Direct And Public Incitement To Commit Genocide: Lessons From The International Criminal Tribunal For Rwanda

The law regarding incitement to commit genocide has been controversial since its inception. During the drafting of the 1948 Genocide Convention incitement was restricted to ‘direct’ and ‘public’ speech with limited further guidance. The offence remained untested until the first conviction for incitement to genocide at the International Criminal Tribunal for Rwanda in 1998. Consequently, the ICTR was tasked with establishing its definition and scope. However, the lack of guidance resulted in inconsistent jurisprudence. The term ‘direct’ proved particularly problematic, as its ordinary meaning fails to appreciate that in different societies communication takes varying forms. Through an appraisal of ICTR incitement jurisprudence, this thesis argues that direct and public incitement requires clear definitions for its constitutive and evidentiary elements. While the cases largely reached a consensus on the constitutive elements (direct, public, incitement and intent), these were not consistently applied. This thesis does not attempt to redefine direct and public incitement per se, but advocates that in order to allow for cultural variance in communication, direct should be read to mean ‘clearly understood as incitement within its own context’. Moreover, public should be read in its ordinary meaning: ‘done, seen, or existing in open view’. The definitions of evidentiary elements aim to identify the distinction between incitement and legitimate expression, which constitutes an original contribution. This involves: (i) considering the content and purpose of the speech to find whether the speech intended to inform or provoke, thereby distinguishing between informative statements and opinions; (ii) examining whether the speech had the ‘requisite persuasive force’ to incite acts of genocide through an analysis of the influence of the speaker, the seriousness of the message and the speech as a whole; and, (iii) showing whether speech posed a credible threat to the target group in light of its contemporary context.