The Soundtrack to Genocide: Using Incitement to Genocide in the Bikindi Trial to Protect Free Speech and Uphold the Promise of Never Again

Abstract

The promise to “never again” allow the crime of genocide is often made, although promises alone were not enough to protect the victims in Srebrenica and Kigali. Legal concepts such as universal jurisdiction and the Responsibility to Protect are being used, or at least considered, as ways to uphold this promise, but the Genocide Convention still remains the main means of protection. One of the Convention’s tools of prevention and punishment is the criminalization of “direct and public incitement to commit genocide.” The meaning of these seven controversial words will help decide where the international community draws the line between preventing the crime of crimes and protecting the fundamental right of free speech. The claims of genocide are increasing, while advocates are pushing for expanding the Convention’s boundaries. No one wants to allow the next genocide. No one wants to allow perpetrators to escape punishment. This does not mean that in striving towards “never again” we sacrifice free speech as a casualty of war. Freedom of speech is “the indispensable condition of nearly every other form of freedom.” A vague or overly expansive interpretation of incitement will be abused and misused by dictators in silencing artists, journalists, and genuine political opposition. A limited, well-defined interpretation will still allow for the intended purpose of prevention and punishment of genocide, yet respect the basic tenets of free expression.

The upcoming appeal of Rwandan musician Simon Bikindi, who was charged with incitement to genocide in various contexts, including direct calls to action, implicit appeals, music composition, and failure to prevent radio broadcasts of his songs, will allow the International Criminal Tribunal for Rwanda (ICTR) to clarify the elements of incitement to genocide. Based upon a review of the genocide jurisprudence and the lessons learned from the American experience, I propose the following test: whether the speaker directly, seriously, and publicly urges the commission of genocide in the near future and that the message is reasonably likely to produce such action. Explicitly incorporating an imminence standard will permit incitement to genocide to serve its intended purpose of prevention while safeguarding freedom of speech.

This analysis is divided into six parts. Part I reviews the background of Simon Bikindi whose case has the potential to elucidate the incitement to genocide standards. Part II tracks the development of international law in response to the Holocaust and Rwandan genocide, while Part III examines nearly a century of U.S. experience in balancing speech and security. Part IV canvasses the proposed tests leading to Part V, which explains why the proposed imminence test should become the accepted standard. Lastly, Part VI details the test’s application in Bikindi’s appeal.

Keywords: Free Speech, Genocide, Human Rights Law, First Amendment, Incitement, Censorship, Bikindi, Rwanda, ICTR

JEL Classification: K42, K33, K39, K19