Last week, three Rwandan media executives were convicted of genocide, incitement and conspiracy to commit genocide, and crimes against humanity, and they were sentenced to terms ranging from 35 years to life. The U.N. International Criminal Tribunal for Rwanda found Hassan Ngeze, owner of the Kangura newspaper, and Ferdinand Nahimana and Jean-Bosco Barayagwiza, executives of Radio Télévision des Mille Collines (RTLM), guilty of using the media to both incite and execute 1994's genocidal campaign against Tutsis and moderate Hutus that killed 800,000 Rwandans.
John Floyd, the Washington, D.C., lawyer who defended Ngeze, called the ruling "the worst decision in the history of international justice" and a grave threat to freedom of speech.
Floyd's concerns were largely dismissed by free-speech advocates in this country—after all, the kind of speech the defendants engaged in would not be protected under any international standard. Even under the U.S. First Amendment, by far the most protective legal framework in the world, speech is not protected if it is intended to provoke imminent lawless violence and is likely to do so.
Still, a review of the 357-page legal judgment, made available this week, suggests that Floyd's concerns are not entirely misplaced. While press-freedom advocates do not dispute the court's verdict, some question the tribunal's legal reasoning, which could provide cover to repressive governments around the world that routinely suppress criticism and dissent by using overly broad restrictions on hate speech and incitement. Parts of the decision could also provide ammunition to U.S. critics of the newly created International Criminal Court in The Hague who believe that international law is a threat to U.S. legal standards.
In providing the legal justification for its decision, the tribunal cited several troubling precedents from European law in which journalists were prosecuted for hate speech and incitement. The tribunal repeatedly noted that under international law, countries have the right to limit freedom of speech to protect national security and public order and an obligation to restrict speech that advocates "national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence."
In its decision, the tribunal compared Ngeze to Nazi propagandist Julius Streicher, who was convicted at Nuremberg because his newspaper, Der Sturmer, was a poison "injected into the minds of thousands of Germans which caused them to follow the National Socialists' Party policy of Jewish persecution and extermination." The tribunal concluded that, even though they preceded the onset of the genocide by several years, articles written and published by Ngeze created the psychological disposition among Rwanda's population that made genocide possible.
It supported this contention by examining Ngeze's behavior once the mass killing began in April 1994. The tribunal decided that through his association with a pro-Hutu political organization, Ngeze exhorted Hutus to kill Tutsi civilians, ordered pro-Hutu militias to carry out specific killings, and helped distribute the weapons used to carry out the killings.
The judges also found that Ngeze conspired with Nahimana and Barayagwiza, whose RTLM radio, while privately owned, had close ties with the extremist Hutu politicians and the interim government that presided over the genocide. RTLM's role was not only to prepare public opinion for the violence, but also to direct the militias that carried it out. RTLM exhorted Hutus to exterminate Tutsis and moderate Hutus, identified specific targets, and helped coordinate attacks.
Floyd agrees that individuals who used radio to identify Tutsi civilian targets should be held accountable, but he believes the tribunal went too far in holding his client responsible for the genocide based in part on articles published years before it began. The hate-speech standards used in the Rwanda decision, Floyd argues, could also be used to prosecute a U.S. rap artist whose work is distributed in Europe, where strong language could violate laws outlawing "attacks on human dignity" or the publication of "insulting material likely to stir up hatred." More ominously, he warns that if a repressive government used a journalist's allegation as justification for a military campaign against a minority population, the journalist could be indicted by the International Criminal Court for incitement to genocide.
Both scenarios—legally possible but highly remote—play to U.S. fears about an emerging "world government" eroding U.S. sovereignty and echo the justification used by the Bush administration to withdraw U.S. support for the ICC. While international law poses no threat to constitutional protections in this country, the rights of a U.S. citizen facing prosecution before an international tribunal would be protected only by international law.
It is true that certain kinds of speech that are protected by the U.S. First Amendment are restricted in much of the rest of the democratic world. As Toby Mendel, who heads the law program at the British press-freedom organization Article 19 put it, "In the area of hate speech, there is a difference of opinion between the United States and the rest of the world as to the appropriate balance between protecting speech and protecting equality."
This was apparent in the ICTR judgment, which relied largely on cases from Canada and Europe, where hate speech and incitement to discrimination are expressly prohibited by law. The tribunal cited as precedent the case of a journalist convicted in Denmark for "incitement to racial discrimination" based on a broadcast interview with a racist youth group. The decision was overturned by the European Court of Human Rights only because the journalist had "clearly dissociated himself from the persons interviewed." In another case, the European Court of Human Rights upheld the conviction of the publisher of a Turkish weekly because strongly worded letters to the editor accusing the Turkish army of massacring Kurds amounted to "hate speech and glorification of violence."
More ominously, the tribunal cited a Vietnamese press law that prohibits "the sowing of enmity among nations or people"; a Chinese law that prohibits broadcasts that "incite hatred on account of color, race, sex, religion, nationality or ethnic or national origin"; and a Ukrainian law that prohibits "propaganda or cruelty" as evidence of the seriousness with which some countries view their international obligation to suppress hate speech.
In fact, these examples demonstrate the extent to which repressive countries use hate speech and antidiscrimination laws to suppress legitimate dissent and criticism. China, for example, is the world's leading jailer of journalists, with 39 behind bars, according to the Committee to Protect Journalists. Some repressive countries could be emboldened by the language of the tribunal's decision.
First Amendment attorney Floyd Abrams suggested that the tribunal could have used a less restrictive standard to achieve the same result: If Ngeze was convicted for actual participation in the genocide, was it even necessary for the court to consider articles he wrote years before the genocide occurred? The question, said Abrams, is not whether U.S. standards should be imposed on the world, but whether international tribunals can be persuaded to adopt measures that minimize the potential impact on freedom of expression.
Abrams has experience doing just that. Last year, the International Tribunal for the Former Yugoslavia, which also operates under the auspices of the United Nations, ruled that retired Washington Post correspondent Jonathan Randal could be compelled to testify before the tribunal regarding an interview he had conducted with a Bosnian Serb government official who was on trial for genocide. Randal appealed the ruling, and Abrams, with the support of media organizations and press-freedom groups from around the world, filed an amicus brief with the Appeals Chamber in The Hague. In reversing the tribunal's decision, the Appeals Chamber ruled that war correspondents should be compelled to testify only when "the evidence sought is of direct and important value in determining a core issue in the case ... and cannot reasonably be obtained elsewhere." This is largely in accordance with the U.S. standard for compelled testimony from journalists, and it was hailed as a victory for press freedom.
John Floyd also intends to appeal the Ngeze verdict. Ideally, the chamber would uphold the convictions while refining the legal reasoning behind them. A decision by the tribunal that more narrowly limits the circumstances in which governments have the right to restrict the exercise of free speech would uphold justice while ensuring that international law continues to play a positive role in strengthening press freedom around the world.