Wednesday, 3 December 2008

Direct and Public Incitement to Genocide Conviction by Rwanda Tribunal

The International Criminal Tribunal for Rwanda yesterday issued a judgment in the Bikindi case (http://69.94.11.53/default.htm). A year ago, the Tribunal promised the Security Council that this judgment would be issued in the first half of 2008. Seven other judgments promised for the first half of 2008 have still not been issued.
Bikindi is particularly interesting because it involves a popular singer, whose compositions were alleged to have contributed to the genocidal hysteria in Rwanda in 1994. Bikindi was convicted by the Trial Chamber, but for only one count, and sentenced to fifteen years’ imprisonment. He gets credit for about seven and a half years of preventive detention, and should be eligible for release on parole within two and a half years.
The Chamber concluded that in June 1994 Bikindi had participated in a motorcade of the racist interahamwe militia, and that he personally incited people to exterminate Tutsi.
Bikindi is convicted of the crime of ‘direct and public incitement to commit genocide’. This is a legal error. The crime of ‘direct and public incitement’ is a very special formulation, meant to capture forms of incitement when genocide does not in fact take place. When genocide takes place, the correct charge is simply ‘incitement’. It need not be direct or public, as long as genocide is actually incited.

1 comment:

vidanhv said...

I am fully aware of Prof. Schabas' views on the correlation between direct and public incitement to commit genocide as an inchoate crime on one side and instigation to genocide as a mode of criminal participation on another. Clearly, the ICTR Trial Chamber in Bikindi relied on the former, and, to my opinion, had good reasons for this. In order to treat the acts perpetrated by Bikindi as ordinary incitement (or instigation) as proposed by Professor Schabas, the Prosecutor would need to prove that "the participation of the accused must have directly and substantially affected the commission of the crime" (ICTY in Tadic) the requirement that does not exist in the crime of DPI to genocide. Since DPI to genocide is a crime per se, it is irrelevant whether genocide in fact took place. Simple occurrence of genocide, however, does not deprive specific acts of their legal qualification as DPI to genocide automatically, but only if it has been proven that the acts of instigation substantially and directly contributed to the commission of genocide. If not, the acts will remain DPI to genocide even when actual genocide took place. The wording of the judgment, although highly problematic in some of its aspects, does not suggest that the Trial Chamber relied on the causal link between the incitement and the commission of genocide. In fact, the Chamber stated that "based on the words he proffered and the manner he disseminated his message" Bikindi committed DPI to genocide, thus grounding its finding solely on the acts perpetrated by the accused and without entering into discussion about possible impact of his words.