M.1. The perpetrator directly incited others to commit genocide; AND

M.1. The perpetrator directly incited others to commit genocide; AND

M.1.1. ICC

M.1.2. ICTY

M.1.3. ICTR

As noted by ICTR Trial Chamber in The Prosecutor v. Pauline Nyiramasuhuko et al.:

"5986. "Direct" incitement to commit genocide requires that the speech is a direct appeal to commit an act referred to in Article 2 (2) of the Statute. It must be more than a vague or indirect suggestion, and an accused cannot be held accountable for this crime based on hate speech that does not directly call for the commission of genocide. However, even when a speech contains no explicit appeal to commit genocide, it may still constitute direct incitement to commit genocide in a particular context, so long as the speech is not considered ambiguous within that context. In order to determine the speech’s true meaning, it may be helpful to examine how it was understood by the intended audience. In the context of Rwanda, the culture and nuances of the Kinyarwanda language should be considered when determining what constitutes direct incitement to commit genocide." [1]

The Serugendo case the Trial Chamber found that:

"The elements of the offence of direct and public incitement to commit genocide under Article 2 3(c) of the Statute are described […] as: that the accused incited others to commit genocide […]"[2]

On the actus reus the Nahimana, Barayagwiza and Ngeze Appeals Chamber confirmed that:

"A person may be found guilty of the crime specified in Article 2(3)(c) of the Statute if he or she directly and publicly incited the commission of genocide (the material element or actus reus) […]"[3]

As to the definition of "incitement to commit a crime" the Kajelijeli Judgement stated:

"In the common law jurisdictions, incitement to commit a crime is defined as encouraging or persuading another to commit the crime, including by use of threats or other forms of pressure, whether or not the crime is actually committed. […] Civil law systems punish direct and public incitement assuming the form of provocation, which is defined as an act intended directly to provoke another to commit a crime or a misdemeanour through speeches, shouting or threats, or any other means of audiovisual communication."[4]

In the Nahimana, Barayagwiza and Ngeze Case the Chamber considered that:

"The accuracy of the statement is only one factor to be considered in the determination of whether a statement is intended to provoke rather than to educate those who receive it. The tone of this statement is as relevant to this determination as is its content. […] A statement of ethnic generalization provoking resentment against members of that ethnicity would have a heightened impact in the context of a genocidal environment. It would be more likely to lead to violence. At the same time the environment would be an indicator that incitement to violence was the intent of the statement."[5]

The Rutaganda Trial Chamber found that in the case of genocide the incitement can be punishable, even when it fails to produce a result, which has been confirmed in the Kajelijeli case[17]:

"Instigation is punishable only where it leads to the actual commission of an offence desired by the instigator, except with genocide, where an accused may be held individually criminally liable for incitement to commit genocide under Article 2(3)(c) of the Statute, even where such incitement fails to produce a result."[6]

Opposing this, the Musema Chamber found that:

"The Chamber notes that complicity can only exist when there is a punishable, principal act committed by someone, the commission of which the accomplice has associated himself with. In this regard, the Chamber notes from the Travaux Préparatoires of the Genocide Convention that the crime of complicity in genocide was recognised only where genocide had actually been committed. The Genocide Convention did not provide the possibility for punishment of complicity in an attempt to commit genocide, complicity in incitement to commit genocide nor complicity in conspiracy to commit genocide, all of which were, in the view of some States, too vague to be punishable under the Convention. Consequently, the Chamber is of the opinion that in order for an accused to be found guilty of complicity in genocide, it must be proven beyond a reasonable doubt that the crime of genocide has been committed."[7]

With regard to when a person can be prosecuted for complicity, the Musema Trial Chamber held that:

"[A]ll criminal systems provide that a person may very well be tried as an accomplice, even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, the latter’s guilt can not be proven."[8]

The Muvuny Trial Chamber held that:

"The Chamber notes that Article 2(2) of the Statute defines the offence of genocide, and Article 2(3)(c) provides that direct and public incitement to commit genocide is punishable as a specific crime"[9]

Hereto, the Chamber of the Akayesu Case stated that:

"The ‘direct’ element of incitement implies that the incitement assume a direct form and specifically provoke another to engage in a criminal act, and that more than mere vague or indirect suggestion goes to constitute direct incitement. […] The prosecution must prove a definite causation between the act characterized as incitement, or provocation in this case, and a specific offence. […] The Chamber will therefore consider on a case-by-case basis whether, in light of the culture of Rwanda and the specific circumstances of the instant case, acts of incitement can be viewed as direct or not, by focusing mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof."[10]

On the direct element the Trial Chamber in the Kajelijeli case found that:

"The ‘direct’ element of incitement to commit genocide requires ‘[s]pecifically urging another individual to take immediate criminal action rather than merely making a vague or indirect suggestion.’ In civil law systems, provocation, the equivalent of incitement, is regarded as being direct where it is aimed at causing a specific offence to be committed. For such a charge, the Prosecution is obliged to prove a definite causation between the act characterized as incitement, or provocation in this case, and a specific offence."[11]

The Muvunyi Trial Chamber held that:

"The ‘direct’ element requires more than a vague or indirect suggestion of incitement, and implies that the expression which is alleged to be inciteful, specifically provoke another to engage in criminal conduct. In considering whether incitement is direct, the specific context in which it takes place is important. Cultural and linguistic factors, as well as the kind of audience the message is addressed to, could help determine whether a particular speech qualifies as direct incitement. An important consideration for the Trial Chamber is whether the members of the audience to whom the message was directed immediately understood its implication"[12]

In the Nahimana, Banayagwiza and Ngeze case the Appeals Chamber held that:

"The Appeals Chamber agrees that the culture, including the nuances of the Kinyarwanda language, should be considered in determining what constitutes direct and public incitement to commit genocide in Rwanda. For this reason, it may be helpful to examine how a speech was understood by its intended audience in order to determine its true message. The principal consideration is thus the meaning of the words used in the specific context: it does not matter that the message may appear ambiguous to another audience or in another context. On the other hand, if the discourse is still ambiguous even when considered in its context, it cannot be found beyond reasonable doubt to constitute direct and public incitement to commit genocide. […]The Appeals Chamber therefore concludes that it was open to the Trial Chamber to hold that a speech containing no explicit appeal to commit genocide, or which appeared ambiguous, still constituted direct incitement to commit genocide in a particular context."[13]

An example is given by the Bikindi case:

"To determine whether a speech rises to the level of direct and public incitement to commit genocide, context is the principal consideration, specifically: the cultural and linguistic content; the political and community affiliation of the author; its audience; and how the message was understood by its intended audience, i.e. whether the members of the audience to whom the message was directed understood its implication. A direct appeal to genocide may be implicit; it need not explicitly call for extermination, but could nonetheless constitute direct and public incitement to commit genocide in a particular context. […] Depending on the nature of the message conveyed and the circumstances, the Chamber does not exclude the possibility that songs may constitute direct and public incitement to commit genocide."[14]

Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-A, Judgement (AC), 29 September 2014, para. 483:

"483. The Appeals Chamber recalls that, in determining whether a speech constitutes a direct incitement to commit genocide, the principal consideration is the meaning of the words used in the specific context. The Appeals Chamber further recalls that a particular message may appear ambiguous on its face or to a given audience, or not contain an explicit appeal to commit genocide, and still, when viewed in its proper context, amount to direct incitement. Furthermore, it may be helpful to examine how a speech was understood by its intended audience in order to determine its true message."