Charged with incitement to genocide

A Rwandan propagandist goes on trial in The Hague – do his Russian ‘colleagues’ await a similar fate?

Analysis by Pyotr Sapozhnikov. English version by Emily Laskin.

In October, a United Nations tribunal put Felician Kabuga, a Rwandan businessman and radio persona, and one of the architects of the 1994 Rwandan genocide on trial, charging him with direct involvement in genocide, public incitement to genocide, conspiracy to commit genocide, and human rights violations. The case may set a precedent for Russian propagandists, whose crucial role in justifying – and perhaps initiating – the war in Ukraine is well known. Less well understood is what consequences Russian architects of the war might face. Meduza explains the challenges the international community will face in bringing Russian propagandists to court, and what the charges could be if they ever do stand trial.

Felician Kabuga’s case

In early October, the trial of 89-year old Felician Kabuga began in The Hague. Kabuga was the founder of the radio station Radio Television Libre des Mille Collines, which prosecutors say was one of the main causes of the genocide of the Tutsi people in Rwanda in 1994. The radio station’s employees were exclusively members of Rwanda’s Hutu majority, and its broadcasts compared the Tutsi minority to cockroaches and called for their mass murder. It is estimated that between 500,000 and a million people were killed in the Rwandan genocide.

Kabuga was on the run for 23 years, until his arrest in France in 2020. A United Nations tribunal has charged him with genocide, public incitement to genocide, conspiracy to commit genocide, and human rights violations. The businessman is also accused of supporting the Interahamwe, a Hutu paramilitary organization accused of carrying out mass murders against civilians. Kabuga maintains that he is innocent and his defense has said that he is merely a businessman who was caught up in the conflict.

He will be tried by the International Residual Mechanism for Criminal Tribunals (also known as simply the Mechanism), an international court which was established to complete the work of UN tribunals on Rwanda and the former Yugoslavia, and to prosecute criminals who were not tried before those tribunals’ mandates ended.

The Mechanism is now headquartered in Tanzania, but Kabuga will be tried in The Hague, after medical experts agreed that transporting him long distances could harm his health. The Hague also permanently houses the International Criminal Court, which investigates crimes against humanity, war crimes, and other international crimes, and the International Court of Justice, sometimes called the World Court, which resolves disputes between states.

The Mechanism is an ad hoc tribunal – in other words, it was formed for special circumstances. Like other ad hoc UN courts, it was created by a UN Security Council vote in which permanent members (China, Russia, the UK, the US, and France) have the right to veto. 14 members approved the resolution to create the Mechanism, and one – Russia – abstained. Explaining its decision, the Russian Federation stated that the tribunals on Rwanda and the former Yugoslavia had “ample opportunity to complete the tasks assigned to them within the established period.”

Kabuga is on trial for his role in inciting genocide by producing anti-Tutsi propaganda, as well as for more “direct” involvement, including procuring weapons used to massacre Tutsis. Experts with the Public Verdict organization told Meduza that proving direct involvement, in Kabuga’s case, is easier than proving incitement. The precedent from the International Criminal Tribunal for Rwanda holds that incitement must be “direct” and “public.” A vague or oblique hint cannot be considered “direct” speech – it must provoke another person to “immediate” action. The UN’s International Law Commission considers appeals “public” which are made in a public place or through mass media. Incitement to genocide in a private conversation can be criminal only when it produces real consequences. In theory, public incitement can be prosecuted even if nothing results from it.

Formally, incitement does not have to be successful in order to find the perpetrator guilty. However, at the international level, people have been held accountable for incitement only when genocide occurred and the connection between the crimes and the propaganda was obvious, Gleb Bogush, a postdoctoral researcher at the University of Copenhagen, told Meduza.

Rwandan propagandists – a precedent for their Russian counterparts?

You can judge for yourself how similar Russian propagandists’ speech is to that of Rwandan “journalists.” Here’s an excerpt from a 1994 radio broadcast, which the tribunal on Rwanda declared criminal (the name of the announcer was illegible):

Last night, I saw a Tutsi kid who was wounded and thrown in a pit 15 meters deep. He managed to climb out, and they finished him off with a club. Before his death he was interrogated. He said the Inkotanyi promised to pay for his university studies. Fine, but this could have been achieved without risking your life and ruining your country. I don’t understand what the Inkotanyi are thinking. They don’t have more weapons than us. They have far fewer people. I think unless they retreat they’ll disappear.

And here’s what Anton Krasovsky, broadcasting director of RT Russia’s Russian-language service, said on air during a conversation with writer Sergey Lukyanenko (before these remarks, he described hearing, as a child, other children say “Ukraine is occupied by Russkies”):

Those children should have been straight-up drowned in the Tysyna, right where the duck swims (Editor's note: This is reference to a Ukrainian folk song). Straight-up drowned, those children. Drowned! Right in the Tysyna. This isn’t your method; you’re cultured people, you fantasy writers. This is our method. As soon as they say, ‘The Russkies have occupied [Ukraine],’ throw them into a river with a violent, raging current.

Lukyanenko responded by saying that in ancient Rus, “branches were traditionally used” to punish people, to which Krasovsky said that the children could have been burned: “Just stuff them in a log cabin and burn it.”

There are numerous other examples: an infamous RIA Novosti op-ed calling for the destruction of the Ukrainian nation; Alexander Dugin demanding that Russian casualties from the 2014 Crimean crisis be “cleansed with the blood of [Ukrainian] scum;” the Russian publicist Armen Gasparyan, who published a pseudo-historical argument against Ukrainian nationhood.

Russian propagandists will probably try to justify themselves by saying that they also consider Russians and Ukrainians to be “brothers.” The tribunal on Rwanda shows that this tactic is unlikely to work. For example, during that tribunal, the defense cited Radio Television Libre des Mille Collines announcer Kantano Habimana as saying:

I don’t hate Tutsis! That’s not true. Why would I hate Tutsis? The only cause of misunderstanding is that Inkotanyi bombs fell on us. They drove us from our homes and forced us to live in the desert. That was the only cause of misunderstanding. There’s no reason to hate them. Now they understand that dialogue is the most important thing. They let go of their grudge and laid down their arms. [...] They’re also Rwandan. [...] Even Inokantyi can speak on our radio. Anyone who thinks our radio stations cause quarrels between people will be amazed. You’ll find that you were mistaken. In the end, the radio will be a mediator between the people.

Regardless of excerpts that could be taken as defense of Tutsis, the tribunal found that the broadcast was still incitement, and that the journalist obviously intended to “arouse anger against Tutsis” and to “deride them.”

Ukraine and the genocide question

There is no doubt that the Russian invasion of Ukraine has been and continues to be brutal and inhumane. Technically, international legal bodies have not yet judged whether events in Ukraine constitute the international crime of genocide. Heads of state have weighed in on the matter, though.

United States President Joe Biden and former President Donald Trump called the situation in Ukraine genocide. President of France Emmanuel Macron considers it best to be “prudent” with the term, but has indicated that the Russian army is committing war crimes (genocide is a separate category).

The Prosecutor of the International Criminal Court, Karim A. A. Khan stated that he is “satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” The ICC Prosecutor’s office has opened an investigation into these crimes. However, Khan did not specifically mention that the Court considers events in Ukraine to be genocide.

Many avenues, many roadblocks, for bringing Russian propagandists before the law

Russian propagandists will not be tried by the tribunals on Yugoslavia and Rwanda, but they could possibly be brought to trial in the International Criminal Court. However, several obstacles exist.

First, the Rome Statute, a treaty which established the four core international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression, regulates the ICC’s activities. In 2016 Russia ceased, by presidential decree, to be a party to the Rome Statute and no longer has legal obligations arising from it. Ukraine is also not a party to the Statute. The ICC prosecutor can investigate crimes even if the country on whose territory they were committed, or whose citizens are suspects, is not a party to the Rome Statute. However, the Court does not have the right to try suspects in absentia.

Second, the charter of the tribunal which is trying Kabuga contains a separate clause on “direct and public incitement to genocide” as a punishable offense. The Rome Statute of the ICC has a clause on genocide, but no specific content relating to appeals or incitement. A tribunal is therefore more likely than the ICC to bring suspects to justice for incitement.

In theory, the UN could form a separate tribunal on events in Ukraine – and the possibility of trying defendants in absentia could be written into its charter. Moreover, a tribunal formed about the war in Ukraine could possibly have even broader jurisdiction than the tribunal on Rwanda or the Mechanism, which can charge propagandists only with public incitement to genocide or direct involvement. However, forming an international tribunal presents a problem. Doing so requires an agreement by the UN Security Council – Russia, as a permanent member, has veto power and would definitely use it.

There are also a few theoretical possibilities even without Russia’s cooperation.

At the end of October, Lichtenstein’s Permanent Representative to the UN proposed that the General Assembly create a tribunal. The Assembly has the right to take action if the Security Council cannot reach an agreement due to a veto from one of its permanent members and there has been a threat to peace, a breach of peace, or an act of aggression.

Then there’s the possibility of something resembling the Nuremberg trials, which lawyers with the Public Verdict organization told Meduza was theoretically possible. That tribunal was formed when four countries (France, the UK, US, and USSR) met in London and signed a multilateral agreement. But experts say that now that the structures of the UN and ICC exist, politicians are unlikely to revive this rudimentary approach.

It’s also important to keep in mind that the Nuremberg tribunal took place immediately after a war, and that the victorious countries tried war criminals from the losing side. This meant that justice was more important than the formal letter of the law. In fact, the law was worked out during the process itself – the term “genocide” was first used during the Nuremberg trials. The tribunals on Rwanda and the former Yugoslavia, which are more likely precedents for a possible tribunal on Russian crimes in Ukraine, were carried out by parties with greater remove from the effects of those wars.

Finally, the Russian Federation has an article in its own criminal code under which propagandists can, in theory, be prosecuted. The maximum sentence for the crime of publicly calling to unleash a war of aggression is imprisonment for up to five years. Legal expert Gleb Bogush believes that propagandists could also be considered accomplices to the crime of planning, preparing, initiating, or waging a war of aggression, whose maximum penalty is a 20 year prison term. However, experts from Public Verdict could not find any instance of Russia invoking those articles.

Even failing an international tribunal or criminal prosecution within Russia, there is still one possibility for holding Russian propagandists and war criminals accountable. It is connected to the legal principle of universal jurisdiction. Many countries in Europe and North America allow national courts to prosecute people who are not citizens of that country for crimes committed overseas.

Universal jurisdiction applies only to a few categories of crime – genocide, crimes against humanity, war crimes, torture, and international acts of terrorism. Several participants in the Rwandan genocide have been arrested and tried in various countries, such as Germany, that recognize their own courts’ universal jurisdiction over the crime of genocide.

And of course, in the end, the formation of a tribunal or a separate case is a question not only of legal aspects but of political will.

Analysis by Petr Sapozhnikov. English version by Emily Laskin.

Meduza thanks the Public Verdict organization for their help in preparing this piece