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
th
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
rd
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
«...international 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
124
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.
st
As noted above, the temporal jurisdiction of the tribunal is
limited to the period 1
between
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
th
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
131Hirondelle News Agency, ICTR/MEDIAS- A REPORT
WARNS ICTR AGAINST CONCLUSION OF THE
th
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
FINAL CONCLUSION
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.
RECOMMENDATIONS
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.
BIBLIOGRAPHY I. LEGAL TEXTS
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
th
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
th
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
th
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
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