Words can kill. The historic verdict of an international court concluded in 2003 that three Rwandan press executives were guilty of genocide for having helped incite the 1994 massacre of some 800,000 Rwandans in 100 days, most of them members of the Tutsi minority.
"The power of the media to create and destroy human values comes with great responsibility," ruled the three-judge International Criminal Tribunal for Rwanda in Arusha, Tanzania. "Those who control the media are accountable for its consequences."
The war crimes trials aimed at extracting belated justice from such senseless slaughter have continued in Arusha, despite their huge cost and painfully slow pace. But repercussions of the genocide that America and other states watched with indifference at the time are still being felt — both within Rwanda and beyond its borders in law and journalism.
Last week, Human Rights Watch published a report concluding that ethnic killings in Rwanda were continuing. The 20-page study by the nonpartisan, New York-based human rights group, which few in the press have covered, warns that the gacaca system of local trials created by the Tutsi-dominated Rwandan government to punish those involved in the 1994 genocide is, paradoxically, exacerbating the very ethnic tensions it was formed to quell. Six months after gacaca trials began last year, the report states, the murder of judges and witnesses participating in them, along with other extrajudicial reprisal killings of alleged perpetrators, their friends, family, and bystanders, risks prompting a new round of violence.
Avocats Sans Frontières, a Belgian-based lawyers group, reports that some 700,000 Rwandans await justice from such courts in which many Rwandans have little confidence. Judges are often illiterate, or poorly trained; the accused have no right to counsel, and the penalties for complicity in genocide are often identical to those for committing the crime itself. One elderly woman was recently sentenced to 25 years for having cooked food for a militia member.
The new Human Rights Watch report focuses on recent killings of genocide survivors and reprisal attacks in November on unarmed villagers and those in jail or police custody. Alison Des Forges, a senior adviser to Human Rights Watch and the author of last week's report and an exhaustive study of the 1994 genocide, notes that reprisal killings, in particular, "reinforce Hutu fears that they may not receive justice when crimes are committed against them and even that they may be accused of and punished for crimes they have not committed." Allegations by Rwandan officials and the press that such killings reflect a "genocidal ideology" on the part of their perpetrators undermine the government's simultaneous claims that Rwanda is "well on the way to reconciliation," the report states.
By ignoring, distorting, and underplaying reprisal killings, the Rwandan press is once again stoking communal tensions, according to the report. "There is an echo of the situation in 1994 in which the media can and do heighten people's fears," said Ms. Des Forges, who has testified as an expert witness at the international court in Arusha, which tries cases of Rwandan alleged perpetrators who fled their country after the genocide.
Another echo of the genocide is the controversy surrounding the international tribunal's reconsideration of its original conviction of the three Rwandan journalists. Two weeks ago in Arusha, the court heard oral arguments in their appeal. Weighing in on their side, though not for the journalists themselves, were prominent American free-speech advocates such as Floyd Abrams of Cahill Gordon, who represented The New York Times and me in two recent free speech battles against the U.S. government. In a "friend of the court" brief filed on behalf of the Open Society Justice Initiative, funded by George Soros, Mr. Abrams urged the court to narrow its original ruling.
In an interview, he said he was not challenging the court's finding that the three men were guilty of terrible crimes. Ferdinand Nahimana and Jean-Bosco Barayagwiza were convicted not only because of their leadership roles at Radio Télévision des Mille Collines, a radio station which urged Hutus to murder Tutsis — or "cockroaches," as the station called them — or congratulated them for having done so. The court found that Barayagwiza had personally "supervised roadblocks" that were created to stop and kill the Tutsi. Hassan Ngeze, the founder, owner, and editor of the newspaper Kangura, or Wake It Up!, was convicted not only for the anti-Tutsi screeds in his paper, which were repeatedly replayed on Radio Milles Collines, but also because the court found he had personaslly ordered the murders of Tutsi civilians and helped secure, store, and transport weapons to be used against the Tutsi population. The tribunal sentenced Nahimana and Ngeze to life imprisonment, and Barayagwiza got 35 years in jail. All three were found guilty of "incitement to genocide, conspiracy, and crimes against humanity, extermination and persecution."
When the decision was announced, but before the lengthy ruling was published, the court's action was praised by Mr. Abrams himself, leading American newspapers, including the New York Times, and human rights advocates. But after reading the written opinion, some had second thoughts. Mr. Abrams and the other free-press advocates now argue that in convicting the three journalists, the Rwanda court blurred the crucial distinction between inciting genocide, which is a crime in international law, and inciting hatred, which though despicable, is not.
Mr. Abrams argues that the court did not demand that the prosecution prove there was a direct call in Kangura to commit genocide. The mere broadcast and publication of such "hate speech" was the crime, the court ruled. The paper itself, the brief notes, had stopped publishing well before the massacres. And to convict Ngeze, the court admitted articles as evidence that were published years before the conflict or the court's jurisdiction began. Only 30% of Rwandans are literate, Mr. Abrams notes, and the paper was never widely read.
Joel Simon, executive director of the New York-based Committee to Protect Journalists, argues that since then many states have seized upon the international court's ruling to suppress their own critics in the name of preventing "incitement to hatred" and "incitement to rebellion." His group has documented nearly 50 such cases in Burundi, the Central African Republic, Togo, Gabon, Zimbabwe, and sadly, Rwanda, where public incitement to what the government calls "divisionism" is a crime punishable by up to five years in prison, heavy fines, or both.
But Mr. Abrams admits that his defense of hate speech makes many in the human rights community uncomfortable. It is no accident, he says, that only one foreign human rights group — the Cairo Institute for Human Rights Studies — has joined 10 press advocacy groups in the Open Society Justice Initiative's Rwandan appeal. Human Rights Watch, which did not co-sign the "friend of the court" brief, argues that in Rwanda, where "the blood of genocide is barely dry," there would seem to be a "more compelling case for outlawing genocide denial" or other forms of hate speech. Nevertheless, sensitive to the free-speech problems, Dinah PoKempner concludes in an essay on freedom of expression in the group's latest annual report that laws aimed at protecting people from insult or genuine harm "can easily be taken to extremes." And that, she warns, can "create new means of persecution that could well stifle political and social debate and undermine pluralism."
A ruling by the Rwandan appellate court is expected this spring.