155. 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] Applying these principles to Jean-Bosco Barayagwiza’s conviction in the Nahimana et al. case for direct and public incitement to commit genocide, the Appeals Chamber determined that supervising a specific group of individuals manning a roadblock does not constitute public incitement to commit genocide, explaining that:

the supervision of roadblocks cannot form the basis for the Appellant’s conviction for direct and public incitement to commit genocide; while such supervision could be regarded as instigation to commit genocide, it cannot constitute public incitement, since only the individuals manning the roadblocks would have been the recipients of the message and not the general public.[2]

156. Contrary to the Prosecution’s suggestion, the approach adopted by the Appeals Chamber in the Nahimana et al. Judgement is in accordance with relevant Tribunal jurisprudence and other sources of interpretation, including World War II judgements and the travaux préparatoires of the Genocide Convention. More specifically, the Appeals Chamber observes that, with the exception of the Kalimanzira Trial Judgement, all convictions before the Tribunal for direct and public incitement to commit genocide involve speeches made to large, fully public assemblies, messages disseminated by the media, and communications made through a public address system over a broad public area.[3] These convictions involved audiences which were by definition much broader than the groups of individuals manning the Jaguar and Kajyanama roadblocks, who formed Kalimanzira’s audience.

157. The Tribunal’s jurisprudence is consistent with that of the International Military Tribunal at Nuremberg. The latter considered incitement to, inter alia, murder and extermination, involving widely circulated speeches and articles, rather than speeches to relatively small and closed groups.[4]

158. Moreover, the Appeals Chamber recalls that the language of Article 2 of the Tribunal’s Statute tracks the language of the Genocide Convention. A review of the travaux préparatoires of the Genocide Convention confirms that public incitement to genocide pertains to mass communications.  The travaux préparatoires indicate that the Sixth Committee chose to specifically revise the definition of genocide in order to remove private incitement, understood as more subtle forms of communication such as conversations, private meetings, or messages,[5] from its ambit.[6] Instead, the crime was limited to “direct and public incitement to commit genocide,” understood as incitement “in public speeches or in the press, through the radio, the cinema or other ways of reaching the public.”[7]    

159. Having established that the relevant holding of the Nahimana et al. Appeal Judgement is consistent with the Tribunal’s jurisprudence and other relevant precedents, the Appeals Chamber turns to consider whether the precedent set in the Nahimana et al. case is applicable to Kalimanzira’s convictions. A review of the former reveals that the underlying factual basis of Barayagwiza’s initial conviction by Trial Chamber I of the Tribunal involved speaking to militiamen at roadblocks from his vehicle and telling them to kill Tutsis and others without certain party membership cards.[8] In addition, the key witness for this event gave evidence that Barayagwiza supervised three roadblocks in the area and heard that Barayagwiza was responsible for ensuring that Tutsis were being killed at them.[9] The facts underlying Kalimanzira’s convictions are similar to those in the Nahimana et al. Appeal Judgement. As was the case for Barayagwiza, Kalimanzira’s actions did not involve any form of mass communication such as a public speech. Instead, the nature of his presence and exchanges with those at the roadblocks are more in line with a “conversation” which is consistent with the definition of private incitement found in the travaux préparatoires of the Genocide Convention. Thus it is clear that the Nahimana et al. Appeal Judgement is directly applicable to Kalimanzira’s convictions with respect to the Jaguar and Kajyanama roadblocks.

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.