In 1991 the Rwandan, Hutu-owned tabloid Kangura published an image on their front page of a machete accompanied by the question “What weapons shall we use to conquer the inyenzi once and for all?” The term inyenzi, literally meaning “cockroach” had come to be a discriminatory label placed on all Tutsis. Many anti-Tutsi articles, including “the 10 Hutu Commandments,” were thereafter published by Kangura. More than 2 years after this first printing, in April 1994, the Rwandan Genocide began in which hundreds of thousands of Tutsis and moderate Hutus were killed. Estimates of the death toll during this intense period of unrest have ranged from 500,000-1,000,000.
The question surrounding this issue is whether or not Hassan Ngeze, the founder, publisher and editor of Kangura can be found guilty of inciting genocide based on the anti-Tutsi propaganda he published. The difficult part about this case is that he never published direct orders for the mass killings of the Tutsi, and he halted the hate articles before the 
killings actually began in 1994. Many would argue without hesitation that Ngeze should be found guilty, but did he incite genocide, or was he merely exercising his right to free speech?
In 1997, Ngeze was indicted for incitement to genocide by the International Crime Tribunal for Rwanda and was, after a trial lasting three years, convicted. The ruling was defended by this explanation: “Without a firearm, machete or any physical weapon, you caused the deaths of thousands of innocent civilians.” Furthermore, they said it was clear that Ngeze’s goal was to “spread petrol throughout the country little by little, so that one day [they] would be able to set fire to the whole country” (see article: "Inciting Genocide, Pleading Free Speech").
In looking to solve this case on my own, I will employ the help of philosopher Thomas I. Emerson and his work “The System of Freedom of Expression.” According to Emerson, there should be a clear distinction between expression and action. Expression, he argues is completely protected by the US Constitution, but action is more likely to face restrictions. Emerson argues that “expression that is intentionally insulting or otherwise provocative is a form of speech protected by the constitution – the audience, although angered, has a duty to restrain itself.”(See Freedom of Speech in the United States, 5th Ed., p 439) He then explains his opinion of the “fighting words” doctrine by stating that they shall only be restricted when used face-to-face as “ ‘verbal acts’ composing an assault upon the individual toward whom they are directed.” (Freedom of Speech in the United States, p 439). In the case of Kangura, the messages were all nonverbal, and not issued in face-to-face, and according to Emerson’s expression-action theory would be categorized as expression and therefore entirely protected.
To go along with Emerson’s theory of free speech, I will also apply the incitement to harm theory. Did Kangura’s messages cause immediate and imminent harm? I would argue that the messages published by Kangura definitely had a tendency to cause harm, but because the harm was not an immediate result of these publications, that they cannot be charged with incitement to genocide. This precedent was set in the landmark case Brandenburg v. Ohio in 1969 when Ku Klux Klan leader Clarence Brandenburg was being tried for a speech he gave at a rally where he threatened “revengeance against the president, the Congress and the Supreme Court…” (Freedom of Speech in the United States, 66) The Supreme Court unanimously reversed his conviction, setting the new standard of incitement, in which even threatening words are protected as long as they don’t pose immediate and imminent danger. The findings in this case should definitely be applied the judgment of the Kangura case. Under such standards, Ngeze would not be convicted because of the unspecific nature of his messages and because they did not lead to immediate harm.
One of the most important facts to remember in this case is that Ngeze did not publish any specific instructions on how to carry out genocide, nor did he publish any orders whatsoever directly calling for the mass murder of Tutsis. In this same case, Ferdinand Nahimana and Jean-Bosco Barayagwiza, founders of a radio station, Radio Télévision Libre des Mille Collines (RTLM) were also tried under incitement to genocide. Nahimana and Barayagwiza had created more explicit messages than did Ngeze. In some cases, names of specific Tutsi citizens and specific details of how to find them were announced over radio so that they could be found and killed. Because of the more specific nature of those messages, they should be convicted of incitement because the harm was imminent and immediate.
Finally, I will apply strict scrutiny in the ruling of this case. The court would have establish a very compelling reason for restructing Ngeze’s speech and would have to do so in the least restrcitve means possible. Because of the slightly ambiguous content of Ngeze’s messages, I do not think they could be struck down with compelling reasons by the court.
In ruling this case, I would acquit Ngeze of incitement to genocide for the reasons outlined above. Although I personally do not agree with his messages, I do not feel they should be punished by law. Ngeze, unlike many others in the onset of the Rwandan Genocide, did not provide explicit details on how to carry out the mass murders nor did he specifically order for mass killings of the Tutsis. Yes, it is likely that his messages did contribute to fueling the Rwandan Genocide, but alone, his messages were not capable of carrying out such a strategic, planned attack like the one that unfolded years later.
I would agree with your use of applying Emerson's philosophy of expression-action theory and that Kangura's use of speech should be classified as expression, not action, and should be protected. I would not classify this speech as action, because the speech wasn't calling anyone to arms, wasn't listing people to kill if sighted and license plates in case they tried to flee, as the other publishings did. In other words, although it may have fueled the fire when times got even more intense, I don't know that I would really consider this publication to have "incited genocide." However, although I question whether or not this publication incited genocide, I don't doubt that it contributed to it, which makes me question whether or not it violates Mill's harm principle, in that it harm may have been intended, but that the harm that resulted wasn't immediate. Thus, like you, I question whether or not it passes this test or not. However, I think that what cements this case in being protected rather than criminalized is the fact that, as you cited, in the precedent set by Bradenburg v. Ohio, Kangura didn't incite immediate harm and weren't specifically targeting an individual, thus should be protected even though his publishing may be considered threatening. Finally, I would agree that the strict scrutiny level should be applied in that the government would have to provide a compelling reason to punish the speech because Kangura's use of speech didn't put people in immediate danger.
ReplyDeleteHello. I think your analysis is well written that you stated clear reasons for your argument. I agree that the kind of speech is not categorized as “action” because, as you said, some essential elements such as “presented face to face” and “verbal statement” are lacking (according to the theory of Emerson). In this case, it may be true that Kangura’s speech may have been strong enough to lead violent action; however, I understand that it is hard to say that his speech has to be restricted. As you stated, in his written statement, Kangura did not directly lead to kill people or directly harmed others. His speech is of course offensive and disrespectful that may violate offense theory and respect theory. On the other hand, I feel like intermediate scrutiny may be applicable to this case. Although he did not directly cause the harm, I think that his speech has a clear intention to harm and lead a violent activity. Therefore, it could fall into the category of “present and clear danger.” I think the government could restrict this anti-ethnic message with substantial reason. I agree that the case of Brandenburg v. Ohio may be helpful to support your argument. However, I wonder if use of different medium to spread the message would affect.
ReplyDeleteI would also go along with Thomas I. Everson's "System of Freedom of Expression" because it seems very applicable to the genocide involving Kangura and the genocide. Though Hassan Ngeze used the headline “What weapons shall we use to conquer the inyenzi once and for all?” in Kangura, I think there is too much ambiguity and not enough call to action for him to be convicted of contributing to the deaths of 500,000-1,000,000 people. However, this does not mean I don't think he may have had the idea of harm in his head--but in terms of the article in the Kangura publications, it did not specifically have an organized plan to cause this type of reaction, like you mentioned earlier. Also, another point you brought up was the time period between the publication of the headline and the actual genocide itself. Since technically the hate articles were halted about two years before the mass killings, the court would most likely believe that to be a substantial enough period of time to not convict Hassan Ngeze of anything.
ReplyDeleteI do believe that strict scrutiny could possibly be applied because of the ambiguous nature of the message, however I would probably go with intermediate scrutiny since such a high number of deaths occured. I feel that in this case, just because the message isn't clear and there aren't specific instructions as to how to carry out the plan of the killings, that doesn't mean that there was no intent of harm or danger to the Tutsis.
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ReplyDeleteYou argue that Hassan Ngeze should not be held accountable for the remarks and illustrations published in Kangura (the magazine he owned, edited, and contributed to) even though the magazine sparked and fueled a growing hatred against the Tutsi, the results of which led to a genocide in Rwanda. I do not agree. Susan Bench of Amnesty International puts it best, “To believe that incitement is a critical causal element in genocide, one need only recognize that people do not spontaneously rise up and kill en masse.”
ReplyDeleteWhile I understand that Emerson would best accomplish the aims of your case, I disagree with applying his philosophy on free speech to what was published in Kangura. Emerson believes that freedom of expression in a democratic society has the goal of “achieving a more adaptable and hence a more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus” (Emerson, The System of Freedom of Expression, pp. 3-7). Emerson himself believes that in some cases, the line between action and expression becomes so blurry that it is necessary that the court determine the category in which it belongs. The speech published in Kangura added to an already turbulent political situation and came in a similar context to Mill’s corn dealer example—where expression must be contextually analyzed in order to see if the harm principle applies. http://plato.stanford.edu/entries/freedom-speech/#MilHarPriHatSpe
In this case, I believe that the speech was so provocative that that it constitutes action and should be punished as such.