The Appeals Chamber of the International Criminal Tribunal for Rwanda issued its judgment in the 'Media Case' last week. We discussed this in our regular doctoral seminar in Galway yesterday evening. The judgment of the Appeals Chamber is only available in French right now, although an English-language summary appears on the website: http://188.8.131.52/default.htm.
The Trial Chamber judgment, whose conclusions are seriously attacked in the latest ruling, had been heralded as a new development in the legal regulation of hate speech. The trial deals with personalities involved in the RTLM radio station and the journal Kangura.
Here are a few initial observations that emerged from our discussion:
1. Strict construction. Both ad hoc tribunals have been characterised by an interpretative approach that was large and liberal, tending to expand the definition of crimes so as to fulfil the purpose of the tribunals rather than interpretation that was strict and literal. But now, for the first time apparently, the Appeals Chamber professes its devotion to the principle of strict construction of criminal law.
2. The judgment strikes down many of the charges that had been upheld by the Trial Chamber. In effect, it knocks out the convictions respecting events prior to 6 April 1994, when the genocidal massacre began. With respect to pre-1994 acts, the argument is jurisdictional: the Tribunal cannot prosecute crimes committed prior to 1994, even 'continuous crimes'. Judge Shahabbuddeen dissents on this point. But as for events between 1 January 1994 and 6 April 1994, the Chamber simply considers these do not add up to incitement to genocide. This may effect a significant change in the narrative of the Rwandan genocide.
3. One of the big innovations of the Trial Chamber was to treat hate propaganda, even when it falls short of incitement to genocide, as the crime against humanity of persecution. The Appeals Chamber upholds this as a general proposition. Judge Meron writes a strong dissent, arguing that expanding the prosecution of hate speech threatens freedom of expression.