Journal of International Criminal Justice Advance Access originally published online on August 12, 2005
Journal of International Criminal Justice 2005 3(4):1019-1033; doi:10.1093/jicj/mqi064
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IV. Focusing on ICTR Case Law |
De-Mediatizing the Media Case
Elements of a Critical Approach
* Research fellow at the Catholic University of Milan (Ph.D., University of Palermo and Paris 1). The writer was legal assistant to the Defence Counsel of J.B. Barayagwiza (one of the accused of the Media case) between 5 December 2003 and 24 July 2004. The opinions expressed in this article are personal and do not involve in any way the accused, other members of the Defence Counsel or the Tribunal's executive bodies. The author wishes to thank Prof. Andrea Bianchi for his valuable comments. [gabdella{at}tin.it]
The Judgment of the International Criminal Tribunal for Rwanda in the Media case focuses on the responsibility of three individuals charged on the basis of their control of a radio channel and a newspaper in Rwanda. Due to overt freedom of speech issues relating to this Judgment, it was immediately mass-mediatized. This article analyses the case from a purely legal perspective, focusing on the issue of ‘how’ the Judges determined the culpability of individuals for crimes concerning the media's influence in the preparation and execution of mass crimes. Some critical elements appear in this perspective, including: the (il)legitimacy of the extension of jurisdiction ratione temporis; the (in)opportunity to establish the mens rea of an inchoate offence via the actus reus of a non-inchoate offence; the (un)certain distinction between forms of direct and indirect participation; and the (in)determination of the criteria applied to reduce the sentence against one of the accused (as a form of reparation for the violation of procedure by the Prosecutor).
1 The trial commenced on 23 October 2000. Judgement and Sentence, F. Nahimana, J.B. Barayagwiza and H. Ngeze (ICTR-99–52-T), Trial Chamber I, 3 December 2003.
2 Specifically, for the articles that appeared in Der Strümer between 1925 and 1943 (the Nuremberg judges maintained that the contributions written by the Nazi defendant were ‘injected into the minds of thousands of Germans, which caused them to follow the National Socialists’ policy of Jewish persecution and extermination’). See Nazi Conspiracy and Aggression, Opinion and Judgement (1 October 1946), Office of the US Chief of Counsel for Prosecution of Axis Criminality 56 (1947), quoted in footnote 1092 of the Judgement. H. Fritzsche, Head of the Radio Section of the Ministry of Propoganda during the Second World War was also charged with incitement to commit crimes against humanity, but was acquitted at Nuremberg.
3 The propaganda activities of the faction opposing that generally accused of genocide have not, to date, been subjected to international criminal proceedings.
5 Among the most evocative of the images produced as evidence during the proceedings by the Prosecution was the cover of issue 26 of Kangura, in which the picture of a machete appeared together with the question ‘what weapon shall we use to destroy the Tutsis once and for all?’ (Nahimana et al., supra note 1, 
160–173). These paragraphs are also interesting from the point of view of the interconnections between the role of the judge and the historian in international criminal trials: ‘Counsel for Ngeze established in his cross-examination of Prosecution Expert Witnesses Chrétien and Des Forges that in their publications, which reproduced and discussed the cover of this number of Kangura, the reproduction of the cover was incomplete and inaccurate ... and it was incorrectly dated as December 1993 rather than November 1991’ (ibid., 164). Once questioned on the issue, Des Forges, ‘indicated in her testimony that she had taken the incomplete cover from Chretién's publication and credited his publication as her source, although Counsel noted that the reproduction itself in her book bore no footnote or other such citation’ (ibid., 167); and Chretién ‘volunteered the fact that the reproduction of the cover was incorrectly dated in his book and said this mistake had been rectified in his report and would be rectified in the republication of the book’ (ibid., 164). Indeed, the new edition of the rich tome edited by J.P. Chrétien (Rwanda: Les médias du génocide (Paris: Karthala, 2002)) does not contain the mistake. Nevertheless, one still has the sensation of a certain circularity (or feedback) in the use of sources: the historian's work takes on probative value during the trial and becomes, in its turn, a documentary source for the same historian.
6 Not all issues of Kangura were translated and provided to the accused. Similarly, not all RTLM broadcasts were submitted and discussed.
7 A witness reconstructed the influence of the accused radio station in the following way: ‘ ... what RTLM did was almost to pour petrol—to spread petrol throughout the country little by little, so that one day it would be able to set fire to the whole country’ (Nahimana et al., supra note 1, 436).
8 Ibid., 952. The emphasis is added.
9 Judgement, Akayesu (ICTR-96–4-T), Trial Chamber I, 2 September 1998, 562. 549–560 of the same judgement underline how there is a substantial difference in the approach to incitement between civil law countries and common law countries. While in most systems falling into the first category (including, among others, the Rwandan system), incitement is considered to be a form of complicity, in those systems falling into the second category, incitement tends to be considered a form of criminal involvement that is, as such, punishable.
10 See D. Boyle, ‘Freedom of Speech and the International Criminal Responsibility of Journalists’, Summer Course of the International Institute of Human Rights [Strasbourg, 2004] (Brussels, Bruylant: forthcoming 2005).
11 Nahimana et al., supra note 1, 1011.
12 Draft Code of Crimes against the Peace and Security of Mankind, art. 2(3)(f), in Report of the International Law Commission to the General Assembly, UN doc. A/51/10 (1996), at 26.
13 Akayesu, supra note 9, 557–558.
14 As regards the value of the precedent within the framework of the jurisprudence of ad hoc Tribunals, see G. Della Morte, ‘Les Tribunaux Pénaux Internationaux et les références à leur propre jurisprudence: auctoritas rerum similiter judicatarum?’, in M. Delmas Marty, E. Fronza and E. Lambert-Abdelgawad (eds), Les sources du droit international pénal (Paris: Societé de legislation comparée, 2004) 211–223. The article is also available online at the site of the European Society of International Law: http://www.esil-sidi.org (visited 20 March 2005).
15 Ngeze (ICTR-97–27-I), and Nahimana (ICTR-96–11-T), Trial Chamber Decision on the Prosecutor's Request for Leave to Amend the Indictment, 5 November 1999 (on file with author); see also Nahimana et al., supra note 1, 100–104. This interpretation of the Trial Chamber was later confirmed by a Decision on the Interlocutory Appeals the 5 September 2000. Two Separate Opinions are therein attached. The Separate Opinion signed by Judge Vohrah and Nieto-Navia, in particular, specifically maintains that the Statute is to be interpreted in a restrictive manner.
16 According to the Trial Chamber Judges, the direct and public incitement to commit genocide is of a continuing nature and covers the period running from the planning stage until the time that the acts incited are committed. The notion of an inchoate offence that continues in time until the execution of the acts incited has been disputed by one of the defence associates of the accused, on the basis of the apparent confusion between the dichotomies inchoate/non-inchoate and continued/instantaneous offence (as a result of which a distinction is to be made between the inchoate offence of incitation, composed of a series of instantaneous acts, and the effects arising as a result, which may unquestionably be long-term or ongoing, but in any event independent of the ascertainment of the crime). See Nahimana et al., supra note 1, 100–104 and 1017; see also Mémoire d'appel, Nahimana (ICTR-99–52-A), 17 June 2004, Chapter 2 (on file with the author).
17 Nahimana et al., supra note 1, 1013, quoting Akayesu, supra note 9, 562.
18 Ibid., 1029 (emphasis added). The Tribunal further held that the fact that the media intended to have this effect is evidenced in part by the fact that they did have this effect.
19 See P. Weckel, ‘Chronique de Jurisprudence International: Procès de Media’, 2 Revue général de droit international publique (2004) 517–524, at 519.
20 As early as 2001, an International Criminal Tribunal for the Former Yugoslavia (ICTY) Judge observed that ‘with a permanent International Criminal Court (ICC) on the horizon, the United Nations is understandably anxious to bring to closure the ICTY and the Tribunal for Rwanda (ICTR), which together consume almost ten percent of the total UN Budget’. See P.M. Wald, ‘To Establish Incredible Events by Credible Evidence: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’, 42 Harvard International Law Journal (2001) 535–553, at 536. In July 2003, the ICTR submitted to the United Nations its Completion Strategy that took into account SC Res. 1503 (2003), which urged the ICTR and ICTY to complete all investigations by 2004, all trials by 2008 and all appeals by 2010. See also SC Res. 1534 (2004) and the latest and revised version of the Completion Strategy submitted on 3 May 2004 (S/2004/341). Since the adoption of these Resolutions, the Prosecutor will focus on the accused bearing the heaviest responsibility for the crimes committed in 1994. As of 15 March 2005, 57 detainees are held at the UNDF in Arusha, while six are serving sentences in Mali (for a total of 63 detainees, including nine political leaders, 13 military leaders, 10 senior government administrators, three religious leaders and others, media leaders, businessmen, etc.).
21 Nahimana et al., supra note 1, 1090. Compare, for example, 975 with 1035 of the Judgment. In the former, the Chamber finds Barayagwiza guilty ‘of instigating acts of genocide committed by CDR members and Impuzamugambi, pursuant to Art. 6 (1) of its Statute’ (since he was ‘a decision-maker for the party’, ‘at the organizational helm’ and because of the fact that he ‘was also on site at the meetings, demonstrations and roadblocks that created an infrastructure for, and caused the killing of, Tutsi civilians’). In the case of the latter, though, he is condemned for direct and public incitement to genocide, pursuant to Art. 6(1) of its Statute, substantially for the very same reasons.
22 Specifically, a Director appointed by the President (Judgement and Sentence, Musema (ICTR-96–13-T), Trial Chamber I, 27 January 2000, 876) and not ‘the owner of a tea factory’, as quoted in Nahimana et al., supra note 1, 976.
23 For instance, specifically inquiring into the possibility of transposing the doctrine of command responsibility in a civil and political framework, the Trial Chamber, after stating that ‘a political party and its leadership cannot be held accountable for all acts committed by party members or others affiliated’, later specifies that ‘to the extent that members of a political party act in accordance with the dictates of that party, or otherwise under its instruction, those issuing such dictates or instruction can and should be held accountable for their implementation’. Consequently, the Chamber holds that Barayagwiza was responsible for the activities of CDR members under Art. 6(3) ICTRSt. (Nahimana et al., supra note 1, 976).
24 According to the more recent case law of the ICTY's Appeals Chamber: ‘ ... in relation to a particular count, it is not appropriate to convict under both Art. 7(1) and Art. 7(3) of the Statute [similar provisions are to be found under Art. 6(1) and Art. 6(3) ICTRSt.]. Where, under both Art. 7(1) and Art. 7(3), responsibility is alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Art. 7(1) only, and consider the superior position of the accused as an aggravating factor in sentencing.’ Cf. Judgement, Blaski
(IT-95–14-A), Appeals Chamber, 29 July 2004, 91.
25 Compare, for example, 975 with 976 and 977.
26 The expression is quoted from the Separate Opinion of Judge Shahabuddeen, Decision on the Prosecutor's Request for Review or Reconsideration, Barayagwiza (ICTR-97–19-AR72), Appeals Chamber, 31 March 2000.
27 In a Press Release dated 16 July 2003, for instance, the Office of the Prosecutor of the ICC observed that ‘[t]here is general concern that the atrocities allegedly committed in the country [Democratic Republic of Congo] may be fuelled by the exploitation of natural resources there and the arms trade, which are enabled through the international banking system. Although the specific findings of these reports have not been confirmed, the Prosecutor believes that investigation of the financial aspects of the alleged atrocities will be crucial to prevent future crimes and for the prosecution of crimes already committed’.
28 Nahimana et al., supra note 1, 949–951.
29 Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September–10 December 1948, Official Records of the General Assembly, statements by Mr Morozov, 241.
30 Nahimana et al., supra note 1, 953.
31 See C.A. MacKinnon, ‘Prosecutor v. Nahimana, Barayagwiza and Ngeze’, 98 American Journal of International Law (2004) 325–330, at 329.
32 See D. Boyle, ‘Droits de l'homme et crimes internationaux: les enjeux du "procès des médias" devant le TPIR’, in Libertés, justice, tolérance: Mélanges en honneur du Doyen Gérard Cohen-Jonathan, Vol. 1 (Bruxelles: Bruylant, 2004) 303–326, at note 51.
33 The general issue was recently tackled, making a distinction between factual truth, ‘the correspondence between words and their object, which one arrives through fact-gathering and answering questions on who, when, where, how and how many’, and truth that we arrive at through interpretation, ‘which concerns the very meaning of events, their place in human history, and their effects on both contemporary and future generations’. According to this interpretation, justice ‘is better equipped to contribute towards the establishment of the former kind of truth, rather then latter. [Justice] does not aspire to historical equity or balance; [it] can only proclaim one of two extremes—yes/no, guilty/innocent—whereas historical truth lies somewhere in the middle’. T. Todorov, ‘The Limitations of Justice’, 2 Journal of International Criminal Justice (2004) 711–715, at 712.
34 Nahimana et al., supra note 1, 1105 and 1108.
36 Nahimana et al., supra note 1, 1106—the decision quoted in the Judgement is the Decision on the Prosecutor's Request for Review or Reconsideration, supra note 26.
37 See (inter alia) W.A. Schabas, ‘Case Report: Barayagwiza v. Prosecutor’, 94 American Journal of International Law (2000) 563–571; L.S. Sunga, ‘Full Respect for the Rights of Suspect, Accused and Convict: From Nuremberg and Tokyo to the ICC’, in M. Henzelin and R. Roth (eds), Le droit pénal à l’épreuve de l'internationalisation (Bruxelles, Bruylant: 2002) 217–239; P. Weckel, ‘Chronique de jurisprudence internationale’, 104 Revue général de droit international publique (2000) 805–809.
38 The asserted violations were the following: the right to be promptly charged under Rule 40bis, the right to be promptly informed of the charges during the first period of detention and the failure to promptly resolve the writ of habeas corpus. See Decision, Barayagwiza (ICTR-97–19-AR72), Appeals Chamber, 3 November 1999.
40 And she adds: ‘ ... [w]hether we want it or not, we must come to terms with the fact that our ability to continue with our prosecution and investigations depend on the government of Rwanda. That is the reality that we face. What is the reality? Either Barayagwiza can be tried by this Tribunal, in the alternative; or the only other solution that you have is for Barayagwiza to be handed over to the state of Rwanda to his natural judge, judex naturalis. Otherwise I am afraid, as we say in Italian, possiamo chiudere la baracca. In other words we can as well put the key to that door, close the door and then open that of the prison. And in that case the Rwandan government will not be involved in any manner’, quoted by Judge Nieto-Navia in his Declaration joint to Decision on the Prosecutor's Request for Review or Reconsideration, Barayagwiza (ICTR-97–19-AR72), Appeals Chamber, 31 March 2000, 2. Later on, the Attorney-General of Rwanda, appearing as representative of the Rwandan Government in a submission as amicus curiae, openly threatened the non cooperation of the peoples of Rwanda. The Appeals Chamber replied underlining in the same Decision dated 31 March 2000, ‘that the Tribunal is an independent body, whose decisions are based solely on justice and law [and that if] its decision in any case should be followed by non-cooperation, that consequence would be a matter for the Security Council’ (ibid., 34).
41 C. Jorda, ‘Les crimes internationaux peuvent-ils contribuer au débat entre universalisme et relativisme des valeurs ? Le point de vue juridique’, in A. Cassese and M. Delmas Marty (eds), Crimes internationaux et juridictions internationales (Paris: Puf, 2002) at 77 (the original text is in French and the translation is ours). Nevertheless, we have to specify that Judge Jorda, although having presided over the Appeals Chamber in the drafting of the second Decision dated 31 March 2000, did not participate to the drafting of the first one, dated 3 November 1999.
42 Decision on the Prosecutor's Request for Review or Reconsideration, Barayagwiza (ICTR-97–19-AR72), Appeals Chamber, 31 March 2000.
43 The reason for which ‘the reparation ordered by the Appeals Chamber now appears disproportionate in relation to the events’, ibid., 71.
44 The arguments that stand in support of the Decision on the Prosecutor's Request for Review or Reconsideration, supra note 42, basically lie in a reduction of the length of time where the accused would be the object of fair trial rules violation. So, to cite just one example, the Appeals Chamber considers as a ‘new fact’ a ‘transcript’ of a proceedings before the Cameroonian courts in which ‘[t]he Appellant addressed the [Cameroonian] court and opposed Rwanda's request for extradition, stating that ‘c'est le tribunal international qui est compétent’. By this transcript (nothing more then a transcript, or a compte rendue in the French version), ‘[t]he Appeals Chamber considers that it may accordingly be presumed that the Appellant was informed of the nature of the crimes he was wanted for by the Prosecutor’ [the reason for which ‘he thus spent at most 18 days in detention without being informed of the reasons therefore’ instead of 11 months (Decision, supra note 42, 54, emphasis added)]. Now, even admitting that the accused was presumed to know the charges against him, what is the relation of the right ‘to be informed promptly and in detail ... of the nature and cause of the charge against him or her’? (Art. 20 ICTRSt., emphasis added)? Moreover, where is the evidence of the respect of the criteria for which ‘the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party’? (Decision, supra note 42, 41). In general, as it has been properly observed, the probative standard used by the Judges in this stage is such that ‘no other self-respecting appellate tribunal anywhere in the world would accept’. See W.A. Schabas, supra note 37, at 571.
45 According to Schabas, again (ibid., at 571) ‘[t]he alternative—namely, admitting their error and impetuousness in the first decision—seemed just too much to ask ... ’. ‘But,’ the author concluded, in reaching a difficult compromise, ‘it is a pity they could not have shown more humility. International justice has survived this close encounter with disaster, but only barely. It will show the scars for some time to come.’ But was not ‘the alternative’ the rejection of the Request for Review or Reconsideration of the Prosecutor, and the removal of the issue of non-cooperation of Rwanda to the Security Council? (see supra, note 40).