13 Jan When Does Music Incite Genocide?
[Susan Benesch is a Fellow at the Center for Applied Legal Studies at Georgetown Law Center and a former guest blogger here at Opinio Juris.]
Simon Bikindi, the Rwandan pop star whose two-year trial at the ICTR was apparently the first attempt to criminalize music in international law, was just convicted of incitement to genocide but not, after all, for his songs, even though Rwandan genocidaires sang them like anthems while hacking people to death. The ICTR did find, notably, that the songs “amplified” the genocide, but it missed an important chance to develop jurisprudence on incitement to genocide.
ICTR prosecutors indicted Bikindi, inter alia, because songs that he “composed, performed, recorded or disseminated” were used in a propaganda campaign to incite the Hutu population to kill Tutsi. The indictment named three songs in particular, and the Trial Chamber’s first challenge was to pin down the meanings of the songs, since they were written in metaphorical (and possibly ambiguous) Kinyarwanda. For instance Bikindi composed Twasezereye (“We Bade Farewell”) in 1986 for the Silver Jubilee of Rwanda’s Independence, so it referred to freedom from Belgian colonialism, and also to freedom from the Tutsi-dominated feudal system that the Belgians left behind.
The Chamber concluded that by 1994 in Rwanda, the three songs had clear meanings, and murderous consequences: RTLM’s “broadcasts of Bikindi’s songs had an amplifying effect on the genocide.” Bikindi was not found liable for that since the prosecution failed to prove that he played a role in disseminating the songs in 1994, when Rwandan radio broadcasts featured them, interspersed with anti-Tutsi rants. In his indictment, prosecutors had alleged that Bikindi “had a right to forbid or enjoin public broadcasts of his compositions” but the Chamber noted in dicta that Bikindi had no responsibility to do so. That is legally correct, but morally unsatisfying.
Bikindi was also charged with many crimes other than incitement, including specific attacks and killings, training Interahamwe militias, and conspiracy to commit genocide. The ICTR acquitted him of them all, finding that the prosecution had, again, failed to prove them adequately.
He was convicted of incitement to genocide only for an act of speech so blatant that, if Bikindi had delivered it directly to soldiers, it would have constituted an order, not incitement. In late June 1994, when most of the genocide was already over, Bikindi drove along a road in his native Gisenyi, calling over a loudspeaker, “The majority population, it’s you, the Hutu I am talking to. You know the minority population is the Tutsi. Exterminate quickly the remaining ones.” At that point, the Chamber found, Bikindi’s intent and meaning were both clear. Also at that point, the genocide was so far advanced that it was too late for any type of speech to play a true catalytic role in the genocide. Speech may do that when it is uttered, printed, or sung before genocide. As I’ve argued before in my recent article in the Virginia Journal of International Law and in this post on Opinio Juris, such speech has been inadequately defined so far in the law. In the Bikindi case, the ICTR mainly ducked a chance to make progress.
From what I can tell, the contents of the songs didn’t directly promote genocide. Wouldn’t that mean justice is served?
In his indictment, prosecutors had alleged that Bikindi “had a right to forbid or enjoin public broadcasts of his compositions” but the Chamber noted in dicta that Bikindi had no responsibility to do so. That is legally correct, but morally unsatisfying.
Emphasis on the legally correct. We don’t want to end up charging people with genocide just because their music was used to further it.
I must say a hearty “ditto” to the comment by M. Gross. I will also add that this decision may not have helped define the content of speech that constitutes incitement. It did, however, clarify aspects of the intent that must accompany speech. In that vein, it reached the unsurprising conclusion that the actus reus and culpable mens rea must coincide. The decision also clarified that there is no duty to prevent one’s former speech from being used to further genocide, perhaps even if the failure to act is based in part on sympathy to the cause. Perhaps this is morally unsatisfying, but I wonder if you would feel the same way if the defendant had not ultimately (and only allegedly as he was acquitted) participated in the genocide or even left the country without publicly denouncing the use of the songs or the genocide. In my humble opinion, the court is to be applauded for not addressing such a difficult issue when there was obviously no need to do so given the grounds of its decision. While I agree this area of the law cries out for clarity, I also find it to be such a difficult question that it should only… Read more »