Use of the media is a powerful tool in crimes against humanity for the following reasons: it allows the wielder to shape contemporary discourse, it helps desensitise and marginalise those who are not being targeted, and it can successfully contribute to the generation, entrenchment and wholesale acceptance of dangerous demographic stereotypes, which often serve as the premise for ensuing violence.
The Rwandan Genocide is a prime example of how influential persons in control of sources of information, such as radio broadcasts and newsletters, can distort and filter the material that the public can access. The International Criminal Tribunal for Rwanda (ICTR), which was tasked with prosecuting various violations of international humanitarian law during the genocide, handed down a landmark judgment on this use of the media. This judgment, along with two significant cases of incendiary media use during the Third Reich in Germany, constitute a large part of the law on attribution of responsibility to the perpetrators.
I will analyse each case in order to arrive at an appropriate standard for responsibility, and to demonstrate why I think the Appeals Chamber of the ICTR did not do a good job.
I. The Case of Julius Streicher
The Nazi regime in Germany is well-known for its careful, manipulative use of the media. Julius Streicher was the founder and editor of an anti-Semitic newsletter called Der Stürmer, translatable to ‘The Attacker’. He made various far-fetched and malicious claims about Jews in the cartoons and articles he published in this newsletter scapegoating them for Germany’s economic problems and criminal happenings. In an article published in a 1939 edition of Der Stürmer, the author decried the idea of a ‘decent Jew’, stating his intention to make the public of the Third Reich understand why it was a “shameless lie”.
Streicher was tried by a military chamber at Nuremberg. The Tribunal found no direct causality between his acts and specific acts of killing Jews. He had issued no direct orders to anybody to exterminate the Jews and had not actually participated in the Holocaust. However, his circulation of vitriolic messages was noted as a “poison” which infiltrated the citizenry’s minds and made them subscribe to the general atmosphere of anti-Semitism. It quoted the following statement from Der Sturmer to illustrate Streicher’s ill-intentions: “A punitive expedition must come against the Jews in Russia. A punitive expedition which will provide the same fate for them that every murderer and criminal must expect. Death sentence and execution. The Jews in Russia must be killed. They must be exterminated root and branch.” The Tribunal considered that his efforts, in line with this sentiment, constituted incitement to murder and extermination of Jews.
In other words, Streicher had successfully contributed to desensitizing the non-Jewish population and was held responsible for crimes against humanity.
II. The Case of Hans Fritzsche
Fritzsche occupied the position of Ministerialdirektor at the Propagandaministerium, under the Ministry of Public Enlightenment and Propaganda. Subsequently, he was tasked with heading the Radio Division of the Ministry. During his reign, he aired various materials that reflected racist sentiments.
His case was unique. On the one hand, his position as the head of the Home Press Division did not give him enough power or responsibility to craft propaganda policies. On the other hand, he was certainly anti-Jew, and definitely played his part in spreading the message: he came out in praise of Propaganda Minister Joseph Goebbels’ ferocious policies, was responsible for anti-Semitic broadcasts on the radio, and had accused the Jews of having begun the war.
Eventually, he was acquitted. The Tribunal’s opinion – rightly so – was that racist propaganda on its own was not sufficient to invite responsibility; it must have urge the commission of atrocities upon a population. Moreover, it is only the ‘masterminds’ of a propagandist campaign – in Fritzsche’s case, Joseph Goebbels – who should be held responsible for incendiary use of the media.
III. The Rwandan Case
In the final case, that of the Rwandan genocide, the Appeals Chamber insisted on a ‘causal connection’ of the media use to the genocide in order to declare the defendants guilty of instigating the crime, and reversed defendant Nahimana’s conviction for instigation of genocide under Art. 6(1) of the ICTR Statute, because he had issued no direct orders to the journalists under him instructing them to incite Tutsi killings. Additionally, it reversed defendant Ngeze’s conviction of genocide in relation to the ‘Kangura’ newsletters, holding that it was not clear beyond reasonable doubt that Kangura editions had ‘contributed significantly ‘enough to Tutsi killings.
To demonstrate the effect that their use of the media had on the Rwandan genocide, I rely upon the following observations: most of the killers were members of the Hutu public and they used to sing anti-Tutsi songs they had picked up from the radio, broadcasts of ordinary Hutus spouting anti-Tutsi sentiments were frequently aired, “killers often carried a machete in one hand and a transistor radio in the other” and finally, that most of the 200,000 persons who took part in the killings were Hutus.
There is a need, therefore, to recast the ‘substantial contribution’ test of the Appeals Chamber in terms of Streicher’s case: despite having never ordered for Jews to be killed, Streicher was held responsible for having infected ordinary German minds with “the virus of anti-Semitism.” The Chamber in Rwanda created an illusory separation between various elements of the propaganda generated by the three defendants, rather than recognizing that together, they had managed to construct a rhetoric divisive enough to instigate ordinary persons to take machetes in order to kill their neighbours.
The concept of ‘facilitation of genocide’ would perhaps be more inclusive, and would encompass instances where systematic attacks upon a population were made possible in part through phenomena such as dehumanisation or demonization of one demographic, which in turn led to desensitisation, acceptance or tolerance of their victimization by another demographic.