Copyright (c) 2000 McGill Law JournalMcGill Law JournalNovember, 200046 McGill L.J. 141LENGTH: 16219 wordsARTICLE: International Conference: Hate Speech in Rwanda: The Road to GenocideWilliam A. Schabas** M.A. (Toronto), LL.D. (Montreal), Professor of Human Rights, National University of Ireland, Galway, and Director, Irish Centre for Human Rights. This paper was prepared for a panel on "Hate Speech, Hate Crimes, Genocide" at the international conference Hate, Genocide and Human Rights Fifty Years Later: What Have We Learned? What Must We Do? (Faculty of Law, McGill University, 28 January 1999).(c) McGill Law Journal 2000To be cited as: (2000) 46 McGill L.J. 141SUMMARY: ... According to a decision of the Immigration and Refugee Board of Canada, his remarks constituted direct and public incitement to commit genocide. ... This is particularly true of certain broadcasts in Kinyarwanda which differ markedly in content from news programmes broadcast in French, which is understood only by a small part of the population. ... Article III(c)of the Genocide Convention prohibits "direct and public incitement" to commit genocide. ... 2. direct public incitement to any act of genocide, whether the incitement be successful or not. ... The mens rea required for the crime of direct and public incitement to commit genocide lies in the intent to directly prompt or provoke another to commit genocide. ... In the accompanying commentary, the Secretariat noted that this was not the same as direct and public incitement to commit genocide, which had been provided for as an act of genocide in article II of the draft. ... The United States was not alone in its reluctance to deal with hate propaganda that fell short of direct and public incitement to genocide. ... One of them is the duty to prosecute "direct and public incitement" to commit genocide. ... HIGHLIGHT: The author outlines the steps leading to the Rwandan genocide, tracing the importance of hate speech, disseminated in print and by radio, in preparing Rwanda's "willing executioners". Action ought to have been taken much sooner than it was to prevent incitement to genocide, a crime under the Convention for the Prevention and Punishment of the Crime of Genocide. The author traces the drafting history of the convention, including opposition by the United States to the criminalization of direct and public incitement to genocide, motivated by concerns to protect freedom of the press. The author notes that other international instruments also contemplate prosecution for incitement. He discusses thejudicial interpretation of the Genocide Convention and the meaning of "direct" and "public". While the Genocide Convention criminalizes incitement to commit genocide, its blind spot isthat it fails to address hate propaganda, a prior and important step in the genocidal food chain. Other instruments of international human rights law, however, have since filled the gapin the Genocide Convention. While the Genocide Convention was clearly intended to have two prongs, prevention and punishment, it says little about the former. This is regrettable, as the early stages of genocide consist of propaganda against the targeted group.TEXT: [*143] Introduction1In January 1993 I participated in an international human rights fact-finding mission to Rwanda,organized by four prominent international non-governmental organizations ("NGO's"). We arrived in the midst of a civil war that had been going on sporadically since Tutsi refugees from Uganda invaded the country in October 1990. Our mission focussed on verifying widespread reports from national NGOs about atrocities perpetrated by the regime, crimes carried out mainly by the racist Interahamwe militia, which was directed by the ruling party. We arrived to find a country in a state of turmoil and agitation provoked by a speech suggesting that ethnic hatred had taken a new and genocidal turn. The orator was a confidante of the president named Leon Mugesera. One of our first stops in Kigali should have been a visit with the minister of justice. But he resigned out of frustration days before our arrival when he learned that his attempts to prosecute Mugesera for incitement to racial hatred were thwarted by the man's powerful friends.Three weeks later, with the fact-finding part of our mission concluded, we issued a preliminarystatement citing acts of "genocide" in Rwanda and warning of the abyss into which the country was headed. n1 Our report prompted a mission, in April of the same year, by United Nations special rapporteur Bacre Waly Ndiaye. Ndiaye confirmed the conclusions of our NGO fact-finding mission: The cases of intercommunal violence brought to the Special Rapporteur's attention indicate very clearly that the victims of the attacks, Tutsis in the overwhelming majority of cases, have been targeted solely because of their membership of a certain ethnic group, and for no other objective reason. Article II, paragraphs (a) and (b) [of the Convention for the Prevention and Punishment of the Crime of Genocide n2], might therefore be considered to apply to these cases. n3Our findings, couched in hesitant equivocation, like those of Ndiaye, were controversial and disturbing. Some of the sponsoring organizations of the mission had balked at the "g-word". [*144] Fifteen months later, history proved that our melancholy intuition about genocide had been well founded. n4 What was it about Rwanda in January 1993 that indicated to human rights experts, including the special rapporteur, that "genocide" was the appropriate characterization? We had seen convincing evidence of ethnic massacres, sometimes involvingseveral hundred Tutsi victims, but alone this was hardly sufficient to constitute genocide. It istrue that genocide, as defined in article II of the Genocide Convention, involves the destruction of a national, racial, ethnic, or religious group in whole or in part. There is no magic threshold past which ethnically motivated killing becomes genocide. The real test lies in the intent of the perpetrator. Mugesera's speech had brought us face to face with a genocidal intent. His call for destruction of Rwanda's Tutsi population was the decisive new element. Our January 1993 perception was hardly astute or clairvoyant. That genocide was inthe air in Rwanda was plain for any objective observer to see.Mugesera himself did not commit genocide, although his speech sparked a series of atrocities directed against Tutsi in the