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Inciting Genocide, Pleading Free Speech

Author(s): Susan Benesch

Source: World Policy Journal, Vol. 21, No. 2 (Summer, 2004), pp. 62-69
Published by: Duke University Press
Stable URL:
Accessed: 07-12-2017 20:31 UTC

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Susan Benesch is a journalist and lawyer who works for Amnesty International in Washington, D.C.

Inciting Genocide, Pleading Free Speech

Susan Benesch

In November 1991, a large drawing ofpublished

a his anti-Tutsi materials. Ngeze
was tried
machete appeared on the cover of Kangura, a together with two other media ex-
Hutu-owned Rwandan tabloid. Along ecutives:
one Ferdinand Nahimana and Jean-
edge of the machete's curved blade appeared
Bosco Barayagwiza, both founders of a radio
the question: WHAT WEAPONS shall we station,
use Radio Television Libre des Mille
TO CONQUER THE INYENZI ONCE AND FOR Collines (rtlm), whose anti-Tutsi vitriol was
ALL?? "Inyenzi," or cockroach, was a term more explicit than that of Kangura. Rtlm
coined in the 1960s by some of Rwanda's broadcasters not only read out the names
governing Hutus to refer to rebel fighters of
of people to be killed but added their li-
Rwanda's minority ethnic group, the Tutsi.cense plate numbers - so they could be
hunted down if, after hearing their names
In the early 1990s, inyenzi became a slur ap-
plied to any Tutsi. on the radio, they tried to escape by car.
In April 1994, more than two years At the end of the "Media" trial, which
later, the Rwandan genocide erupted. Over lasted more than three years, the judges - a
the following three months, in what the South African, a Sri Lankan, and a Norwe-
United Nations later characterized as "a gian - issued a 361 -page ruling that is a
tidal wave of political and ethnic killings," landmark in international law.1 They found
more than 500,000 Tutsis and moderate Ngeze, Nahimana, and Barayagwiza guilty,
Hutus were murdered by the armed forces,declaring: "Without a firearm, machete or
the presidential guard, and the ruling par- any physical weapon, you caused the deaths
ty's youth militia. of thousands of innocent civilians." As one
By the time the genocide began, after witness put it, the defendants' crime was to
four years of civil war, Hassan Ngeze, the "spread petrol throughout the country little
founder, publisher, and editor of Kangura, by little, so that one day [they] would be
had printed reams of anti-Tutsi vitriol, butable to set fire to the whole country."2 The
he had not called for mass killing of Tutsi judges agreed. Their decision was legally
civilians. In fact, he had stopped publishing
daring and, in spite of its length, not fully
his paper by the time the genocide began, explained. But it was correct.
and no killings were directly linked to what
he had printed. So after Ngeze was indictedIncitement to Genocide
in 1997 for incitement to genocide, among The Media case is important for the histori-
other crimes, by the International Criminalcal analysis inherent in its verdict, as well
Tribunal for Rwanda (which had been con- as the potentially far-reaching law it laid
vened in Arusha, Tanzania), three judges down. In trying Ngeze and his two codefen-
had to decide whether he could be held re- dants, the international tribunal suggested
sponsible for causing the killings of hun- answers to the most important questions
dreds of thousands of people - or had been underlying its work: what causes genocide
exercising his right to free speech when he and how might it be prevented?


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Incitement is a hallmark of genocide, ring to the Holocaust, commented when the
and it may be a prerequisite for it. Each Genocide Convention was being debated by
modern case of genocide has been preceded the U.N. General Assembly in 1948, "It
by a propaganda campaign transmitted via was impossible that hundreds of thousands
mass media and directed by a handful of po- of people should commit so many crimes
litical leaders. If such campaigns could be unless they had been incited to do so and
stopped - or their masterminds deterred - unless the crimes had been premeditated
genocide might be averted. and carefully organized."8
Within a few days of Hitler s rise to This idea is absent from many popular
power in 1933, his chief of propaganda, accounts of genocide, which attribute it to
Joseph Goebbels, exulted that "radio and "ancient tribal hatreds." If "those people"
press are at our disposal" and began shut- have been killing each other for hundreds of
ting down anti-Nazi newspapers.3 Through- years, such thinking goes, it is a waste of
out the rest of the 1930s, the Nazi-con- time to try to stop them. Perhaps not coin-
trolled media spewed virulent anti-Semitic cidentally, this primordialist theory gives
propaganda. outsiders an excuse not to try to prevent
In Bosnia and Herzegovina in the early genocide.
1990s, Serbian forces took over so many To recognize the importance of incite-
television transmitters that large areas were ment in causing genocide is not to ignore
left with Serb-controlled television only. the role played by longstanding racial and
The anti-Croat and anti-Muslim messages ethnic prejudices. Incitement does not nec-
transmitted on Serb television were "very essarily induce people to act against their
cogent and potent," according to Ed Vul- own beliefs; when hate speech incites, it
liamy, a British journalist who was there. does so because the listener is receptive to
"It was a message of urgency, a threat to such speech. Nor does the incitement theory
your people, to your nation, a call to arms, argue that people who participate in geno-
and yes, a sort of instruction to go to war cide may be absolved of responsibility be-
for your people.... It pushed and pushed. It cause they lack the will to behave differ-
was rather like a sort of hammer bashing on ently. It is simply to highlight the power of
peoples' heads, I suppose."4 media-borne messages to influence people,
And in Rwanda, RTLM so "heated up especially by engendering fear. To believe
heads," in Rwandan parlance, during the pe- that incitement is a critical causal element
riod leading up to the genocide and during in genocide, one need only recognize that
the genocide itself that the United States people do not spontaneously rise up to kill
considered jamming its signal (but never en masse.

did so).5 Prime Minister Jean Kambanda Before genocide can occur, a large
(who later entered into a plea agreement in ber of people must come to condone
which he admitted to inciting genocide as As the genocide scholar Helen Fein
well as other crimes) gave a speech over describing this collective psycholo
rtlm in June 1994, urging the station to process, one group of people must r
continue inciting massacres and calling it rize another group of people as outs
"an indispensable weapon in the fight boundaries of the universe of obliga
against the enemy."6 The dominant group must come to
We cannot be certain that Kambanda putative victims as mortal threats (s
was in essence correct - that incitement is killing can then be rationalized as se
indispensable to genocide - but history and fense) or as subhuman (as insects or
the scholarly literature suggest as much.7 As mals), or both. Indeed, Jews, Bosn
a Soviet delegate, who was apparently refer- lims, and Tutsis were all portrayed

Inciting Genocide, Pleading Free Speech 63

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min. Hutu leaders described Tutsis as cock- ought to be unmolested when simply circu-
roaches and also as snakes, Slobodan Milose- lated through the press, but [not] when de-
vic referred to Bosnian Muslims as "black livered orally to an excited mob assembled
crows," and in Nazi Germany, Julius Strei- before the house of a corn dealer."12
cher, editor of the Nazi weekly Der Sturmer, The Rwanda tribunal's first conviction
termed the Jew "a germ and a pest, not a for incitement to genocide was in response
human being."10 (Later, at Nuremberg, to just this sort of immediate incitement.
Streicher became the first person to be con- Jean-Paul Akayesu, the bourgmestre (mayor)
victed for incitement to genocide by an of the township of Taba, was accused of
international tribunal, although the crime leading a public meeting on the morning of
had not yet been codified as such.) April 19, 1994, at which he urged his lis-
In each of these cases incitement was teners to "eliminate accomplices of the RPF
planned and directed by a few individuals [Rwandan Patriotic Front], which was un-
for whom genocide was a political tactic. derstood by those present to mean Tutsis."13
As the journalist Philip Gourevitch notes A member of the Interhamwe Hutu youth
with biting clarity, "genocide... is an exercisemilitia had been killed, and Akayesu held
in community building."11 Deterring geno- forth at the place where the body lay. A wit-
cide and war crimes - the ultimate goal of ness testified that Akayesu waved papers as
international criminal proceedings like the he spoke, saying that they were Tutsi plans
tribunal for Rwanda, its sister ad hoc tribu-to exterminate the Hutu, seized from the
nal for the former Yugoslavia (icty), and home of a Tutsi "accomplice" - a teacher
now the International Criminal Court - is who had already been killed.14 Soon after
an extremely difficult task. But the courts Akayesu s speech, according to testimony
will have a better chance of succeeding in at his trial, the massacres of Tutsis in Taba
this if prosecutors take aim at those who in- began.
cite genocide rather than individual perpe- This "immediate" incitement is rela-
trators. (Ten years after the Rwandan geno-tively easy to recognize, but it is not the
cide, 90,000 suspected genocidaires are still crime that brings about genocide; it comes
in prison in Rwanda, awaiting trial.) too late. By the time Akayesu spoke^ tens
of thousands of Rwandans had already been
International Law on Incitement massacred.
Incitement is codified in the statutes of the In its ruling in Akayesu's case, the tri-
international tribunals, as well as in the bunal did not limit the definition of incite-
Genocide Convention, as "direct and public ment to what he did. It took pains to point
incitement to genocide." The authors of theout that "direct and public" incitement need
convention did not explain what they meantnot refer exclusively to a speaker haranguing
his listeners in person. Incitement might be
by "direct," so that task has been left to the
courts. The simplest form of incitement, transmitted "through speeches, shouting or
and the easiest to identify, functions as an threats uttered in public places or at public
immediate command. A speaker addresses gatherings,
a or through the sale or dissemi-
crowd, knowing that he or she has authority nation, offer for sale or display of written
in the minds of the listeners, and arouses material or printed matter in public places
their murderous hatred against a specific or at public gatherings, or through the pub-
"enemy." Immediately afterward, the crowdlic display of placards or posters, or through
acts on the suggestions of the speaker. This any other means of audiovisual communica-
is the kind of incitement that John Stuart tion."15 But could materials printed in a
Mill proscribed in On Liberty. "An opinion newspaper two years before the mass killing
/hat corn dealers are starvers of the poor began constitute incitement to genocide?


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A resounding and indignant "no" came from incitement to genocide (as the Rwanda tri-
Ngeze's theatrical American defense lawyer, bunal pointed out in its decision in the Me-
John Floyd, and from the equally noisy dia case). The crime at issue cannot be com-
Ngeze himself. pared to Brandenburg's hate speech, or even
to cross burning with the intent to intimi-
U.S. Incitement Law date. Incitement to genocide is not merely
In U.S. law, which Floyd urged the tribunal a louder or more ominous form of hate
to apply, incitement is defined by the like- speech.
lihood that it will provoke an immediate Incitement to genocide, like genocide
response. U.S. law understands incitement itself, is typically perpetrated by the state or
narrowly, since it protects speech more by its allies, and is intended to increase the
broadly than any other body of law. Indeed, power of the state. By contrast, the right of
the fact that the Genocide Convention codi- free speech in the United States is most of-
fies the crime of incitement to genocide was ten invoked by those who seek to resist the
one ostensible reason why the U.S. Senate government - the First Amendment pro-
refused to ratify the treaty for 38 years, un-tects against the state. (Indeed, the Ohio
til 1986. In my view, this fear of criminaliz-Klansman in Brandenburg had threatened
ing incitement to genocide is misplaced, "revengeance" against Congress, the presi-
since incitement to violence in a relatively dent, and the Supreme Court - as well as
peaceful, stable society is quite different against blacks and Jews.) Moreover, the
from incitement to genocide. "marketplace of ideas" theory on which U.S.
In Brandenburg v. Ohio, the controlling free speech law is based is not applicable to
U.S. incitement case, the Supreme Court incitement to genocide.
considered whether a rant by a member of Odious and even violent speech is pro-
the Ku Klux Klan, before a television cam-tected in the United States in the belief that
era in a field in rural Ohio, constituted in- the public discourse will contain it, that
citement. The court ruled that such speech "bad" speech will eventually be mitigated
is illegal only if it is "directed at inciting orby "good" speech. But where genocide is
producing imminent lawless action" and is,possible, those in charge have such dispro-
in addition, "likely to incite or produce suchportionate power, especially with respect to
action." The distinction between "mere ad- the means of disseminating information,
vocacy" and illegal incitement resided in that "good speech" has little effect. The
whether those listening were likely to take Rwandan marketplace of ideas had long
imminent action in response to the speech. since collapsed by the time the mayor of
Interestingly, the Supreme Court carved out Taba made his speech. Indeed that was the
an exception to this doctrine in 2003, by heart of his defense: "Once the massacres
permitting a state to ban cross burning had become widespread, the Accused was
"with the intent to intimidate" because denuded of all authority and lacked the
cross burning in the United States, the means to stop the killings." Such an argu-
court said, is "inextricably linked. sud- ment should not (and did not) exonerate
den and precipitous violence."16 Akayesu, but it correctly pointed out that
Under U.S. law, in other words, Ngeze he was not in a position alone to cause or
probably would not have been found guilty to prevent the genocide. It was already
of incitement, since the anti-Tutsi materialstoo late.
he published in Kangura did not produce an The dispositive crime - the one that
immediate violent response, and the editor makes the key difference - is the "spread
burned no crosses. But U.S. law cannot be [of} petrol throughout the country little by
grafted onto international prosecutions for little." The rub is that this type of incite-

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ment is more difficult to identify and to dis- Hutus. Ngeze insisted that he was not en-
tinguish from lawful speech. It does not fit dorsing such ideas, but, in fact, the com-
into Mills bifurcated formula; it is neither mandments were part of an incendiary tract
merely an opinion circulated through the titled, "Appeal to the Conscience of the
press nor hate speech before an excited mob. Hutu." As for the cover of Kangura de-
scribed at the beginning of this essay, Ngeze
Spreading Petrol Little by Little said that it was a call for democracy, since it
The Ngeze form of incitement - of spread- also bore a photograph of Gregoire Kayiban-
ing petrol little by little - can be distin- da, who was elected as the Rwandan repub-
guished from protected speech, but it is lic s first president in 1961. But, as prosecu-
necessary to step carefully. First, the legal tion witnesses pointed out, Kayibanda is
standard for incitement to genocide must be also known to Rwandans for presiding over
distinguished from "mere" incitement to widespread massacres of Tutsis. Rwandan
other forms of violence so that governments witnesses further testified that to be includ-
cannot plausibly invoke the law to stifle dis- ed in one of the lists of the names of Tutsis
sent. (Some critics have argued that the that Ngeze published in Kangura was a
Rwanda tribunals more expansive definition "death warrant" and that Ngeze himself
of incitement in the Media case will be em- used to say that if he wrote about someone,
ployed by repressive governments wishing that person would be killed. Ngeze testified
to muzzle the press. However, governments that the lists were made up of people sus-
that shut down newspapers or broadcast pected of cooperating with fighters of the
outlets are usually content to do so without rebel Tutsi Rwandan Patriotic Front (RPF),
any pretext borrowed from international and that he had obtained the lists from the
law.) government, so he was merely transmitting
Next, certain legal criteria may be ap- information by publishing them. In their
plied in order to distinguish incitement to written judgment, the judges in the case
genocide from political speech. The first of noted that in his testimony and other con-
these criteria is the question of intent. To be duct during the trial, Ngeze had demon-
convicted of incitement to genocide under strated "a thorough disregard for the truth."
international law, one must be shown to The second legal criterion for distin-
have had the specific intent to commit guishing incitement is foreseeability:
genocide, that is, "to destroy, in whole or in whether speech is likely to provoke violence.
part, a national, ethnical, racial, or religious That often depends on the authority and
group, as such." This means that a journalist renown of the speaker. Ngeze was aware of
who publishes or broadcasts someone else's Kangura s growing authority in the period
views, no matter how hateful these views leading to the genocide. In one editorial, he
may be, cannot be held liable unless the wrote: "Kangura s role will be studied in the
journalist can be shown to share the opin- history of Rwanda.... Besides, Kangura has
ions and genocidal aspirations of the revealed to the coming generation who the
source.17 Tutsi is." His boast that he could have some-
Testifying at his trial, Ngeze disavowed one killed by publishing the person's name,
genocidal intent. He said he had been "pre- if true, proves that he did foresee the in-
dicting" the deaths of Tutsis in his newspa- flammatory effect of what he was printing.
per, not calling for them, and that he was If a defendant claims that he or she did
merely trying to inform the public with not foresee the effect of his or her speech, it
lines like "Hutus must cease having any becomes the court's task to determine what
pity for the Tutsi," which appeared in Kan- the defendant should have been able to fore-
gura in a list of "Ten Commandments" for see. This is almost always complicated by


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the ambiguous nature of the language of work' is a literal translation of the Rwandan
incitement. Like Ngeze, inciters rarely say, expression that Phocas Habimana, Manager
"Go out and kill." Ngeze would be known of the RTLM, expressly instructed the accused
in First Amendment jurisprudence as the to use during his broadcasts. With time,
"clever inciter," and his case would bring this expression came to clearly signify 'go
to mind the so-called Mark Antony prob- fight against members of the rpf and their
lem, after the rhetorical, coded speech accomplices.' With the passage of time, the
that Shakespeare's Mark Antony gives over expression came to mean, 'go kill the Tutsis
and Hutu political opponents of the interim
Caesar's bier, inciting his listeners against
Brutus. government.'"18
In its ruling in the Akayesu case, the Startlingly, perhaps, the judges in the
Rwanda tribunal had already established Media case heard no evidence that any indi-
that speech need not be explicit to be con- vidual RTLM listener or Kangura reader killed
sidered "direct" incitement. Where lan- someone in direct response to the station's
guage is ambiguous, a court must try to dis-broadcasts or the paper's articles and editori-
cover how the audience understood the als since causation is not required to prove
meaning of the words spoken - and whetherincitement under international law.
the speaker should have foreseen how those
who heard the speech would react. The Where the Law Is Headed
judges who heard the Media case strove to The trial in the Media case is a landmark in
understand the meaning of Ngeze 's articles a developing body of international jurispru-
and RTLM's broadcasts as their Rwandan au- dence on incitement to genocide. Other
diences would have understood them at the courts around the world have also tried in-
time. citement cases deriving from the Rwandan
Sitting in their courtroom in Arusha, genocide in recent years - with mixed re-
the members of the International Criminal sults. Courts in Switzerland and Belgium
Tribunal for Rwanda pored over translationshave heard cases against Rwandans for in-
of Kangura and questioned witnesses about citement in the Akayesu mold (speeches de-
particular words and phrases. For example, livered in person to a crowd). In one such
the pejorative "inyenzi" began as a Rwandancase, Fulgence Niyonteze, the former mayor
slang term for armed Tutsi rebels, but ac- of the central Rwandan town of Mushubati,
cording to several prosecution witnesses, in-was sentenced to life in prison by a Swiss
cluding Georges Ruggiu, a Belgian who military tribunal in 1999 for crimes includ-
worked as a broadcaster at rtlm, by 1994 it ing murder and incitement to murder dur-
had come to refer to any Tutsi. ing the genocide, but a military appeals tri-
Like Prime Minister Kambanda, Ruggiu bunal later dropped the conviction for in-
pleaded guilty to incitement to genocide. citement, on the basis that a military tribu-
His plea agreement contains a lesson in nal had no jurisdiction to try such crimes
Rwandan genocidal slang of the 1990s. Just when committed abroad by a civilian.
as the meaning of the term inyenzi changed In 1995, Rwandan expatriates tipped
over time, the phrase "go to work" came to off Canadian immigration authorities that
be understood as an order to kill. As the tri- their compatriot Leon Mugesera, a well-
bunal noted in its judgment against him, known Hutu government official and pam-
citing his plea agreement, "the accused ad-phleteer in Rwanda before the genocide, had
mits that as part of the move to appeal for,given a speech to a crowd of a thousand mil-
or encourage, 'civil defence,' he made a pub-itants of the ruling mrnd party in Kabaya,
lic broadcast to the population on several Rwanda, on November 22, 1992, a year and
occasions to 'go to work.' The phrase 'go to a half before the genocide. (Mrnd was the

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acronym for the National Republican Move- in the country's leadership, it is hard to be-
ment for Development and Democracy, lieve otherwise.
whose youth militia, the Interhamwe, car- The Canadian Supreme Court his agreed
ried out a large proportion of the killings in to review the case. It should study not only
the 1994 genocide.) In the speech, which the famous 1992 speech itself, but Muge-
was later widely reported throughout Rwan- sera's other speeches, writings, and actions
da, Mugesera spoke of sending people "back to determine whether he intended to incite
to Ethiopia, by the Nyabarongo river." Dur- genocide and whether he could have fore-
ing the genocide, thousands of Tutsi corpses seen the effects of his speech.
were thrown into the Nyabarongo. By then, Meanwhile, at the jail run by the
Mugesera had fled to Canada. United Nations in Arusha, another accused
Two Canadian courts ordered Mugesera inciter is awaiting a trial that may push the
deported for having committed incitement, law on incitement to genocide further, since
but in September 2003 appeals court judge the defendant is a musician, not a political
Gilles Letourneau absolved Mugesera in an figure or a journalist. Simon Bikindi was
opinion scathingly critical of the lower the best-known pop singer in Rwanda just
courts. In Letourneau s opinion, Mugesera before the genocide. Bikindi's anti-Tutsi
did not mean to tell his audience to kill songs, which were broadcast constantly on
Tutsi, and could not have foreseen that RTLM, were reportedly one of the reasons for
they would understand him that way, if the station's vast popularity, especially
they did. "[T]here is nothing in the evi- among the young.
dence to indicate that Mr. Mugesera, even Bikindi will be tried for conspiracy to
under the cover of anecdotes or imagery, commit genocide as well as for incitement
deliberately incited murder, hatred or geno-to genocide. According to the tribunal's
cide," Letourneau wrote. Letourneau im- prosecutors, his songs were an important
plied that the lower court judges had or- part of a propaganda campaign on RTLM "to
dered Mugesera deported in part because instigate, incite, and encourage the Hutu
they had relied on a faulty translation of population to separate themselves from the
his speech, but the version of it that Le- Tutsi and to kill them."20 According to the
tourneau reproduced in full in his own indictment, Bikindi participated in the
decision contains such lines as "Do not training of Hutu militias that later massa-
be afraid, know that anyone whose neck cred Tutsis, and in June 1994, he led a cara-
you do not cut is the one that will cut van of militiamen along a road in Gisenyi
your neck."19 prefecture, exhorting them over a public ad-
According to William Schabas, a Cana- dress system in his own vehicle to "extermi-
dian law professor who visited Rwanda on natea quickly the remaining ones." He is also
fact-finding mission in January 1993, the accused of directly ordering militiamen to
kill specific Tutsis.
country was "in a state of turmoil and agita-
tion provoked" by Mugesera's speech, and The Rwanda tribunal should consider
the Rwandan justice minister had resigned those allegations (if proved) in determining
whether Bikindi intended to incite geno-
in frustration after he was barred from pros-
ecuting Mugesera for incitement. There iscide, just as the Canadian Supreme Court
little doubt that Mugesera's speech was must investigate Mugesera's intent. Bikin-
widely understood in Rwanda - by his par- di's authority over his listeners and the ef-
tisans and opponents alike - as a call to fect of his music, like that of Mugesera's
commit genocide. But he is guilty only if speech,
he is hardly in doubt. In fact, Bikindi's
intended and foresaw that his speech wouldmusic has been banned in Rwanda since
be thus understood. Well-placed as he was


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Some would argue that to protect free- 8. Unaor a/c.6/sr 84, 21 Sept.-lO Dec. 1948,
dom of speech and expression Bikindi p. 219
should not be prosecuted for the content 9. Fein, Accounting for Genocide, p. 33, n.7.
of his music. But political speech or song 10. The Trial of German Major War Criminals,
can be distinguished from incitement to Proceedings of the International Military Tribunal,

genocide. If Bikindi intended his music to Nuremberg, Germany, vol. 22, 1949, p. 501.
incite others to commit genocide, he did 11. Philip Gourevitch, We Wish to Inform You
commit a crime by singing. That Tomorrow We Will Be Killed With Our Families:

Stories from Rwanda (New York: Farrar, Straus and

Notes Giroux, 1998), p. 186.
1 . The Prosecutor v. Ferdinand Nahimana, Jean- 12. John Stuart Mill, On Liberty (Arlington
Heights, 111.: Harlan Davidson, 1947), p. 55.
Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-
5 2-T, Judgement and Sentence, December 3, 2003. 13. The Prosecutor v. Jean-Paul Akayesu, Case No.
2. Ibid, p. 147. ICTR-96-4-T, Indictment, February 16, 1996,
para. 14.
3. See, for example, William Shirer, The Rise and
Fall of the Third Reich (New York: Simon and Schus- 14. The Prosecutor v. Jean-Paul Akayesu, Judge-
ter, I960), p. 189. ment, September 2, 1998, para. 33-
4. Prosecutor v. Dusko TadiC, Opinion and Judge- 15. Ibid., para. 559.
ment, it-94-1, May 7, 1997, para. %. 16. Virginia v. Black, 538 U.S. 343 (2003).
5. For good accounts of the debate over jam- 17. This point is illustrated by the European
Court of Human Rights case,Jersildv. Denmark,
ming, see Samantha Power, "A Problem From Hell":
America and the Age of Genocide (New York: Basic September 23, 1994, in which the court overruled
Books, 2002), p. 371; and William A. Schabas, the conviction of a journalist for airing an interview
"Hate Speech in Rwanda: The Road to Genocide,"with virulently racist youths. The journalist's skepti-
McGill Law Journal, 141:46 (2000), p. 148. cal questions were judged to have distanced him suf-
ficiently from his subjects' views.
6. Plea Agreement between Jean Kambanda and
the OTP, cited in The Prosecutor v. Jean Kambanda, 18. The Prosecutor v. Georges Ruggiu, Case No.
Case No. ictr 97-2 3-S, Judgement and Sentence,ICTR 97-32-1, Judgement and Sentence, June 1,
September 4, 1998.
7. See, for example, Frank Chalk and Kurt 19. Mugesera v. Canada (Minister of Citizenship
Jonassohn, The History and Sociology of Genocide: and Immigration) , Federal Court of Appeal, Septem-
ber 8, 2003.
Analyses and Case Studies (New Haven: Yale Univer-
sity Press, 1990), p. 27; Helen Fein, Accounting for 20. The Prosecutor Against Simon Bikindi, Indict-
ment, Case No. ictr 2001-72-1, June 27, 2001.
Genocide: National Responses and Jewish Victimization
during the Holocaust (New York: Free Press, 1984),
p. 33.

Inciting Genocide, Pleading Free Speech 69

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