The crime of direct and public incitement to commit genocide before the ictr: a case of ngeze hassan

Section 2: Case law on hate speech prior to Hassan NGEZE

§1. Robert Faurisson v France (Article 19 of the ICCPR)

The case of Robert Faurisson v. France⁸⁴ affirmed the need to restrict the right to freedom of expression. In Faurisson v. France, the plaintiff (Faurisson) challenged as a violation of his right to freedom of expression under article 19 of the ICCPR by the French government for publishing his view doubting the existence of gas chambers for extermination purposes in the Nazi concentration camps.⁸⁵ The defendant (French government) argued that; racism did not constitute an opinion but an aggression, and that every time racism was allowed to express

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itself publicly; the public order was immediately and threatened.

severely In its judgment,

the committee tocross check held that the restriction on publication of these views did not violate the right to freedom of expression in article 19 and in fact that the restriction was necessary under article 19(3)⁸⁷

§2. The International Military Tribunal at Nuremberg

Among the defendants tried at the International Military Tribunal at Nuremberg (IMT) were Julius Streicher, a publisher of «Der Stürmer» newspaper and Hans Fritzsche, head of a radio station of the Nazi propaganda ministry. The Streicher and Fritzsche cases are the most significant Pre-ICTR international precedents regarding the crime of direct and public incitement to commit genocide.

a) Julius Streicher's case

The IMT sentenced Streicher to death for the anti Semitic articles he published in his weekly newspaper «Der Stürmer». The prosecution placed in evidence a number of damning items that indicated Streicher knew what was going on in the war time death camps yet continued to urge extermination. The judges viewed Streicher as «an extremely distasteful creature and some what of a raving madman»⁸⁸

⁸⁴ Robert Faurisson v. France, Communication No. 550/1993, U.N. Doc.

CCPR/C/58/D/550/1993(1996).

⁸⁵ Prosecutor v. Nahimana et al supra note 1, Para 988

⁸⁶ Ibid

⁸⁷ Ibid

⁸⁸G. S. GORDON, A war of media, words newspaper and radio stations: ICTR media trial and a

new chapter in International law ofHATE SPEECH, Virginia journal if international law,

In its judgment, the IMT quoted numerous instances where «Der Stürmer» called for the extermination of Jews⁸⁹

In a September 1938 article in «Der Stürmer», Editor Julius Streicher described the Jew «as a germ and a pest not a human being, but a parasite, an enemy an evildoer and a disseminator of diseases who must be destroyed in the interest of mankind»⁹⁰

The tribunal found that twenty-six articles published between august 1941 and September 1944 of which twelve were signed by Streicher himself «demanded annihilation and extermination in unequivocal terms»⁹¹

One of the excerpts from Streicher's writings introduced by the prosecution declared that «the male sperm in cohabitation is partially or completely absorbed by the female and thus enters her blood stream. One single cohabitation of a Jew with an Aryan woman is sufficient to poison her blood forever. Never again will she be able to bear purely Aryan children, even when married to an Aryan. They will all be bastards. Now we know why the Jew uses every artifice of seduction in order to ravish German girls at as earl y an as possible; why the Jewish doctor rapes his female patient while they are under anesthetic»⁹²

It is important to note that the judgment in Streicher's case did not establish a causal link between Streicher's publications and any specific acts of murder; instead it referred to his work as a poison that was injected into the minds of Germans.

The charges presented by lieutenant colonel J.M Griffith-Jones of the British prosecution held that «it may be that this defendant is less directly involved in the physical commission of the crimes against JewsÉthe effect of this man's crimes of the poison that he has injected into the minds of millions and millions of young boys and girls and young men and women

2000 (west law, 45a. J.Int'l L. 139)

⁸⁹B. F. SMITH, Reaching judgment at Nuremberg, the untold stories of how the Nazi war

criminals were judged, 1977, first edition p.201

⁹⁰E. DAVIDSON, the trial of the Germans, an account of the twenty two defendants before the International Military Tribunal at Nuremberg, 1966, first university of Missouri press

paper back edition 1997, p.47

⁹¹ W. A. SCHABAS, supra note 21, p.39

⁹² R. E. CONOT, justice at Nuremberg, first Carroll and graft edition, 1984, p.382

lives on. He leaves behind him a legacy of almost a whole people poisoned with hate, sadism and murder, and perverted by him»⁹³

The tribunal concluded that «Streicher's incitement to murder and extermination at the time when the Jews in the east were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes as defined by the charter, and constitutes the crime against humanity»⁹⁴

b) Hans Fritzsche's case

Also charged with incitement as a crime against humanity, Hans Fritzsche was acquitted by the IMT. He was head of the radio section of the propaganda ministry during the war. Accused of incitement to commit genocide, Fritzsche defended himself that he had turned down requests from Goebbels to incite antagonism and arouse hatred and that he had never voiced the theory of the «master race» In his testimony, Fritzsche disclosed that he expressly prohibited the term from being used by German press and radio that he controlled. He further testified that he had expressed his concern over the content of the newspaper «Der Stürmer» and that he had tried twice to ban it.

In its judgment for acquittal, the tribunal found that Fritszche had not had control over the formulation of propaganda policies, that he had merely been a conduit to the press of directives passed down to him. Concerning the charge that he had incited the commission of war crimes by deliberately falsifying the news to arouse passion in the German people, the tribunal found that «although he had some times false news, it had not been established that he new it to be false.»⁹⁵

§3. European case law

The European Court of Human Rights (ECHR) has also developed jurisprudence on the
proper balancing the right to freedom of expression. For example in Jersild v. Denmark⁹⁶ a
case in which a journalist held an interview with «Greenjackets» members of a racist youth

⁹³ Idem Para 384-385

⁹⁴ W. A. SCHABAS supra note 21, p.41-42

⁹⁵ Prosecutor v. Nahimana et al supra note 1, Para. 982

⁹⁶Jersild v. Denmark, European Court of human rights, series A no 298, judgment of 23 September1994.

group in Denmark. In the interview, the Greenjackets identified themselves as racists and made extremely offensive remarks about black people and immigrants⁹⁷

Those who were interviewed in the program were prosecuted for their speech, along with Jersild over violation of Denmark's law prohibiting «dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin».⁹⁸

Jens Olaf Jersild took his case through the Danish domestic procedures to the European Court of Human Rights which finally ruled that; «the media should be free to report on hate speech and should not be prosecuted for transmitting expression, even if that expression is unlawful in the country concerned. This is particularly so when, as in this Danish case, the program was made in the public interest to expose a problem»⁹⁹. The Court found that «Jersild's right to freedom of expression and information as protected in Article 10 of the European Convention on Human Rights had been violated»¹⁰⁰

§4. The ICTR case law before Ngeze Hassan

Responding to the Rwandan genocide in which about a million Tutsis and moderate Hutus were massacred in 1994, the Security Council acting under chapter VII of the UN, created the International Criminal Tribunal for Rwanda (ICTR) by resolution 955 of 8 November 1994. The Tribunal was established for the prosecution of the perpetrators of the Rwandan genocide

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and other serious violations of international humanitarian law. It's by this Tribunal that Jean Paul Akayesu¹⁰² and George Ruggiu¹⁰³ were convicted and sentenced for, inter alia, the crime of direct and public incitement to commit genocide.

⁹⁷ Prosecutor v. Nahimana et al, supra note 1, Para 992

⁹⁸ Ibid

⁹⁹ Helen Darbishire, hate speech: new European perspective, European commission 2007, visited 9 ^th

www.errc.org/cikk.php?cikk on July, 2007

100 Ibid

101 Articles 1-4 of the ICTR Statute

102 Prosecutor v. Akayesu supra note 24

103 Prosecutor v. Ruggiu, case no ICTR-97-32-I, trial chamber 1, judgment, June 2000

a) The Prosecutor v. Akayesu

The ICTR set a precedent for the interpretation of the crime of direct and public incitement to commit genocide. In its findings, the ICTR held that «whatever the legal system, direct and public incitement must be defined for the purposes of interpreting Article 2(3)(c), as directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication»¹⁰⁴.

Defining the mens rea of the crime of direct and public incitement, the trial chamber found that «The mens rea required for the crime of direct and public incitement to commit genocide lies in the intent to directly prompt or provoke another to commit genocide. It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging. That is to say that the person who is inciting to commit genocide must have himself the specific intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious group, as such»¹⁰⁵

The Akayesu judgment also considered whether the crime of direct and public incitement to commit genocide can be punished even where such incitement was unsuccessful, and concluded that the crime should be considered as an inchoate offence (acts constituting an offence per se irrespective of their results) under common law or an infraction formelle under civil law, the fact that «such 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 case».¹⁰⁶

104 The prosecutor v. Akayesu, supra note 24, Para 559

105 Idem Para 560

106 Idem, Para 562

The tribunal held that «genocide clearly falls with in the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even when such incitement failed to produce the result expected by the perpetrator»¹⁰⁷

The trial chamber also found that the «É direct element of incitement should be viewed in the light of its cultural and linguistic content» and that «a particular speech may be perceived as direct in one country and not so in another, depending on the audience»¹⁰⁸

b) The prosecutor v. Ruggiu

George Ruggiu, a Belgian national, was found guilty of the crime of direct and public

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incitement to commi t genocide and was consequently sentenced to 12 years imprisonment.

In its judgment, the trial chamber noted that the accused, who was a journalist, «had played a critical role in the incitement of ethnic hatred and violence that RTLM vigorously pursued.» 110

The trial chamber found: «Through his broadcasts at the RTLM, Ruggiu encouraged setting up roadblocks and congratulated perpetrators of the massacres of the Tutsis at these roadblocks» 111

After examining the relevance of Streicher's case to the one of Ruggiu, the tribunal remarked that «Streicher's case was particularly relevant since Ruggiu like Streicher, infected peoples minds with ethnic hatred and persecution» 112

The trial chamber further noted that his broadcasts «continued to call upon the population particularly the military and the Interahamwe militia to finish off the 1959 revolutionÉan incitement to massacre the entire Tutsi population» 113

107 Ibid

108 Idem , Para 557

109 The prosecutor v. Ruggiu, supra note 90, para 81

110 Idem, Para 50

111 Ibid

112 Ibid

113 Idem Para 44(ii)

As an aggravating factor, the trial chamber found that «the accused became aware that the broadcasts from the RTLM radio station were contributing to the massacres perpetrated against Tutsis, yet the accused made a deliberate choice to remain in Rwanda and to continue his employment with the RTLM. The accused's radio programs incited hatred against Tutsis Hutu political opponents and Belgians»¹¹⁴