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.

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.

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.

145. The Appellant contends that the crime of direct and public incitement to commit genocide, whilst a “serious offence”, cannot be considered as a crime of similar gravity to genocide, since, unlike the crime of genocide, it is an inchoate offence.[1] The Appeals Chamber disagrees. There is no hierarchy of crimes within the jurisdiction of the Tribunal.[2] […]

146. […] [T]he analysis in the Nahimana et al. Appeal Judgement in fact supports the proposition that the offence of direct and public incitement to commit genocide is, in and of itself, a serious offence warranting serious punishment, notwithstanding that no physical act of genocide may have been committed. It does not indicate any hierarchy between the two offences. […]

148. The Appeals Chamber reiterates that whilst a Trial Chamber is obliged to take into account the general sentencing practice in Rwanda, it is not obliged to follow it.[3] The Appeals Chamber notes that although it would appear that Rwandan law does not make direct and public incitement to commit genocide a separate offence, it nevertheless criminalizes genocide[4] and provides that the act of, inter alia, “incitement, by way of speech, image or writing, to commits [sic] such a crime, even where not followed by an execution” shall be punishable by penalties provided for under that law.[5]

52. The Appeals Chamber recalls that the actus reus of direct and public incitement to commit genocide requires that the accused directly and publicly incited the commission of genocide.[1] The crime is completed as soon as the discourse in question is uttered.[2] When assessing the “public” element of the incitement, factors such as the place where the incitement occurred and whether the audience was selected or limited can be taken into account.[3] The ICTR Appeals Chamber has held that “the number of persons and the medium through which the message is conveyed may be relevant in assessing whether the attendance was selected or limited, thereby determining whether or not the recipient of the message was the general public.”[4] The ICTR Appeals Chamber has previously found that supervising a specific group of individuals manning a roadblock does not constitute public incitement to commit genocide “since only the individuals manning the roadblocks would have been the recipients of the message and not the general public”.[5]

483.   […] The Appeals Chamber further recalls that a particular message may appear ambiguous on its face or to a given audience, or not contain an explicit appeal to commit genocide, and still, when viewed in its proper context, amount to direct incitement.[1] […]

121.  The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).[1] Such intent in itself presupposes a genocidal intent.[2]

[…]

124.  […] The Appeals Chamber observes that the Kalimanzira Appeals Chamber did not rule on the definition of the public element given by the Kalimanzira Trial Chamber, which recalled the definition from the Akayesu Trial Judgement, and did not specify whether the number of persons present is an essential factor. On the one hand, the Kalimanzira Appeals Chamber concluded that the Tribunal’s jurisprudence and other sources indicated mass communication to be a factor, implying that the public element of direct and public incitement corresponds to a large audience.[3] On the other hand, the Kalimanzira Appeals Chamber reversed the convictions on the basis that recipients of the incriminating message were not intended to be the general public.[4] It is thus unclear whether the Kalimanzira Appeals Chamber considered the size of the audience to be a requirement of public and direct incitement as opposed to whether the audience can also be selected or limited. In fact, in both the Nahimana et al. and Kalimanzira cases, the Appeals Chamber opined that the “general public” was not the recipient of the message or considered that the message was not intended to be for the general public.[5]

125.  Considering that the jurisprudence of the Appeals Chamber does not specify whether a large audience is a requirement for direct and public incitement to commit genocide, the Appeals Chamber will turn to the definition given by trial chambers,[6] which recalls the definition from the Akayesu Trial Judgement. Referring to various sources of international law, the Akayesu Trial Chamber elaborated on the definition of the public element of the crime of incitement to commit genocide. It noted a 1996 report of the International Law Commission that defined “public incitement” as “a call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media, for example, radio or television”.[7] It also considered that the Civil Law systems understood words as being public when “spoken aloud in a place that were [sic] public by definition”.[8]

126.  […] [T]he Appeals Chamber does not consider that the incitement must necessarily be communicated through mass communication in order to amount to “public” incitement within the meaning of Article 2(3)(c) of the Statute. The number of individuals in the audience is not an element of the crime of direct and public incitement to commit genocide. Though the Kalimanzira Appeal Judgement noted that the Tribunal’s jurisprudence includes convictions involving “speeches made to large, fully public assemblies”, in the Appeals Chamber’s view, it does not foreclose convictions based on communications to smaller audiences when the incriminating message is given in a public space to an unselected audience. The Appeals Chamber notes that the travaux préparatoires of the Genocide Convention do not contradict, but support this position by stating that public incitement was understood as “public speeches or in the press, through the radio, the cinema or other ways of reaching the public”, though it expressly excluded “private” incitement.[9] The International Law Commission confirmed that the indispensable element of public incitement requires communicating “the call for criminal action to a number of individuals in a public place or to members of the general public at large. Thus, an individual may communicate the call for criminal action in person in a public place or by technical means of mass communication, such as by radio or television”.[10]

127.  Consequently, the Appeals Chamber detects no error in the Trial Chamber applying the definition of “public” as stated in the Muvunyi, Niyitegeka, Kajelijeli, and Akayesu Trial Judgements. Indeed, though most convictions for direct and public incitement involve mass communication, a smaller audience is also consistent with international law according to which:

[The Trial] Chamber may consider the surrounding circumstances, such as the place where the incitement occurred and whether the audience was selective [sic] or limited. Incitement is ‘public’ when conducted through speeches shouting or threats uttered in public places or at public gatherings[11]

[…]

231.  The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).[12] The Appeals Chamber recalls that when assessing the “public” element of the incitement, factors such as the place where the incitement occurred and whether the attendance was selected or limited can be taken into account.[13] It also recalls that the number of persons present is not an essential factor in this assessment.[14] The Appeals Chamber considers that, though not required, the number of persons and the medium through which the message is conveyed may be relevant in assessing whether the attendance was selected or limited, thereby determining whether or not the recipient of the message was the general public.[15]

[…]

386.  The Appeals Chamber is also not persuaded by the Prosecution’s submission that an inciting speech, which discussed public matters, delivered to a gathering of public officials, addressed in their function as public officials, is necessarily public. In support of this argument the Prosecution underlines that, in light of the purpose and object of the crime of incitement, inciting public officials rather than “a gathering of random members of the population” creates a greater risk that genocide will actually occur because public officials “have the authority and the means to trigger massacres”. While this may be the case, the Appeals Chamber fails to see how this supports the public nature of the incitement at the Murambi meeting.

See also paras. 129, 381, 384.

3345.            As an inchoate crime,[1] 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,[2] and is punishable even if no act of genocide has resulted therefrom.[3] Accordingly, in order for Kanyabashi to be found responsible for aiding and abetting direct and public incitement to commit genocide, it would have to be established that he substantially contributed to Kambanda’s and Sindikubwabo’s inciting speeches themselves and not, as the Prosecution suggests, to the effects of their incitements by “reiterat[ing] and reinforc[ing] their message”.[4] The Appeals Chamber recalls that the Trial Chamber determined that Kanyabashi spoke after Kambanda and Sindikubabwo delivered their speeches.[5] The Prosecution points to no evidence or findings demonstrating that Kanyabashi’s conduct provided substantial assistance to Sindikubwabo or Kambanda in the commission of their direct and public incitement to commit genocide, either before, during, or after their respective speeches.