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Arusha, 29 January 2007 (FH) - The American organization “Open Society Justice Initiative” supported by dozens of organizations fighting for the protection of press freedom, warned the International Criminal Tribunal for Rwanda (ICTR) that some of the conclusions of the Media Judgement could conduce governments, notably African governments, to restrain the freedom of the press. According to this report, a considerable decline of the press freedom was noticed, especially in African media, which was justified by the role some media played during the events in Rwanda in 1994. Without saying that the ICTR judgement was its direct cause, even if some experts affirm that this decrease had been amplified since this judgement, some portions of its reasoning could too easily encourage governments to suppress or to control the media critical speeches. The report was admitted on 12 January 2007 by the ICTR Appeal Chamber as a submission of the amicus curiae in Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, known as the “Media case”, under Rule 74 of the ICTR Rules of Procedure and Evidence. On 21 December 2006, the Prosecutor had opposed to this admission. The report does not call into question the conviction of the three accused, delivered on 3 December 2003 (genocide, direct and public incitement to commit genocide, conspiracy to commit genocide and crimes against humanity of extermination and persecutions), but highlights some ambiguities, even errors, in the Trial Chamber’s legal reasoning. It urges the Appeal Chamber to modify and clarify this judgement in order to reduce the potential threat to the freedom of expression. According to this report, “hate speech” which does not call to violence should not be assimilated to the international crime of “public and direct incitement to commit genocide”. It recalls that the customary international law does not provide for that, even if it encourages States to prohibit hate speech in their domestic law. Indeed, the Genocide Convention of 1948 decided that indirect incitements are not punishable because it would enable dictatorial governments to restrain the freedom of expression. The Trial Chamber based its decision mainly on three other treaties: the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination (1966) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Those treaties consider hatred as a crime. Open Society argues that, contrary to the Genocide Convention which defines the conducts that constitute crimes under customary international law, the other treaties do not reflect customary law concerning hate speech. The organization recalls that the International Criminal Tribunal for the former Yugoslavia (ICTY) had previously affirmed that the lack of consensus on the subject shows that such speech may not be regarded as a crime under customary international law (Prosecutor v. Kordić and Cerkez, judgement on 26 February 2001). Not all acts of hate speech do incite to commit genocide and, according to “Open Society Justice Initiative”, the Appeal Chamber should make clear that only hate speech which calls to violent actions constitute direct incitement to commit genocide. Furthermore, the organization notices that the Trial Chamber erred to consider earlier events to 1 January 1994 in order to establish the responsibility of Ngeze. The Statute limits the ICTR jurisdiction from 1 January 1994 to consider the facts linked to the preparation of the events; the earlier facts should intervene only for informational purposes. The Chamber affirms that the ICTR jurisdiction should include inchoate facts whose concretisation occurred in 1994. Thus, it concluded that incitement is a crime that continues to the time of the commission of the incited acts. This reasoning enabled the Tribunal to use, for instance, the old publications of the newspaper Kangura issued in 1990 and 1991 which the Trial Chamber held for having had consequences on the genocide in April 1994. Then, the Trial Chamber held that the crime of incitement exists whether the genocide occurs or not and that a causal relationship between speech and genocide is not a requisite to a finding of incitement. It is the potential of the communication to cause genocide that makes it incitement. The amicus does not consider the incitement as a continuing offence. According to him, this argument follows the spirit of the Genocide Convention which created the crime of incitement in order to prevent the genocide. “Open Society Justice Initiative” thinks that the Trial Chamber should not have based the responsibility of Ngeze on his publications issued in 1990 and 1991 because those crimes do not fall under the temporal jurisdiction of the ICTR. Moreover, contrary to the affirmation of the Chamber, the contest published in March 1994 would not constitute a new publication of them. At last, according to the report, the Trial Chamber offered no proof for the consequences that the articles could have had on the events in April 1994. Finally, the report criticizes the judgement which considers that hate speech characterizes the crime against humanity of persecutions provided in article 3 h) of the Statute even if, for instance, they do not encourage violence. It affirms that no International Tribunal previously came to such a conclusion. The Chamber based its decision on the case of Streicher, publisher of an anti-Semitic newspaper who called for the extermination of Jews and who was convicted by the Nuremberg Military Tribunal, as Ruggiu was convicted by the ICTR for the crime of persecutions, because of the speech they had held. However, in their cases, the speeches encouraged extermination in an explicit way. Nevertheless, the ICTY, in Prosecutor v. Kordić and Cerkez, (judgement on 26 February 2001) had adopted a clear attitude affirming that the promotion of hatred shall not constitute a crime against humanity and that prohibition has not attained the status of customary international law. Besides, the Defence for Ferdinand Nahimana raises this point recalling that the only acquitted person in Nuremberg was Hans Fritzsche, director of the Reich propaganda ministry. Dozens of national and international organizations for the protection of freedoms have supported this report : Cairo Institute for Human Rights Studies (Egypt), Canadian Journalists for Free Expression (Canada), Center for Media Freedom and responsibility (Philippines), Committee to Protect Journalists (USA), Fundacion Para la Libertad de Prensa (Colombia), Greek Helsinki Monitor (Greece), Independent Journalism Center (Moldova), Instituto Prensa y Sociedad (Peru), International PEN (United Kingdom), Media Institute (Kenya) and World Press Freedom Committee (USA). AV/PB/GF © Hirondelle News Agency