Fond bitcoin pour l'amélioration du site: 1memzGeKS7CB3ECNkzSn2qHwxU6NZoJ8o
  Dogecoin (tips/pourboires): DCLoo9Dd4qECqpMLurdgGnaoqbftj16Nvp

Home | Publier un mémoire | Une page au hasard


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

( Télécharger le fichier original )
par Yassin Tusingwire
National University of Rwanda  - LLB 2007

précédent sommaire suivant

Bitcoin is a swarm of cyber hornets serving the goddess of wisdom, feeding on the fire of truth, exponentially growing ever smarter, faster, and stronger behind a wall of encrypted energy

Section 3: the Hassan NGEZE case

Hassan Ngeze, editor-in-chief of the notorious Kangura newspaper was, inter alia, convicted of the crime of direct and public incitement by Trial Chamber I of the ICTR on 3 December 2003.

§1 Historical background


Hassan NGEZE was born on 25 December 1957 in Rubavu commune, Gisenyi prefecture, Rwanda. From 1978, he worked as a journalist, and in 1990 he found a newspaper Kangura and held the post of editor-in-chief. Prior to this, he was the distributor of Kanguka newspaper in Gisenyi. Ngeze was also a founding member of the Coalition pour la Defence de la Republique (CDR) party115


Hassan Ngeze was charged pursuant to an earlier indictment of 3 October 1997 with genocide, direct and public incitement to commit genocide and crimes against humanity. An amended Indictment (ICTR -97-27-1) of November 1999 charged him 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) pursuant to Articles 2 and 3 of the statute of the ICTR.116

He was charged with individual responsibility under article 6(1) of the statute for these
crimes and was also charged with superior responsibility under article 6(3) in respect of all

114 Idem Para 51

115 Prosecutor v. Nahimana et al, supra note 1, Para 7

116 Idem Para 10

but one of the crimes-conspiracy to commit genocide. He was charged mainly in relation to his activities as an Editor-in-Chief of Kangura.117

Hassan Ngeze was arrested Kenya 18 th

in on July 1997 and transferred to the tribunal's

detention facility the same day, pursuant to an order for transfer and provisional detention issued by judge Laity KAMA on 16th July 1997.

On 30th September 1997, Ngeze Hassan made his initial appearance and pleaded not guilty to all crimes.

§2 Judgment of the Trial chamber I

In its findings, the Trial Chamber held that «Hassan Ngeze wrote many articles and editorials, and made many statements that openly evidence his genocidal intent».118

The trial chamber found that Ngeze Hassan in his writings incited the Hutu population into killing the Tutsi. The chamber held that «the appeal to the conscious of the Hutu and the ten commandments published in Kangura no. 6 in December 1990 conveyed contempt and hatred for the Tutsi ethnic group»119 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» 120

In determining Ngeze's genocidal intent, the trial chamber quoted an article that Ngeze published in Kangura in January 1994121

The trial chamber referred to the cover of Kangura no 26 where statements like «what
weapons shall we use to conquer Inyenzi once and for all? With a depiction of a machete,
«what about re-launching the 1959 Bahutu revolution so that we can conquer the Inyenzi

117 Ibidem

118 Idem Para 968

119 Idem Para 245

120G. S. GORDON, supra note 74

121 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 a mistake of attacking again, there will be none of them left in Rwanda, not even a single accomplice. All the Hutus are united...

Ntusi and the lead cover headline «the Batutsi, God's race!» as a clear manifestation of Ngeze's genocidal intent to incite the Hutus against the Tutsis.122

In determining the relationship between speech and the physical materialization of the crime of genocide, the trial chamber held that « jurisprudence does not include any specific causation requirement linking the expression at issue with the demonstration of a direct effect...»123

The tribunal, after examining the content of the articles of Ngeze, reviewed international


humanitarian legal instruments as well as the existing international case laws, framing its

analysis in terms of reconciling the coherent tension between freedom of speech and freedom from discrimination.

The trial chamber found that, based on the fact that Ngeze was the owner and editor of Kangura newspaper and that he directly controlled the publication and all of its content, Ngeze acted with «Intent»125 through his publication to «instill hatred, promote fear and incite genocide»126. The Chamber also found that «it was evident that Kangura played a significant role and was seen to have played a significant role, in creating conditions that led to acts of genocide»127

§3 Challenges met while prosecuting Ngeze Hassan a) Temporal jurisdiction of the ICTR

Article 7 of the ICTR statute stipulates that «the territorial jurisdiction of the international criminal tribunal for Rwanda shall extend to the territory of Rwanda including its land surface and airspace as well as the territory of the neighboring states in respect of serious violations of international humanitarian law committed by Rwandan citizens. The temporal

122 Prosecutor v. Nahimana et al, supra note 1, Para 160

123 See supra, first chapter, section 2, §3 (a)

124 See, Supra, section I chapter 3

125 Prosecutor v. Nahimana et al, supra note 1, Para 969 & 1038

126 Ibid

127 Ibid

jurisdiction of the international tribunal shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994» 128.


As noted above, the temporal jurisdiction of the tribunal is limited to the period 1


January and 31st December 1994. However, most issues of Kangura were published prior to the stipulated jurisdiction of the ICTR. For example, the famous Hutu Ten Commandments were published in 1990 and Kangura issue no 26 was published prior to the ICTR jurisdiction. The counsel for Ngeze contended that the chamber had no jurisdiction over Kangura issues published before 1994.

In its judgment the trial chamber noted that «while many of the events referred to in the indictment precede 1st January 1994, such events «provide a relevant background and a basis of understanding the accused's alleged conduct in relation to the Rwandan genocide of 1994.»129

b) Translation of Kangura newspaper

Kangura was widely printed and circulated in Kinyarwanda language. Counsel for Ngeze repeatedly submitted that «it was necessary for the tribunal to translate the 71 Kinyarwanda issues of Kangura from the original Kinyarwanda to French and English (the working languages of the tribunal) in order for the accused, who stands charged mainly in relation to the contents of the newspaper, to have a fair trial»130 the Chamber however held that the translation of the Kangura newspapers would stretc h the resources of the tribunal beyond it's capacity.

c) Position of rights advocates on the judgment of the media case


According to a report from open society justice initiative received on 12January 2007 by
the ICTR, there were some ambiguities and errors in the trial chamber's legal reasoning.

128 The statute of the ICTR adopted by resolution 955 of the United Nations Security Council

129 Prosecutor v. Nahimana et al supra note 1, Para 100

130 Idem Para 44

According to the report, «hate speech which does not call to violence should not be assimilated to the international crime of direct and public incitement to commit genocide».131

Open society justice initiative further noticed that the trial chamber erred to consider earlier events to 1st January 1994 in order to establish the responsibility of Ngeze.132

§5 Importance of the NGEZE case.

The most significant achievement of the Ngeze case is that, it helped define the parameters of freedom of press vis-à-vis freedom from discrimination through establishing the role of newspapers like Kangura and their respective operators like Ngeze Hassan in relation to the crime of direct and public incitement to commit genocide.

In the tribunals reasoning, ethnic speech transmitted through the mass media during the genocidal atmosphere put a heavy risk the transmitter to be prosecuted even when the intended crime does not materialize.

The inchoate133 doctrine introduced by the tribunal in the media case set another international jurisprudence of prosecuting hate speech.

The «media case' is important in that it provided an invaluable guidance for future international courts to examine the content of hate speech. For example, the tribunal in Ngeze's case laid down some criteria tests to determine both material and mental elements of the perpetrators by examining the purpose, text, context and relationship between the perpetrator and the subject.

The fact that the media case is the first case involving journalists, in which the crime of direct and public incitement to commit genocide has been prosecuted, tried and sentenced since the codification of the genocide convention, its case law will be very important to the international criminal courts jurists in prosecuting, defending and judging such cases. In fact



MEDIA JUDGEMENT, Arusha, Tanzania, 29January 2007

132 Ibid

133 See, supra, first chapter, section 2, §1 (c)

the same case law will play an important role in the trial of Simon Bikindi 134 who is accused, inter alia, of direct and public incitement to commit genocide. The tribunals ruling represent a historical expansion of international legal responsibility with respect to hate speech.

134 Simon Bikindi v. Prosecutor, Case No. ICTR-2001-72-I, Trial Chamber 1, 2001


The role of hate media facilitates genocide to take place. The impact that follows this facilitation is what motivated the codification of the crime of direct and public incitement to commit genocide into the genocide convention.

The impact of hate speech is devastating in as far as it calls for the extermination of targeted groups. For example the call of Streicher where he wrote that «if the danger ofÉreproduction of that curse of God in the Jewish blood is finally to come to an end, then there is only one way - the extermination of that people whose father is the devil». As well as Kangura issue no 26 with titles like what arms shall we use to conquer the Tutsi once and for all?, is a clear manifestations of a need to check on the right to freedom of the press.

In fact, the tension in between the right to be free from discrimination and the right to freedom of expression is closing up because most innovative legal reasoning concerning the relationship between the crime of direct and public incitement are expressive in a more restricted sense on the right to freedom of expression and more protective on the right to be free from discrimination (hate speech). The question now remains in designing parameters between opinions constitu ting ethnic consciousness and ethnic consciousness that constitute the crime.

Furthermore, there is a pending ideal that exists between the diminishing freedoms of expression in general and of press in particular as protected in international law and the beginning of international criminal responsibility relating to hate speech.

The effective use of the media requires assessing the stage that the genocidal situation has reached and devising a response strategy appropriate to that stage.

The Rwandan genocide media portrays the fate of the freedom of press vis-à-vis incitement. In the first instance, the media played a major role in inciting Rwandans to commit genocide. However, the media behavior during the genocide should be examined to describe the fate of the general post genocide media situation. During the genocide, both Kangura newspaper and radio RTLM were closely connected to the ruling political party of the Rwandan government and the extremist pro government CDR political party through stock ownership, seats on the board of directors, and cross consultation.

Remembering that since Hitler, genocide has been a state manufactured phenomenon, preceded by propaganda campaigns of political leaders, no doubt that an authoritarian media whose self-censorship is to win the government's sympathy will automatically lend a hand in situations of genocide perpetrated by governments or politicians.

It can therefore be concluded that, it is impossible for the crime of direct and public incitement to take place without strong political partnership between government and political parties and the media.

It should also be noted that poor developing nations, struggling to move from authoritarian and arbitrary rule to establish liberal democratic foundations of civil society, are particularly vulnerable to genocide. Such societies have few competing media outlets, Journalism in such societies possess no tradition of independent media, with lack of professional standards for journalists and pursue a media culture that exhibits a lot of self censorship. The lack of a serious independent media Journal ists in such societies are frequently influenced and enticed by the dominant political party, are dependent on stereotyping and sensationalism for the opinion of their news stories and are subjective to possible news stories that would compromise professional ethics.

On the other hand, good, trained and objective journalists with high professional standards are frequently subjected to threats and, in panic of facing arbitrary laws, beatings and even assassination, may compromise to manipulation and intimidation of purveyors of fear who are regularly government agents.

To this end, a vibrant libertarian independent media, free from both self and government censorship will fight genocide where as the authoritarian, government and ruling political parties mouth piece media will propagate genocide ideology.


In conflict situations, national and foreign monitoring of the media, training programs on codes of conduct to raise the skills and standards of local editors and journalists and strengthening of the local independent media should be emphasized. The benefits of interethnic cooperation, the real benefits of cooperation and peaceful solutions to problems are also useful methods for conflict resolution.

In a genocidal atmosphere where massacres are insistent and due to government threats and intimidation make it impossible for local independent journalists to counter the force behind massacres, nongovernmental organizations (NGOs) should intervene effectively against media promoters of hate speech.

Foreign governments and NGOs, regional associations of states and international organizations like the United Nations, the African Union and the European Union must place the disseminators of hate propaganda on notice so that to enable the prosecution and punishment of guilty media owners, editors and journalists.

Foreign and international broadcasters should broadcast accurate, targeted news in local languages to counter hate speech and distortions of domestic information sources and to complement whatever material domestic anti-hate broadcasters are able to transmit to their listeners.

Persistence to transmit hate speech on one hand should require destroying the transmitters and printing presses of the hate propagandists especially where effects of hate speech are evident. On the other hand, Foreign broadcasters should supplement their news broadcasts with frequent warnings that genocide is being prepared, report realistic threats designed to deter the perpetrators from further killing, provide accurate information to discourage potential victims from congregating in perpetrator -targeted locations, like the churches which became killing-grounds in Rwanda, and appeal to ordinary citizens to hide and protect members of the victim group.

Government's role and attitude in repressing and censuring the media should be rectified not only to check on the role of the government as architecture of genocide but also as an approach to build strong democratic institutions.

Lastly, I strongly recommend governments not to suppress independent press under the disguise of the role of the media in Rwandan genocide as its very evident that only the government sponsored media in the history of genocide participated in one way or the other in facilitating genocide and its ideology when on the contrary independent press was countering the genocide propaganda.


A. National legal texts

1. Constitution of the republic of Rwanda of 4th June 2003, as amended up to date, in the O.G.R.R, special number of 04/06/2003

2. Law no 18/2002 of 11/05/2002 in the O.G.R.R 13 of 01/07/2002 governing the media

3. Law No 2124-1 of December 27th 1991, as amended December 8th 2003

B. International legal texts


1. The statute of the International Criminal Tribunal for Rwanda adopted on 8 November by resolution 955 of the United Nations Security Council (ICTR)

2. The statute of the international criminal tribunal for the former Yugoslavia adopted on 25th May 1993 by resolution 827 of the United Nations security Council as amended in April 2004

3. The Rome statute of the International Criminal Court (ICC) which entered into force on 1st July 2002

C. International conventions

1. Convention on the prevention and punishment of the crime of genocide, approved by the United Nations General Assembly in its Resolution 260(III) of 19 December 1948

2. Universal declaration of human rights, adopted by the United Nations General


Assembly in its resolution 217[III] of 10December 1948

3. International covenant on civil and political rights, adopted by the United Nations General Assembly in its on 16 th

resolution 2200 A [XXI] Decemb er 1966 and entered

into force on 23rd March 1976

4. African charter on human and peoples rights, adopted on 28 th June 1981 by heads of state and government of the organization of African Unity in its 18th assembly, in Nairobi, Kenya and entered into force on 21st October 1986

5. European convention on human rights, concluded by the ministers of the council of


Europe convened November entered on 3 rd

in Rome, on 4 1950 and into force

September 1953

6. 22 nd

American convention on human rights, adopted at San on

Jose November 1969

by the Inter-American specialized conference on human rights, and entered into force on 18th July 1978

précédent sommaire suivant

Bitcoin is a swarm of cyber hornets serving the goddess of wisdom, feeding on the fire of truth, exponentially growing ever smarter, faster, and stronger behind a wall of encrypted energy

"Nous voulons explorer la bonté contrée énorme où tout se tait"   Appolinaire