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.

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.

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. 

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]

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]

181. The Appeals Chamber accepts the view that the concept of a fair trial includes equal opportunity to present one’s case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party.[1] Considering the latter right under the principle of equality of arms, the Appeals Chamber of ICTY held that Article 21(4)(e) of the Statute of ICTY:

serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution. In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses.[2]

496. […][T]he acts committed against Hutu political opponents cannot be perceived as acts of genocide, because the victim of an act of genocide must have been targeted by reason of the fact that he or she belonged to a protected group. In the instant case, only the Tutsi ethnic group may be regarded as a protected group under Article 2 of the Statute and Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide,[1] since the group of “Hutu political opponents” or the group of “Tutsi individuals and Hutu political opponents” does not constitute a “national, ethnical, racial or religious group” under these provisions.[2] Furthermore, although the jurisprudence of the ad hoc Tribunals acknowledges that the perception of the perpetrators of the crimes may in some circumstances be taken into account for purposes of determining membership of a protected group,[3] in this instance neither the Trial Chamber nor the Prosecutor cited any evidence to suggest that the Appellants or the perpetrators of the crimes perceived Hutu political opponents as Tutsi. In other words, in the present case Hutu political opponents were acknowledged as such and were not “perceived” as Tutsi. Even if the perpetrators of the genocide believed that eliminating Hutu political opponents was necessary for the successful execution of their genocidal project against the Tutsi population, the killing of Hutu political opponents cannot constitute acts of genocide.

323. The Appeals Chamber has, however, made it clear that, whenever an accused is charged with superior responsibility on the basis of Article 6(3) of the Statute, the material facts which must be pleaded in the indictment are: (i) that the accused is the superior of sufficiently identified subordinates over whom he had effective control – in the sense of material ability to prevent or punish criminal conduct – and for whose acts he is alleged to be responsible; (ii) the criminal acts committed by those others for whom the accused is alleged to be responsible; (iii) the conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates; and (iv) the conduct of the accused by which he may be found to have failed to take necessary and reasonable measures to prevent such acts or to punish the persons who committed them.[1] As regards this last element, it will be sufficient in many cases to plead that the accused did not take any necessary and reasonable measure to prevent or punish the commission of criminal acts.

324. An indictment may also be defective when the material facts that the Prosecutor invokes are pleaded without sufficient specificity.[2] In this regard, the Prosecutor's characterization of the alleged criminal conduct and the proximity between the accused and the crime charged are decisive factors in determining the degree of specificity with which the Prosecutor must plead the material facts of his case in the indictment.[3]

326. When the Appellant raises a defect in the indictment for the first time on appeal, then he bears the burden of showing that his ability to prepare his defence was materially impaired. When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecutor to prove on appeal that the ability of the accused to prepare a defence was not materially impaired.[1] All of this is subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[2]

483. The Appeals Chamber concludes by recalling that the modes of responsibility under Article 6(1) of the Statute are not mutually exclusive and that it is possible to charge more than one mode in relation to a crime if this is necessary in order to reflect the totality of the accused’s conduct.[1]