Direct incitement

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)

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).  

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ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c)
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE

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] […]

[1] Nahimana et al. Appeal Judgement, paras. 700, 701, 703. 

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