By The Hague Trials Kenya
The trial of Deputy Kenyan President William Ruto and journalist Joshua Arap Sang at the International Criminal Court is resuming tomorrow in The Hague. Joshua Arap Sang is facing charges of co-perpetration of crimes against humanity in relation to his radio broadcasts during the post-election violence in Kenya. THTK sat down with Richard Wilson, who is an expert in propaganda trials and how international courts have put broadcasters – like Sang – on trial for inciting genocide and instigating war crimes and crimes against humanity. He’s based at the University of Connecticut School of Law.
Q: What does the ICC prosecution have to prove to see Sang convicted of crimes against humanity?
They have to prove that by acting with William Ruto in a common purpose, he made an essential contribution to the commission of those crimes beyond a reasonable doubt. An essential contribution is higher than a significant contribution. Essential means that his actions were a necessary and sufficient cause of the ethnic violence that occurred in 2007. It’s quite a high bar. We’ll see if the prosecution has proved that or not in their case.
Q: What do you think? Have the prosecution made their case?
He may have contributed, but whether his contribution rises to the level of an essential contribution or not is an open question. It’s unlikely that his contribution was essential to the commission of those crimes. In other words, they may have happened without him. It seems as if he was more of an aider and abetter, an encourager rather than a primary perpetrator making an essential contribution. But that’s my personal view, and I’m not one of the judges, so the judges will have to decide on the basis of the evidence presented to them in the trial.
Q: Why would the prosecution have chosen that mode to charge him with? Why not go for aiding and abetting?
That’s a very good question. Prosecutors are often tempted to indict an individual for the highest modes of criminal responsibility that they think they can prove. And you’re right to question whether co-perpetrating, which requires an essential contribution, was the right mode of liability to charge him under. It may have been a safer path to have indicted him for aiding and abetting, which is easier to prove. Prosecutors want a big indictment, a big conviction and a big sentence. And that temptation often leads them to over-indict. However, they investigated the case, and they looked at the evidence carefully and decided that the evidence merited the charges. A safer path would have been to indict Sang as an accomplice under Article 25.3(c) of the Statute. But then, were he found guilty, the sentence would be much less than that of a perpetrator acting with a common purpose.
Q: What lessons can we draw from examples of other tribunals that are interesting for the Sang case?
First of all, none of the incidents or cases that have come before international tribunals – take Rwanda, Germany or the former Yugoslavia – none of these crimes against humanity or genocidal activities have occurred in the absence of propaganda or in the absence of a cheerleading role on the part of broadcasters. In each of these instances, you have political leaders who planned the mass slaughter of an ethnic, racial or religious group in their country. And in each case, there is a radio or television broadcaster or a print publisher which is condoning the atrocities or encouraging the population to take part in them.
Q: But does producing propaganda or supporting an idea mean these people can be held responsible for murders?
That’s a reasonable question that all of the tribunals have to ask – what liability should those individual broadcasters have. Many of them didn’t kill anyone personally. They were never a material perpetrator. They may not have been directly involved in any criminal enterprise that might have led to the physical destruction of persons or villages. But they played a role in encouraging the population to take part in or at least to tolerate these kinds of atrocities. So it’s a reasonable question that all of these tribunals have to address – what form of criminal liability does the propagandist have, and what is the connection between the speech acts of the individual and the violence that occurred.
Q: How difficult is it to show that the propaganda element was a very important contribution?
Partly it’s the nature of speech itself in the media. It’s quite generalised and it’s often euphemistic. Even if it’s a direct call, it’s very hard to show that that direct call triggered or incited specific individuals because there are so many factors at play. If you look at the Rwandan genocide – at the same time as the propaganda was being broadcast on the radio – the Rwandan army was handing out machetes and sending people to the barricades to identify Tutsis and murder them. That suggests that the genocide could have happened without the RTLM radio telling Rwandans that they should ‘be strong’, identify Tutsis, do the right thing and ‘go to work’ and ‘destroy the cockroaches’ using euphemistic genocidal language. There are so many intervening factors at work in any scenario.
Q: Do prosecutors sometimes overstate the case?
In many of these trials, they say that the population reacted mechanistically to the speeches of their leaders, almost like robots. And of course we know people are not robots. They may be persuaded by a speech but still may not act. Or they may already have been persuaded, and the radio simply reinforced that message. Or they may not have been persuaded at all by a speech but participated in the violence anyway because they were frightened for their own physical security because neighbors came to their house and called on them to participate. And they went along with those authority figures because their kin were involved. So there are all kinds of very complex elements of human behaviour that challenge a simple account of the impact of the media.
Q: Are prosecutors attracted to prosecuting this particular crime?
If you look at the propagandists who have been indicted, charged and tried in the past – Streicher in Germany, Seselj in the former Yugoslavia, Nahimana in Rwanda – they are in a sense the public view of the criminal enterprise, of the genocidal enterprise. They are very prominent and everyone knows who they are and what they said and what their intentionality was. So prosecutors are attracted to charging propagandists because they are the public face of the criminal enterprise and they are kind of a red rag to a bull.
Q; And the judges, how do they approach these trials?
The judges are always asking the question why: why did so many normal people participate in committing horrible crimes? In these previous examples, various peoples, ethnic groups and nationalities had lived together reasonably peacefully. So how is it that so many ordinary people participated in the slaughter of their neighbours? The judges are always asking how could this have happened. For many observers, it comes down to the propaganda that spread a message of hatred and violence. And so the prosecutors feel the need to provide that explanation for judges, and the propaganda cases provide the opportunity for them to do just that.
This interview was originally published on Justice Hub’s sister site, The Hague Trials Kenya.
Lead image: Joshua arap Sang (Photo: Sayyid Azim/AP Photo)