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September|October 2002
Rwandan Ghosts By Victor Peskin
National Sovereignty By Ruti Teitel
Radio Hate By Dina Temple-Raston
Kiss & Tell By Amy Benfer

Radio Hate

Three Rwandan media executives are on trial for inciting genocide. Their case—the first of its kind since Nuremberg—will pressure international courts to crack down on free speech.

By Dina Temple-Raston

From the speaker of a laptop computer, a June 1994 broadcast from Rwanda's Radio Télévision Libre des Mille pops and scratches to life. "The Rwandan government should supply us with tools, guns," rants Kantano Habimana, one of the RTLM's most popular newscasters, in the language of Kinyarwandan. "People could even buy them on credit or rent them, provided we kill the Inkotanyi." Inkotanyi means warrior, and it's a derogatory code word for Tutsi, Rwanda's minority.

Stephen Rapp, a senior prosecutor at the United Nations tribunal that is investigating Rwandan war crimes, rewinds the recording to an earlier broadcast from April 1994. "One hundred thousand young men must be recruited rapidly," Habimana declares. "They should all stand up so that we kill the Inkotanyi and exterminate them. Look at the person's height and his physical appearance. Just look at his small nose and then break it." Maniacal laughter erupts. "Haa haa haa yaa yaa."

Eight years after these broadcasts aired, U.N.-appointed prosecutors want to hold three Hutu men accountable for the vicious content of what Rwandans called "Radio Hate." Ferdinand Nahimana and Jean Bosco Barayagwiza were the founders of RTLM; Hassan Ngeze was the editor of Kangura magazine, which ran anti-Tutsi screeds that were often read or discussed on the air. In an 80-page indictment, the three are charged before the International Criminal Tribunal for Rwanda with inciting fellow Hutus to commit genocide. They are the first journalists accused of such serious crimes since 1946, when the Nazi editor Julius Streicher was sentenced to hang at Nuremberg for calling for the murder of Jews. The maximum sentence the defendants face is life in prison. The trial began in October 2000 and is scheduled to conclude at the end of this year, with a verdict expected soon after.

In a U.S. court, charges like these would run into the Constitution's guarantee of freedom of expression. The First Amendment includes the promise that you won't be convicted for urging people to act violently—what U.S. courts call "fighting words"— unless the violence is likely and about to happen. In America, hate speech is defended as a price paid for safeguarding free expression, and it's almost never prosecuted.

Most other countries, however, have decided that there is a point at which hate speech should be stopped. An international covenant supported by 148 nations that belong to the U.N. outlaws "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence." Many of these countries ban hate speech with a national law as well. And their laws don't ask prosecutors to show that a hate monger actually caused an act of violence—it's enough if he intended to. "The American view about incitement to hatred is an outlier view," says Frederick Schauer, a professor at Harvard's Kennedy School of Government. "Virtually all democracies say incitement is a crime."

The tribunal for Rwanda, located in Arusha, Tanzania, is supposed to reflect the consensus of U.N. members. Three judges from South Africa, Norway, and Sri Lanka—all countries that, unlike the United States, don't worry much about restricting speech—are presiding over the trial of Nahimana, Barayagwiza, and Ngeze. If the court convicts the media executives, it could set a standard that will make it easier for other international tribunals—including the permanent International Criminal Court that opened its doors in July—to charge others for what they publish and broadcast. Erik Møse, the Norwegian judge hearing the case, says that more than 50 years after Nuremberg, there should be a clear global standard for what kind of speech is and isn't permissible. "People shouldn't be asking whether we should be setting these limits," he says. "They should be asking what took us so long to do so."

The ICTR's courtroom in Arusha looks like a high-school library, with practical carpeting and schoolhouse desks divided by carrels. The plain setting not-withstanding, the judges wear powdered wigs and black robes trimmed with silk and sit on a slightly raised dais at the front of the room. Seated to the right of the bench next to their lawyers, Nahimana and Ngeze are quiet and retracted in their suits. Barayagwiza, who says the court is a farce, has refused to show up and stays in the U.N. detention center down the road.

Nahimana is a 52-year-old former history professor who took charge of the Rwandan government's propaganda machine in the early 1990s. Barayagwiza, also in his early 50s, helped lead a stridently anti-Tutsi political party before serving as director of
political affairs for the Rwandan Foreign Ministry in 1992. The prosecution's core accusation against the pair is that after founding RTLM in 1993, they used the station to help coordinate the Rwandan genocide. While their voices never came over the airwaves, in the prosecutors' view they controlled the broadcasts or, at a minimum, didn't prevent them.

From April to June 1994, Hutu extremists erected roadblocks throughout Rwanda at which they killed Tutsis and moderate Hutus. Prosecutors say that at virtually every barricade, there was a radio tuned to RTLM. The station reported death tolls as if they were changes in the weather, urging the killers onward. "Graves are only half full—who will help us to fill them?" broadcasters including Habimana repeated over and over.

Rwanda's topography reinforced the power of these broadcasts as they called the population to arms. Rwanda is known as Africa's Tibet: As far as the eye can see, there are green hills and banana trees rather than typical African savannas. The hills make television transmission nearly impossible.

For that reason, people get most of their information from radio broadcasts; a radio is one of the first things people buy when they get a job. In 1970, there was one radio for every 120 people in Rwanda. By 1990, the ratio had improved to 1 to 13. But until 1993, there was only one national station, the government-owned Radio Rwanda. Then the government gave a license to Nahimana and Barayagwiza to start RTLM—and denied licenses to other applicants who might have offered competing viewpoints.

RTLM introduced talk radio to Rwanda, complete with Kinyarwandan reggae, shock jocks, and hip hop. The station was the country's first and only privately owned alternative to government programming. But it was also next to Radio Rwanda on the dial, and at night, when Radio Rwanda shut down for the evening, RTLM broadcast over the government frequency. Many Rwandans assumed that the government station had simply changed formats—a misunderstanding that added to the credibility of the new station's Tutsi-bashing broadcasts.

In the Rwandan countryside, many Tutsis who will never testify at the trial remember listening to RTLM in the days leading up to and during the genocide. Claver Twizeymana, a 32-year-old from the southwestern village of Mibilizi, sat in a banana grove on the edge of town in May of this year and described the events of April 1994. "All of a sudden everything on the radio was anti-Tutsi," he recalled. "When we heard about the violence, at first we thought it would last just a day or two. But then it kept going, day after day." Twizeymana remembers that as the massacres spread, RTLM broadcast Tutsi license plate numbers to help killers find victims.

If Nahimana and Barayagwiza provided the megaphone for Hutu extremists, Hassan Ngeze wrote them a script. Kangura's articles were regular fare on RTLM. The magazine's vitriolic themes were picked up, its scoops dutifully re-reported. When Ngeze began publishing Kangura in 1990, the magazine described Tutsis as "thirsty for blood and for barbarian conquests" and accused them of preparing for a war that "would leave no survivors."

In 1994, Kangura ran the headline "Habyarimana Will Die in March" with a cartoon showing Rwanda's then-president, Juvénal Habyarimana, as a collaborator with the Tutsis. In April, the president's plane was shot down. The magazine's prescience "made Kangura that much more powerful," said Mary Kimani, a Kenyan journalist. "People who might otherwise have ignored [the magazine] paid attention, because Kangura seemed to know what was going to happen before it did."

Prosecutors claim that the Habyarimana government was behind the magazine, but have offered little proof. Ngeze, in fact, was arrested in July 1990—the government also detained another editor—for disturbing the public order with his virulent anti-Tutsi articles. Crying freedom of the press, human rights groups like Amnesty International appealed for his release, which was granted four months later.

The charges in the media trial before the ICTR come from the Genocide Convention of 1948, which calls for the punishment of "direct and public incitement to commit genocide." When the United Nations initially debated the provision in 1948, the U.S. delegation protested that incitement was "too remote" from the actual crime of genocide. But an American attempt to eliminate the provision was defeated by other countries in a roll-call vote.

In the years since, the United States has remained the exception. The Supreme Court hasn't upheld a conviction for hate speech since 1951. The breadth of the court's view of the protection afforded by the First Amendment is apparent from a 1992 case called R.A.V. v. City of St. Paul. Robert Victoria was charged with burning a cross in the yard of an African-American family under a city ordinance that banned speech or symbols that could "arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Striking down the law as unconstitutional, the Supreme Court overturned Victoria's conviction.

The justices concluded that the ordinance was too broad be-cause it turned into crimes forms of expression that deserved free-speech protection. American courts' reluctance to go after hate speech often comes down to some version of this argument: If you censor one person, however obnoxious, then what stops you from censoring another? It's nearly always better, U.S. judges reason, not to censor any forms of expression and let listeners sort the abhorrent from the reasonable.

Few other countries see hate speech as a necessary evil, or trust that other speech will drown it out. Denmark, for example, outlaws racial slurs. Britain and Switzerland have similar prohibitions. And Germany has gone so far as to convict the right-wing leader Guenter Deckert of inciting racial hatred after he hosted a speech in 1991 by Fred Leuchter, who presented "research" denying the existence of the Auschwitz gas chambers.

In Europe, where memories of the Holocaust have particular force and a resurgence of neo-Nazism seems a perennial threat, lawmakers have concluded that it's safer to cut off some speech than to give a hate movement the chance to gather momentum. The statute that governs the new International Criminal Court makes inciting genocide a crime in much the same language as the Genocide Convention.

What's at stake in Arusha is a crucial aspect of the competing American and European approaches. Will the judges demand that the calls to commit genocide that blared from RTLM and Kangura be closely linked to the particular killings themselves—or will they choose not to require that they be linked to specific acts of violence at all?

The problem, from an American point of view, isn't necessarily with a conviction. In this case, there's no question that go-out-and-kill venom was spewed over the radio and in print—and that many, many killings subsequently took place. Given these facts, even free-press advocates have concluded that international law shouldn't shield the Rwandan defendants. "This was essentially a form of military communication to coordinate these attacks," says Joel Simon, the deputy director of the Committee to Protect Journalists, an organization devoted to the freedom of the press based in New York. "Speech that helped make it possible to carry out this genocide just is not protected."

The standard the court might use to decide the case, however, would give free-speech advocates pause. An extreme set of facts can make for bad law, particularly in a case that's likely to map out the direction of future ones. For the most part, Stephen Rapp and his fellow prosecutors have relied on testimony from survivors who described radio broadcasts that were followed by attacks—without explaining how the former caused the latter. In July, Rapp introduced tapes of five broadcasts that cited specific human targets, and then tried to show that the people mentioned were killed or forced into hiding.

Still, Rapp concedes that "matching broadcasts with victims is not easy." The prosecution has only a small fraction of RTLM's broadcasts on tape—less than 10 percent. And the names of individual genocide victims are rarely included in the evidence gathered by the tribunal.

In the ICTR's only conviction to date for incitement of genocide, the link between speech and mass murder was far clearer. Jean-Paul Akayesu, a former political leader in the hill town of Taba, was found guilty of incitement—as well as genocide and seven other charges of crimes against humanity—for an April 1994 speech in which he urged Taba residents to kill Tutsis. The tribunal said that Akayesu's speech was effectively an order and sentenced him to life in prison. If the judges in the media trial are satisified with Rapp's relatively thin showing that "Radio Hate" led directly to mass murder (or if they conclude that it's not necessary to show a clear link at all) they could set an international standard for prosecuting incitement that's far wider than that of the Akayesu case—never mind the narrow window left open by the American courts.

John Floyd, who represents the editor Hassan Ngeze, thinks his client will win as long as the judges require proof that the Kangura articles directly caused acts of genocide. "The 1994 genocide was caused not by the media or my client but by rebels who invaded Rwanda and assassinated Habyarimana," Floyd says. "Kangura wasn't even publishing during the genocide, so how can my client be guilty of inciting the killing?" Any objectionable content in Kangura, the defense lawyer insists, should be seen as the product of bad taste or bad judgment of inexperienced writers at the magazine.

More important, perhaps, Floyd warns that a conviction will have unintended and worldwide reverberations. "The U.N. is opening the door to every despot and dictator muzzling their own press and saying the U.N. set a precedent for them to do it," he says. "What stops Saddam Hussein from saying the Kurdish press is inciting violence and shutting them down? This is dangerous, dangerous stuff."

The ICTR may have already started down that road. The tribunal has indicted the musician Simon Bikindi for inciting genocide with song lyrics. Bikindi's music mixes rap lyrics in English, French, and Kinyarwandan, and it was played constantly on RTLM. Bikindi says he is an artist whose songs don't advocate killing. Floyd compares prosecuting him to "putting Bob Dylan on trial for protest songs." While that comparison may be a stretch, there's no question that by indicting Bikindi for his lyrics, the tribunal is lowering the bar for what's treated as unacceptable speech—which appears to support the troubling possibility that censoring one speaker inevitably leads to censoring others.

As the trial in Arusha draws to a close, lawyers on both sides of the case are trying to use the conviction of Julius Streicher at Nuremberg for their own ends. Streicher was the editor of the weekly newspaper Der Stürmer, or The Attacker. As Hitler rose to power, Der Stürmer focused on themes like ritual murder by Jews, Jewish criminality, the world Jewish conspiracy, and Jewish sex crimes.

The Nuremberg judges recognized that Streicher was less involved in the physical commission of the Holocaust than other Nuremberg defendants, most of whom were politicians or members of the Nazi military. But they convicted him anyway, of crimes against humanity (genocide wasn't on the books yet). The judges reasoned that Streicher's paper goaded Germans into action with declarations like "The Jews in Russia must be killed. They must be exterminated, root and branch."

To Stephen Rapp, the evidence against the three Rwandan defendants is more compelling than the proof that led to Streicher's conviction. The ties that Kangura and RTLM had to the military and the extremist Hutu militias, Rapp says, were stronger and are better documented than Streicher's ties to comparable Nazi organizations.

Floyd, on the other hand, says that Streicher should never have been convicted because he was simply expressing his ideas. "This isn't a press freedom issue; this is an intellectual freedom issue," he says. His argument sounds familiar—and fitting—to American ears, but it may not play well in Arusha.

Dina Temple-Raston's first book, A Death in Texas, was published in January. She was White House Correspondent for Bloomberg during the Rwandan genocide and is currently working on a book about Rwandan justice.

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