Professional Documents
Culture Documents
Ayil 17 2009 447 Benesch S PDF
Ayil 17 2009 447 Benesch S PDF
Ayil 17 2009 447 Benesch S PDF
ISSN 1380-7412
E-ISSN 2211-6176
ISBN 978-90-04-22697-5 (hardback)
AFRICAN YEARBOOK OF
INTERNATIONAL LAW
ANNUAIRE AFRICAIN DE
DROIT INTERNATIONAL
Volume 17
2009
Published under the auspices of the African Foundation for International Law
Publi sous les auspices de la Fondation Africaine pour le Droit International
LEIDEN / BOSTON
2012
Governing Board
Conseil dadministration
President
Georges ABI-SAAB
(Egypt)
Edward KWAKWA
(Ghana)
Erika DE WET
(South Africa)
Abdul KOROMA
(Sierra Leone)
Fatsah OUGUERGOUZ
(Algeria)
Nico SCHRIJVER
(Netherlands)
Mpazi SINJELA
(Zambia)
Abdulqawi A. YUSUF
(Somalia)
Vice-President
Members
The General Editor and the African Foundation for International Law are not in any
way responsible for the views expressed by contributors, whether the contributions
are signed or unsigned.
Les opinions mises par les auteurs ayant contribu au prsent Annuaire, quil
sagisse darticles signs ou non signs, ne sauraient en aucune faon engager la
responsabilit du Directeur de lAnnuaire ou de la Fondation Africaine pour le Droit
International.
TABLE OF CONTENTS
TABLE DES MATIRES
SPECIAL THEME: INTERNATIONAL CRIMINAL JUSTICE IN AFRICA
THME SPCIAL : JUSTICE PNALE INTERNATIONALE EN AFRIQUE
LAfrique et le droit international pnal
Roland Adjovi
LAfrique et les juridictions internationales pnales
James Mouangue Kobila
3-11
13-95
97-137
139-163
287-320
321-351
viii
Affaire Hissne Habr : O en est la justice ?
Raphael Tiwang Watio
379-409
447-461
465-470
DOCUMENTS
African Court on Human and Peoples Rights: In the Matter of
Michelot Yogogombaye versus the Republic of Senegal,
Application No. 001/2008, Judgment
Cour africaine des droits de lhomme et des peuples, Affaire
Michelot Yogogombaye contre Rpublique du Sngal,
Requte No 001/2008, Arrt
INDEX
INDEX OF PERSONS / INDEX DES PERSONNES
INDEX OF LOCATIONS / INDEX DES LIEUX
ANALYTICAL INDEX
473-496
497-520
521-543
523-527
529-533
535-543
1. Introduction
On 2 December 2008, Trial Chamber III1 of the International
Criminal Tribunal for Rwanda (ICTR) issued its judgement in the case
against Simon Bikindi.2
The trial of Rwandan pop singer Simon Bikindi drew keen interest,
even from outside the law and outside Africa,3 because of the novel
question it presented: whether a song can constitute an international
crime. Bikindi was indicted for genocide, conspiracy to commit
genocide, and crimes against humanity including murder.4 But the
central feature of his long trial was his catchy, danceable music,
especially three of his songs.5 Relentlessly broadcast by radio stations
*
For the purpose of this case, the Trial Chamber was composed of Judges Ins
Mnica Weinberg de Roca, presiding, Florence Rita Arrey, and Robert Fremr.
Prosecutor v Simon Bikindi, Case No. ICTR-2001-72-I, Judgment (2 December
2008) (hereinafter Bikindi Judgment).
See e.g. Freemuse; Freedom of Musical Expression, War Crimes Trial Feared to
Legitimize New Repression of Musicians Elsewhere, 14 November 2006
(http://www.freemuse.org/sw15535.asp) (last viewed on 31 July 2009).
Prosecutor v Simon Bikindi, Case No. ICTR-2001-72-I, Amended Indictment
Pursuant to Decisions of Trial Chamber III of 11 May 2005 and 10 June 2005
(Hereinafter Bikindi Amended Indictment).
Bikindi Amended Indictment, paras. 40, 41. The songs titles, like their meanings
and the meanings of the songs lyrics, were hotly debated during Bikindis trial.
In the ICTR indictment and judgment, the three songs are called by these names:
Twasezereye (We said goodbye), Bene sebahinzi (the sons of the
cultivators), and Nanga bahutu (I hate these Hutu). On the stand in his
2
3
448
Susan Benesch
in Rwanda before and during the genocide, Bikindis songs were also
chanted by Rwandan gnocidaires as they hacked their victims to
death.6
A song might constitute incitement to genocide, or persecution as a
crime against humanity, the Trial Chamber concluded in its December
2008 judgment.7 In addition, the tribunal found that song lyrics need
not incite violence in order to constitute a crime against humanity,
since hate speech may constitute persecution.8 This expansive view of
crimes against humanity is controversial, and will be discussed below.
The Trial Chamber also drew striking and potentially far-reaching
factual conclusions about Bikindis songs. It found that they led to
killings in Rwanda: that the songs were used in 1994 to incite people
to attack and kill Tutsi,9 and that the effort was successful, since the
songs had an amplifying effect on the genocide.10 Yet the chamber
declined to find Bikindi guilty on any charge related to the songs, for
lack of adequate evidence that he played a role in disseminating them
in 1994, during the period for which the ICTR has jurisdiction.11
Bikindi was also acquitted of many other detailed allegations,
including participating in the training of Interahamwe militias,
6
7
8
9
10
11
449
450
Susan Benesch
17
18
19
20
451
Another two years elapsed21 until the judgment, which fills 462
painstaking paragraphs.
The Bikindi Judgment is the latest, and perhaps the last, of the
ICTRs major judgments on the crime of incitement to genocide.
Before the ICTR was established in 1994, no court had decided a case
of incitement to genocide. The International Military Tribunal (IMT)
at Nuremberg had tried Nazis for crimes based on speech, including
the newspaper editor Julius Streicher, who was convicted and hanged
for his violently anti-Semitic writings,22 and Hans Fritzsche, a radio
executive who was acquitted,23 but these were incitement to genocide
decisions in substance only, since that crime was not codified until the
Genocide Convention was adopted by the U.N. General Assembly
in 1948.24
The ICTR decided the first case in 1998 as mentioned above, and
by now it has handed down so many convictions for speech,25
including several guilty pleas26 that its decisions form nearly all of the
worlds jurisprudence on incitement to genocide and on speech as a
crime against humanity, and they constitute one of the main
contributions that the tribunal has made to international criminal law.
21
22
23
24
25
26
Because he had already been detained for so long when he was convicted,
Bikindi was given credit for more than half of his 15-year sentence. He has also
appealed for a reduced sentence.
The Trial of German Major War Criminals: Proceedings of the International
Military Tribunal Sitting at Nuremberg, Germany, Part 22, p. 501 (1946)
(hereinafter Proceedings: Trial of German Major War Criminals). Streicher was
indicted for crimes against peace and crimes against humanity, and convicted for
the latter.
Proceedings: Trial of German Major War Criminals, p. 526.
Convention on the Prevention and Punishment of the Crime of Genocide,
Art. 2(c), 9 December 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force
12 January 1951) (Hereinafter Genocide Convention).
See e.g. Prosecutor v Niyitegeka, Case No. ICTR-96-14-T, Judgment and
Sentence (16 May 2003), Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T,
Judgment and Sentence (12 September 2006), Prosecutor v. Nahimana,
Case No. ICTR-99-52-T, Judgment and Sentence (3 December 2003)
See e.g. Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Judgment and
Sentence (4 September 1998), Prosecutor v. Ruggiu, Case No. ICTR-97-32-I,
Judgment and Sentence (1 June 2000), Prosecutor v Serugendo, Case No. ICTR2005-84-I, Judgment and Sentence (12 June 2006).
452
Susan Benesch
28
29
30
31
32
The Canadian Supreme Court, for example, followed the ICTRs jurisprudence
in ruling that Lon Mugesera, a former Rwandan official, had committed
incitement to genocide by giving a speech on 22 November 1992, in Kabaya,
Rwanda. See Mugesera v. Canada (Minister of Citizenship and Immigration),
[2003] S.C.C. 40, paras. 179-180.
See e.g. Simon J., Of Hate and Genocide: In Africa, Exploiting the Past,
Columbia Journalism Review, January-February 2006, p. 9. See also Amicus
Curiae Brief on Nahimana, Barayagwiza and Ngeze v. Prosecutor, Case No.
ICTR 99-52-A, available at (http://www.justiceinitiative.org/db/resource2/
fs/?file_id=17874) (last visited 2 August 2009).
Donald G., & McNeil Jr., Killer Songs, NY Times Magazine, 17 March 2002
(hereinafter McNeil).
Id. Bikindi was called the Michael Jackson of Rwanda, a nod to his popularity.
Id.
Rwanda News Agency, Singer Bikindi: from Defence witness to the Dock over
Genocide music, 18 September 2006, available at (http://www.rwanda
gateway.org/article.php3?id_article=2947) (last visited 1 August 2009).
453
He was an expert witness for the prosecution. Asked about this, the
witness, Gamaliel Mbonimana, said that he had originally had
reservations about the song, but the other jurors outvoted him.33
The songs words, twasezereye ingoma ya cyami were translated as
We said goodbye to the monarchy.
The defence described this song as a celebration of independence
for all Rwandans34 but prosecution witnesses (including Mbonimana)
testified that although the song ostensibly celebrated freedom from
Belgian colonial rule, most of its lyrics referred to the cruelty of Tutsi
domination over Hutus, before and during the colonial period.35
On 1 October 1990 (the same year in which Bikindi released his
first cassette, of traditional wedding songs36), the Rwandan Patriotic
Front (RPF)s guerrillas, mainly Tutsi exiles, entered the country from
Uganda to attack Rwandas Hutu-led government. Rwandan President
Juvenal Habyarimana and his allies began to use and amplify Hutus
fear of the RPF to turn them against the whole Tutsi population.
In 1993, Bikindi became one of 50 shareholders in a new radio
station, Radio Tlvision Libre des Milles Collines (RTLM), which
later became famous for its fierce anti-Tutsi rants and, after the
genocide began in April 1994, for broadcasting the names of Tutsi
who had not yet been killed, together with their license plate numbers,
lest they manage to escape by car.37 RTLM listeners could hardly have
believed that Twasezereye referred to Belgian colonial rule by the time
it was broadcast on 21 March 1994, since an RTLM announcer
introduced the song with a warning about the enemy and his plan
to shed blood. The unnamed announcer therefore, he said,
dedicated Twasezereye to the Rwandan Armed Forces.38
The other two songs were composed, Bikindi testified,39 between
March and June of 1993, about one year before the genocide began.
33
34
35
36
37
38
39
454
Susan Benesch
455
46
47
48
49
50
456
Susan Benesch
52
53
54
55
56
For further argument on the importance of making this distinction more clearly
in jurisprudence, and for a proposal on how to do so, see Benesch S., Vile
Crime or Inalienable Right: Defining Incitement to Genocide, Virginia Journal
of International Law 48 (Spring 2008) 485.
Bikindi Judgment, paras. 11, 50.
Bikindi Judgment, para. 24.
Bikindi Judgment, para. 51.
Bikindi Judgment, para. 141.
Mugesera v. Canada (Minister of Citizenship and Immigration), [2003] S.C.C.
40, pp. 179-180.
457
58
59
60
61
Schabas W., Genocide in International Law: The Crime of Crimes, 2000, p. 266;
see also Prosecutor v Nahimana, Case No. 99-52-A (28 November 2007)
[D]irect and public incitement to genocide is punishable even if no act of
genocide results from it. This is confirmed by the travaux prparatoires of the
Genocide Convention, from which we can conclude that its drafters wished to
punish direct and public incitement to genocide even if no genocide is
committed, in order to prevent its occurrence.
Bikindi Judgment, para. 183 The Prosecution has not proven, however, that this
meeting led to anti-Tutsi violence immediately thereafter.
Bikindi Judgment, para. 142.
Bikindi Judgment, para. 185. Given its conclusions above, the Chamber has not
found it necessary to address the issue of whether the meetings that allegedly
took place in 1994 not specifically alleged in the Indictment could have formed
the basis for a conviction.
Bikindi Judgment, para. 26.
458
Susan Benesch
64
See Vile Crime or Inalienable Right, supra note 51, p. 488. See also Inciting
Genocide, Pleading Free Speech, World Policy Journal, Summer 2004.
For example Mndez J., former U.N. Special Adviser for the Prevention of
Genocide, sent a note to the U.N. Secretary General in November 2004 warning
of what Mndez called incitement in Cote dIvoire and suggesting that if
domestic courts did not curb the episodes, the situation might be referred to the
International Criminal Court. The note was publicized, the speech stopped
abruptly and violence diminished, Mndez later reported. Interview with author,
12 November 2009.
Bikindi Judgment, paras. 389, 395.
459
460
Susan Benesch
68
69
Nahimana et al. v Prosecutor, Case No. ICTR 99-52-A, Judgment (28 November
2007), para. 985.
Bikindi Judgment, para. 394.
461
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