It should help to shed light on the importance and the influence of anti-Tutsi propaganda on the 1994 Rwandan genocide if it only is supported on one of the six counts of the indictment for which he was prosecuted. He will have to serve fifteen years in prison. Already the prosecutor seems to be prepared to appeal whereas his defence lawyer, surprised by this conviction, hesitates over the next step to take.
The prosecutor accused Simon Bikindi, by way of his songs, to have fed the propaganda campaign which formed an integral part of the genocide plan which took place in Rwanda in 1994. But the ICTR judges did not retain those facts estimating bound by the temporal limits of the ICTR, which starts in 1994.
However, the First Instance Chamber III judged that there was no doubt. The three songs retained by the prosecutor as the basis of the prosecution "manipulated the history of Rwanda to extol Hutu solidarity", "to make anti-Tutsi propaganda and, thus, encouraging ethnic hatred".
Moreover, by the means of the propaganda campaign in which the RTLM largely took part, they encouraged "the listening public to target and commit acts of violence against Tutsi".
It even considered that being given "Rwanda's oral tradition and the popularity of RTLM at the time", "these broadcasts of Bikindi's songs had an amplifying effect on the genocide".
The Chamber considered four translations to determine the impact of the songs which formed the basis of the prosecution. It also took into account the total context in which they were composed and were used as well as the "the realm of the spoken and unspoken" to get as close as possible to their meaning.
Interpretations of the prosecution witnesses and those of the defence contradict each other. The former affirm that the ethnic message of hatred was clear and was based on division, and that it was in particular used "boost the morale of the troops (§253)". The latter speak about encouraging union towards democracy and the republic.
The Chamber noted, however, that in the context of this period, the word peace could mean the fight against the RPF invasion and that democracy could be interpreted as the rejection of the Arusha Accords.
The judges concluded that "if the songs were as innocent as portrayed by the defence, they could not have been used in the manner they were" (§250).
To what extent could the remarks made by Bikindi in his songs, constituting a call to ethnic hatred according to the Chamber, be reprehensible?
As the First Instance Chamber III reminded during a chapter devoted to the analysis of the extent of the principle of freedom of expression recognized by numerous international documents, this freedom of expression is not absolute. These same documents criminalize hateful remarks.
But the ICTR statute does not target them as such; however, it thinks that "whereas most forms of expression clearly remain within the limits of the legality, others are unequivocally of a criminal nature and should be sanctioned as such" (§383).
The analysis of the Chamber shows that the hateful remarks can just as easily "constitute direct and public incitement to commit genocide" and "constitute persecution as a crime against humanity". However, it did not retain any of the two qualifications.
The Chamber notes that the evidence did not establish that Bikindi had any power on the broadcasting of his songs on RTLM and Radio Rwanda. It was, thus, not proven that he had the intention, through his songs, of directly and publicly encouraging the attacks and the murders even if they were used for this purpose in 1994.
It added that the prosecutor did not show that Bikindi had sung or broadcasted his songs in 1994. In regards to those which he sang before 1994, the ad hoc Tribunal does not have the jurisdiction because of the temporal limitations which are enclosed in article 1 of the ICTR statute.
During the "Media" trial, the ICTR Appeals Chamber had already had the occasion to ponder about this matter. During the appeal in January 2007, a vigilant NGO on this freedom enshrined in the American constitution had intervened as amicus curiae. According to it, the hateful remarks which do not encourage violence cannot be assimilated to the international crime "of public and direct incitement to commit genocide".
If Bikindi's songs indeed contain a hateful message, they do not constitute an incitement to commit genocide nor a crime of persecution as a crime against humanity. According to the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 the indirect incitements are not punishable.
AV/PB/MM/GF
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