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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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130. The Appeals Chamber has for long recognized, pursuant to Article 20(4)(d) of the Statute, the right of an indigent accused to be represented by competent counsel.[1] It recalls that Rule 44(A) of the Rules provides: Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law. Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel; the presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of trial counsel to succeed, an appellant must rebut the presumption of competence of said counsel by demonstrating that there was gross professional misconduct or negligence which occasioned a miscarriage of justice.[2] 131. […] [T]he responsibility for drawing the Trial Chamber’s attention, in accordance with the appropriate procedure, to what he considers to be a breach of the Tribunal’s Statute and Rules lies in the first place with the appellant[3] who claims that his right to assistance of counsel at trial has been violated.[4] Failing that, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act.[5] He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice. [1] Akayesu Appeal Judgement, paras. 76 and 78; Kambanda Appeal Judgement, para. 34 and footnote 49. [2] Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Public Redacted version of the Decision on Motion to Admit Additional Evidence, 9 December 2004, para. 36; Akayesu Appeal Judgement, paras. 77, 78, 80; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on the Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, paras. 48-49. These three cases refer to Counsel’s “gross incompetence”. In one decision in Blagojević, the ICTY Appeals Chamber refers to “misconduct or manifest professional negligence” (Prosecutor v. Vidoje Blagojević, Case No.IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003, para. 32). In paragraph 23 of the Blagojević and Jokić Appeal Judgement, the Appeals Chamber evokes gross incompetence. [3] Kambanda Appeal Judgement, para. 23. This principle was evoked by the ICTY Appeals Chamber in the Tadić Appeal Judgment, para. 55, in connection with the right to have the necessary time and facilities for the preparation of one’s defence, and by the ICTR in the Kayishema and Ruzindana Trial Judgement, para. 64. The Appeals Chamber considers that this principle applies in the same way to any complaint as to the quality of an accused’s representation. [4] Under Article 45(H) of the Rules, the Trial Chamber may, under exceptional circumstances, intervene at the request of the accused or his counsel, by “[instructing] the Registrar to replace an assigned counsel, upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings”. Articles 19 and 20 of the Directive on the Assignment of Defence Counsel set out the conditions for, respectively, withdrawal and replacement of Counsel. [5] A recent decision of the European Court of Human Rights confirms the obligation on national authorities to intervene in the event of manifest incompetence by assigned Counsel: “the Court is of the view that the conduct of the applicant cannot in itself relieve the authorities of their duty to ensure that the Accused is effectively represented. The above-mentioned shortcomings of the court-appointed lawyers were manifest, which put the onus on the domestic authorities to intervene”; Sannino v. Italy, No. 30961/03, ECHR, Appeal Judgement of 27 April 2006, para. 51. See also Kamasinski v. Austria, No. 9783/82, ECHR, Appeal Judgement of 19 December 1989, para. 65 (“the competent national authorities are required under Article 6 §3(c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way.”) |
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NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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139. The Appeals Chamber considers that, when the accused is represented, the presence of his counsel or co-counsel at the hearing is essential. Thus, a counsel who absents himself without having ensured that his co-counsel will be present is committing gross professional misconduct. The same can be said for counsel or co-counsel absenting himself while being the only representative for the Defence of the accused and while the presentation of evidence continues (save in exceptional circumstances).[1] Furthermore, in both cases the manifest misconduct of the representatives of the accused obliges the Trial Chamber to act, for example by ordering an adjournment, and if necessary by sanctioning such behaviour. 140. […] The Appeals Chamber is of the opinion that the evidence presented in the absence of Counsel and Co-Counsel of the Appellant cannot be relied on against him,[2] and it will determine below if the findings of the Trial Chamber should be upheld in the absence of that evidence. [1] In this regard, the Appeals Chamber notes that the appointment of legal assistants is not subject to the verifications provided for in Rule 44(A) of the Rules and Articles 13 and 14 of the Directive on the Assignment of Defense Counsel in order to guarantee the competence of Counsel and Co-Counsel (see supra, para. 130). In the absence of such guarantees, it cannot be considered that a legal assistant in a Defence team has authority to represent the accused on the same basis as Counsel or Co-Counsel under Article 20(4)(d) of the Statute. Hence, Counsel and Co-Counsel for Appellant Barayagwiza could not validly be replaced by legal assistants. [2] In a recent decision, the Appeals Chamber referred back to the Trial Chamber the assessment of the prejudice resulting from continuation of the cross-examination of a witness in the absence of one of the co-accused, specifying that it falls to the Trial Chamber, if need be, to exclude the portion of the testimony taken in the appellant’s absence or to recall the witness (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Motion Interlocutory Appeal concerning his Right to Be Present at Trial, 5 October 2007, para. 16). In the instant case, taking into account the impossibility of recalling the witnesses having testified in the absence of Appellant Barayagwiza and of his Counsel and Co-Counsel, the Appeals Chamber must dismiss all of the testimony against him obtained in these circumstances. |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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158. As to the alleged conflict of interest between Appellant Barayagwiza and his Counsel Barletta-Caldarera, the Appeals Chamber endorses the ICTY’s view that “[a] conflict of interests between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice”.[1] [1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojić against Trial Chamber’s Decision on Request for Appointment of Counsel, 24 November 2004, para. 22 (footnote omitted). See also Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal against Trial Chamber’s Decision on Conflict of Interest of Attorneys Čedo Prodanović and Jadranka Sloković, 29 June 2007, para. 16; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.1, Decision on Miroslav Šeparović’s Interlocutory Appeal against Trial Chamber’s Decisions on Conflict of Interest and Finding of Misconduct, 4 May 2007, para. 23. |
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NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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265. While not deeming it necessary to reiterate all the legal principles evoked above,[1] the Appeals Chamber recalls that the right of an indigent defendant to effective representation does not entitle him to choose his own counsel. […] [1] See supra IV. A. |
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NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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916. According to the Kunarac et al. Trial Judgement, an attack “can be described as a course of conduct involving the commission of acts of violence”.[1] This characterization was endorsed by the Appeals Chamber of ICTY,[2] which added the following: The concepts of “attack” and “armed conflict” are not identical. Under customary international law, the attack could precede, outlast, or continue during the armed conflict, but it need not be a part of it. Also, the attack in the context of a crime against humanity is not limited to the use of armed force; it encompasses any mistreatment of the civilian population.[3] 917. This position is reiterated in the Kordić and Čerkez Appeal Judgement[4] and was adopted in a number of ICTY Trial judgements.[5] According to the Kayishema and Ruzindana Trial Judgement: The attack is the event of which the enumerated crimes must form part. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape and deportation.[6] 918. In agreement with these authorities, the Appeals Chamber concludes that, for purposes of Article 3 of the Statute, an attack against a civilian population means the perpetration against a civilian population of a series of acts of violence, or of the kind of mistreatment referred to in sub-paragraphs (a) to (i) of the Article.[7] […] 920. […] It is well established that the attack must be widespread or systematic.[8] In particular, the Appeals Chamber has held that the conjunction “et” in the French version of Article 3 of the Statute is a translation error.[9] The Appeals Chamber further recalls that: “widespread” refers to the large-scale nature of the attack and the number of victims, whereas “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence.” Patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence.[10] In this particular case, the Appeals Chamber concluded that the Prosecution had not proven beyond reasonable doubt that there was a widespread or systematic attack against Tutsi civilians in Rwanda between 1 January and 6 April 1994 (paras 929-933). However, it held that “[w]hereas the crime per se must be committed as part of a widespread and systematic attack, preparatory acts, instigation or aiding and abetting can be accomplished before the commission of the crime and the occurrence of the widespread and systematic attack[11]” (para. 934). [1] Kunarac et al. Trial Judgement, para. 415. See also Krnojelac Trial Judgement, para. 54. [2] Kunarac et al. Appeal Judgement, para. 89. [3] Ibid. [Kunarac et al. Appeal Judgement], para. 86. [4] Kordić and Čerkez Appeal Judgement, para. 666. [5] Limaj et al. Trial Judgement, paras. 182, 194; Blagojević and Jokić Trial Judgement, para. 543; Brđanin Trial Judgement, para. 131; Galić Trial Judgement, para. 141; Stakić Trial Judgement, para. 623; Naletilić and Martinović Trial Judgement, para. 233; Vasiljević Trial Judgement, para. 29. [6] Kayishema and Ruzindana Trial Judgement, para. 122. [7] Likewise, the Elements of Crimes under the Statute of the International Criminal Court (ICC-ASP/1/3, Article 7 Crimes Against Humanity, Introduction, para. 3) provide: “Attack directed against a civilian population” is understood in this context to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population. […] The acts need not constitute a military attack. [8] Ntakirutimana Appeal Judgement, footnote 883; Kordić and Čerkez Appeal Judgement, para. 93; Blaškić Appeal Judgement, para. 98; Kunarac et al. Appeal Judgement, para. 97. [9] Ntakirutimana Appeal Judgement, footnote 883. [10] Kordić and Čerkez Appeal Judgement, para. 94. See also Blaškić Appeal Judgement, para. 101; Kunarac et al. Appeal Judgement, para. 94. [11] By its nature, planning occurs before the commission of the crime. The same applies to instigation under Article 6(1) of the Statute, while aiding and abetting can take place before, during or after the commission of the crime: see supra XI. A. |
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NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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924. The Appeals Chamber considers that, except for extermination,[1] a crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a widespread or systematic attack against a civilian population.[2] [1] Extermination requires a great number of victims: Stakić Appeal Judgement, para. 259; Ntakirutimana Appeal Judgement, paras. 521-522. [2] Deronjić Appeal Judgement, para. 109; Kordić and Čerkez Appeal Judgement, para. 94; Blaškić Appeal Judgement, para. 101; Kunarac et al. Appeal Judgement, para. 96. |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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1019. The Appeals Chamber recalls that cumulative convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.[1] The test to be applied with respect to cumulative convictions is to take account of all the legal elements of the offences, including those contained in the provisions’ introductory paragraph.[2] 1020. Moreover, like the ICTY Appeals Chamber,[3] the Appeals Chamber considers that whether the same conduct violates two distinct statutory provisions is a question of law. Accordingly, contrary to the Appellants’ contentions, the legal elements of each offence, not the acts or omissions giving rise to the offence, are to be taken into account in determining whether it is permissible to enter cumulative convictions. [1] See Ntagerura et al. Appeal Judgement, para. 425, where the Appeals Chamber further stated that an element is materially distinct from another if it requires proof of a fact not required by the other. [2] Musema Appeal Judgement, para. 363. [3] Stakić Appeal Judgement, para. 356; Kordić and Čerkez Appeal Judgement, para. 1033. |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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1026. The Appeals Chamber observes in this respect that in the Kordić and Čerkez Appeal Judgement the ICTY Appeals Chamber found that cumulative convictions are permissible for persecution and other inhumane acts, since each offence has a materially distinct element not contained in the other.[1] Relying on this jurisprudence, the ICTY Appeals Chamber found in the Stakić Appeal Judgement that it was permissible to enter cumulative convictions for extermination and persecution as crimes against humanity on the basis of the same facts. It found that extermination requires proof that the accused caused the death of a large number of people, while persecution requires proof that an act or omission was in fact discriminatory and that the act or omission was committed with specific intent to discriminate.[2] The Appeals Chamber endorses the analysis of the ICTY Appeals Chamber. 1027. According to the foregoing, the Appeals Chamber finds that it is permissible to convict Appellant Barayagwiza cumulatively of both persecution and extermination on the basis of the same facts, Judge Güney dissenting from this finding. [1] Kordić and Čerkez Appeal Judgement, paras. 1040-1043. [2] Stakić Appeal Judgement, paras. 364, 367. |
ICTR Statute Article 3 ICTY Statute Article 5 | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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1029. It is established case-law that cumulative convictions for genocide and crime against humanity are permissible on the basis of the same acts, as each has a materially distinct element from the other, namely, on the one hand, “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, and, on the other, “a widespread or systematic attack against a civilian population”.[1] [1] Ntagerura et al. Appeal Judgement, para. 426; Semanza Appeal Judgement, para. 318. With specific reference to cumulative convictions for genocide and extermination, see Ntakirutimana Appeal Judgement, para. 542; Musema Appeal Judgement, paras. 366-367, 370. |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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1032. […] [T]he Appeals Chamber would recall that the crime of genocide inter alia requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. Persecution, like the other acts enumerated in Article 3 of the Statute, must have been committed as part of a widespread and systematic attack on a civilian population. It was therefore open to the Trial Chamber to enter cumulative convictions under Articles 2(3)(a) and 3(h) of the Statute on the basis of the same acts. […] |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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1034. The Appeals Chamber recalls that the crime of incitement requires direct and public incitement to commit genocide as a material element and the intent to incite others to commit genocide (itself implying a genocidal intent) as a mental element, which is not required by Article 3(h) of the Statute. As stated supra, persecution as a crime against humanity requires the underlying act to have been committed as part of a widespread and systematic attack on a civilian population, unlike the crime of direct and public incitement to commit genocide. 1035. The argument that the Trial Chamber noted that the material and mental elements of both crimes are the same is manifestly unsubstantiated. The Appeals Chamber notes, first, that in paragraph 1077 of the Judgement the Trial Chamber noted no such thing: it merely stated that, as genocidal intent was established for the communications, “the lesser intent requirement of persecution, the intent to discriminate” had also been met.[1] Secondly, the Appeals Chamber emphasizes that, while the intent to discriminate required by persecution can in practice be considered to be subsumed within genocide, the reverse is not true. The fact remains that the crime of direct and public incitement to commit genocide, like the crime of genocide, requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, which is not required for persecution as a crime against humanity. [1] Judgement, para. 1077: “Having established that all communications constituting direct and public incitement to genocide were made with genocidal intent, the Chamber notes that the lesser intent requirement of persecution, the intent to discriminate, has been met with regard to these communications”. |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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677. A person may be found guilty of the crime specified in Article 2(3)(c) of the Statute if he or she directly and publicly incited the commission of genocide (the material element or actus reus) and had the intent directly and publicly to incite others to commit genocide (the intentional element or mens rea). Such intent in itself presupposes a genocidal intent.[1] 678. The Appeals Chamber considers that a distinction must be made between instigation[2] under Article 6(1) of the Statute and public and direct incitement to commit genocide under Article 2(3)(c) of the Statute. In the first place, instigation under Article 6(1) of the Statute is a mode of responsibility; an accused will incur criminal responsibility only if the instigation in fact substantially contributed to the commission of one of the crimes under Articles 2 to 4 of the Statute. By contrast, direct and public incitement to commit genocide under Article 2(3)(c) is itself a crime, and it is not necessary to demonstrate that it in fact substantially contributed to the commission of acts of genocide.[3] In other words, the crime of direct and public incitement to commit genocide is an inchoate offence, punishable even if no act of genocide has resulted therefrom. This is confirmed by the travaux préparatoires to the Genocide Convention, from which it can be concluded that the drafters of the Convention intended to punish direct and public incitement to commit genocide, even if no act of genocide was committed, the aim being to forestall the occurrence of such acts.[4] The Appeals Chamber further observes — even if this is not decisive for the determination of the state of customary international law in 1994 — that the Statute of the International Criminal Court also appears to provide that an accused incurs criminal responsibility for direct and public incitement to commit genocide, even if this is not followed by acts of genocide.[5] 679. The second difference is that Article 2(3)(c) of the Statute requires that the incitement to commit genocide must have been direct and public, while Article 6(1) does not so require. [1] In this respect, see Akayesu Trial Judgement, para. 560, quoted and approved in the Judgement, para. 1012. [2] “Incit[ation]” in the French version of Article 6(1) of the Statute. [3] Kajelijeli Trial Judgement, para. 855; Niyitegeka Trial Judgement, para. 431; Musema Trial Judgement, para. 120; Rutaganda Trial Judgement, para 38; Akayesu Trial Judgement, para. 562. The Trial Chamber endorsed this jurisprudence (Judgement, paras. 1013 and 1015) and the Appellants do not challenge this finding: see Nahimana Appellant’s Brief, para. 189; Barayagwiza Appellant’s Brief, para. 259; Ngeze Appellant’s Brief, paras. 255-256; Ngeze Brief in Reply, para. 31. [4] The United States proposed amendment to remove incitement from the list of punishable acts (see UN ORGA, Sixth Committee, Third Session, 84th meeting, UN Doc. A/C.6/3/SR. 84, 26 October 1948, pp. 213-214) was rejected by 27 votes to 16, with 5 abstentions: UN ORGA, Sixth Committee, Third Session, 85th meeting, UN Doc. A/C.6/3/SR. 85, 27 October 1948, p. 229. Many delegations which voted to reject this amendment explained that it was important to make direct and public incitement to commit genocide punishable even when it was not followed by acts, so that the Convention should be an effective instrument for the prevention of genocide: see UN ORGA, Sixth Committee, Third Session, 84th and 85th meetings, UN Doc. A/C.6/3/SR. 84 and UN Doc. A/C.6/3/SR. 85, 27 and 27 October 1948, p. 208 (Venezuela), 215 and 226 (Poland), 216 (Yugoslavia), 219 (Cuba), 219, 227 and 230 (USSR), 222 (Uruguay), 223 (Egypt). The Appeals Chamber notes that the Draft Code of Crimes against the Peace and Security of Mankind by the International Law Commission in 1996 provides that direct and public incitement to commit genocide is punishable only if the act in fact occurs: see Articles 2(f) and 17 of the Draft Code of Crimes against the Peace and Security of Mankind and the comments relating thereto, 1996, Report of the International Law Commission on the deliberations of its 48th meeting, 51 UN ORGA Supp. (No. 10), reproduced in the Yearbook of the International Law Commission, 1996, vol. II (Part Two) (hereinafter “Draft Code of Crimes against the Peace and Security of Mankind”). However, the Appeals Chamber considers that this position does not reflect customary international law on the matter. Indeed, the International Law Commission itself specified that this limitation “does not in any way affect the application of the general principles independently of the Code or of similar provisions contained in other instruments, notably article III of the Convention on the Prevention and Punishment of the Crime of Genocide”: Draft Code of Crimes against the Peace and Security of Mankind, footnote 45 (para. 6, p. 20). [5] Indeed, Article 25(3)(b) of the Statute of the International Criminal Court provides that any person who “orders, solicits or induces” the commission of a crime falling under the jurisdiction of the Court shall be individually responsible for such a crime “which in fact occurs or is attempted”. However, Article 25(3)(e) of the Statute of the International Criminal Court provides that a person may incur criminal responsibility for direct and public incitement to commit genocide and it does not require the “commission or attempted commission of such a crime”. |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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692. The Appeals Chamber considers that there is a difference between hate speech in general (or inciting discrimination or violence) and direct and public incitement to commit genocide. Direct incitement to commit genocide assumes that the speech is a direct appeal to commit an act referred to in Article 2(2) of the Statute; it has to be more than a mere vague or indirect suggestion.[1] In most cases, direct and public incitement to commit genocide can be preceded or accompanied by hate speech, but only direct and public incitement to commit genocide is prohibited under Article 2(3)(c) of the Statute. This conclusion is corroborated by the travaux préparatoires to the Genocide Convention.[2] 693. The Appeals Chamber therefore concludes that when a defendant is indicted pursuant to Article 2(3)(c) of Statute, he cannot be held accountable for hate speech that does not directly call for the commission of genocide. The Appeals Chamber is also of the opinion that, to the extent that not all hate speeches constitute direct incitement to commit genocide, the jurisprudence on incitement to hatred, discrimination and violence is not directly applicable in determining what constitutes direct incitement to commit genocide. […] 727. In the present case, it is not certain that the Trial Chamber convicted Appellant Nahimana on the basis of “programming”. The Trial Chamber does not appear to have considered that the entirety of RTLM broadcasting constituted direct and public incitement to commit genocide, but rather that certain broadcasts did.[3] However, the Appeals Chamber agrees with the Appellant that the Trial Chamber should have identified more clearly all of the broadcasts which, in its opinion, constituted direct and public incitement to commit genocide. Thus the Trial Chamber erred in this respect. [1] Kajelijeli Trial Judgement, para. 852; Akayesu Trial Judgement, para. 557; Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, para. 87. See also Comments of the International Law Commission on the Draft Code of Crimes Against the Peace and Security of Mankind, p. 22: “The element of direct incitement requires specifically urging another individual to take immediate criminal action rather than merely making a vague or indirect suggestion.” [2] Articles 2(2) and (3) of the Statute reproduce Articles 2 and 3 of the Genocide Convention. The travaux préparatoires of the Genocide Convention can therefore shed light on the interpretation of Articles 2(2) and (3) of the Statute. In particular, the travaux préparatoires demonstrate that Article 3(c) (Article 2(3)(c) of the Statute of the Tribunal) is intended to criminalize only direct appeals to commit acts of genocide and not all forms of incitement to hatred. Indeed, the first draft of the Convention, which was prepared by a group of experts on behalf of the United Nations Secretary General (UN Doc. E/447), contained provisions criminalizing not only direct and public incitement to commit genocide (Article II (II)(2.)), but also all forms of public propaganda tending by their systematic and hateful character to promote genocide, or tending to make it appear as necessary, legitimate or excusable (Article III). The second draft of the Convention (prepared by the Ad Hoc Committee of the Economic and Social Council, UN Doc. E/794), contained only one provision criminalizing direct and public incitement to commit genocide, regardless of whether it was made in public or in private, and of whether it was successful or not (Article IV(c)). The Soviet delegate had suggested the inclusion of a provision criminalizing hate propaganda and propaganda tending to incite acts of genocide, but the suggestion was rejected by the majority of the Ad Hoc Committee (UN Doc. E/794, p. 23). Later, the Soviet delegate again suggested to the 6th Committee of the General Assembly an amendment of Article III (UN Doc. A/C.6/215/Rev. 1) criminalizing “all forms of public propaganda (press, radio, cinema, etc.) that tend to incite racial, national or religious hatred” and “all forms of propaganda that are aimed at provoking the commission of acts of genocide”. The amendment was rejected (UN ORGA, 6th Committee, 3rd Session, 87th meeting, p. 253). The reasons for rejecting the two parts of the amendment seem to have been the same as those for rejecting the Soviet amendment presented to the Ad Hoc Committee: the first part of the amendment fell outside the framework of the Genocide Convention (see addresses of the delegates of Greece, France, Cuba, Iran, Uruguay and India) while the second part was a duplication of the provision prohibiting incitement of direct and public incitement to commit genocide (see addresses of the delegates of Greece, Cuba, Iran, Uruguay, Egypt, the United States of America). See UN ORGA, 6 th Committee, 3rd Session, 86th meeting, UN Doc. A/C.6/3/CR. 86, 28 October 1948, pp. 244-248, and UN ORGA, 6th Committee, 3rd Session, 87th meeting, UN Doc. A/C.6/3/CR. 87, 29 October 1948, pp. 248-254. [3] See Judgement, para. 1032 (referring to the broadcast of 4 June 1994 as “illustrative of the incitement engaged in by RTLM”). See also para. 483 (referring to the broadcast of 13 May 1994 and the one of 5 June 1994 as explicitly calling for extermination). |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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698. In conformity with the Akayesu Trial Judgement, the Trial Chamber considered that it was necessary to take account of Rwanda’s culture and language in determining whether a speech constituted direct incitement to commit genocide.[1] In this respect, the Trial Chamber quotes the following excerpts from the Akayesu Trial Judgement: […] The Chamber will therefore consider on a case-by-case basis whether, in light of the culture of Rwanda and the specific circumstances of the instant case, acts of incitement can be viewed as direct or not, by focusing mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof.[2] 699. The Appeals Chamber notes that this approach has been adopted in several other judgements[3] and by the Supreme Court of Canada in Mugesera.[4] 700. The Appeals Chamber agrees that the culture, including the nuances of the Kinyarwanda language, should be considered in determining what constitutes direct and public incitement to commit genocide in Rwanda. For this reason, it may be helpful to examine how a speech was understood by its intended audience in order to determine its true message.[5] 701. The principal consideration is thus the meaning of the words used in the specific context: it does not matter that the message may appear ambiguous to another audience or in another context. On the other hand, if the discourse is still ambiguous even when considered in its context, it cannot be found beyond reasonable doubt to constitute direct and public incitement to commit genocide. See also para. 711 of the Appeal Judgement. [1] Ibid. [Judgement], para. 1011. [2] Akayesu Trial Judgement, paras. 557-558 (footnote omitted). [3] Muvunyi Trial Judgement, para. 502; Kajelijeli Trial Judgement, para. 853; Niyitegeka Trial Judgement, para. 431. [4] Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, paras. 87 and 94. The Appeals Chamber summarily dismisses Appellant Nahimana’s submission that the contrary conclusions of the Federal Court of Appeal and the Supreme Court of Canada demonstrate the uncertainties and dangers of seeking to interpret speech, the Judgement of the Supreme Court of Canada having reversed that of the Federal Court of Appeal. [5] In this respect, while it is not necessary to prove that the pronouncements in question had actual effects, the fact that they did have such effects can be an indication that the receivers of the message understood them as direct incitement to commit genocide. Cf. infra XIII. A. 3. (c) (i). |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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709. It is apparent from Paragraph 1001 of the Trial Judgement that the Trial Chamber employed the term “intent” with reference to the purpose of the speech, as evidenced, inter alia, by the language used, and not to the intent of its author.[1] The Appeals Chamber is of the opinion that the purpose of the speech is indisputably a factor in determining whether there is direct and public incitement to commit genocide, and it can see no error in this respect on the part of the Trial Chamber. It is plain that the Trial Chamber did not find that a speech constitutes direct and public incitement to commit genocide simply because its author had criminal intent. [1] See also Judgement, para. 1003 (“A critical distance was identified as the key factor in evaluating the purpose of the publication”). |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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720. The Appeals Chamber considers that the notions “inchoate” and “continuing” are independent of one another. An inchoate offence (“crime formel” in civil law) is consummated simply by the use of a means or process calculated to produce a harmful effect, irrespective of whether that effect is produced.[1] In other words, an inchoate crime penalizes the commission of certain acts capable of constituting a step in the commission of another crime, even if that crime is not in fact committed.[2] As stated at the beginning of this chapter, the crime of direct and public incitement to commit genocide is an inchoate offence, like conspiracy to commit genocide (Article 2(3)(b) of the Statute) and attempt to commit genocide (Article 2(3)(d) of the Statute). 722. A continuing crime implies an ongoing criminal activity. According to Black’s Law Dictionary, a continuing crime is: 1. A crime that continues after an initial illegal act has been consummated; a crime that involves ongoing elements […] 2. A crime (such as driving a stolen vehicle) that continues over an extended period.[3] 723. The Appeals Chamber is of the opinion that the Trial Chamber erred in considering that incitement to commit genocide continues in time “until the completion of the acts contemplated”.[4] The Appeals Chamber considers that the crime of direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time. The Appeals Chamber accordingly holds that the Trial Chamber could not have jurisdiction over acts of incitement having occurred before 1994 on the grounds that such incitement continued in time until the commission of the genocide in 1994. 724. […] Thus, even if it could be concluded that the totality of the articles published in Kangura and of the RTLM broadcasts constituted one continuing incitement to commit genocide (a question that the Appeals Chamber does not consider necessary to decide here), the fact would remain that the Appellants could be convicted only for acts of direct and public incitement to commit genocide carried out in 1994. [1] See Roger Merle et André Vitu, Traité de droit criminel, 7èmeédition, Tome 1, Paris, 1997, No.˚ 514. See also Musema Trial Judgement, para. 193, and Akayesu Trial Judgement, para. 562. [2] In this respect, see Black’s Law Dictionary (8th ed., 2004), definition of “inchoate offense” (“A step toward the commission of another crime, the step in itself being serious enough to merit punishment”). [3] Bryan A. Garner (ed.), Black’s Law Dictionary, 8th ed. (Saint Paul, Minnesota: Thomson West Publishing Company, 2004), p. 399. [4] Judgement, para. 1017. |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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220. [...] As to the principle of equality of arms, the Appeals Chamber adds that this does not amount to material equality between the parties in terms of financial and/or human resources.[1] […] [1] Kordić and Čerkez Appeal Judgement, para. 176; Kayishema and Ruzindana Appeal Judgement, para. 69. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts Filed in Prosecutor v. Blaškič, 16 May 2002, paras. 19-20. |
ICTR Statute
Article 19(1); Article 20(4)(e) ICTY Statute Article 20(1); Article 20(4)(e) |
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| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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199. It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness.[1] The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”.[2] The party alleging bias on the part of an expert witness may demonstrate such bias through cross-examination, by calling its own expert witnesses or by means of an expert opinion in reply. Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.[3] [1] Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007 (“D. Milošević Decision of 15 Fevrier 2007”), para. 7; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defense’s Submission of the Expert Report of Milisav Selukić pursuant to Rule 94 bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Selukić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), p. 5; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov pursuant to Rule 94 bis, 9 November 2006 (“Martić Decision of 9 November 2006”), para. 5; The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Decision on Expert Witnesses for the Defence, Rules 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003 (“Gacumbitsi Decision of 11 November 2003”), para. 8. [2] Gacumbitsi Decision of 11 November 2003, para. 8. See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 2: “in order to be entitled to appear, an expert witness must not only be recognized expert in his field, but must also be impartial in the case.”
[3] Martić Decision of 9 November 2006, para. 11. |
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NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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509. The Appeals Chamber recalls first that it is settled jurisprudence that hearsay evidence is admissible as long as it is of probative value,[1] and that it is for Appellant Nahimana to demonstrate that no reasonable trier of fact would have taken this evidence into account because it was second-degree hearsay evidence,[2] which he has failed to do. […] [1] See references mentioned supra, footnote 521. [2] Appellant Nahimana claimed that it was third-degree hearsay. The Appeals Chamber disagrees. If Manzi Sudi Fahdi had appeared to confirm the death of his children before the Tribunal, his testimony would not have constituted hearsay. Since the information was given by Manzi Sudi Fahdi to the Prosecution investigators, who then reported it to Expert Witness Chrétien, it is only second-degree hearsay. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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198. The Appeals Chamber recalls that the evidence of an expert witness is meant to provide specialized knowledge – be it a skill or knowledge acquired through training[1] – that may assist the fact finder to understand the evidence presented.[2] The Appeals Chamber recently held: Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience. Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[3] [1] The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Oral Ruling on Qualification of Expert Witness Mbonyinkebe, 2 May 2005; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Oral Decision on the Qualification of Mr. Edmond Babin as Defence Expert Witness, 13 April 2005, para. 5; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 4; Prosecutor v. Stanislav Galić, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003, p. 3. [2] Semanza Appeal Judgement, para. 303. See also The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Casimir Bizimungu’s Urgent Motion for the Exclusion of the Report and Testimony of Déo Sebahire Mbonyinkebe (Rule 89(C)), 2 September 2005, para. 11; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motion for Exclusion of Expert Witness Statement of Filip Reyntjens, 28 September 2004, para. 8; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 2. [3] Semanza Appeal Judgement, para. 303. |
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