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This essay was written under contract with the United Nations to serve as background for my testimony as an expert witness in behalf of Hassen Ngeze in his prosecution before the International Criminal Tribunal for Rwanda. (On motion of the prosecutor, the Court excluded this essay - or report - and the offer of my testimony.) In the Prosecutor v. Ngeze, the prosecution charged Ngeze with direct and public incitement to genocide and conspiracy to commit genocide almost entirely on the basis of his publication of a newspaper, Kangura one of many newspapers being published in Rwanda during the period before the genocide, although not one of largest papers by circulation and not one still being published at the time the genocide began. The Essay begins by describing the essential role of a free press for democracy and for broader economic and social development and justice, with the essay emphasizing its particular importance for less developed countries. It then argues that in interpreting international criminal law standards, special efforts should be made to avoid interpretations that would make illegal any activities whose protection at least some clearly democratic countries consider fundamental to democracy. That is, international criminal law should try to avoid making democracy, as understood by significant democratic countries, illegal. With this background, different sections look at the precedent of the Nuremberg Trials, an earlier decision on direct and public incitement to genocide by the ICTR, and at the protection given the press by the European Court of Human Rights and the United States Constitution, with some emphasis on explaining the logic of the latter. The Essay provides a more exhaustive examination of the hundreds of pages of the reports of the prosecutions experts. These reports provide massive numbers of excerpts from Kangura that embody the heart of the prosecutions case. The Essay concludes that under all the precedents examined, ranging from Nuremberg to the recent ICTR case and under the constitutional approach of the United States or the human rights approach of the ECHR, there is absolutely no basis for a conviction in this case. Moreover, the Essay suggests that a conviction would create a tragic precedent given the democratic and developmental needs of countries such as Rwanda.


Freedom of the Press

Publication Title

Penn Law Public Law and Legal Theory Working Paper

Publication Citation

Public Law and Legal Theory Working Paper no. 46

NOTE: This was written 10 months before the ICTR reached a decision, issuing an opinion, finding Ngeze guilty of most charges, and sentencing him to life imprisonment. This paper will be revised in the future in light of this decision.