Problems Regarding the Crime of Direct and Public Incitement to Commit Genocide

Chapter 5 reveals the intrinsic ambiguity and incoherence within the incitement to genocide framework. It identifies four primary problems with the framework, as laid out in the ICTR foundational cases: (1) inadequate explanation of the scope of the “direct” element; (2) a deficient definition of the “public” criterion; (3) failure to identify the essential components of “incitement”; and (4) an inconsistent and incoherent treatment of “causation.” Moreover, the Media Case Trial Chamber judgment offered a basic doctrinal base to which, in theory, future decisions could return as a point of repair and build on as a platform for incitement’s normative development. Unfortunately, as this chapter demonstrates, subsequent cases, including Mugesera v. Canada (2005), the Media Case Appeals Chamber judgment (2007), and Prosecutor v. Bikindi (2008), have failed to do that. Thus, the current iteration of incitement fails to promote deterrence and could be manipulated by authoritarian governments to suppress legitimate expression.