The Prosecutor
v.
Ferdinand Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
TRIAL CHAMBER I CASE NO. ICTR-99-52-T (2003)
<http://www.ictr.org/default.htm>
Author’s Note: This is the so-called “Radio Machete” case. It incorporates the essential
history from the ICTR’s foundational case (Akayesu). The author has applied gray
shading to that portion of the Akayesu case, which this tribunal includes in its account of
the 1994 horror in Rwanda. The tribunal’s generous use of italics has been modified to
improve readability.
“Genocide” has or will be addressed in varied contexts in this textbook (§8.2 ICJ
Reservations principal case; Chapter 10 Use of Force; and Chapter 11 Human Rights). It
is defined here in detail, and portrayed in a modern context that illustrates the work
product of the ICTR. Note the defendants’ professional backgrounds.
Court’s Opinion:
CHAPTER I
INTRODUCTION
1. International Criminal Tribunal for Rwanda
1.This Judgement in the case of The Prosecutor v. Ferdinand Nahimana, JeanBosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T, is rendered by Trial
Chamber I (“the Chamber”) of the International Criminal Tribunal for Rwanda (“the
Tribunal”). . . .
2. The Tribunal was established by United Nations Security Council Resolution
955 of 8 November 1994 after it had considered official United Nations reports which
indicated that genocide and other systematic, widespread and flagrant violations of
international humanitarian law had been committed in Rwanda. The Security Council
determined that this situation constituted a threat to international peace and security, and
was convinced that the prosecution of persons responsible for serious violations of
international humanitarian law would contribute to the process of national reconciliation
and to the restoration and maintenance of peace in Rwanda. Accordingly, the Security
Council established the Tribunal, pursuant to Chapter VII of the United Nations Charter.
...
4. Pursuant to the provisions of the Statute, the Tribunal has the power to
prosecute persons responsible for serious violations of international humanitarian law
committed in the territory of Rwanda and Rwandan citizens responsible for such
violations committed in the territory of neighbouring States between 1 January 1994 and
31 December 1994. Individual criminal responsibility, pursuant to Article 6, shall be
established for acts falling within the Tribunal's material jurisdiction, as provided in
Articles 2, 3, and 4.
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2. The Accused
5. Ferdinand Nahimana . . . was an assistant lecturer of history at the National
University of Rwanda, and in 1978, he was elected to be Vice-Dean of the Faculty of
Letters. In 1980, he was elected to be Dean of the faculty and remained in that position
until 1981. From 1981 to 1982, he held the post of President of the Administrative
Committee of the Ruhengeri campus of the University. He was Assistant SecretaryGeneral for the Ruhengeri campus of the University from 1983 to 1984. In 1990, he was
appointed Director of ORINFOR (Rwandan Office of Information) and remained in that
post until 1992. In 1992, Nahimana and others founded a comité d’initiative to set up the
company known as Radio Télévision Libre des Mille Collines, S.A. [RTLM]. He was a
member of the party known as Mouvement Révolutionnaire National pour le
Développement . . . .
6. Jean-Bosco Barayagwiza was . . . [a] lawyer by training, . . . [and] a founding
member of the Coalition pour la Défense de la République (CDR) party, which was
formed in 1992. He was a member of the comité d'initiative, which organized the
founding of the company Radio Télévision Libre des Mille Collines, S.A. During this
time, he also held the post of Director of Political Affairs in the Ministry of Foreign
Affairs.
7. Hassan Ngeze . . . worked as a journalist, and in 1990, he founded the
newspaper Kangura and held the post of Editor-in-Chief. Prior to this, he was the
distributor of the Kanguka newspaper in Gisenyi. He was a founding member of the
Coalition pour la Défense de la République (CDR) party.
3. The Indictments
8. Ferdinand Nahimana is charged . . . 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) . . . . He
is charged with individual responsibility under Article 6(1) of the Statute for these
crimes, and is additionally charged with superior responsibility under Article 6(3) ... [for]
public incitement to commit genocide and crimes against humanity (persecution). He
stands charged mainly in relation to the radio station called Radio Télévision Libre des
Mille Collines (RTLM).
9. Jean-Bosco Barayagwiza is charged . . . with nine counts: conspiracy to commit
genocide, genocide, direct and public incitement to commit genocide, complicity in
genocide, crimes against humanity (persecution, extermination and murder), and two
counts of serious violations of Article 3 common to the Geneva Conventions . . . He is
charged with individual responsibility under Article 6(1) of the [ICTR] Statute. . . . He is
additionally charged with superior responsibility under Article 6(3) of the Statute . . .
[and] stands charged mainly in relation to the radio station called RTLM and the CDR
Party.
10. Hassan Ngeze is charged . . . 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. He is charged with individual responsibility under
2
Article 6(1) of the Statute for these crimes, and is additionally charged with superior
responsibility under Article 6(3) . . . [and] stands charged mainly in relation to the
newspaper Kangura.
...
CHAPTER II
HISTORY OF RWANDA
105. The Accused have conveyed to the Chamber . . . the importance of
understanding the history of Rwanda, and more specifically the history of ethnic identity
and inter-ethnic relations, in understanding the events that transpired in 1994 in Rwanda.
...
106. The Chamber notes that in the first judgement of this Tribunal, the history of
Rwanda was examined in detail from the pre-colonial period. The Chamber accepts the
importance of this history, particularly in this case, and for this reason sets forth largely
in extenso the comprehensive review of the historical context as described in the Akayesu
judgement:
80. Prior to and during colonial rule, first, under Germany, from about 1897, and
then under Belgium which, after driving out Germany in 1917, was given a mandate by
the League of Nations to administer it, Rwanda was a complex and an advanced
monarchy. The monarch ruled the country through his official representatives drawn from
the Tutsi nobility. Thus, there emerged a highly sophisticated political culture which
enabled the king to communicate with the people.
81. Rwanda then . . . had some eighteen clans defined primarily along lines of
kinship. The terms Hutu and Tutsi were already in use but referred to individuals rather
than to groups. In those days, the distinction between the Hutu and Tutsi was based on
lineage rather than ethnicity. Indeed, the demarcation line was blurred: one could move
from one status to another, as one became rich or poor, or even through marriage.
82. Both German and Belgian colonial authorities . . . relied on an elite essentially
composed of people who referred to themselves as Tutsi, a choice which . . . was born of
racial or even racist considerations. In the minds of the colonizers, the Tutsi looked more
like them, because of their height and colour, and were, therefore, [considered] more
intelligent and better equipped to govern.
83. In the early 1930s, Belgian authorities introduced a permanent distinction by
dividing the population into three groups which they called ethnic groups, with the Hutu
representing about 84% of the population, while the Tutsi (about 15%) and Twa (about
1%) accounted for the rest. In line with this division, it became mandatory for every
Rwandan to carry an identity card mentioning his or her ethnicity. The Chamber notes
that the reference to ethnic background on identity cards was maintained, even after
Rwanda's independence and was, at last, abolished only after the tragic events the country
experienced in 1994.
...
85. From the late 1940s, at the dawn of the decolonization process, the Tutsi
became aware of the benefits they could derive from the privileged status conferred on
them by the Belgian colonizers and the Catholic church. They then attempted to free
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themselves somehow from Belgian political stewardship and to emancipate the Rwandan
society from the grip of the Catholic church. The desire for independence shown by the
Tutsi elite certainly caused both the Belgians and the church to shift their alliances from
the Tutsi to the Hutu, a shift rendered more radical by the change in the church's
philosophy after the second world war, with the arrival of young priests from a more
democratic and egalitarian trend of Christianity, who sought to develop political
awareness among the Tutsi-dominated Hutu majority.
86. Under pressure from the United Nations Trusteeship Council and following
the shift in alliances just mentioned, Belgium changed its policy by granting more
opportunities to the Hutu to acquire education and to hold senior positions in government
services. This turn-about particularly angered the Tutsi, especially because, on the
renewal of its mandate over Rwanda by the United Nations, Belgium was requested to
establish representative organs in the Trust territory, so as to groom the natives for
administration and, ultimately, grant independence to the country. The Tutsi therefore
began the move to end Belgian domination, while the [new] Hutu elite, for tactical
reasons, favoured the continuation of the domination, hoping to make the Hutu masses
aware of their political weight in Rwanda, in a bid to arrive at independence . . . .
Belgium particularly appreciated this attitude as it gave it reason to believe that with the
Hutu, independence would not spell a severance of ties.
87. In 1956, in accordance with the directives of the United Nations Trusteeship
Council, Belgium organized elections on the basis of universal suffrage in order to
choose new members of local organs, such as the grassroots representative Councils.
With the electorate voting on strictly ethnic lines, the Hutu of course obtained an
overwhelming majority and thereby became aware of their political strength. The Tutsi,
who were hoping to achieve independence while still holding the reins of power, came to
the realization that universal suffrage meant the end of their supremacy; hence,
confrontation with the Hutu became inevitable.
88. Around 1957, the first political parties were formed and, as could be expected,
they were ethnically rather than ideologically based. . . .
89. The dreaded political unrest broke out in November 1959, with increased
bloody incidents, the first victims of which were the Hutu. In reprisal, the Hutu burnt
down and looted Tutsi houses. Thus became embedded a cycle of violence which ended
with the establishment on 18 October 1960, by the Belgian authorities, of an autonomous
provisional Government . . . , [when it was the] communal elections that gave an
overwhelming majority to Hutu parties. After the Tutsi monarch fled abroad, the Hutu
opposition declared the Republic of Gitarama, on 28 January 1961, and set up a
legislative assembly. On 6 February 1961, Belgium granted self-government to Rwanda.
Independence was declared on 1 July 1962, with Grégoire Kayibanda at the helm of the
new State, and, thus, President of the First Republic.
90. The victory of Hutu parties increased the departure of Tutsi to neighbouring
countries from where Tutsi exiles made incursions into Rwanda. The word Inyenzi,
meaning cockroach, came to be used to refer to these [exiled] assailants. Each attack was
followed by reprisals against the Tutsi within the country and in 1963, such attacks
caused the death of at least ten thousand of them, further increasing the number of those
who went into exile. Concurrently, at the domestic level, the Hutu regime seized this
opportunity to allocate to the Hutu the lands abandoned by Tutsi in exile and to
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redistribute posts within the Government and the civil service, in favour of the Hutu, on
the basis of a quota system linked to the proportion of each ethnic group in the
population.
91. The dissensions that soon surfaced among the ruling Hutu led the regime to
strengthen the primacy of the MDR Parmehutu party over all sectors of public life and
institutions, thereby making it the de facto sole party. This consolidated the authority of
President Grégoire Kayibanda as well as the influence of his entourage, most of who
came from the same region as he, that is the Gitarama region in the centre of the country.
The drift towards ethnic and regional power became obvious. From then onwards, a rift
took root within the Hutu political Establishment, between its key figures from the Centre
and those from the North and South who showed great frustration. Increasingly isolated,
President Kayibanda could not control the ethnic and regional dissensions. The
disagreements within the regime resulted into anarchy, which enabled General Juvénal
Habyarimana, Army Chief of Staff, to seize power through a coup on 5 July 1973.
General Habyarimana dissolved the First Republic and established the Second Republic.
Scores of political leaders were imprisoned and, later, executed or starved to death. . . .
92. Following a trend then common in Africa, President Habyarimana, in 1975,
instituted the one-party system with the creation of the Mouvement révolutionnaire
national pour le développement (MRND), of which every Rwandan was a member ipso
facto, including the newborn. Since the party encompassed everyone, there was no room
for political pluralism. A law passed in 1978 made Rwanda officially a one-party State
with the consequence that the MRND became a "State-party", as it formed one and the
same entity with the Government…
93. . . . Like his predecessor, . . . Habyarimana strengthened the policy of
discrimination against the Tutsi by applying the same quota system in universities and
government services. A policy of systematic discrimination was pursued even among the
Hutu themselves . . . . [The president] became increasingly isolated and the base of his
regime narrowed down to a small intimate circle dubbed "Akazu", meaning the
"President's household". This further radicalized the opposition whose ranks swelled
more and more.
...
102. On 4 August 1993, the Government of Rwanda and the RPF [opposition]
signed the final Arusha Accords and ended the war which started on 1 October 1990. The
Accords provided, inter alia, for the establishment of a transitional government to include
the RPF, the partial demobilization and integration of the two opposing armies . . . , the
creation of a demilitarized zone between the RPF-controlled area in the north and the rest
of the country, . . . and the deployment, in four phases, of a UN peace-keeping force, the
United Nations Assistance Mission for Rwanda (UNAMIR), with a two-year mandate.
103. On 23 October 1993, the President of [neighboring] Burundi . . . a Hutu, was
assassinated in the course of an attempted coup by Burundi Tutsi soldiers.
...
106. At the end of March 1994, the transitional government was still not set up
and Rwanda was on the brink of bankruptcy. International donors and neighbouring
countries put pressure on the Habyarimana government to implement the Arusha
Accords. On 6 April 1994, President Habyarimana and other heads of State of the region
met in Dar-es-Salaam (Tanzania) to discuss the implementation of the peace accords. The
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aircraft carrying President Habyarimana and the Burundian President, . . . who were
returning from the meeting, crashed. . . . All aboard were killed.
...
108. The Chamber notes the emergence of Hutu, Tutsi, and Twa ethnic group
identity over the course of Rwandan history, and the concomitant ethnic prejudice that
resulted from the differential distribution of social and political privilege along ethnic
lines, fostered by and during colonial rule. The history of Rwanda in the twentieth
century has been shaped by a complex interplay of political power and ethnic
consciousness. The Chamber observes that political forces have greatly contributed to the
transformation of ethnic consciousness into ethnic hatred.
109. This backdrop to the events that transpired in Rwanda in 1994 may explain
in large measure the otherwise almost incomprehensible level and intensity of the
violence that erupted in April 1994 and continued relentlessly for several months.
However, the Chamber recalls and underscores that this history cannot be used to justify
such violence. Efforts to do so contribute to the perpetuation of violence. The Chamber
recalls that its fundamental purpose of holding individuals accountable for their conduct
is intended to “contribute to the process of national reconciliation and to the restoration
and maintenance of peace”. Justice should serve as the beginning of the end of the cycle
of violence that has taken so many lives, Tutsi and Hutu, in Rwanda.
...
CHAPTER III
FACTUAL FINDINGS
1. Violence in Rwanda in 1994
...
114. On 6 April, the plane carrying [Hutu] President Habyarimana was shot
down, a crime for which responsibility has not been established. Within hours, killings
began. Soldiers and militia began systematically slaughtering Tutsi. . . . On 7 April 1994,
the RPF renewed combat with government forces. United Nations troops, in Rwanda
under the terms of the peace accords, tried briefly to keep the peace, then withdrew to
their posts as ordered by UN headquarters in New York. A force of French, Belgian and
Italian troops came to evacuate foreigners and then departed. Ten Belgian soldiers of
UNAMIR, the UN peacekeeping forces, were killed, and the Belgian troops were
withdrawn. On 9 April 1994, an interim government was sworn in. . . . [T]he instructions
given to the population, killing was known as “work”, and machetes and firearms were
described as “tools”. . . .
115. Prosecution Witness Philippe Dahinden, a Swiss journalist . . . filmed dead
bodies in the river at Kanyaru, counting the bodies as they flowed by and estimated on
that basis that there were 3,000 to 5,000 dead bodies per day coming down the river.
. . .
121. Following the shooting of the plane and the death of President Habyarimana
on 6 April 1994, widespread and systematic killing of Tutsi civilians, a genocide, in
Rwanda commenced.
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2. Kangura
2.1 Ownership and Control of Kangura
122. The first issue of Kangura was published in May 1990, the last in 1995. . . .
According to Prosecution Expert Witness Marcel Kabanda, who has researched the print
media in Rwanda from 1990 to 1995, Kangura was very well known in the country as
well as internationally.
...
2.2.1 The Ten Commandments
138. The Ten Commandments were published in Kangura No. 6, in December
1990, within an article entitled Appeal to the Conscience of the Hutu. This article had five
sections beginning with an introduction. The introduction stated that the attack on
Rwanda in October 1990 by “Tutsi extremists”, who relied on the support of “infiltrators
within the country and the complicity of Tutsi within the country”, as well as the
Ugandan army, had been undertaken with the hope “to conquer the country and establish
a regime based on their feudal monarchy”. Noting that the attack had been successfully
repelled, the introduction warned Kangura readers and ended with the following rallying
cry:
…The enemy is still there, among us, and is biding his time to try again,
at a more propitious moment, to decimate us.
Therefore, Hutu, wherever you may be, wake up! Be firm and vigilant.
Take all necessary measures to deter the enemy from launching a fresh
attack.
139. The second part of the article, entitled “The Tutsi ambition”, described the
Tutsi as “bloodthirsty”, and referred to their continuing ideology of Tutsi domination
over the Hutu, and to the “permanent dream of the Tutsi” to restore Tutsi minority rule. . .
. The article referred to a plan of 1962, in which the Tutsi were to resort to two weapons
they thought effective against the Hutu: “money and the Tutsi woman”. The third part of
the article, on implementation of this plan, stated that the Tutsi used money dishonestly to
take over Hutu companies or to gain control over State authorities. The fourth part of the
article, entitled “The Tutsi woman”, stated that Tutsi women were sold or married to
Hutu intellectuals or highly placed Hutu officials, where they could serve as spies in
influential Hutu circles and arrange government appointments, issue special import
licenses, and pass secrets to the enemy. The fifth part of the article, in which The Ten
Commandments were included, exhorted the Hutu to wake up “now or never” and
become aware of a new Hutu ideology, with roots in and in defence of the 1959
revolution. Reference was made to the historical servitude of the Hutu, and readers were
urged to “be prepared to defend themselves against this scourge”. The Hutu were urged
to “cease feeling pity for the Tutsi!”
...
140. Witness GO, a Hutu who worked at the Ministry of Information monitoring
the private press, testified that he had read The Ten Commandments and that they had
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been broadcast on RTLM [aka Radio Machete]. He described the goal of mentioning
them as “to ensure that the population understood that all the Hutus must become united”,
that “they should have a single fighting goal that they should aim for”, and “that they
should have no link or relationship between Hutus and Tutsis”. He said it was for this
reason that some men started killing their Tutsi wives, or children of a mixed marriage
killed their own Tutsi parents.
141. Prosecution Witness ABE, a Tutsi, testified that . . . The Ten Commandments
“. . . was incitement to hatred. The Hutus were being asked to rise up against the Tutsis”.
He said the commandments that really touched him were the ones prohibiting marriage
to, intimate relations with, and employment of Tutsi women, which he considered to be
very serious because the Hutu and Tutsi shared the same culture and lived within the
same territory. With regard to the commandment that the Hutu should not take pity on the
Tutsi, he understood this to mean, “In other words they can even kill them”, adding, “and
that is actually what happened, and I think this was meant to prepare the killings”.
Prosecution Witness AHA, a journalist who worked for Kangura, testified that the effect
of the publication of The Ten Commandments was that the Hutu started perceiving the
Tutsi as enemies instead of seeing them as citizens, and the Tutsi also starting seeing the
Hutu as a threat.
...
158. Several witnesses . . . characterized The Ten Commandments as “how the
Hutus were supposed to get rid of the Tutsis”, and Witness GO suggested it was for this
reason men started killing their Tutsi wives, or children [and] their Tutsi parents. Having
studied the text of The Ten Commandments and the Appeal to the Conscience of the Hutu,
the Chamber considers the views of these witnesses to be well-founded and a reasonable
illustration that an anti-Tutsi message of violence was effectively conveyed and acted
upon.
...
180. In this article, the Tutsi were described as biologically distinct from the
Hutu, and inherently marked by malice and wickedness. With reference to snakes, the
Tutsi were portrayed as mean and vengeful, and their weapons were again defined, as in
The Ten Commandments, to be women and money.
...
182. An article published in Kangura No. 46 in July 1993, again promulgated the
theme of Tutsi malice and wickedness preying on Hutu innocence and vulnerability,
using the weapons of women and money:
We are trying to discover the wickedness and malice of Tutsis. When you
cure the eye of a Tutsi, you will be the first to be glanced at with envy. We
have started with this proverb so as to warn and awaken those who are not
aware of the sadism, wickedness, malice and ingratitude of Tutsis. Tutsis
think they are more intelligent than whosoever is but after analysis, it is
discovered that their pretentiousness conceals their wickedness. . . .
187. The Chamber notes that the editorials and articles reviewed above
consistently portrayed the Tutsi as wicked and ambitious, using women and money
against the vulnerable Hutu. These themes echo the message of . . . The Ten
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Commandments. In some articles, such as the article in Kangura No. 11, “If One Asks
Generals Why They’re Favoring Tutsis”, information about Tutsi privilege and Hutu
disadvantage was conveyed in a manner that appears as though intended to raise
consciousness regarding ethnic discrimination against the Hutu. In many other articles,
however, the intent, as evidenced by the vitriolic language, was to convey a message of
ethnic hatred, and to arouse public hostility towards the Tutsi population. In articles such
as “A Cockroach Cannot Give Birth to a Butterfly” the Tutsi were portrayed as innately
evil.
188. The presentation of Tutsi women as femmes fatales focused particular
attention on Tutsi women and the danger they represented to the Hutu. This danger was
explicitly associated with sexuality. By defining the Tutsi woman as an enemy in this
way, Kangura articulated a framework that made the sexual attack of Tutsi women a
foreseeable consequence of the role attributed to them.
...
CHAPTER IV
LEGAL FINDINGS
1. Introduction
944. A United Nations General Assembly Resolution [59 (I)] adopted in 1946
declares that freedom of information, a fundamental human right, "requires as an
indispensable element the willingness and capacity to employ its privileges without
abuse. It requires as a basic discipline the moral obligation to see the facts without
prejudice and to spread knowledge without malicious intent".
945. This case raises important principles concerning the role of the media, which
have not been addressed at the level of international criminal justice since Nuremberg.
The power of the media to create and destroy fundamental human values comes with
great responsibility. Those who control such media are accountable for its consequences.
2. Genocide
946. Count 2 of the Indictments charge the Accused with genocide pursuant to
Article 2(3)(a) of the Statute, in that they are responsible for the killing and causing of
serious bodily or mental harm to members of the Tutsi population with the intent to
destroy, in whole or in part, an ethnic or racial group as such.
947. Article 2(3) of the Statute defines genocide as any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:
(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;
(e) Forcibly transferring children of the group to another group.
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948. The Trial Chamber in Akayesu interpreted “as such” to mean that the act
must be committed against an individual because the individual was a member of a
specific group and specifically because he belonged to this group, so that the victim is the
group itself, not merely the individual. The individual is the personification of the group.
The Chamber considers that acts committed against Hutu opponents were committed on
account of their support of the Tutsi ethnic group and in furtherance of the intent to
destroy the Tutsi ethnic group.
949. The Chamber found . . . that RTLM broadcasts engaged in ethnic
stereotyping in a manner that promoted contempt and hatred for the Tutsi population and
called on listeners to seek out and take up arms against the enemy. The enemy was
defined to be the Tutsi ethnic group. These broadcasts called explicitly for the
extermination of the Tutsi ethnic group. In 1994, both before and after 6 April, RTLM
broadcast the names of Tutsi individuals and their families, as well as Hutu political
opponents who supported the Tutsi ethnic group. In some cases these persons were
subsequently killed. . . .
Kangura
950. The Chamber found . . . that The Appeal to the Conscience of the Hutu and
The Ten Commandments, published in Kangura No. 6 in December 1990, conveyed
contempt and hatred for the Tutsi ethnic group, and for Tutsi women in particular as
enemy agents, and called on readers to take all necessary measures to stop the enemy,
defined to be the Tutsi population. Other editorials and articles published in Kangura
echoed the contempt and hatred for Tutsi found in The Ten Commandments and were
clearly intended to fan the flames of ethnic hatred, resentment and fear against the Tutsi
population and Hutu political opponents who supported the Tutsi ethnic group. 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.
CDR
951. The Hutu Power movement, spearheaded by CDR, created a political
framework for the killing of Tutsi and Hutu political opponents. The CDR and its youth
wing, the Impuzamugambi, convened meetings and demonstrations, established
roadblocks, distributed weapons, and systematically organized and carried out the killing
of Tutsi civilians. The genocidal cry of “tubatsembatsembe” or “let’s exterminate them”,
referring to the Tutsi population, was chanted consistently at CDR meetings and
demonstrations. As well as orchestrating particular acts of killing, the CDR promoted a
Hutu mindset in which ethnic hatred was normalized as a political ideology. The division
of Hutu and Tutsi entrenched fear and suspicion of the Tutsi and fabricated the perception
that the Tutsi population had to be destroyed in order to safeguard the political gains that
had been made by the Hutu majority.
10
...
953. The Defence contends that the downing of the President’s plane and the
death of President Habyarimana precipitated the killing of innocent Tutsi civilians. The
Chamber accepts that this moment in time served as a trigger for the events that followed.
That is evident. But if the downing of the plane was the trigger, then RTLM, Kangura
and CDR were the bullets in the gun. The trigger had such a deadly impact because the
gun was loaded. The Chamber therefore considers the killing of Tutsi civilians can be
said to have resulted, at least in part, from the message of ethnic targeting for death that
was clearly and effectively disseminated through RTLM, Kangura and CDR, before and
after 6 April 1994.
...
Genocidal Intent
957. In ascertaining the intent of the Accused, the Chamber has considered their
individual statements and acts, as well as the message they conveyed through the media
they controlled.
958. On 15 May 1994, the Editor-in-Chief of RTLM, Gaspard Gahigi, told
listeners:
…they say the Tutsi are being exterminated, they are being decimated by
the Hutu, and other things. I would like to tell you, dear listeners of
RTLM, that the war we are waging is actually between these two ethnic
groups, the Hutu and the Tutsi.
959. The RTLM broadcast on 4 June 1994 is another compelling illustration of
genocidal intent:
They should all stand up so that we kill the Inkotanyi and exterminate
them…the reason we will exterminate them is that they belong to one
ethnic group. Look at the person’s height and his physical appearance. Just
look at his small nose and then break it.
960. Even before 6 April 1994, RTLM was equating the Tutsi with the enemy, as
evidenced by its broadcast of 6 January 1994, with Kantano Habimana asking, “Why
should I hate the Tutsi? Why should I hate the Inkotanyi?”
961. In an article published by Kangura in January 1994, Hassan Ngeze wrote:
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 the mistake of attacking again, there will be
none of them left in Rwanda, not even a single accomplice. All the Hutus
are united. . . .
962. In perhaps its most graphic expression of genocidal intent, the cover of
Kangura No. 26 answered the question “What Weapons Shall We Use To Conquer The
Inyenzi Once And For All?” with the depiction of a machete. . . .
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963. Kangura and RTLM explicitly and repeatedly, in fact relentlessly, targeted
the Tutsi population for destruction. Demonizing the Tutsi as having inherently evil
qualities, equating the ethnic group with “the enemy” and portraying its women as
seductive enemy agents, the media called for the extermination of the Tutsi ethnic group
as a response to the political threat that they associated with Tutsi ethnicity.
964. The genocidal intent in the activities of the CDR was expressed through the
phrase “tubatsembasembe” or “let’s exterminate them”, a slogan chanted repeatedly at
CDR rallies and demonstrations. At a policy level, CDR communiques called on the Hutu
population to “neutralize by all means possible” the enemy, defined to be the Tutsi ethnic
group.
965. The editorial policies as evidenced by the writings of Kangura and the
broadcasts of RTLM constitute, in the Chamber’s view, conclusive evidence of genocidal
intent. Individually, each of the Accused made statements that further evidence his
genocidal intent.
...
Individual Criminal Responsibility
970. The Chamber has considered the individual criminal responsibility of
Ferdinand Nahimana and Jean-Bosco Barayagwiza for RTLM broadcasts, by virtue of
their respective roles in the creation and control of RTLM. . . .
971. The broadcasts collectively conveyed a message of ethnic hatred and a call
for violence against the Tutsi population, This message was heard around the world.
...
973. For these reasons, the Chamber finds that . . . Barayagwiza had superior
responsibility for the broadcasts of RTLM. . . . For his active engagement in the
management of RTLM prior to 6 April, and his failure to take necessary and reasonable
measures to prevent the killing of Tutsi civilians instigated by RTLM, the Chamber finds
Jean-Bosco Barayagwiza guilty of genocide pursuant to Article 6(3) of its Statute.
974. The Chamber notes Nahimana’s particular role as the founder and principal
ideologist of RTLM. RTLM was a creation that sprang from Nahimana’s vision more
than anyone else. It was his initiative and his design, which grew out of his experience as
Director of ORINFOR [Rwandan Office of Information] and his understanding of the
power of the media. . . . In a broadcast on Radio Rwanda on 25 April 1994, he said, “I am
very happy because I have understood that RTLM is instrumental in awakening the
majority people.” . . . RTLM did what Nahimana wanted it to do. It was “instrumental in
awakening the majority population” and in mobilizing the population to stand up against
the Tutsi enemy. RTLM was Nahimana’s weapon of choice, which he used to instigate
the killing of Tutsi civilians. For this reason the Chamber finds Nahimana guilty of
genocide pursuant to Article 6(1) of its statute.
...
977A. As founder, owner and editor of Kangura, a publication that instigated the
killing of Tutsi civilians, and for his individual acts in ordering and aiding and abetting
the killing of Tutsi civilians, the Chamber finds Hassan Ngeze guilty of genocide,
pursuant to Article 6(1) of its Statute.
...
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3. Direct and Public Incitement to Commit Genocide
...
1008. The Chamber notes that international standards restricting hate speech and
the protection of freedom of expression have evolved largely in the context of national
initiatives to control the danger and harm represented by various forms of prejudiced
communication. The protection of free expression of political views has historically been
balanced in the jurisprudence against the interest in national security. The dangers of
censorship have often been associated in particular with the suppression of political or
other minorities, or opposition to the government. The special protections developed by
the jurisprudence for speech of this kind, in international law and more particularly in the
American legal tradition of free speech, recognize the power dynamic inherent in the
circumstances that make minority groups and political opposition vulnerable to the
exercise of power by the majority or by the government. These circumstances do not
arise in the present case, where at issue is the speech of the so-called “majority
population”, in support of the government. The special protections for this kind of speech
should accordingly be adapted, in the Chamber’s view, so that ethnically specific
expression would be more rather than less carefully scrutinized to ensure that minorities
without equal means of defence are not endangered.
...
1010. Counsel for Ngeze has argued that United States law, as the most speechprotective, should be used as a standard, to ensure the universal acceptance and
legitimacy of the Tribunal’s jurisprudence. The Chamber considers international law,
which has been well developed in the areas of freedom from discrimination and freedom
of expression, to be the point of reference for its consideration of these issues, noting that
domestic law varies widely while international law codifies evolving universal standards.
The Chamber notes that the jurisprudence of the United States also accepts the
fundamental principles set forth in international law and has recognized in its domestic
law that incitement to violence, threats, libel, false advertising, obscenity, and child
pornography are among those forms of expression that fall outside the scope of freedom
of speech protection. In Virginia v. Black, the United States Supreme Court recently
interpreted the free speech guarantee of the First Amendment of the Constitution to
permit a ban on cross burning with intent to intimidate. The historical terrorization of
African Americans by the Ku Klux Klan through cross burnings, in the Court’s view,
made the burning of a cross, as a recognized symbol of hate and a “true threat”,
unprotected as symbolic expression. Intimidation was held to be constitutionally
proscribable “where a speaker directs a threat to a person or group of persons with the
intent of placing the victim in fear of bodily harm or death”. In the immigration context,
adherents of National Socialism have been stripped of citizenship and deported from the
United States on the basis of their anti-semitic writings.
...
1014. In determining more precisely the contours of the crime of direct and public
incitement to commit genocide, the Trial Chamber notes the factual findings of the
Tribunal in Akayesu that the crowd addressed by the accused, who urged them to unite
and eliminate the enemy, the accomplices of the Inkotanyi, understood his call as a call to
kill the Tutsi, that the accused was aware that what he said would be so understood, and
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that there was a causal relationship between his words and subsequent widespread
massacres of Tutsi in the community.
...
1022. On cross-examination, Ferdinand Nahimana said he could not judge a
statement made in Nazi Germany that the Jews have all the money. . . . The tone of the
statement is as relevant to this determination as is its content. . . . The Chamber also
considers the context in which the statement is made to be important. A statement of
ethnic generalization provoking resentment against members of that ethnicity would have
a heightened impact in the context of a genocidal environment. It would be more likely to
lead to violence.
...
1029. With regard to causation, the Chamber recalls that incitement is a crime
regardless of whether it has the effect it intends to have. In determining whether
communications represent an intent to cause genocide and thereby constitute incitement,
the Chamber considers it significant that in fact genocide occurred. That the media
intended to have this effect is evidenced in part by the fact that it did have this effect.
...
RTLM
1031. RTLM broadcasting was a drumbeat, calling on listeners to take action
against the enemy and enemy accomplices, equated with the Tutsi population. The phrase
“heating up heads” captures the process of incitement systematically engaged in by
RTLM, which after 6 April 1994 was also known as “Radio Machete”. The nature of
radio transmission made RTLM particularly dangerous and harmful, as did the breadth of
its reach. Unlike print media, radio is immediately present and active. The power of the
human voice, heard by the Chamber . . . adds a quality and dimension beyond words to
the message conveyed. In this setting, radio heightened the sense of fear, the sense of
danger and the sense of urgency giving rise to the need for action by listeners. The
denigration of Tutsi ethnicity was augmented by the visceral scorn coming out of the
airwaves–the ridiculing laugh and the nasty sneer. These elements greatly amplified the
impact of RTLM broadcasts.
...
1054. This evidence establishes, beyond a reasonable doubt, that Nahimana,
Barayagwiza and Ngeze consciously interacted with each other, using the institutions
they controlled to promote a joint agenda, which was the targeting of the Tutsi population
for destruction. There was public presentation of this shared purpose and coordination of
efforts to realize their common goal.
1055. The Chamber finds that Nahimana, Ngeze and Barayagwiza, through
personal collaboration as well as interaction among institutions within their control,
namely RTLM, Kangura and CDR, are guilty of conspiracy to commit genocide under
Article 2(3)(b) and pursuant to Article 6(1) of the Statute.
...
1074. . . . Hate speech is not protected speech under international law. In fact,
governments have an obligation under the International Covenant on Civil and Political
Rights to prohibit any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence. Similarly, the Convention on the
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Elimination of all Forms of Racial Discrimination requires the prohibition of propaganda
activities that promote and incite racial discrimination.
1075. A great number of countries around the world, including Rwanda, have
domestic laws that ban advocacy of discriminatory hate, in recognition of the danger it
represents and the harm it causes. Theses countries include the following: The Criminal
Code of Germany prohibits incitement to hatred and violence against segments of the
population, including the dissemination of publications or broadcasts that attack human
dignity. A press law in Vietnam prohibits the sowing of enmity among nations and
people. The Russian Criminal Code prohibits incitement of hatred by attacking human
dignity, insulting, or maliciously degrading segments of the population. The Criminal
Code of Finland prohibits racist propaganda that threatens, denigrates or humiliates a
group of persons. In Ireland it is an offence to publish threatening, abusive or insulting
material likely to stir up hatred. A law in Ukraine prohibits propaganda for cruelty and
the broadcast of pornography and other material that causes the demeaning of human
honour and dignity. The Criminal Code of Iceland prohibits racial hatred, including
mockery, insults, threats and defamation. Press that arouses scorn or hatred of some
inhabitants for others is prohibited in Monaco. The Criminal Code of Slovenia prohibits
incitement of inequality and intolerance. China prohibits broadcasts that incite hatred on
account of color, race, sex, religion, nationality or ethnic or national origin.
1076. The Chamber considers, in light of well-established principles of
international and domestic law, and the jurisprudence of . . . the many European Court
and domestic cases since then, that hate speech that expresses ethnic and other forms of
discrimination violates the norm of customary international law prohibiting
discrimination. Within this norm of customary law, the prohibition of advocacy of
discrimination and incitement to violence is increasingly important as the power of the
media to harm is increasingly acknowledged.
...

Notes and Questions
1. Nahimana and Ngeze were sentenced to life imprisonment. Barayagwiza was
also sentenced to life imprisonment. However, a deprivation of his rights resulted in a
reduction of his sentence to a term of thirty-five years in prison.
2. What was the ICTR’s definition of “Genocide?” Why did the defendants’
conduct fit within that definition?
3. The tribunal refers to the importance of Rwanda’s history in deciding this case.
It is possible that the ICTR wanted to restate this history for readers, who would thereby
have this unique opportunity to better appreciate the reason for the apparent suddenness
and intensity of the slaughter. Para. 85 of the ICTR’s Akayesu decision, for example,
refers to the privileged status of the minority Tutsis during and after Belgian occupation.
Does the history–on which the defendants and the court focus–justify or ameliorate the
culpability of the defendants?
4. Yale law professor Amy Chua points out that: “In the contest between an
economically powerful ethnic minority and a numerically powerful impoverished
majority, the majority does not always prevail. Instead of a backlash against the market,
another likely outcome is a backlash against democracy, favoring the market-dominant
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minority at the expense of majority will.” Globalization and Ethnic Hatred, Introduction,
A.Chua, WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS ETHNIC
HATRED AND GLOBAL INSTABILITY 11 (New York: Anchor Books, 2003). Belgium’s
economic and pervasive, across-the-board support of the Tutsis--largely because of their
more European-like appearance--helped foment the long-term Hutu majority (84%)
resentment of the Tutsis (15%).
5. The ICTR refers to the 1946 UN resolution regarding freedom of the press. The
Court also referred to US law, which the defendants asserted was the appropriate
International Law yardstick in for measuring the legality of their newspaper and Radio
Machete broadcasts. How did the Court strike the balance between these arguably
competing values?
6. Refer to para. 1075, where the ICTR compares the hate speech standards in
various nations. This is an illuminating application of Customary International Law, one
of the sources of International Law that you studied in textbook §1.2.
7. Para. 114 refers to Belgian, French, and Italian troops who were not sent to
Rwanda to protect the Tutsis, nor to stop the genocide. In a very telling comment during
the movie Hotel Rwanda, actor Nick Nolte is the Commander of the UN troops in
Rwanda. He is quite agitated, as he reports this unexpected turn of events to the manager
in the hotel’s then emptied bar. Nolte, in his frustration, explains the difference between
individuals who are African and non-African blacks. This particular scene is critical to a
better understanding of why the international community chose a tribunal over troops to
react to the genocidal horror in Rwanda.
One might also consider how the international community’s failure to intervene in
Rwanda played out in the Darfur region of The Sudan–sometimes referred to as “slowmotion Rwanda.” The Darfur affair is described in the final subsection of §9.5, regarding
the April 2005 UN Security Council reference of fifty-one Sudanese citizens and officials
to the International Criminal Court.
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