On Wednesday, the ICTR Appeals Chamber rendered its judgment in the case (No. ICTR-99-52) against Ferdinand Nahimana (founding member and senior official of Radio Télévision Libre des Mille Collines), Jean-Bosco Barayagwiza (board member of RTLM and a founding member of the Coalition for the Defense of the Republic), and Hassan Ngeze (editor-in-chief of the Kangura newspaper and a founding member of the CDR). Dubbed the "media case," the three were indicted (Nahimana indictment here; Barayagwiza indictment here; Ngeze indictment here) on charges (among others) of conspiracy to commit genocide, genocide, incitement to genocide, complicity in genocide, and crimes against humanity (persecution and extermination), primarily on the basis of radio broadcasts and newspaper articles. On December 3, 2003, the Trial Chamber found them guilty of most of the charges. Nahimana was sentenced to life imprisonment; Barayagwiza was sentenced to 35 years' imprisonment; and Ngeze was sentenced to life imprisonment.In its judgment, the Appeals Chamber (judgment here; summary here; press release here) found that the Trial Chamber had made a number of errors. Among other things, the Appeals Chamber found that the Tribunal, by virtue of its limited temporal jurisdiction, could not determine culpability based upon acts that occurred before 1994; the Appeals Chamber also found that there was insufficient evidence to prove that the co-defendants conspired to commit genocide. As a result, the Appeals Chamber vacated Nahimana's conviction, except for the findings of guilt, on the basis of superior responsibility, for incitement to genocide and crimes against humanity (persecution); vacated Barayagwiza's conviction, except for the findings of guilt, on the basis of individual responsibility, for genocide and crimes against humanity (both persecution and extermination); and vacated Ngeze's conviction, except for the findings of guilt, on the basis of individual responsibility, for genocide, incitement to genocide, and crimes against humanity (extermination). Consequently, the Appeals Chamber reduced the sentences of all three defendants: Nahimana will serve thirty years; Barayagwiza will serve thirty-two years; and Ngeze will serve thirty-five years.
Judges Pocar, Shahabuddeen, Güney, and Meron each dissented in part and appended opinions to the judgment. Judge Pocar disagreed with the Appeals Chamber's interpretation of Article 7 of the Statute, which restricted any finding of culpability to acts that took place after January 1, 1994, even when the acts began prior to that date. Judge Shahabuddeen disagreed with a majority of the Chamber on a number of issues, including the legal requirements for the establishment of a conspiracy and, like Judge Pocar, on the jurisdiction of the court to take into account pre-1994 acts that had 1994 consequences. Consistent with his views in previous cases (see, for example, here), Judge Güney disagreed with the majority's view that a defendant could be convicted of both persecution and extermination on basis of the same criminal conduct. He, therefore, dissented from the confirmation of Barayagwiza's conviction on the extermination count. Judge Meron would have vacated Nahimana's conviction for persecution, as it was based (improperly, in his view) on (protected) "mere hate speech."
