Friday, 5 December 2008

More on Bikindi Decision at Rwanda Tribunal

One of the readers of the blog has submitted a comment in response to my entry on the Bikindi judgment of the International Criminal Tribunal for Rwanda, issued earlier this week. See below.
On closer reading of the judgment, it seems that the Trial Chamber may well have decided that Bikindi was guilty of 'direct and public incitement' because it did not think it could establish a causal link between the words he pronounced and acts of genocide.
I find some ambiguity in the judgment on this point. The core of the conviction reposes on Bikindi's behaviour when he participated in a convoy of interahamwe (the racist militia) vehicles, in June 1994.
The Trial Chamber accepted the evidence of a witness who said that Bikindi exhorted people from a loudspeaker, saying: 'You sons of Sebahinzi, who are the majority, I am speaking to you, you know that the Tutsi are minority. Rise up and look everywhere possible and do not spare anybody.' (para. 268). 'The witness also testified that on the way back from Kayove, Bikindi stopped at a roadblock and met with leaders of the local Interahamwe where he insisted, “you see, when you hide a snake in your house, you can expect to face the consequences.” After Bikindi left the roadblock, members of the surrounding population and the Interahamwe intensified their search for Tutsi, using the assistance of dogs and going into homes to flush out those still hiding. Witness AKK stated that a number of people were subsequently killed, including Father Gatore and Kalisa.' (ibid). The Chamber accepts AKK's evidence.
At the conclusion of its discussion of this incident, the Chamber writes:
'281. For the reasons above, the Chamber finds that the Prosecution has proven beyond reasonable doubt that towards the end of June 1994, in Gisenyi préfecture, Bikindi travelled on the main road between Kivumu and Kayove in a convoy of Interahamwe and broadcast songs, including his own, using a vehicle outfitted with a public address system. When heading towards Kayove, Bikindi used the public address system to state that the majority population, the Hutu, should rise up to exterminate the minority, the Tutsi. On his way back, Bikindi used the same system to ask if people had been killing Tutsi, who were referred to as snakes.'
I think that when you take paragraph 268 ('Witness AKK stated that a number of people were subsequently killed'), and read it with the concluding paragraph, 281, you have the link between words and deeds.
In any case, surely it makes more sense to treat the genocide on a larger scale, whereby an individual who is inciting genocide in Rwanda during June 1994 is guilty of inciting a genocide that actually takes place. Sheer common sense makes the link. In Nahimana et al., the case dealing with Radio-télévision mille collines, there was no requirement of evidence that any specific crime had been committed because any specific killer had listened to a specific radio broadcast.
But assuming that the Trial Chamber did in fact convict Bikindi for 'direct and public incitement' in the absence of evidence that he actually incited anybody to perpetrate genocide, surely the sentence of fifteen years' imprisonment is grossly excessive. In my research into national legislation implementing the Genocide Convention, I have noted that several countries set maximum sentences of five or ten years for the inchoate incitement offence. Imposing a fifteen-year sentence is only justifiable if the Chamber really believed that Bikindi's speeches were more than the empty words of a fanatic, and that they actually led to loss of life.


vidanhv said...

There is no doubt that Prof. Schabas is right when referring to para. 268 of the Judgment in concluding that causal link between the incitement and killings might have been established, and consequently Bikindi's responsibility for complicity in genocide. However, I have some doubts in desirability of this approach.

If there are conclusive evidence which can establish the link between certain psychological pressure to commit genocide and the crime itself, then it is certain that the person should be convicted for participation in genocide. However, it might be very problematic to establish beyond reasonable doubt such a link with its qualifications of direct and substantial contribution in cases of the acts of incitement performed in public to the undisclosed audience. Although this is possible both legally and factually (for example see the treatment of incitement (or instigation) in the Akeyesu which has already been criticized by Prof. Schabas in his major work on genocide on the grounds that this form of complicity does not contain the requirements of publicity and directness solely related to DPI), it carries a heavy burden for the prosecutor. The prosecutor would not only be obliged to show that the members of this undisclosed audience took part in the subsequent killings, but also that they were substantially and directly influenced by the speech of the instigator. It seems to me that this is precisely why Bikindi was not convicted for instigation.

Even if the Trial Chamber convicted Bikindi for instigation, nothing prevented it to cumulatively convict him both for this crime and for DPI to genocide on the same factual grounds. Following the reasoning of the ICTY in the Kupreskic and of the ICTR in the Akeyesu, cumulative convictions are possible if a) each offence contains an element not required by the other (Blockburger test) and b) the various provisions at stake protect different values. The ICTR in Akeyesu concluded "that it is acceptable to convict the accused of two offences in relation to the same set of facts in the following circumstances: (1) where the offences have different elements; or (2) where the provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did." It should be noted that the ICTR put these requirements in alternative.

First, instigation to commit genocide and DPI to genocide have various different elements. While the existence of instigation depends on the actual commission of genocide, this is not the case with DPI. On the other hand, while DPI must be direct and public, instigation, as rightfully argued by Prof. Schabas does not. In the end, instigation is mode of participation and thus dependant on genocide while DPI is a separate crime.

Second, while both provision generally protect same values, i.e. protection of the four protected groups from destruction as such, instigation is directly associated with the commission of the acts of genocide, while DPI is directed toward dissemination of the idea of genocide with only remote and, what is even more important, uncertain link to the eventual acts of genocide. While instigation serves as the tool of retribution, DPI primarily serves as the tool of prevention (the fact of its failure in the cases where genocide has been committed does not deprive it from its function).

In the end, to my opinion, there is a need "to record a conviction for both offences in order fully to describe what the accused did." As Prof. Schabas argues in the part of his post where he challenges the gravity of the sentence in the Bikindi case, it might be argued that the conviction for DPI does not sufficiently reflect the gravity of the actions of the accused (the issue I will elaborate bellow). If we accept this as the correct assessment, the cumulative conviction could remedy this shortfall. In addition, the extremely high threshold set up by the international community for the crime of DPI to genocide already sufficiently undermined the efficiency of the provision, as argued by Prof. Schabas in his book on genocide in international law. Every opportunity to punish certain forms of hate speech as such (which satisfy the requirements of the crime of DPI to genocide), should be taken not only for the purpose of the full description of the deeds of the accused, but also for the further explanation of this highly controversial and uncertain part of international criminal law.

I must say that Prof. Schabas’ claim that national jurisdictions impose lower sentences for the inchoate crime of incitement is absolutely correct and must be taken into consideration as an indication of state practice in this field and the evolving opinio juris. In addition to this, it should be noted that the jurisdictions which do not have this special form of incitement related to genocide treat "unsuccessful" incitement of more serious crimes as an "attempt of the commission of the incited crime" on which the sentences for attempt are applicable. These sentences are clearly lenient then those for the actual commission of the crime. However, international jurisprudence does not follow this trend.

Julius Streicher (although convicted for crimes against humanity by persecution which essentially in his case had all the elements of the crime of DPI to genocide which at the time still did not exist) was sentenced to death and executed. Otto Dietrich (whose case I do not put into the same category as the Streicher Case and was concerned with a separate crime against humanity by persecution similar to that from the ICTR Media Case Appeal Judgment, but which is often referred as an embryonic case of DPI to genocide by other authors) was convicted on 8 years imprisonment. The ICTR, for example, convicted Ruggiu on 12 years imprisonment for DPI. The prosecutor in the Media Case asked for life imprisonment of the three accused for every count of the indictment separately, including the count related to DPI. In the end, the Rome Statute does not treat the incitement as the crime of lower gravity (although it wrongfully treats it as a general principle of criminal responsibility).

To my opinion, the sentence in Bikindi is in line with the international practice, and I cannot see why it would be considered excessive. Having in mind all ther aggravating circumstances such as the influence and popular authority of the accused, the content of his speeches, circumstances under which they were spoken, clear possibility of the actual commission of the crime at the time of the performance of the incitement and, in the end, the commission of the acts of genocide (whether or not the link has been established), to my opinion support the sentence in full. I do not share an opinion that DPI to genocide is less serious criminal act since it has an important role in preparation and execution of genocide. The same stands for the persecution through hate speech when certain conditions set in the Media Case Appeal Judgment are met.

***I must excuse myself to the moderator for not properly identifying myself in the previous post. I made this mistake since I thought that my details will be seen through the subscription information. Best

Vidan Hadzi-Vidanovic
LL.B - Belgrade University, LL.M - Nottingham University, PhD student - Nottingham University, Research Assistant - International Criminal Law, Nottingham University,
Associate - Belgrade Centre for Human Rights.

David said...

Another factor in the TC's decision to convict of DPI and not Instigation might be found in paragraph 411 of the judgement. In 411 the TC indicates that it is a pleading issue.

In 411, the TC relates that Count 2 (genocide) does not plead the facts of the Kivumu - Kayove caravan. That is only plead as evidence of Bikindi's 6(3) superior / subordinate relationship. The TC finds that "due to the way Prosecution pleaded these facts, the Chamber considers that it unambiguously intended to rely on them to establish Bikindi's superior responsibility over the Interahamwe, and not as independent charges of genocide."
Thus the TC concludes it couldn't rely on those facts to sustain the genocide/ instigation charge.

However, Count 4, the Chamber finds, "clearly and unequivocally" alleges the Kivumu-Kayove caravan as a factual basis the DPI count. Thus it could enter that conviction.

David Akerson

Catherine said...

I saw the post about the Bikendi decision and thought you might be interested in this:

Witnesses to genocide: Program presents interviews with Rwandan tribunal

By Catherine O’Donnell

If you go
What: “Voices from the Rwanda Tribunal”
When: 7-9 p.m., Tuesday, Jan. 27, 120 Kane Hall
Cost: Free. Register at:
Note: The videos contain no confidential material but some may be unsuitable for children.

Chief Prosecutor Hassan Jallow has confronted individuals responsible for masterminding hundreds of thousands of deaths in Rwanda.
He needed courage, however, to ask his driver in Kigali how he copes with the murder of his entire family. They were killed in 1994, during100 days of genocide that left 800,000 Rwandans dead.
The people who committed the murders are in detention awaiting trial, the man told Jallow. The trial cannot bring back his family, he added, but it gives satisfaction and peace of mind, and thus he has no desire for revenge – at all.
Tuesday evening, Information School Professor Batya Friedman and a team of experts will present “Voices from the Rwanda Tribunal,” a unique collection of video interviews that contain the personal and professional reflections of 49 people — judges, investigators, bailiffs, interpreters, defense counsel, and prosecutors such as Jallow — associated with the International Criminal Tribunal for Rwanda.
There have been other war crimes trials, but contemporaneous recollections and recommendations of court personnel have never been collected.
Last fall, Friedman led her 10-person team to Kigali and Arusha, Tanzania, where they recorded some 70 hours of video. “Many people at the tribunal have not had a chance to tell their stories,” Friedman said.
She and her team want the videos used around the world to prevent genocide, heal victims, and improve international justice.
The United Nations Security Council created the tribunal in 1994, locating it in Tanzania in part because many Rwandans cannot go home without losing refugee status or courting harm.
The court prosecutes people accused of masterminding the murders, committing certain kinds of crimes such as rape, or committing the crimes in geographically representative parts of Rwanda.
Various leaders of the Hutu people in Rwanda directed the slaughter, often by machete, against both the Tutsi people and moderate Hutus. The tribunal has had more than 70 individuals arrested, many of them Rwandan government officials, including former Prime Minister Jean Kambanda, who became the first head of government convicted for genocide. By the end of 2008, the tribunal had convicted 43 of 75 defendants, handing down sentences ranging from six years to life in prison.
The tribunal has been criticized for cost, slowness and relatively few convictions, but has established new jurisprudence, particularly regarding rape as genocide. Tens of thousands of women were raped during the 1994 genocide.
“According to people from the tribunal, sexual violence was used to dehumanize people, to spread disease in an intentional way,” Friedman said. “Women were mutilated…It is a way to destroy a people — physically, mentally, emotionally.”
Friedman’s team includes professional cinematographers, specialists in information systems and legal experts. The latter include former Washington State Supreme Court Chief Justice Robert Utter, former U.S. Attorney and Seattle University Law Professor John McKay, former King County Superior Court Judge Donald Horowitz, Seattle University Law Professor Ronald Slye and law students from SU and UW.
The 1994 genocide is over, but it continues making victims, Horowitz said. They include not only those who knew the Rwandans killed — a significant portion of the Rwandan population — but tribunal personnel and members of the project team, people who have worked with the stories. “I have been saddened to the center of my soul by what I have seen and heard,” Horowitz said.
Lisa Nathan, an Information School graduate student who helped conduct the interviews, feels similarly: “I feel a terrible sadness. In particular, I am haunted by the personal belongings left in the churches and schools — what people brought with them, running for safety: a hairbrush, a comic book, a cell phone.”
Genocide perpetuates losses not likely to be made up in a single lifespan, so the project team is making the Rwanda collection adaptable to social and technological changes far into the future. Tadayoshi Kohno, a UW computer science professor, joined the team to make the collection widely accessible yet secure against tampering. The project itself is part of Friedman’s research program on multi-lifespan information systems.
She and her team plan to gather more material in Rwanda this summer.