African Yearbook of International Law
Annuaire Africain de Droit International
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AFRICAN YEARBOOK OF
INTERNATIONAL LAW
ANNUAIRE AFRICAIN DE
DROIT INTERNATIONAL
Volume 17
2009
Published under the auspices of the African Foundation for International Law
Publié sous les auspices de la Fondation Africaine pour le Droit International
Edited by / Sous la direction de
Abdulqawi A. YUSUF
LEIDEN / BOSTON
2012
AFRICAN FOUNDATION FOR INTERNATIONAL LAW
FONDATION AFRICAINE POUR LE DROIT INTERNATIONAL
(http://www.afil-fadi.org)
Governing Board
Conseil d’administration
President
Georges ABI-SAAB
(Egypt)
Edward KWAKWA
(Ghana)
Erika DE WET
(South Africa)
Abdul KOROMA
(Sierra Leone)
Fatsah OUGUERGOUZ
(Algeria)
Nico SCHRIJVER
(Netherlands)
Mpazi SINJELA
(Zambia)
Abdulqawi A. YUSUF
(Somalia)
Vice-President
Members
AFRICAN YEARBOOK OF INTERNATIONAL LAW
ANNUAIRE AFRICAIN DE DROIT INTERNATIONAL
GENERAL EDITOR – DIRECTEUR
Abdulqawi A. YUSUF (Somalia)
ASSOCIATE EDITORS – DIRECTEURS ADJOINTS
Mpazi SINJELA (Zambia)
Fatsah OUGUERGOUZ (Algeria)
EDITORIAL ASSISTANT – SECRETAIRE DE REDACTION
Roland ADJOVI (Benin)
EDITORIAL ADVISORY BOARD – COMITÉ CONSULTATIF DE RÉDACTION
Georges ABI-SAAB (Egypt)
Mohammed BEDJAOUI (Algeria)
Sayeman BULA-BULA (Democratic Republic of Congo)
Robert DOSSOU (Benin)
Christof HEYNS (South Africa)
Edward KWAKWA (Ghana)
Chris Maina PETER (Tanzania)
Tiyanjana MALUWA (Malawi)
Muna NDULO (Zambia)
The General Editor and the African Foundation for International Law are not in any
way responsible for the views expressed by contributors, whether the contributions
are signed or unsigned.
Les opinions émises par les auteurs ayant contribué au présent Annuaire, qu’il
s’agisse d’articles signés ou non signés, ne sauraient en aucune façon engager la
responsabilité du Directeur de l’Annuaire ou de la Fondation Africaine pour le Droit
International.
All communications and contributions to the Yearbook should be addressed to:
Prière d’adresser toute communication ou contribution destinée à l’Annuaire à :
General Editor, African Yearbook of International Law
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or / ou
General Editor, African Yearbook of International Law
c/o BRILL, Martinus Nijhoff Publishers
P.O. Box 9000, 2300 PA Leiden
The Netherlands
Website: <http://www.brill.nl>
TABLE OF CONTENTS
TABLE DES MATIÈRES
SPECIAL THEME: INTERNATIONAL CRIMINAL JUSTICE IN AFRICA
THÈME SPÉCIAL : JUSTICE PÉNALE INTERNATIONALE EN AFRIQUE
L’Afrique et le droit international pénal
Roland Adjovi
L’Afrique et les juridictions internationales pénales
James Mouangue Kobila
3-11
13-95
Quelques utilisations des principes généraux du droit international et des
principes généraux de droit en droit international pénal
Mouloud Boumghar
97-137
General Principles in International Criminal Law and their Relevance to
Africa
Ottavio Quirico
139-163
Les commissions (inter)nationales d’enquête en vue de l’établissement des
faits en matière de justice pénale (inter)nationale ou les « anti-chambres
165-226
de mise en accusation »
Koffi K. A. Afanđe
International Criminal Tribunals and Life Imprisonment: Which Theory of 227-283
Punishment is Emphasised?
Jamil Ddamulira Mujuzi
GENERAL ARTICLES / ARTICLES GENERAUX
The Obligation to Prevent Genocide: A Large Shell Yet to Be Filled
Hélène de Pooter
287-320
Les instruments conventionnels de protection des droits de l’homme dans
l’ordre juridique algérien : évolution textuelle et stagnation factuelle
Abderrezak Seghiri
321-351
NOTES AND COMMENTS / NOTES ET COMMENTAIRES
International Organizations and Peer Review: Assessing the Universal
Periodic Review Mechanism of the United Nations Human Rights Council 355-377
Edward R. McMahon
viii
Affaire Hissène Habré : Où en est la justice ?
Raphael Tiwang Watio
379-409
Transitional Justice, A Two-Prong Approach: Reconciliation and Criminal
Responsibility for Kenya Post-2007 Election Violence
411-446
Amboko Wameyo
The ICTR’s Prosecution of a Pop Star: The Bikindi Case
Susan Benesch
447-461
BOOK REVIEWS / NOTES DE LECTURE
Andrea de Guttry, Harry H.G. Post and Gabriella Venturini (eds.),
The 1998-2000 War between Eritrea and Ethiopia: An International
Law Perspective, 2009.
reviewed by Allehone Mulugeta Abebe
465-470
DOCUMENTS
African Court on Human and Peoples’ Rights: In the Matter of
Michelot Yogogombaye versus the Republic of Senegal,
Application No. 001/2008, Judgment
Cour africaine des droits de l’homme et des peuples, Affaire
Michelot Yogogombaye contre République du Sénégal,
Requête No 001/2008, Arrêt
INDEX
INDEX OF PERSONS / INDEX DES PERSONNES
INDEX OF LOCATIONS / INDEX DES LIEUX
ANALYTICAL INDEX
473-496
497-520
521-543
523-527
529-533
535-543
THE ICTR’S PROSECUTION OF A POP STAR: THE BIKINDI
CASE
Susan Benesch*
1. Introduction
On 2 December 2008, Trial Chamber III1 of the International
Criminal Tribunal for Rwanda (ICTR) issued its judgement in the case
against Simon Bikindi.2
The trial of Rwandan pop singer Simon Bikindi drew keen interest,
even from outside the law and outside Africa,3 because of the novel
question it presented: whether a song can constitute an international
crime. Bikindi was indicted for genocide, conspiracy to commit
genocide, and crimes against humanity including murder.4 But the
central feature of his long trial was his catchy, danceable music,
especially three of his songs.5 Relentlessly broadcast by radio stations
*
Dean’s Visiting Scholar, Georgetown University Law School.
1
For the purpose of this case, the Trial Chamber was composed of Judges Inés
Mónica Weinberg de Roca, presiding, Florence Rita Arrey, and Robert Fremr.
Prosecutor v Simon Bikindi, Case No. ICTR-2001-72-I, Judgment (2 December
2008) (hereinafter Bikindi Judgment).
See e.g. Freemuse; Freedom of Musical Expression, War Crimes Trial Feared to
Legitimize New Repression of Musicians Elsewhere, 14 November 2006
(http://www.freemuse.org/sw15535.asp) (last viewed on 31 July 2009).
Prosecutor v Simon Bikindi, Case No. ICTR-2001-72-I, Amended Indictment
Pursuant to Decisions of Trial Chamber III of 11 May 2005 and 10 June 2005
(Hereinafter Bikindi Amended Indictment).
Bikindi Amended Indictment, paras. 40, 41. The songs’ titles, like their meanings
and the meanings of the songs’ lyrics, were hotly debated during Bikindi’s trial.
In the ICTR indictment and judgment, the three songs are called by these names:
Twasezereye (“We said goodbye”), Bene sebahinzi (“the sons of the
cultivators”), and Nanga bahutu (“I hate these Hutu”). On the stand in his
2
3
4
5
A.A. YUSUF (ed.), African Yearbook of International Law, 447-461.
© 2012 African Foundation for International Law, Printed in The Netherlands.
448
Susan Benesch
in Rwanda before and during the genocide, Bikindi’s songs were also
chanted by Rwandan génocidaires as they hacked their victims to
death.6
A song might constitute incitement to genocide, or persecution as a
crime against humanity, the Trial Chamber concluded in its December
2008 judgment.7 In addition, the tribunal found that song lyrics need
not incite violence in order to constitute a crime against humanity,
since hate speech may constitute persecution.8 This expansive view of
crimes against humanity is controversial, and will be discussed below.
The Trial Chamber also drew striking and potentially far-reaching
factual conclusions about Bikindi’s songs. It found that they led to
killings in Rwanda: that the songs were used in 1994 “to incite people
to attack and kill Tutsi,”9 and that the effort was successful, since the
songs “had an amplifying effect on the genocide.”10 Yet the chamber
declined to find Bikindi guilty on any charge related to the songs, for
lack of adequate evidence that he played a role in disseminating them
in 1994, during the period for which the ICTR has jurisdiction.11
Bikindi was also acquitted of many other detailed allegations,
including participating in the training of Interahamwe militias,
6
7
8
9
10
11
defense, Bikindi refused to acknowledge prosecutors’ questions unless they
referred to the songs by what he called their official titles, such as Intabaza
(“Alert”) and Akabyutso (“The Awakening”). The Trial Chamber concluded that,
since all of the competing titles appear as lyrics in the respective songs, the titles
were relevant only for inferring what their author intended the song to mean. See
Bikindi Judgment, paras. 188-190. As part of his testimony Bikindi sang another
composition, consisting mainly of “Amahoro,” the Kinyarwanda word for peace.
See Bikindi Judgment, para. 203.
Forges A., Leave None to Tell the Story: Genocide in Rwanda, p. 315.
Bikindi Judgment, paras. 389, 395. See also Bikindi Judgment, Footnote No. 885
“The Chamber notes the definition of persecution is broad enough to include
music, as the actus reus of persecution is merely defined as an act or omission
which discriminates in fact and which denies or infringes upon a
fundamental right.”
Bikindi Judgment, para. 390. See also Bikindi Judgment, paras. 393 and 394.
Prosecutor v Simon Bikindi, Case No. ICTR-2001-72-I, Judgment (2 December
2008), para. 255 (hereinafter Bikindi Judgment).
Id., para. 264.
Bikindi Judgment, para. 263 “However, there is no evidence that Bikindi played
a role in the dissemination or deployment of his three songs in 1994.” The
ICTR’s jurisdiction is temporally restricted, to crimes committed between
1 January 1994 and 31 December 1994. See Bikindi Judgment, para 26.
The ICTR’s Prosecution of a Pop Star: The Bikindi Case
449
causing the execution of a group of inmates at Gisenyi prison
by reading out their names and asking why they had not yet been
killed, ordering the rape and murder of a Tutsi woman and killing of
her 4-year old daughter, and ordering the extermination of all Tutsi in
Nyamyumba commune (township).12 For all of these charges, the Trial
Chamber found the prosecution’s evidence insufficient. Instead it
convicted Bikindi on just one charge of “direct and public incitement
to genocide” – for speech that was quite bereft of music.
Bikindi was found guilty (and sentenced to 15 years) for calling out
to Hutus to exterminate any Tutsi still left alive, as he drove along a
road between the towns of Kivumu and Kayove in his native prefecture
of Gisenyi in late June 1994, almost at the end of the three-month-long
genocide.13 He is said to have shouted over a public address system
mounted on his vehicle, “The majority population, it’s you, the Hutu I
am talking to. You know the minority population is the Tutsi.
Exterminate quickly the remaining ones.”14
That speech is a straightforward, textbook case of incitement to
genocide, in contrast to the three songs, whose ambiguous lyrics never
call for killing or even, explicitly, for violence. The requirements for
incitement to genocide were set out by the ICTR the first time it
convicted a defendant of that crime, in the case of former bourgmestre
or local leader Jean-Paul Akayesu, in 1998.15 The speech in question
was made on 19 April 1994, early in the genocide, when Akayesu
addressed a large group of people standing near the body of a Hutu
militiaman and, in the view of the tribunal, incited them to
commit genocide.
To constitute incitement to genocide, speech must be direct,16
public17 and committed with specific intent to commit genocide by
12
13
14
15
16
Bikindi Amended Indictment.
Bikindi Amended Indictment, para 422.
Bikindi Amended Indictment, para 39.
Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment (2 September 1998)
(Hereinafter Akayesu Judgment).
Akayesu Judgment, para 557. “The ‘direct’ element of incitement implies that the
incitement assume a direct form and specifically provoke another to engage in a
criminal act, and that more than mere vague or indirect suggestion goes to
constitute direct incitement.” Later in the same paragraph, the Trial Chamber
went on to note that the language of incitement need not be explicit: “the direct
element of incitement should be viewed in the light of its cultural and linguistic
450
Susan Benesch
creating a genocidal state of mind in the audience.18 Simon Bikindi’s
speech while driving along the Kivumu-Kayove road fits these
requirements like a glove. The language was direct, since it called
explicitly for genocide, with its references to extermination, and to
majority and minority populations.19 The speech was delivered
publicly, on a road and over a loudspeaker. Finally Bikindi’s specific
intent is evident, the Trial Chamber found, since he must have been
aware both of the context of ongoing Tutsi slaughter, and of the
impact that his words could have on the audience. He was revered not
only as a popular artist, but as an anti-Tutsi political leader and an
“authoritative figure” by the Interahamwe militiamen who committed
much of the killing during the genocide.20
But Bikindi’s speech on the Kivumu-Kayove road cannot have had
much catalytic impact on the Rwandan genocide, writ large, if for no
other reason than that it came in late June, after the vast majority of
the victims were already dead. In addition, Bikindi disseminated it
over a mere loudspeaker, not the more notorious medium of RTLM
radio. It was one of thousands of localized speech acts, like the
hundreds of thousands of individual killings that made up the
genocide. Had the Kivumu-Kayove speech formed the sole basis of
Bikindi’s indictment, his trial could have been concluded in a few
days, or never happened at all, since the Prosecutor might have
foresworn the case to focus on ostensibly bigger fish. Instead Bikindi
was arrested in Leiden, the Netherlands, on 12 July 2001, and jailed
for more than five years until his trial began in September 2006.
17
18
19
20
content. Indeed, a particular speech may be perceived as ‘direct’ in one country,
and not so in another, depending on the audience.”
Akayesu Judgment, para. 556. “According to the International Law Commission,
public incitement is characterized by a call for criminal action to a number of
individuals in a public place or to members of the general public at large by such
means as the mass media, for example, radio or television.”
Akayesu Judgment, para. 560 “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.”
Bikindi Judgment, para. 423.
Bikindi Judgment, para. 425, para. 107.
The ICTR’s Prosecution of a Pop Star: The Bikindi Case
451
Another two years elapsed21 until the judgment, which fills 462
painstaking paragraphs.
The Bikindi Judgment is the latest, and perhaps the last, of the
ICTR’s major judgments on the crime of incitement to genocide.
Before the ICTR was established in 1994, no court had decided a case
of incitement to genocide. The International Military Tribunal (IMT)
at Nuremberg had tried Nazis for crimes based on speech, including
the newspaper editor Julius Streicher, who was convicted and hanged
for his violently anti-Semitic writings,22 and Hans Fritzsche, a radio
executive who was acquitted,23 but these were incitement to genocide
decisions in substance only, since that crime was not codified until the
Genocide Convention was adopted by the U.N. General Assembly
in 1948.24
The ICTR decided the first case in 1998 as mentioned above, and
by now it has handed down so many convictions for speech,25
including several guilty pleas26 that its decisions form nearly all of the
world’s jurisprudence on incitement to genocide and on speech as a
crime against humanity, and they constitute one of the main
contributions that the tribunal has made to international criminal law.
21
22
23
24
25
26
Because he had already been detained for so long when he was convicted,
Bikindi was given credit for more than half of his 15-year sentence. He has also
appealed for a reduced sentence.
The Trial of German Major War Criminals: Proceedings of the International
Military Tribunal Sitting at Nuremberg, Germany, Part 22, p. 501 (1946)
(hereinafter Proceedings: Trial of German Major War Criminals). Streicher was
indicted for crimes against peace and crimes against humanity, and convicted for
the latter.
Proceedings: Trial of German Major War Criminals, p. 526.
Convention on the Prevention and Punishment of the Crime of Genocide,
Art. 2(c), 9 December 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force
12 January 1951) (Hereinafter Genocide Convention).
See e.g. Prosecutor v Niyitegeka, Case No. ICTR-96-14-T, Judgment and
Sentence (16 May 2003), Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T,
Judgment and Sentence (12 September 2006), Prosecutor v. Nahimana,
Case No. ICTR-99-52-T, Judgment and Sentence (3 December 2003)
See e.g. Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Judgment and
Sentence (4 September 1998), Prosecutor v. Ruggiu, Case No. ICTR-97-32-I,
Judgment and Sentence (1 June 2000), Prosecutor v Serugendo, Case No. ICTR2005-84-I, Judgment and Sentence (12 June 2006).
452
Susan Benesch
Not surprisingly, the ICTR’s jurisprudence on speech has already
had substantial impact on other courts27 and will no doubt have further
influence in the future. Governments have also referred to the ICTR’s
jurisprudence (albeit disingenuously) to justify repressing journalists
and banning news outlets, especially in Africa.28
2. The pop star whose songs “inspired action”
Simon Bikindi was born on 28 September 1954 in a remote village
called Akanyirabagoyi in northwestern Rwanda.29 Like Michael
Jackson, for whom he was later nicknamed,30 he was already a skilled
musician as a young child. Bikindi quickly learned to play the
traditional stringed instruments inanga and iningiri, and went to work
for the Rwandan Ministry of Youth and Sports in his early 20s,
organizing large-scale performances of song and dance.31 In the 1980s
he founded a dance company named Irindiro32 and began to write and
record songs, combining traditional Rwandan folk music with new
lyrics. His music became widely popular in Rwanda.
In 1986, Bikindi wrote Twasezereye, the first of the three songs at
issue in the trial. In 1987 he entered in a competition to commemorate
the 25th anniversary of Rwandan independence, on 1 July of that year.
The song won, chosen by a jury of six, one of who testified at
Bikindi’s trial in Arusha more than 20 years later, on the other side.
27
28
29
30
31
32
The Canadian Supreme Court, for example, followed the ICTR’s jurisprudence
in ruling that Léon Mugesera, a former Rwandan official, had committed
incitement to genocide by giving a speech on 22 November 1992, in Kabaya,
Rwanda. See Mugesera v. Canada (Minister of Citizenship and Immigration),
[2003] S.C.C. 40, paras. 179-180.
See e.g. Simon J., Of Hate and Genocide: In Africa, Exploiting the Past,
Columbia Journalism Review, January-February 2006, p. 9. See also Amicus
Curiae Brief on Nahimana, Barayagwiza and Ngeze v. Prosecutor, Case No.
ICTR 99-52-A, available at (http://www.justiceinitiative.org/db/resource2/
fs/?file_id=17874) (last visited 2 August 2009).
Donald G., & McNeil Jr., Killer Songs, NY Times Magazine, 17 March 2002
(hereinafter McNeil).
Id. Bikindi was called “the Michael Jackson of Rwanda,” a nod to his popularity.
Id.
Rwanda News Agency, Singer Bikindi: from Defence witness to the Dock over
Genocide music, 18 September 2006, available at (http://www.rwanda
gateway.org/article.php3?id_article=2947) (last visited 1 August 2009).
The ICTR’s Prosecution of a Pop Star: The Bikindi Case
453
He was an expert witness for the prosecution. Asked about this, the
witness, Gamaliel Mbonimana, said that he had originally had
reservations about the song, but the other jurors outvoted him.33
The song’s words, “twasezereye ingoma ya cyami” were translated as
“We said goodbye to the monarchy.”
The defence described this song as “a celebration of independence
for all Rwandans”34 but prosecution witnesses (including Mbonimana)
testified that although the song ostensibly celebrated freedom from
Belgian colonial rule, most of its lyrics referred to the cruelty of Tutsi
domination over Hutus, before and during the colonial period.35
On 1 October 1990 (the same year in which Bikindi released his
first cassette, of traditional wedding songs36), the Rwandan Patriotic
Front (RPF)’s guerrillas, mainly Tutsi exiles, entered the country from
Uganda to attack Rwanda’s Hutu-led government. Rwandan President
Juvenal Habyarimana and his allies began to use and amplify Hutus’
fear of the RPF to turn them against the whole Tutsi population.
In 1993, Bikindi became one of 50 shareholders in a new radio
station, Radio Télévision Libre des Milles Collines (RTLM), which
later became famous for its fierce anti-Tutsi rants and, after the
genocide began in April 1994, for broadcasting the names of Tutsi
who had not yet been killed, together with their license plate numbers,
lest they manage to escape by car.37 RTLM listeners could hardly have
believed that Twasezereye referred to Belgian colonial rule by the time
it was broadcast on 21 March 1994, since an RTLM announcer
introduced the song with a warning about “the enemy” and “his plan
to shed blood.” The unnamed announcer “therefore,” he said,
dedicated Twasezereye to the Rwandan Armed Forces.38
The other two songs were composed, Bikindi testified,39 between
March and June of 1993, about one year before the genocide began.
33
34
35
36
37
38
39
Bikindi Judgment, para. 215
Bikindi Judgment, para. 214.
Bikindi Judgment, paras. 209, 211.
McNeil.
Raston D., Radio Hate, Legal Affairs, Sept./Oct. 2002, available at
(http://www.legalaffairs.org/printerfriendly.msp?id=237) (last visited on
2 August 2009).
Bikindi Judgment, para. 212.
Bikindi Judgment, para. 193.
454
Susan Benesch
Bene sebahinzi, according to numerous prosecution witnesses,
referred to Hutu who suffered at the hands of the Tutsi. Once again,
the Trial Chamber received transcripts of RTLM broadcasts,
demonstrating that RTLM announcers interpreted this song over the
air as Bikindi’s exhortation to the “children of Sebahinzi (children of
Hutus)” to defeat the “Inyenzi Inkotanyi,” terms that referred to
Tutsi.40 Bikindi never announced the songs over the air himself, and
denied having influenced what the announcers said, although he was a
founding shareholder of the station.
Finally, Nanga abahutu was described by the prosecution as a song
intended to unite Hutus by provoking hatred of other Hutus who
associated with Tutsis. Of the three songs it contains the most
evidently bellicose language, but Bikindi testified that it was “akin to
smacking a small child to stop him from misbehaving”41 and both his
wife and ex-wife testified that the song was in favour of peace and
against conflict.42 In translation, some of its lyrics are:
“I hate these Hutus, these de-Hutuized Hutu, who have renounced their
identity, dear comrades.
I hate these Hutu, these Hutu who march blindly, like imbeciles, this species
of naïve Hutu who join a war without knowing its cause.
I detest these Hutu who can be brought to kill and who, I swear to you, kill
Hutus, dear comrades.
And if I hate them, so much the better.”43
The Trial Chamber concluded that although Bikindi’s songs
featured metaphors and imagery that left them subject to multiple
interpretations, “their message was clearly understood” in the context
of increasing ethnic tension in which they were composed and
disseminated.44 Moreover, the tribunal concluded that “the songs
inspired action,”45 based on the testimony of génocidaires themselves
(two of whom testified that the songs incited them to kill) and of
40
41
42
43
44
45
Bikindi Judgment para. 240.
Bikindi Judgment, para. 229
Bikindi Judgment, para. 231.
McNeil.
Bikindi Judgment, para. 247.
Bikindi Judgment, para. 253.
The ICTR’s Prosecution of a Pop Star: The Bikindi Case
455
others who observed the apparent impact of the songs on génocidaires
and other Rwandans.46
In spite of the ICTR’s unprecedented judicial findings that musical
expression provoked or at least amplified atrocities, Bikindi escaped
legal responsibility for this because the Trial Chamber found
insufficient evidence to conclude that he had specific intent when he
wrote the songs “to incite such attacks and killings, even if they were
used to that effect in 1994,”47 and because it similarly lacked evidence
that Bikindi played any role in disseminating his songs in 1994 (the
year to which the ICTR’s temporal jurisdiction is restricted).48
These conclusions are to be applauded. Although it is difficult to
believe Bikindi’s assertion at trial that he did not listen to RTLM and
did not have influence over its broadcasts, without evidence of
controlling influence, a singer, like any other author or artist, cannot
be held responsible for criminal uses to which others put his or her
intellectual property. In the indictment, the prosecution suggested that
Bikindi should have affirmatively tried to prevent RTLM from
using his songs, stating that under Rwandan law Bikindi “had a right
to forbid or enjoin public broadcasts of his compositions.” The
Trial Chamber noted, correctly, that Bikindi had no responsibility
to do so.49
The Trial Chamber also stated, based on its factual findings on the
meaning of the songs, that they did not constitute direct and public
incitement to commit genocide per se.50 Unfortunately the tribunal
gave no further explanation. Based on the songs’ language, it seems
likely that the Trial Chamber believed that Bikindi intended his
compositions to encourage ethnic hatred, and perhaps even violence,
but not genocide. It would have been useful to make this plain: the
46
47
48
49
50
Bikindi Judgment, para. 253
Bikindi Judgment, para. 255.
Bikindi Judgment, paras. 421 and 263.
Bikindi Judgment, para. 439. “Mere ‘acquiescence’ is not sufficient to entail
responsibility in international criminal law.” “The Prosecution has failed to
prove that Bikindi had a duty in law to stop the broadcast of his musical
compositions.”
Id.
456
Susan Benesch
Trial Chamber missed an opportunity to distinguish more clearly
between incitement to genocide and other forms of hate speech.51
The judges devoted large portions of their opinion to reviewing the
prosecution’s evidence and declaring it inadequate. In many instances,
according to the chamber, the prosecution led no evidence at all to
support its allegations, which were summarily dismissed.52 Two more
allegations of Bikindi’s conduct in Rwanda were dropped after the
prosecution conceded that Bikindi was outside the country on the
relevant dates.53 On other important points, the evidence was slim. To
support the contention that Bikindi was very close to President
Habyarimana, for example, one witness noted that they were from the
same region in Rwanda, and the prosecution submitted a photograph
of the two men shaking hands.54
It was therefore exceptional that in the case of the 1993 rally at
Kivumu, the Trial Chamber found “beyond reasonable doubt that
Bikindi addressed the audience advocating that they must kill the
Tutsi, who he referred to as serpents, and that his music was played
on cassette.”55 This description suggests that the speech constituted
incitement to genocide. Bikindi’s speech seems to have been direct
and public, and specific intent might have been inferred from his
actions and his awareness, in the charged context of such a rally in
1993, of his power to inflame the audience.
Indeed, Léon Mugesera was found by the Canadian Supreme Court
to have committed incitement to genocide by giving a speech at a
1992 rally in Rwanda, using elliptical language to encourage the
crowd to kill Tutsi.56 The 1993 rally at Kivumu fell outside the ICTR’s
temporal jurisdiction, so it could not have convicted Bikindi for his
speech at the rally. However the speech could have been used as
51
52
53
54
55
56
For further argument on the importance of making this distinction more clearly
in jurisprudence, and for a proposal on how to do so, see Benesch S., “Vile
Crime or Inalienable Right: Defining Incitement to Genocide”, Virginia Journal
of International Law 48 (Spring 2008) 485.
Bikindi Judgment, paras. 11, 50.
Bikindi Judgment, para. 24.
Bikindi Judgment, para. 51.
Bikindi Judgment, para. 141.
Mugesera v. Canada (Minister of Citizenship and Immigration), [2003] S.C.C.
40, pp. 179-180.
The ICTR’s Prosecution of a Pop Star: The Bikindi Case
457
evidence of Bikindi’s specific intent to commit incitement to genocide
later, in 1994.
Since incitement to genocide is an inchoate crime, it is punishable
whether or not it actually leads to genocide.57 Therefore it is odd that
the Trial Chamber seems to have discounted Bikindi’s speech at the
Kivumu rally because “it has not been established that anti-Tutsi
violence occurred in the vicinity of the rally either immediately before
or after it.”58 Moreover, the Trial Chamber noted, one witness
“specifically stated that no one was killed at the rally.”59 Violence
could be relevant for construing specific intent, but it is not required
for incitement to genocide. Indeed, the Trial Chamber neither
required, nor did the prosecution present, evidence of violence
immediately following the June 1994 speech for which Bikindi was
ultimately convicted.
The Trial Chamber seems to have declined to scrutinize evidence
from rallies in early 1994, to determine whether Bikindi’s speech
constituted incitement to genocide.60 This means that the ICTR may
have missed an opportunity to convict Bikindi for speech that he
uttered before the genocide. Bikindi left Rwanda on 4 April 1994, just
before the carnage started, and did not return until it was
almost over.61
Speech before genocide is more worthy of attention because, as I
have argued elsewhere, the special importance of international speech
crimes comes from the fact that incendiary speech is often a precursor
57
58
59
60
61
Schabas W., Genocide in International Law: The Crime of Crimes, 2000, p. 266;
see also Prosecutor v Nahimana, Case No. 99-52-A (28 November 2007)
“[D]irect and public incitement to genocide is… punishable even if no act of
genocide results from it. This is confirmed by the travaux préparatoires of the
Genocide Convention, from which we can conclude that its drafters wished to
punish direct and public incitement to genocide even if no genocide is
committed, in order to prevent its occurrence.”
Bikindi Judgment, para. 183 “The Prosecution has not proven, however, that this
meeting led to anti-Tutsi violence immediately thereafter.”
Bikindi Judgment, para. 142.
Bikindi Judgment, para. 185. “Given its conclusions above, the Chamber has not
found it necessary to address the issue of whether the meetings that allegedly
took place in 1994 not specifically alleged in the Indictment could have formed
the basis for a conviction.”
Bikindi Judgment, para. 26.
458
Susan Benesch
to mass atrocity, especially genocide.62 If incitement can be stopped,
atrocities may be curbed or at least lessened in scope.63
Bikindi’s speech along the Kivumu-Kayove road in late June 1994
clearly fits the definition of incitement to genocide, as discussed
above, but it was not a true catalyst for genocide, since it was uttered
only after hundreds of thousands of Tutsi had already been killed. This
is not to suggest that incitement to genocide should be defined
broadly. It is difficult to distinguish rigorously between speech that is
“merely” hateful, repugnant, or discriminatory, and speech that is
criminal – and dangerous to restrict or punish speech. The distinction
also forms the line between international criminal law and domestic
law, however, so it is all the more important to draw it.
The ICTR’s jurisprudence has made a large contribution but has
left this daunting task unfinished, not surprisingly, with respect to
songs as well as other speech. The Bikindi judgment merely “does not
exclude the possibility” that songs may constitute direct and public
incitement to genocide, or that they may constitute persecution as a
crime against humanity “depending on the message conveyed and the
context.”64 In comparing song to other speech as a policy matter, there
are arguments for greater deference (e.g. art must not be censored) and
also for greater vigilance (Bikindi’s songs were probably much more
influential than they would have been, as mere printed or
spoken texts).
3. Songs can constitute persecution as a crime against humanity
The ICTR has broken new ground in the law by maintaining that
hate speech (musical or otherwise) can constitute persecution as a
62
63
64
See Vile Crime or Inalienable Right, supra note 51, p. 488. See also “Inciting
Genocide, Pleading Free Speech”, World Policy Journal, Summer 2004.
For example Méndez J., former U.N. Special Adviser for the Prevention of
Genocide, sent a note to the U.N. Secretary General in November 2004 warning
of what Méndez called incitement in Cote d’Ivoire and suggesting that if
domestic courts did not curb the “episodes,” the situation might be referred to the
International Criminal Court. The note was publicized, the speech stopped
abruptly and violence diminished, Méndez later reported. Interview with author,
12 November 2009.
Bikindi Judgment, paras. 389, 395.
The ICTR’s Prosecution of a Pop Star: The Bikindi Case
459
crime against humanity. The International Criminal Tribunal for the
Former Yugoslavia (ICTY) rejected this approach in the case of Dario
Kordic in 2001, finding that hate speech “does not by itself constitute
persecution as a crime against humanity,” that it is not enumerated as
a crime elsewhere in the Statute of the ICTY, and “most importantly,
it does not rise to the same level of gravity as the other acts
enumerated in Article 5.”65 The ICTY also found that there is no
prohibition on hate speech in customary international law, therefore it
would violate the principle of legality for an international tribunal to
convict on that basis.
However in its own first case on speech as a crime against
humanity, the ICTR convicted Georges Ruggiu for crimes against
humanity based on his work as a broadcaster at RTLM. Ruggiu pled
guilty, so the case was not contested.
In 2003, in the ICTR’s landmark “Media” case, two RTLM
executives and a newspaper editor were convicted of crimes against
humanity, as well as incitement to genocide. The Trial Chamber in
that case stated, “It is evident that hate speech targeting a population
on the basis of ethnicity, or other discriminatory grounds, reaches this
level of gravity and constitutes persecution.”66
The defendants contested their conviction for crimes against
humanity, inter alia, on appeal. Diane Orentlicher, the noted
international criminal law scholar, submitted an amicus curiae brief on
behalf of the Open Society Institute, arguing that hate speech does not
constitute persecution as a crime against humanity, and warning that it
would be dangerous to define international speech crime
too broadly.67
The Appeals Chamber skirted the argument that hate speech is not
a crime in international law by stating that, in crimes against
humanity, underlying acts of persecution need not amount to crimes in
international law. They must be of a gravity equal to the crimes
65
66
67
Prosecutor v Kordic & Cerkez, Case No. IT-95-14/2-T, Judgment, 26 February
2001, para. 209.
Nahimana et al. Judgment, para. 1072.
Amicus Curiae Brief on Nahimana Barayagwiza and Ngeze v Prosecutor, Case
No. ICTR 99-52-A, available at (http://www.justiceinitiative.org/db/resource2/
fs/?file_id=17874) (last visited on 2 August 2009).
460
Susan Benesch
enumerated in Article 3, but can be considered either alone or in
conjunction with other acts.68
In the Bikindi judgment, the Trial Chamber noted that
“[t]he question remains as to whether hate speech occurring in
isolation could be considered to be of equal gravity to the other crimes
listed in Article 3.”69 But it avoided this question by noting under the
ICTR’s statute, persecution can be established as a crime against
humanity only in cases of a widespread and systematic attack on a
civilian population. Where there is such an attack, the Trial Chamber
reasoned, many other underlying acts of persecution would be
committed, in addition to hate speech. In that case no court would
have to determine whether hate speech qualifies as persecution as a
crime against humanity, or if so, what sort of hate speech, since that
term encompasses a wide range of expression.
It is unclear what purpose is served, however, by adding hate
speech to a basket of underlying acts of persecution that would likely
produce a conviction even without the last addition. If it is to produce
convictions for speech that does not rise to the level of incitement to
genocide, then it is all the more important to clarify where the new
level is, lest speech be overly restricted.
Since the ICTR convicted Simon Bikindi only on an unambiguous
charge of incitement to genocide, it declined to decide knotty legal
questions, as courts often wisely do. Its judgment raised important
questions, however, and the tribunal is unlikely to get another case in
which to answer them.
68
69
Nahimana et al. v Prosecutor, Case No. ICTR 99-52-A, Judgment (28 November
2007), para. 985.
Bikindi Judgment, para. 394.
The ICTR’s Prosecution of a Pop Star: The Bikindi Case
461
Note from the Editorial Assistant:
This paper was finalized in 2009 but it could not be published
earlier because of circumstances beyond our control. In the meantime,
both parties in this case appealed and on 18 March 2010, the Appeals
Chamber issued its judgement.70
On one hand, Bikindi appealed both his conviction for direct and
public incitement to commit genocide and his sentence to fifteen years
imprisonment. One of his main arguments on the conviction was the
ineffective assistance of his co-counsel, which he argued the Trial
Chamber had failed to correct while it lead to a miscarriage of
justice.71 But he did not convince the Appeals Chamber, which found
that he failed to rebut the presumption of competence of his cocounsel.72 On the conviction, he argued that it is disproportionate to
the gravity of the offence but the Appeals Chamber did not sustain
such an argument.73
On the other hand, the Prosecution also appealed the sentence
arguing on its leniency, without much success.74
In clear, in its Judgement, the Appeals Chamber dismissed the
entirety of the appeal by Simon Bikindi and by the Prosecutor and
confirmed both the conviction and the sentence.75 On 20 March 2012,
Simon Bikindi was transferred to Bénin to serve his sentence.76
Having been arrested in 12 July 2001, his sentence will end by 11 July
2016 at the latest.
70
71
72
73
74
75
76
Simon Bikindi v. The Prosecutor, Case No. 01-72-A, Judgement (Appeals
Chamber), 18 March 2010 (hereinafter Bikindi Appeal Judgement).
Bikindi, Appeal Judgement, paras. 16-19.
Bikindi, Appeal Judgement, paras. 48-49.
Bikindi, Appeal Judgement, para. 186.
Bikindi, Appeal Judgement, para. 210.
Bikindi Appeal Judgement, para. 212.
UNICTR, More ICTR Convicts Transferred to Mali and Benin to Serve their
Sentences, Press Release No. ICTR/INFO-9-2-726.EN, 3 July 2012. Available
on the website of the Tribunal (http://www.unictr.org).