement to commit genocide is still satisfied even if the actual acts of genocide that the
accused incited do not occuf2. InAkayesu,the ICTR provided a more detailed analysis
but came to the same conclusion. The ICTR looked to the intention of the drafters of the
Statute and noted that the drafters' intention that the offence cover incitement where the
actual acts of genocide do not occur could not be discounted simply because the Statute
does not expressly prescribe this to be the case. The ICTR went on to say that "the fact
that some acts are in themselves particularly dangerous because of the high risk they carry
for society, even if they fail to produce results, warrants that they be punished as an
exceptional measure" and that genocide falls within this category of acts. The offence of
direct and public incitement to commit genocide must be punished even where the
incitemenlfails to produce the result expected by the accused23.
Schabas describes the result as being that the prosecution need only establish that the
direct and public incitement took place, was intentional, and targeted a particular group,
either in whole or in partza. The prosecution need not make proof of any result. This
1e
20
2'
Muvunyi, paragraph 503.
Akayesu, paragraph 560.
Akayesu, paragraph .560; Muvunyi, paragraph 504.
22
Muvunyi, paragraph 507.
23
Akayesu, paragraphs 561 - 562.
2o
Schabas W. "Hate Speech in Rwanda: The Road to Genocide" (2000) 46 McGill L.J. 141at 149:
htto://lawiournal.mcoill.calabs/vol46/1 schab.odf.
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makes the Statute more responsive to the need to prevent genocide, as-opposed to only
punishing individuals for genocide which has already been committed2s.
6
Conclusion
The judgments
ofthe ICTR inAkayesu and,Muvunyi have settled the elements of the
offence of direct and public incitement to commit genocide. This jurisprudence makes the
offence readily identifiable and one which international law enforcement bodies can more
easily detect and prosecute.
25
Supra at
9324875_4
L
7
Reference List
1.
Amann, D. "Prosecutor v Akayesu ICTR-96-4-T", (1999) The American Journal
of International Law vol93 no l, p 195-199.
2.
Baker, C."Genocide, press freedom and the case of Hassan Ngze", (2003)
Universíty of Pennsylvania Law School Journal,The Berkley Electronic Press:
http ://lsr.nellco.org/upenn/wps/papers/3 .
3.
Benesch, S. "lnciting Genocide, Pleading Free Speech", (2004) llorld Policy
Journal: http://www.allbusiness.com/legaVlaws/ 1 059742- I .html.
4.
Gher, J. "Prosecutor v Tharcisee
Muwnyi
Case No. ICTR-2000-554-T", (2007)
Human Rights Briefvol14
http ://www.wlc.american.edu/hrbrief/ I 4/2muvunyi.cûn.
issue 2:
5.
Gopalani, A. "The international standard of direct and public incitement to
commit genocide: an obstacle to US ratification of the International Criminal
Court Statute?", (2001) California lTestem International Law Journal vol32 no
1,p87-117.
6.
7.
Human Rights Watch (2004) Case law of the International Criminal
Rwanda: htto://www.hrw.org/reports/2004/ijlictr/3.htm.
Tribunalþr
Schabas W. "Hate Speech in Rwanda: The Road to Genocide" (2000) 46
p I 4l -17 I : http://lawj ournal.mcgill.calabs/vol46/ I schab.pdf.
McGill
L. J.,
8.
Timmermann, W. "lncitement in international criminal law", (2006) International
Review of the Red Cross, vol 88 no 864, p 838-843.
g.
Wallenstein, J. "Punishing words: an analysis of the necessity of the element of
causation in prosecution for incitement to genocide", (2001) Stanford Law Review
vol 54 no 35, p 351-398.
10.
Zahar, Alexander, "The ICTR's'Media' judgment and the reinvention of direct
and public incitement to commit genocide", (2005) Criminal Law Forum vol 16,
p 33-48.
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't0