The Media Case at the ICTR

[mystictiger]

I've been meaning to post on this matter for some time now. Recent IRL issues have meant that a brief admonishment to the PROC subforum has been delayed. Now all of you settle down and I'll begin.

A number of posts have made reference to a particular International Criminal Tribunal for Rwanda ("ICTR") case, concerning genocide. Whilst my emphasis has been on the ICTY and the ICC, I have a passing interest in what has been unfairly termed the bastard child of the ad hoc UN tribunal family. I have taken the the step of starting a post about this because to invoke this case lightly is to firstly miss the point of this case, secondly to cheapen it, and thirdly to utterly fail to undertsand the nature of press and media freedom in the 'first world'.

The case in question is that of Nahimana, Barayagwiza, and Ngeze, or the 'Hate Media Trial'.

The case centres around the activities of three journalists - Na was on the radio, B worked for the Radio station, and Ng worked on a newspaper.

Ng's paper published an article called 'Appeal to the Conscience of the Hutu' (I've been able to find a copy of it to link to). The following summary is taken from the ICTY trial chamber judgment:

The second part of the article, entitled “The Tutsi ambition”, described the Tutsi as “bloodthirsty”, and referred to their continuing ideology of Tutsi domination over the Hutu, and to the “permanent dream of the Tutsi” to restore Tutsi minority rule. The article referred to a plan of 1962, in which the Tutsi were to resort to two weapons they thought effective against the Hutu: “money and the Tutsi woman”. One part of the article, entitled “The Tutsi woman”, stated that Tutsi women were sold or married to Hutu intellectuals or highly placed Hutu officials, where they could serve as spies in influential Hutu circles and arrange government appointments, issue special import licenses, and pass secrets to the enemy. Another part, which included the The Ten Commandments, exhorted the Hutu to wake up “now or never” and become aware of a new Hutu ideology, with roots in and in defence of the 1959 revolution. Reference was made to the historical servitude of the Hutu, and readers were urged to “be prepared to defend themselves against this scourge.” The Hutu were urged to “cease feeling pity for the Tutsi!” The article then set forth The Ten Commandments.

The first commandment warns Hutu men of the dangers of Tutsi women and deems a traitor any Hutu man who marries a Tutsi woman, keeps a Tutsi mistress, or makes a Tutsi woman his secretary or protégée. Another commandment casts as a traitor any Hutu man who enters into business with Tutsi partners, invests his or state money in a Tutsi company, or lends to or borrows from a Tutsi. Other commandments require that strategic political, economic and military positions be entrusted to the Hutu, that students and teachers should be in the majority Hutu, and that the Hutu be united in solidarity and “seek friends and allies for the Hutu cause.” The ninth commandment concludes, “The Hutu must be firm and vigilant towards their common Tutsi enemy.”

The newspaper published other articles and editorials of a similar nature - designed to show that the entire racial group were evil, immoral, subhuman, and worhty only of contempt. My personal 'favourite' is the front cover of number 26: an image of a machete with the following text - "“What weapons shall we use to conquer the Inyenzi once and for all?”

The radio station was even more explicit:

They should all stand up so that we kill the Inkotanyi and exterminate them…the reason we will exterminate them is that they belong to one ethnic group. Look at the person’s height and his physical appearance. Just look at his small nose and then break it.

The key findings of the judgment are:

RTLM broadcasts engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population and called on listeners to seek out and take up arms against the enemy. The enemy was defined to be the Tutsi ethnic group and Hutu opponents. These broadcasts called explicitly for the extermination of the Tutsi ethnic group. In 1994, both before and after 6 April, RTLM broadcast the names of Tutsi individuals and their families, as well as Hutu political opponents who supported the Tutsi ethnic group. In some cases these persons were subsequently killed. A specific causal connection between the RTLM broadcasts and the killing of these individuals -- either by publicly naming them or by manipulating their movements and directing that they, as a group, be killed -- has been established.

The Chamber has found that articles and editorials in Kangura, such as The Appeal to the Conscience of the Hutu, conveyed contempt and hatred for the Tutsi ethnic group, and for Tutsi women in particular as enemy agents, and called on readers to take all necessary measures to stop the enemy, defined to be the Tutsi population. The cover of Kangura No. 26 promoted violence by conveying the message that the machete should be used to eliminate the Tutsi, once and for all. This was a call for the destruction of the Tutsi ethnic group as such. Through fear-mongering and hate propaganda, Kangura paved the way for genocide in Rwanda, whipping the Hutu population into a killing frenzy.

The nature of media is such that causation of killing and other acts of genocide will necessarily be effected by an immediately proximate cause in addition to the communication itself. In the Chamber’s view, this does not diminish the causation to be attributed to the media, or the criminal accountability of those responsible for the communication.

Now, compare this with current-day America or Britain, and you'll see that... well, you can't. As far as I'm aware (and I will of course be gladly corrected), there are no licensed broadcasters or newspapers that advocate genocide.

On a technical note, genocide is the extermination of a specific racial, ethnic, national, or religious group, meaning that you cannot commit genocide against a politcal or sexual group.

In terms of precedent, the ICTR is not binding on any national court, nor is it binding on the International Criminal Court. That is not to say that it is worthless, but rather that it is merely peruasive. To invoke this case in relation to any discussion is about as persuasive as calling someone a Nazi because you disagree with them - essentially the reductio ad Hitler fallacy.

The trial is deeply contraversial because it is equating speach (which should be free, right?) with a war-crime. Now, in the good old days, you actually had to have some policy-level control over the conduct of genocide to actually do it (in other words, its a leadership crime - generals and prime-ministers rather than captains and clerks). This case would suggest that you can incite people to genocide, and doing so carries the same punishment (life, reduced to 30 years) as actually doing the genocide in the first place, even though you have no control over the actual genocidaires.

To invoke the Hate Media case would be like drawing on the Eichman trial in relation to a domestic murder.

[Vekseid]

http://www.americanrhetoric.com/speeches/rushlimbaughhousegop.htm

By the way, can I can I say something? Let me give you one more piece of advice. Please, whatever you do, leave some liberals alive. I think we should have at least, on every college campus, one communist professor and two liberal professors, so we never forget who these people are and what they stand for. We can always show our children what they were and what they are -- living fossils, ladies and gentleman. Keep them: living fossils.

http://crooksandliars.com/david-neiwert/glenn-becks-eliminationist-attacks-p

There's a nice compilation.

www.foxnews com/story/0,2933,594343,00.html

...
You've been using them? They believe in communism. They believe and have called for a revolution. You're going to have to shoot them in the head. But warning, they may shoot you.
...

I have heard people calling for all progressives and liberals to be killed, lately. I've seen signs to that effect. I've heard jokes about stuffing New Yorkers into ovens.



And of course no one has directly come out and said that genocide is alright. And of course it's nowhere near as bad as it was in Rwanda.

Just because it's not 'as bad' does not mean it deserves to be respected. Not does it deserve immunity for being called out for the hateful, fallacious rhetoric that it is.

[mystictiger]

I am not suggesting that anyone who advocates violence as a way of resolving constitutional-political issues should be protected or defended. Rather, that the gravity of the insults and instructions should be considered as well as the context in which they are delivered. Me saying "I'm going to kill a kitten if it nibbles my socks again" is very different indeed from me saying "I'm going to kill a kitten after it burned my women, raped my cattle, and stole my house".

Another distinction that should be made is about the roots of this language. One stems from a diverse and lively political debate in a free media. The other stems from a festering climate of racial hatred, colonial mismanagement, economic collapse.

At a legal level, I would suggest that Glen Beck and his ilk lack the special mens rea. That their words are not echoed in the desire to see a world without pinko-lefto-communist-whatevers in it by violent means. This is what distinguishes the war-criminal from the commentator.

The kind of news reporting that surrounded the attack on the congresswoman was similar to that, I suspect, which occured after JFK's murder, and also that of Lincoln. Part of the grieving process is probably to say that we, as a polity, are at fault for the actions of a lunatic fringe.

As an aside, it's interesting to note that it is more acceptable to call a [political viewpoint] wrong / evil / immoral, but not [gender / orientation / skin colour]. Those cultures that do outlaw and punish this tend to be one-party states, wherein the people are 'disappeared'.

[Vekseid]

Do not use members as props when talking about death threats.

It is completely and utterly uncalled for.

[Callie Del Noire]

Not cool for sure Mystic.

As for looking for a way to quantify the Hutu hate speech and stuff like what Rush is doing. It's hard to NOT see some of the parallels between the two.

I think it is a slippery slope though I will admit there are definitely commonalities.

The best I can say is that the Hutu propaganda was long and continuous right? Rush and Beck need to moderate their comments, not to mention take resposibility for their comments. (Like that will happen).

[mystictiger]

... wow. Overly sensitive.

The best way to illustrate a point, in my experience, is with an illustration. Explain to me how making so obviously false and irrelevent a death threat is against any of the rules of the site? Presumably, it is therefore acceptable for me to make death threats about non-members?

[Oniya]

*coughs*

[mystictiger]

Ah of course. So if a threat made in an illustration with no malice meets that threshold, then I can see how the Media case is relevent to the argument.

The utter inappropriateness of linking a genocide case to disagreeing with a journalist is to answer the simple question:

How many sane people have murdered someone based on their pronouncements?

None.

By contrast, trivialising the death of 850,000 people is 'utterly uncalled for'.

[Xandria]

My take on it is that what Mystic is talking about bears little resemblance to the comments by Limbaugh and Beck.  One was meant to incite an entire population to wipe out another, while the other is meant to provoke a reaction, likely for ratings.

Now, if Beck or others started giving people instructions on how, where and when to start killing people, they might be moving closer, but even then, without a collective agenda, it's still not the same thing since no crime has been committed until lots of people die.

[Vekseid]

mystictiger, she was not involved in this discussion, she was not involved in the previous discussion, and there was no reason for you to use her identity, or anyone's identity, as an example of a victim.

I am sorry if I come across as 'harsh' or 'sensitive'.

It should not be a difficult request, or place any undue burden on anyone making a point.

Nor is this where this forum's rules are debated. You edited your post, that ought to be the end of it.

If you understand, great. The discussion proper can continue. If you don't, this will be locked.

[Vekseid]

My take on it is that the what Mystic is talking about bears little resemblance to the comments by Limbaugh and Beck.  One was meant to incite an entire population to wipe out another, while the other is meant to provoke a reaction, likely for ratings.

Now, if Beck or others started giving people instructions on how, where and when to start killing people, they might be moving closer, but even then, without a collective agenda, it's still not the same thing since no crime has been committed until lots of people die.

Incitement to violence is a crime before people die. The key is where that line is drawn. It's not easy, because, for example, not all of the language in Radio Rwanda was so specific. "Cut down the tall trees." For example.

[Xandria]

Incitement to violence is a crime before people die. The key is where that line is drawn. It's not easy, because, for example, not all of the language in Radio Rwanda was so specific. "Cut down the tall trees." For example.

I understand what you're saying, but my comments apply to actual International case law, and the article you linked to refers to an administrative decision, not a criminal charge of incitement to murder. 

[mystictiger]

The link is irrelevent - he was not charged with a criminal offence of incitement:

Corcoran, who has no criminal history, has not been arrested and does not face any charges

Temorary suspension of a gun licence is, as far as I've been able to deduce from various Arizona-law websites, an administrative rather than a criminal matter. It therefore does not carry the same standard of proof ('probable cause' rather than 'beyond reasonable doubt').

The ICTR case deals specifically with the crime of Incitement to Genocide, not domestic criminal law. This poses two issues specific to international law that do not exist in a domestic legal system.

Firstly, when attempting to prove genocide, one needs to demonstrate what is called dolus specialis / special intent. The term dolus specialis refers to the degree rather than scope of intent. By way of comparison, dolus generalis requires that the perpetrator ‘means to cause’ a certain consequence ‘or is aware that it will occur in the ordinary course of events’ (what normally happens in Domestic Criminal Law), whereas special intent requires that the perpetrator ‘clearly intended the result’, signifying ‘a psychological nexus between the physical result and the mental state of the perpetrator’. This is absolutely not born out by the words and actions of any of the American commentators.

Secondly, genocide cannot be committed against a political group, therefore any reference to an ICTR caselaw on incitement is irrelevent. The statements made by political commentators can never be relevent.

Thirdly, the way the ICTR Statute works is that inictement to genocide is clealry criminal, while it is the case that you do not, strictly speaking, need the act of genocide to be complete, you will need corpses.  Genocide consists of the following prohibited acts:
-Killing
-Mental Harm
-Preventing Births
-Conditions
-Transfer of children.

The act of genocide does not have to be complete - you do not need to have wiped out or destroyed a religious, ethnic, or racial group. That is to say some of these acts must have been completed before genocide can be deemed. No amount of telling someone to commit genocide will amount to incitement to genocide until one of the above actions takes place:

[c]ontrary to popular belief, the crime of genocide does not imply the actual extermination of a group in its entirety, but is understood as such once any one of the acts mentioned [e.g. killing members of the group, etc.] is committed with the specific intent [to destroy a group].

Incitement, at least according to the jurisprudence of the IMT, the ICTY and the ICTR is a way to link politicians and leaders to an act of genocide that has already taken place, not to limit or prevent freedom of expression. There is also the idea of attempted genocide, which means that but for the intervention of the police / law enforcement / NATO you would have done the crime. By suggesting that there need to be no corpses for a claim to genocide, you are effectively charging someone with incitement to attempt genocide. Now, this is an important evidential step because trying to prove that you have incited genocide without their being any corpses is going to be -very- dificult indeed. The defence is "Yes, but nobody died". This means that in practice, any charge of genocide or incitement to it is linked to a pile of bodies. Had there been no corpses, there would have been no media case.

The alternative mode of liability are the so called Joint Criminal Enterprise. There are three modes of what is basically different types of conspiracy.

[kylie]

       I'm ambivalent about the overall direction...  It feels like there is a lot going on here to me even within the OP.  Not all of it so necessarily speaks to one neat question.  If the question is, are various forms of speech alike in their propensity to inspire people to violence, then I'm not really sure how much we learn from picking over every treaty, law, convention etc. in making arguments about that.  That may amount to a statement about whether a certain kind of speech is more or less legally allowed under a specific regime...  Or as people often go if they wish to protect that speech broadly, it's easy enough to fall back on "but the speaker was not licensed," did not have an army directly under their name, did not pull the trigger (pick your standard beyond which point comparisons start to bother you)...  And then people go on arguing about which regime or standard they prefer and why.  That is not the same as really showing something is or is not alike in terms of socialization and possible causation of specific local events. 

       It gets overly technical for me, without connecting what seem like some pretty obvious tones of violent competition..  Exactly how many purportedly anti-"big government" people did Nichols or McVeigh speak to before Oklahoma City?  "Would they have done it anyway?" cries the counterargument...  How many kids shunned or bullied Harris before Columbine?  "Irrelevant:  They weren't psycho.  They didn't buy guns and pull the trigger," comes the chorus.  How many reports did Hassan have to read about the military, or perhaps Blackwater knocking off assorted people in the Middle East before he determined that this was a "crusade" and/or imperialist exercise and went shooting at Foot Hood?  "When we said Axis of Evil and resorted to extraordinary rendition and bombed a wedding here or there on bad intelligence, it was all with good intent really!  Now he knew what he was doing was wrong," says the other side...  And now Beck and company, they say the immigrants and welfare recipients are tantamount to thieves and lesser and the whole concept of social justice is anti-Christian and "Communist" after decades of nuclear alerts... "But they have not told anyone to open fire!" 

       After expecting others to lead a slow economic death, to be regularly belittled, or to watch people they are barely a generation detached from culturally be tortured and bombed with very little free public discussion...  I don't see how people step back and shrug saying, "No, fear politics and hate in the media are not appropriately compared to broader abuses elsewhere in explaining any of this local violence."  It may not be immediately comparable in law to Rwanda where the lines of organization are somewhat clearer.  However, that does not show effectively that  there is no comparable social process whatsoever or that all analogies to the psychology of incitement and barbarism as seen in more widescale foreign events, are necessarily distorted as such.
   

[Xandria]

@Kylie
My understanding of the original post is that it was meant to be narrow in scope to highlight the laws that currently exist, not what they ‘should’ be.  This makes it much easier to see how they influence our ability to deal with crimes of this nature.  No question there are moral and ethical issues surrounding this subject, but this holds true for ANY law.  However, it is precisely this reason that separating and focusing is helpful because it provides clarity and objectivity.  As Aristotle said, “The law is reason free from passion”.  Like it or not, it’s the system we have.

Without first having a thorough understanding of the laws and the reasoning behind them, it is difficult at best to engage in any meaningful dialogue or effect real change.  Most of us who are not lawyers cannot easily comprehend the legal complexities, nor are we expected to, but we can still become involved, and I believe we can and should take responsibility for understanding it to the best of our ability.  To do this effectively, it means we need to separate the cold facts from our own opinions and beliefs first, and then, if we don’t like what we see, we will at least have credibility and the knowledge to help determine how we go about changing it, at which point philosophical debates become both useful and necessary.

[Vekseid]

First off I owe a public apology to mystictiger and anyone who felt uncomfortable with my ham fists. I'm sorry, and I'll try to be more pointed about avoiding this place when stressed. : /



Anyway, incitement to violence is a crime in several states and even other countries. Whether it is part of international law doesn't seem terribly relevant - as far as I know there isn't even an international law against murder, per se (though I'd happily be corrected).

And I would agree with Kylie - I can't really pick out the OP's overall argument. I can only address several specific points. Incitement to violence is not protected speech in the United States, Glenn Beck and others on the right have openly discussed killing liberals and progressives. And we are seeing more violence, even if people like Byron Williams say they weren't influenced, it's hard not to draw the connection, especially considering it's coming from someone who might not be the best sort of person to trust analyzing their own behavior.

And the threats continue.

And I'm not sure what the point of the OP is beyond that. I do believe that if the violent rhetoric is not checked, it will get a lot worse, and it may explode into a much more bloody situation as some peaceful, progressive group gets massacred.

I don't particularly buy into the idea that we have to wait for the massacre to try and prevent it from happening, personally.

[Xandria]

...I don't particularly buy into the idea that we have to wait for the massacre to try and prevent it from happening, personally.

Neither do I, but that begs the question, just how do we prevent it?  More importantly, how do we prevent it globally?

Personally I believe that incitement to violence/murder should be a criminal offence in every jurisdiction leaving no legal borders for regimes to hide behind, but it isn't.  As I understand it, with the current laws in place Internationally (or lack thereof), we can't even deal with it effectively after the fact much less prevent it.  This is why, in the context of this thread, I don't find individual states and countries making incitement to violence a crime relevant to the OP, even though I see it as relevant to the philosophical issue as a whole and a step in the right direction, it's not nearly enough.  A law in the USA for example, has no bearing whatsoever on what happens within another country, only an International one will.

Also, I still respectfully disagree that violent rhetoric seen in the US media equates to the kind of incitement to murder that the OP refers to, and I personally believe it is important to make the distinction.           

[mystictiger]

The problem I have with the invocation of the ICTR in the US context is that you are massively infringing free speech because you disagree with it, and you are using an utterly inappropriate 'authority' so to do.

The ICTR case criminalises speech only after a specific crime has been committed. The mere making of threats without that specific crime is not criminal.

To invoke a case about genocide in the domestic US political arena is to trivialise genocide. Yes, the threats are a terrible thing, and it is regretable that they have become a feature on both sides of political debate. But to invoke a crime against humanity as authoirty or proof or evidence against is a dangerous thing.

Genocide, crimes against humanity, and war-crimes are a specific and narrowly defined crime - hence the great stigma attached to the terms. The only equivalent domestic criminal designation that I can think of which carries as much of a stink is 'paedophile' or perhaps 'traitor'.