Mugesera: Clarifying Rwanda Incitement Jurisprudence

JURIST Guest Columnist Gregory Gordon of the University of North Dakota School of Law says Léon Mugesera may be the last significant incitement decision arising from the Rwandan genocide, and it could be the ideal capstone opportunity for Rwandan incitement jurisprudence...
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Last month, after more than 15 years of immigration-related proceedings, Canadian officials finally deported Léon Mugesera to his native country of Rwanda to stand trial for crimes connected to the 1994 genocide. In November 1992, at a political rally in Rwanda's Gisenyi prefecture, Mugesera delivered an infamous speech wherein he warned that the country's Tutsi minority, whom he described as "cockroaches," would try to exterminate the country's Hutu majority population. Among other things, he suggested Rwandans send Tutsis back to their supposed homeland of Ethiopia via the Nyabarongo River — a non-navigable waterway frequently used to dump Tutsi corpses after previous massacres. Based on the speech, which struck many locals as a call for genocide, Rwandan officials issued a warrant for Mugesera's arrest. He fled the country and, by 1993, had made his way to Canada. After the circuitous and protracted Canadian deportation process, which entailed scrutiny of Rwandan claims of greater judicial independence and enhanced rights for criminal defendants, Mugesera made his first appearance in a Kigli courtroom last week. He is charged with direct and public incitement to commit genocide, among other crimes. His trial is expected to take place later this year.

Apart from its value in adjudicating the merits of the case and serving as a testing ground for Rwanda's more robust due process regime, the Mugesera case may serve as an important crucible for the law of incitement. This seems odd given how long the case has been around. In the 1990s, as an International Criminal Tribunal for Rwanda (ICTR) prosecutor assigned to the "Media Case" (prosecution of Rwandan radio and print media executives for atrocity speech crimes), I recall researching Mugesera's Canadian deportation case for some interpretation of incitement law. Apart from the Nuremberg cases of Nazi propagandists Julius Streicher, Hans Fritzsche and Otto Dietrich, which involved charges of crimes against humanity, not incitement to genocide, there was little else to consult. The contents of the Mugesera case file provided little help at the time. Since those early days, though, the ICTR has issued a string of decisions helping to flesh out incitement law.

Starting with the case of former mayor Jean-Paul Akayesu in 1998, and then continuing with the cases of former Prime Minister Jean Kambanda in 1998, radio announcer Georges Ruggiu in 2000, Rwandan Minister of Information Eliézer Niyitegeka in 2003, and, more recently, pop singer Simon Bikindi in 2008, the ICTR has cobbled together a basic framework to analyze the elements of the incitement crime. In other words, these decisions help us define "direct" and "public." They give us guidance regarding the crime's mens rea (equivalent to the dolus specialis, or specific intent, requirement of genocide). They inform us that causation is not a required element. They furnish certain analytic criteria to help us determine when legitimate exercise of free speech may corrode into criminal incitement. In particular, for this purpose, one can glean four main criteria to consult in analyzing the speech at issue: purpose, text, context and the relationship between the speaker and the subject of the speech. In the Media Case judgment, the Tribunal explicitly focused on "purpose" and "context" only — the Tribunal implicitly folded into its analysis "text" and "relationship between speaker and subject."

Unfortunately, the ICTR's less than rigorous formulation of these criteria has been matched by an equally unsystematic application of them in individual cases. Even the 2005 Supreme Court of Canada decision in the Mugesera deportation matter, while generally incorporating and referring to the basic ICTR framework, failed to engage in a disciplined point-by-point analysis. This has affected the quality of the jurisprudence and created legitimate concerns regarding the potential for erosion of free speech rights. Especially with respect to the notion of what constitutes "incitement" — parsing purpose, text, context and the speaker/subject relationship — the existing body of law needs refining. The "context" criterion, in particular, would benefit from greater development and more assiduous application. Factors such as the speaker's previous messages (if any), the channel of communication, the nature of the media environment at the time ( such as an absence of competing messages and/or frequent inciting message repetition), the extent of mass violence surrounding the speech (before or during its utterance, for example) and the existence or not of contemporaneous armed conflict should be incorporated as helpful reference points in conducting the requisite contextual analysis.

Such precision, rigor and depth will be especially important in the eventual Mugesera judgment. For example, critics of Canada's immigration proceedings jurisprudence have pointed out that there was a 17-month gap between Mugesera's November 1992 speech and the start of the Rwandan genocide in April 1994. Thus, from a contextual perspective, at least on the surface, it may not appear that the speech was delivered in a genocidal environment. However, digging deeper, it is clear that mass violence against Tutsis, which would eventually culminate in the genocide, was already taking place in late 1992. If Mugesera is found guilty, I suspect a credible judgment will need to explain the relationship between such contemporaneous violence and the speech — not merely refer to the speech and point out that genocide eventually occurred 17 months later. Similarly, in addition to parsing the code words used by Mugesera and the nature of the political rally at which they were uttered, it would be helpful to provide analysis regarding, among other things, the media environment at the time of the speech and whether Mugesera previously delivered comparable orations. The presence or absence of any one evaluative factor may not be determinative or fatal. The court should arrive at a reasoned decision based on a thorough analysis of the totality of circumstances.

Mugesera may prove to be the last significant incitement decision arising from the Rwandan genocide. Thus, it could be the ideal — and perhaps only — capstone opportunity for Rwandan incitement jurisprudence. A well reasoned and thorough judgment will likely enhance this inchoate crime's preventive value and minimize its potential for stifling the legitimate exercise of free speech. Let us hope the opportunity is not squandered.

Gregory Gordon is Director of the University of North Dakota Center for Human Rights and Genocide Studies. He teaches in the areas of international and criminal law. He worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, where he served as Legal Officer and Deputy Team Leader for the landmark "media" cases, the first international post-Nuremberg prosecutions of radio and print media executives for incitement crimes.

Suggested citation: Gregory Gordon, Mugesera: Clarifying Rwanda Incitement Jurisprudence, JURIST - Forum, Feb. 8, 2012, http://jurist.org/forum/2012/02/gregory-gordon-incitement.php.



This article was prepared for publication by Ben Klaber, a senior editor of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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