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Acoustic JurisprudenceListening to the Trial of Simon Bikindi$

James E K Parker

Print publication date: 2015

Print ISBN-13: 9780198735809

Published to Oxford Scholarship Online: November 2015

DOI: 10.1093/acprof:oso/9780198735809.001.0001

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Listening to the Trial of Simon Bikindi

Listening to the Trial of Simon Bikindi

Chapter:
(p.44) 2 Listening to the Trial of Simon Bikindi
Source:
Acoustic Jurisprudence
Author(s):

James E K Parker

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198735809.003.0003

Abstract and Keywords

This chapter introduces the Bikindi case in detail, along with some necessary context. Having offered a brief overview of the Rwandan genocide, it summarizes the history and structure of the International Criminal Tribunal for Rwanda before outlining the specifics of the charges against Bikindi, the three songs at the centre of his trial and the judgments eventually rendered. The chapter then addresses the response to the Bikindi case in the legal literature, in musicology, and in the media. This response, it is suggested, is symptomatic of the deafness of so much contemporary juridical thought. Finally, the chapter details the archival materials on which the study is based, along with the method brought to bear on them.

Keywords:   Rwanda, ICTR, International Criminal Law, incitement, genocide, freedom of expression

An acoustic jurisprudence could in principle begin anywhere. This book could have cast its net wide rather than deep, taken a series of case studies across a variety of fields, jurisdictions, and institutions rather than concentrate on just one. I have elected to focus exclusively on the International Criminal Tribunal for Rwanda (ICTR) and the Bikindi case for a number of reasons. As I explained in the introduction, mainly this is because as a case study it is especially fertile, because matters of acoustics were so central and because the stakes were so exceptionally high. Indeed, they could hardly have been much higher. To repeat: here, for the very first time, was a major international institution accusing someone of inciting genocide with his songs, accusing a singer of being amongst the ninety-two ‘most responsible’ for the deaths of upwards of five hundred thousand people. The Bikindi case makes it strikingly clear that how legal institutions think and work with sound matters; and moreover that they can do so much better, more responsibly. By burrowing down into the particulars of a single case, by choosing to provide a thick as opposed to a thin account,1 I want to show just how deep the law–sound relation goes, just how rich a field of inquiry this potentially is. And I do so in the hope that further studies, in different areas and different contexts, will follow. This book is envisaged as an opening not an end. It is just one possible exemplification of how one might go about taking responsibility for questions of sound and listening in the practice of law. It is to the details of this exemplification that we now turn.

The Rwandan Genocide

Thirteen weeks. One hundred days between April and July 1994. That’s all it took for more than half a million Rwandans to be slaughtered: the end result of the most rapid extermination campaign of the twentieth century. Of those killed, tens of thousands were Hutus, but the vast majority were Tutsi: some estimates suggest as much as three-quarters of the total Tutsi population.2 The violence was (p.45) systematic, low-tech and extremely public. Though it was conceived, and to a large extent coordinated, centrally by a small group within the majority Hutu government (MRND) in the context of a civil war, it was carried out by a combination of the military, a government-backed militia group known as the Interahamwe and an apparently willing population. The conflict was not simply the result of ‘ancient tribal hatred’ as some commentators initially and racistly suggested. It came on the back of nearly a century of colonial upheaval, decades of civil unrest following independence from Belgium in 1962, anti-Tutsi massacres in both the 1960s and 1970s, and another civil war as recently as 1990.3 Not just that. It was fuelled by a propaganda campaign in the media: in the pages of the state-owned newspaper Kangura, on Radio Télévision Libre des Mille Collines (RTLM), and on the government station Radio Rwanda. When war did finally break out following the assassination of President Juvenal Habyarimana on 6 April 1994, it quickly became clear that the intention of the small group of government hardliners who had seized power was especially sinister this time round. The idea was not just to repel a predominantly Tutsi rebel group known as the Rwandan Patriotic Front (RPF, sometimes also referred to as Inkotanyi) in their attempts to seize power, but to eliminate Rwanda’s Tutsis entirely. Hundreds of thousands of Rwandans played their part. Not only was this genocide, it was a genocide in which there were nearly as many perpetrators as there were victims.

As the genocide unfolded, the world looked and listened on, and did nothing. Though the UN had peacekeeping forces in Rwanda at the time, they were denied either the manpower or the mandate to prevent the violence to which they bore witness.4 Yet, no sooner had the conflict ended than talks began to establish an international body to prosecute it.

The International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda is a UN body. It was officially born on 8 November 1994 by virtue of UN Security Council Resolution 955 in order to ‘prosecute persons responsible for genocide and other serious violations of international humanitarian law’ committed during the events of that year.5 Although the Rwandan government had originally pushed hard for the (p.46) establishment of such a Tribunal,6 it eventually voted against Resolution 955.7 The reasons why are complex, but amongst other things it objected to the Tribunal’s temporal jurisdiction, which it considered too restrictive, to certain aspects of its composition and structure, to the fact that capital punishment had been ruled out, and to the fact that the Tribunal would not be situated on Rwandan soil.8 Despite these objections, when Resolution 955 was eventually passed by a vote of thirteen to one, with China abstaining, the Rwandan government did agree in principle to cooperate with the Tribunal’s investigations,9 and by February 1995 it had been determined that the Tribunal would have its ‘seat’ in Arusha, Tanzania.10 On 27 November 1995, the ICTR moved in to the Arusha International Conference Centre which has been its home ever since.11

Although the make-up of the Tribunal is quite diverse—according to figures from 2011, some seventy-seven different nationalities were then represented on its staff—as an institution the ICTR’s origins are very definitely in European legal thought and traditions.12 It is a direct descendant of the Nuremberg Tribunal convened to prosecute war crimes after World War II, its method is adversarial, and its rules of evidence and procedure along with much of its most important doctrine are explicitly grounded in European Common and Civil law. Structurally, the ICTR was modelled on the Tribunal for the former Yugoslavia (ICTY) which, as the Rwandan genocide was taking place, had just been established to prosecute the atrocities that occurred in the Balkans during the early 1990s.13 Accordingly, the ICTR comprises three main organs. The judicial organ (the Chambers) consists of three Trial Chambers—expanded in 1998 from the original two—and an Appeals Chamber which is shared with the ICTY.14 Three judges sit in each Trial Chamber and five in the Appeals Chamber. No two judges may be nationals of the same state, and all are elected by the UN General Assembly from a list submitted by the Security Council, which in turn is derived from nominees suggested by UN member states. The Tribunal’s investigative and prosecutorial organ (the Office of the (p.47) Prosecutor) is responsible for all preliminary investigations, decisions in relation to who to indict and on what grounds, and all prosecutorial functions during the pre-trial phase, trial proceedings, and post-trial. And the Tribunal’s administrative organ (the Registry), which is by far the most diverse of the three, is responsible for everything from court management, to archiving, to providing support to victims and witnesses, to diplomacy and liaising with defence counsel. Although, of course, accused have a right to legal representation, and without payment if necessary, defence counsel are required to operate independently. No fourth organ—the equivalent, say, of the Public Defenders Office in the United States—is provided for in the Tribunal’s Statute.15

Like the Yugoslavia Tribunal, the ICTR’s mandate was limited at the time of its inception in a number of ways. First, territorially to acts of genocide and crimes against humanity committed in the state of Rwanda or by Rwandan citizens in the territory of neighbouring states;16 second, temporally to acts of genocide and crimes against humanity committed during the period between 1 January 1994 and 31 December 1994;17 and third, strategically. Because of the extraordinary nature of the genocide, and the exceptionally large number of responsible parties, the Tribunal’s stated policy was to prosecute only those it regarded as having played a particularly significant role in the events of 1994, with the rest of the significant juridical burden being left to Rwanda’s own Gacaca courts.18 Evidently, renowned Rwandan singer and public figure Simon Bikindi fell into this category.

Since the Tribunal’s foundation in 1994, a total of ninety-three individuals have been indicted. Of these, sixty-one were sentenced, fourteen acquitted, and ten referred to national jurisdictions for trial. Three of those indicted have died either prior to or during their trial, two indictments were withdrawn before trial, and three accused remain on the run.19 Amongst these proceedings the Tribunal is able to count a number of important milestones.20 The trial of Jean-Paul Akayesu, for instance, led to the first ever conviction for genocide by an international tribunal.21 Jean Kambanda, Prime Minister of Rwanda’s interim government during the events of 1994, was both the first accused to plead guilty to charges of genocide and the first former head of state to be convicted before an international (p.48) tribunal since Nuremberg.22 And in 2003 the trial of Ferdinand Nahimana, Jean Bosco Barayagwiza, and Hassan Ngeze—the so-called Media case—resulted in the first verdict holding members of the media responsible for direct and public incitement to genocide.23

Nevertheless, the ICTR has also generated a lot of criticism over the years. In addition to the more general difficulties surrounding the normative foundations of international criminal law per se, there have been criticisms of the Tribunal’s development and application of doctrine. On the more administrative or procedural side of things, the ICTR has been accused variously of excessive cost and delays, inadequate infrastructure and personnel, poor standards of investigation and evidence collection, and insensitive treatment of witnesses. And politically, the Tribunal has consistently been charged with being too far removed both geographically and substantively from the daily lives of Rwandan citizens, allegations have been made of both mismanagement and corruption, and there have been accusations of victors’ justice on the basis that the ICTR refused to prosecute violations of international humanitarian law committed by high-ranking RPF officers, including Rwanda’s incumbent President Paul Kagame.24

Despite these criticisms, today the ICTR is nearly at the end of its task. Indeed, it was never intended to exist on an ongoing basis. In December 2010, the Security Council established the so-called Residual Mechanism to ‘continue the material, territorial, temporal and personal jurisdiction’ of both the ICTR and the ICTY as they are gradually wound down.25 The ICTR officially began the process of transferring its authority on 1 July 2012. With the Tribunal’s final judgment delivered at the end of 2012, the Residual Mechanism will now preside over the small number of cases still on appeal and retains the authority to prosecute those accused (p.49) still at large should they ever be located. Importantly, it is also responsible for completing and maintaining the judicial archive, including the audio and audio-visual records of every trial conducted throughout the Tribunal’s life.26 This archive will continue to be located in Arusha. However, the Residual Mechanism has been tasked both with preserving the materials contained there and facilitating ‘the widest possible access to them while ensuring the continued protection of confidential information’.27 This, it says, is ‘all aimed at ensuring that the rich legacy of the Tribunal, serving as an example of international commitment towards the fight against impunity, will be disseminated widely and preserved for posterity’.28

Prosecutor v Simon Bikindi

The charges

Following Bikindi’s indictment on 4 July 2001 by the ICTR’s then Prosecutor, Carla Del Ponte, the very next day a warrant was issued for Bikindi’s arrest.29 On 12 July he was apprehended by Dutch authorities at the Centre for Asylum Seekers in Leiderdorp,30 detained, and after losing both his legal battle against extradition and his application for asylum, finally transferred to the ICTR’s detention facility in Arusha on 27 March 2002 to await trial.31 The charges brought against him were about as serious as they get: conspiracy to commit genocide; genocide or, alternatively, complicity in genocide; direct and public incitement to commit genocide; murder as a crime against humanity; persecution as a crime against humanity.32 While the detail of each of these charges is complex, the crux of the case against Bikindi was simple. In essence, Bikindi stood accused of inciting genocide with his songs, which he was alleged to have performed live at political rallies on several occasions and which had received extensive radio airplay on Radio Rwanda and RTLM, in addition to their sale and distribution on cassette. Although he was also accused of participating personally in some killings during the later stages of 1994’s genocide, these charges were eventually dropped. He was being tried primarily as a singer.

Already in the indictment filed a week before his arrest on 4 July 2001, the Prosecutor had this to say under the heading ‘The Accused’:

Simon Bikindi was born on 28 September 1954 in Rwerere commune, Gisenyi prefecture, Rwanda. During the period material to this indictment, Simon Bikindi was a well-known (p.50) composer and singer of popular music and director of the performance group Irindiro Ballet. Simon Bikindi was also an official in the Ministry of Youth and Sports of the Government of Rwanda and a member of the MRND political party.33

A singer first and foremost and an official only after, Bikindi’s songs were central to three of the six charges brought against him. Each of these was a variation on the central theme of incitement. Bikindi’s indictment puts the basic claim in relation to ‘direct and public incitement to commit genocide’ like this. ‘During the period 1990 to 1994’, it reads, Bikindi had ‘composed, performed, recorded or disseminated musical compositions extolling Hutu solidarity and characterising Tutsi as enslavers of the Hutu’. These compositions were then subsequently ‘deployed in a propaganda campaign to target Tutsi as the enemy, or as enemy accomplices, and to instigate, incite, and encourage the Hutu population to separate themselves from the Tutsi and to kill them’.34 The conspiracy charges also revolved around his songs. He was said to have consulted with President Habyarimana and other MRND officials on the subject matter of his songs’ lyrics before going on to record them at Radio Rwanda’s studios and perform them at MRND and Interahamwe recruitment drives and military training. Not only that, but as one of the founders of RTLM he was purportedly able to participate directly in the so-called ‘campaign to defeat the enemy in the media’.35 The indictment claimed that ‘the intertwining objectives of RTLM’s media programming and Simon Bikindi’s musical recordings’ were ‘the same’: namely, ‘to sensitize and incite the listening public to target and commit violent acts against the Tutsis, particularly the civilian militias, the government armed forces and the masses of Rwanda’s Hutu peasantry; and to extol Hutu solidarity and to target the Tutsi as accomplices of the enemy’.36 As such, his songs were said to have been nothing less than ‘a crucial part of the genocidal plan’.37 Not only had Bikindi’s songs incited genocide, it was alleged, he had knowingly and actively conspired with the genocide’s major architects in relation to both their composition and dissemination. When it came to the charges in relation to ‘persecution as a crime against humanity’, the Prosecutor’s claim was more modest and open ended. Bikindi had composed, written, performed, recorded, and disseminated his songs, it was claimed, not in order to incite genocide but simply the persecution of Tutsis and sympathetic Hutus.38

(p.51) The songs

As far as the songs themselves were concerned, just three were named in the indictment and just three would go on to be in issue at trial. Although the defence did attempt to argue that Bikindi’s entire body of work should be considered, including the traditional wedding songs that brought him fame at the start of his career, the Chamber pointed out that this approach would not necessarily work in their favour. If the defence wanted to include the wedding songs, it would also have to include the series of so-called ‘war songs’ Bikindi had recorded in 1991, along with a number of others which may well not be beneficial to their cause.39

Just three songs then: one composed and first recorded in 1987, the other two in 1993. Instrumentally they are quite diverse, but the inanga for instance, a stringed instrument on which Bikindi was apparently a ‘master player’, features prominently, as do electric guitar and bass.40 All three songs are long, well over ten minutes in the case of two of them, though by how much exactly depends on the recording. And the lyrics—which are full of references to Rwandan history, well-known figures, famous episodes—are ‘poetic’ and ‘sophisticated’, rich with ‘imagery’ and ‘allusions’, in a ‘literary high form of Kinyarwanda’ as one witness put it.41 Some parts are sung just by Bikindi, others by a chorus. Sometimes there are multiple characters, and structurally, therefore, extensive use is made of call and response, question and answer, verse and refrain, though often organized in quite complex ways.

I will say more about what the Chamber made of these songs in a moment and then again in detail in Chapter 3. But first, a quick note on their titles, because the question of how to name them for the purposes of this book is a fraught one. The title of one, Twasezereye (‘We Said Goodbye’), was not deemed especially controversial at trial.42 The other two titles, however, were hotly contested. Bikindi and the defence claimed that one should be Akabyutso (‘The Awakening’) and the other Intabaza (‘The Alert’) whereas the prosecution preferred Nanga Abahutu (‘I Hate the Hutu’) and Bene Sebahinzi (‘The Descendants of Sebahinzi’) respectively. The problem is that the question of title was directly bound up with the question of Bikindi’s criminal intent. Bikindi argued that the titles preferred by the prosecution had been invented by certain radio broadcasters in Rwanda specifically in order to distort the meaning of his songs in concert with the station’s genocidal agenda. In its judgment, the Trial Chamber attempted to sidestep this problem (p.52) entirely. ‘For the sake of symmetry with the Indictment’, it said, it would ‘refer to the three songs by the titles selected by the prosecution’, and take those offered by the defence into account when it came to inferring Bikindi’s intent with respect to the songs’ meanings as a whole.43 This decision is less neutral than it seems. By giving the prosecution’s titles default status simply by virtue of their structural location in the technics of the trial, the Tribunal accorded the indictment a sort of semantic gravitational pull. ‘For the sake of symmetry’ all roads lead back to it. The Prosecutor was effectively being permitted to set the terms of the debate years before the trial.

The results of this decision, moreover, have been significant. In the majority of the secondary literature on the Bikindi case, Bikindi’s songs have been referred to by the titles originally given by the prosecution with little or no critical awareness that doing so might be problematic, that it might involve a history or a politics. But the titles we choose nest a whole range of interpretative judgments and symbolic alignments which the Chamber’s attempt to sidestep both concealed and entrenched. Thus, in a book centrally concerned with how the ICTR understood Bikindi’s songs for the purposes of judgment, it behoves me to point out the politics at work here and leave the question of title as an open one. My approach in this book is as follows. Where it is necessary to refer to the songs by name I use Twasezereye, Nanga Abahutu/Akabyutso, and Bene Sebahinzi/Intabaza respectively. All references included in quotation, however, will be left in their original form.44

The judgment

Following Bikindi’s initial appearance before the court on 4 April 2002, it took more than four years for the trial itself to commence, which it eventually did on 18 September 2006. During the course of the next two years, and more than sixty days in court, hundreds of hours of witness testimony and oral argument were heard. Charges were read and oaths sworn. Recordings of Bikindi’s songs were played to the court on multiple occasions, witnesses hummed his melodies and Bikindi himself sang several times during the provision of his testimony. And all of this into microphones, out of speakers, and mediated by either one or a chain of interpreters. Finally, on 2 December 2008 Judge Inés Mónica Weinberg de Roca, who had presided over the trial, read out a summary of the Chamber’s judgment to the twenty or so individuals who were officially present and members of the public and media listening from the gallery.

With respect to Twasezereye, the evidence was apparently insufficient to establish Bikindi’s intentions. The song had been composed in 1987 for the commemoration of the twenty-fifth anniversary of Rwandan independence, and according to (p.53) the defence at least, that was exactly how it should be understood: as a celebration, incapable of inciting hatred, let alone genocide.45 But for the prosecution, the Chamber explained, Twasezereye was a ‘rallying call for unity among Hutu by reminding them of a past of subservience to the Tutsi’.46 Bikindi was not celebrating the end of the colonial regime but the monarchy, which was widely associated with Tutsi domination. Bikindi made reference, for instance, to the historical practice of adorning the dynastic drum Kalinga, an ‘emblem of the Tutsi’, with the testicles of vanquished enemies, and especially Hutu.47 For the prosecution expert, Bikindi’s implication was obvious: if current conditions prevailed, the monarchy would return and ‘therefore the Hutu had to strike first’.48 The Chamber was not convinced.

Where the other two songs were concerned, however, the ‘only reasonable inference’, the Chamber said, was that Bikindi had composed them with the ‘specific intention to disseminate pro-Hutu ideology and anti-Tutsi propaganda, and thus to encourage ethnic hatred’.49 Nanga Abahutu/Akabyutso listed five categories of Hutu who were said to be friends of the Tutsi, a list which bore striking similarities of language to the so-called ‘Bahutu Ten Commandments’ published in the inflammatory newspaper Kangura: Hutu who had forsaken their Hutu identity by becoming Tutsi for employment or educational advantage; Hutu who despise other Hutu; Hutu who are greedy and live off bribes from other Tutsi; Hutu who are naive and engage in war on the side of the Tutsi without any awareness of what is really at stake; Hutu who, when a Hutu makes a mistake, do not correct him by taking him aside, in order to ensure the unity of the Hutu.50 According to Bikindi, his intention here was not to advocate hatred, but was ‘more akin to smacking a small child to stop him from misbehaving’. He was a patriot, he said, and ‘could see the trouble his country was falling into’.51 For the prosecution expert, however, the song’s ‘message’ was far more sinister. It wasn’t just the five categories of hated Hutu that were so incendiary. There were also references to the assassinations of historical Hutu figures, presumed to have been by Tutsi monarchs. And in the political context of the time this could not fail, apparently, to exacerbate hatred, ‘pushing people to act’.52 In his opinion the song ‘unambiguously encouraged killings’.53

Bene Sebahinzi/Intabaza was probably the most complex of the three songs at issue in Bikindi’s trial. It tells the story of a crisis, faced in particular by the ‘descendants of the father of farmers’, then the cause of the crisis, and finally its cure. And it does so with the help of multiple characters and archetypes from the Rwandan historical and poetic tradition: amongst others, the soothsayer, the spitting snake, and the spy.54 For Bikindi, as for the defence, the song referred to (p.54) all Rwandan farmers, irrespective of ethnicity, and constituted a call to stop the chaos raging between them, and in particular by means of democracy.55 But again, for the prosecution the song was much less benign. Though the Tutsi were never mentioned explicitly, the song clearly framed them as a common enemy, the solution to which was Hutu unity.56 Its main ‘message’, the prosecution expert said, was for Hutu to unite against the RPF, and that the RPF could not win, ‘even with weapons’.57 As with Nanga Abahutu/Akabyutso, when understood in context the song was unambiguously an ‘invitation not only to hate, but also to kill people’.58

Though the Chamber was not prepared to go as far as the prosecution here, it was convinced that both Nanga Abahutu/Akabyutso and Bene Sebahinzi/Intabaza had at least been intended to encourage hatred. It simply didn’t believe ‘Bikindi’s assertion that the songs preached harmony’.59 He had actively ‘manipulated the history of Rwanda to extol Hutu solidarity’, the Chamber said.60 What’s more, the Chamber was also persuaded that all three songs had been used by presenters on RTLM and Radio Rwanda to incite genocidal killings, by means of their constant and inflammatory editorializing. ‘Please listen to Bikindi’s advice to the Inkotanyi’ one RTLM broadcaster entreated his listeners in May 1994. ‘He is warning them that they will all be wiped out … That is what is happening now, and the Inkotanyi are on the verge of extinction’.61 While it was clear that the songs had been deployed, therefore, ‘in a propaganda campaign in 1994 in Rwanda to incite people to attack and kill Tutsi’, in the final analysis there was ‘insufficient evidence to conclude beyond reasonable doubt that Bikindi composed these songs with the specific intention to incite such attacks and killings, even if they were used to that effect in 1994’.62

The Chamber’s argument comprised three distinct steps then. First, at least two of Bikindi’s songs had been intended to encourage hatred. Second, recordings of them had clearly been used by presenters on Radio Rwanda and RTLM to incite genocidal killings. Third, this use of the songs had not however coincided with Bikindi’s intentions.63 Though he might have intended to ‘extol Hutu solidarity … against a common foe’ this did not necessarily extend as far as ‘directly and publicly inciting genocide’ for the purposes of the Statute. The same went for the charges in relation to conspiracy and persecution. It wasn’t simply that the prosecution had failed to prove that Bikindi had collaborated with MRND officials. Even if he had, that would not have been sufficient to show that he had agreed with them to commit genocide.64 And although Bikindi had intended his songs to ‘encourage ethnic hatred’ and to be a vehicle of ‘anti-Tutsi propaganda’, because he had played no active role in their ‘dissemination’ or ‘deployment’ in 1994 during the period (p.55) under the Tribunal’s temporal jurisdiction, the prosecution had also failed to make its case in relation to persecution.65

In the end it was not Bikindi’s songs that the court relied upon in convicting him, therefore, but a number of statements he was reported to have made over a loudspeaker by the side of the road one day in June 1994. Bikindi had ‘used a public address system’, the Chamber said, ‘to state that the majority population, the Hutu, should rise up to exterminate the minority, the Tutsi’. Later on the same day, ‘Bikindi used the same system to ask if people had been killing Tutsi, who he referred to as snakes’.66 This the Chamber said was sufficient to ground a conviction. So although Bikindi was declared innocent of five of the six charges against him, on the basis of these statements the Chamber found him guilty of ‘direct and public incitement to genocide’ under Articles 2(3)(c) and 6(1) of its Statute and sentenced him to fifteen years’ imprisonment, with credit for the seven he had already served since his arrest in 2001.67

Two concurrent appeals then followed. Whereas Bikindi appealed both his conviction and, failing that, his sentence, the prosecution argued that this sentence was radically insufficient. Nothing less than life would do.68 A hearing was held on 30 September 2009 before a panel of five senior judges and on 18 March 2010 the Appeals Chamber’s judgment was finally delivered. Both appeals were dismissed and in 2012 Bikindi was transferred from Arusha to a prison in the West African Republic of Benin to serve out the remainder of his sentence.69 He is due to be released in 2016.

The response to the Bikindi case

Though this book is the first time the Bikindi case has been looked at in detail, it has not gone unnoticed in legal scholarship, musicology, or the media. Indeed, it is fair to say that Bikindi’s trial has proven genuinely provocative. Writing on it is often accompanied by eye-catching headlines and titles which tend to emphasize and occasionally to sensationalize the case’s musical dimensions. So we have everything from Gregory Gordon’s Music and Genocide to Donald McNeil’s Killer Songs. We have The Soundtrack to Genocide, The Drumbeats of Mass Slaughter, Sounds of Violence, and even a piece which riffs extensively off a lyric from Bob Dylan’s It’s Alright, Ma (I’m Only Bleeding).70 Despite all this posturing, however, none of these pieces takes seriously the implications of their title.

(p.56) In the legal literature, the case has been examined primarily for its doctrinal significance in relation to the laws of incitement and freedom of expression. Most of all, it is read as authority for two propositions. First, that there is a right to freedom of expression under customary international law, even if that right is not absolute.71 Second, that song is at least capable of constituting direct and public incitement to genocide, even if it did not on the facts of this particular case.72 At the same time, though, the Chamber’s reasoning in the Bikindi case has been roundly criticized for its supposed lack of rigour.73

In musicology, there is only one study of note. In 2013, Jason McCoy submitted his doctoral dissertation on the three songs at the heart of Bikindi’s trial. The thesis is based partly on interviews with Bikindi himself, conducted while Bikindi was still being held at the UN Detention Facility in Arusha, and partly on McCoy’s own ethnographic work. In addition to some interesting historical detail and discussion of contemporary perceptions of Bikindi and his music in Rwanda, it includes new English translations of all three songs along with McCoy’s own lyrical analysis. But even this study explicitly engages ‘in little analysis of the music itself, its social and cultural relevance, and its cognitive and emotional impact on audiences in the early 1990s’.74 And the account of the trial itself is jurisprudentially thin.

In the media, the focus was not so much on doctrine or the detail of the songs themselves as the decision’s political ramifications, the possibility that it could be used to justify limitations on musical and other forms of expression by oppressive regimes. For John Floyd, counsel for Rwandan journalist Hassan Ngeze in the so-called Media case, even prosecuting Bikindi was a real problem in this respect.75 It was tantamount to ‘putting Bob Dylan on trial for protest songs’.76 Whether or (p.57) not the comparison bears out is less important for the time being than the anxiety being expressed. Ole Reitov, a spokesman for and founding member of advocacy group and ‘world forum on music and censorship’ Freemuse, was more forgiving. For him the Trial Chamber’s decision in the Bikindi case was ‘pretty clever’, even ‘wise’. Although the Chamber had not been prepared to rule out the possibility that song could constitute incitement to genocide, it made it clear that it would not reach such a decision lightly.77 Bikindi’s prosecution was a clear statement from the ICTR about the importance of the role played by music in conflict situations, its relation to certain forms of ethnic and national identity and the severity of its perceived abuse. Even though Bikindi was eventually cleared of the charges in relation to his songs, there is a sense in which they were at the heart of his conviction nevertheless. Had Bikindi not been such a prominent singer, had his songs not featured so extensively on the radio as part of the Rwandan ‘soundscape’ in the run up to and during the genocide, he would never have been indicted by the Tribunal in the first place. Even if his songs did not result in a finding of criminal responsibility, it is possible to draw a direct line between them and his eventual imprisonment nevertheless.

The critical response to the Bikindi case has been intriguingly bipolar. It seems simultaneously to be aware that the case raises some profound questions in relation to the acoustic, and singularly disinterested in exploring them. It knows there is something provocative about attempting to hold a singer responsible for the role of his songs in facilitating genocide, about the role of radio, and the emphasis on acoustics in Rwanda’s media ecology, but has neither the tools nor the inclination to work the complexities of these issues through. In that sense, this literature too is symptomatic of the deafness of so much current juridical thought.

Archive and Method

How do I approach the Bikindi case? In terms of my archive, I am working from a wide variety of sources, many of which are publicly available. As well as the two published judgments in the Bikindi case, both at first instance and on appeal, the book makes extensive use of a complete set of redacted transcripts of the trial, in both English and French, as well as the indictments and certain other documents from Bikindi’s case file, all of which are downloadable from the ICTR’s online Public Judicial Records Database.78 But I was also lucky enough to visit the Tribunal for a month in January 2011.79 Although I did conduct a number (p.58) of interviews with members of the Tribunal during that period, these have not been directly incorporated into the analysis. Mostly the purpose of that trip was the observation of ongoing trials and to collect archival materials which were not already available online. These included certain pieces of audio-visual evidence that had not been submitted to the Tribunal under seal, along with a number of practice manuals and other internal documents. Of particular importance to the book, however, was a complete copy of the audio-record of proceedings along with as much of the audio-visual record as was publicly available.

It is not so long ago that much of the analysis I undertake in this book would not have been possible. Without an audio-visual of the trial, a systematic consideration of the role played by sound in a trial like Bikindi’s would be out of the question. Over the next few years, the Residual Mechanism will make public a complete and redacted audio and audio-visual archive for every case heard at the ICTR.80 When it does, it will be amongst the first legal institutions in the world to do so. But when I began work on this book it had yet to begin. I was particularly fortunate therefore that the Tribunal’s chief archivist Martha Hunt agreed to use the Bikindi case in the Judicial Record and Archive Unit’s pilot programme as they began to develop their archival systems and procedures at the start of November 2009. Without that generosity, this book would simply not exist.

Methodologically, the approach I bring to these materials is heavily informed by the scholarship outlined in Chapter 1, both jurisprudential and in the field of sound studies. Because I am asking novel questions about the role of sound and listening in legal thought and practice, because I am attempting to develop a specifically acoustic jurisprudence, my approach is necessarily wide ranging and eclectic. Although I always attempt to keep institutional questions and the practice of judgment front and centre, I shift regularly between different registers of thought and forms of engagement from a variety of different disciplines. Nevertheless, the distinction which gives each part of the book its structure and rhythm—between law’s sonic imagination, on the one hand, and the judicial soundscape, on the other—does bring with it a number of important methodological consequences.

In the first chapter in each Part of the book—that is, in Chapters 3, 5, and 7 respectively—I am interested in how the ICTR thought about acoustics, how it imagined song, speech, and sound to work, and the consequences of this imagination for the determination the Trial Chamber would eventually reach. To that end, in these chapters I am working mostly with the documentary archive: the indictments, trial transcripts, expert evidence, judgments, and the like. In each case I undertake a critical reading practice with a special attention to matters of acoustics, a kind of reading for sound if you like. I am trying to track, understand, and critique the diverse techniques by which the Tribunal made the acoustic amenable to legal analysis. In particular, I am reading for the way in which the ICTR’s sonic imagination revealed itself during the course of Bikindi’s trial at the level of doctrine, rhetoric, politics, and so on. In this regard I am just as interested (p.59) in the discourse at trial as in the judgments that finally eventuated. My question is not whether the Tribunal’s various doctrinal concerns were correctly applied to the Rwandan soundscape, but what kind of account of the soundscape those doctrinal concerns facilitated and produced. How did the various different legal actors involved in the Bikindi case present their arguments in relation to acoustics? What can the way in which song, speech, and sound were discussed at trial tell us about this institution in particular and about legal thought in general?

By contrast, in the second chapter of each pair—so in Chapters 4, 6, and 8 respectively—I am less interested in how the Tribunal thought about sound than in how it used it. I am concerned with how the courtroom was itself soundful, the huge variety of techniques by means of which sound was put to work in court, how it was deployed, ignored, co-opted, or otherwise perceived. When I consider the judicial soundscape then, I am interested both in how the Tribunal sounded in the Bikindi case and what the written materials reveal about how those involved related to the judicial soundscape. On the one hand, I undertake a practice of critical listening. Some of this listening took place during my visit to the ICTR in 2011, where most days for a month I sat in the public gallery at ongoing trials, listening over the court-provided headphones. Even though Bikindi’s trial was already well concluded by the time I arrived at the Tribunal, the proceedings I was able to attend operated in substantially similar ways, meaning that I was able to bring to my analysis of Bikindi’s trial a much richer understanding of its performative context than if I only had the recordings to go on. Nevertheless, much of the analysis here is based on the audio and audio-visual archive. A lot of my listening took place in Melbourne, in the library, at home, and always through good headphones. Because I was listening to mp3s, I was able to play and replay pertinent moments as many times as I chose. Sometimes, I just listened: to a few minutes, an hour, or a whole day of proceedings. But often I had the corresponding transcripts out in front of me, meaning that I was able to direct my listening to any episodes that stood out on the face of the text as potentially interesting: a comment by a judge, witness, or lawyer, for instance, on how to listen or otherwise engage with the soundscape. My critical listening practice was frequently supplemented therefore with a practice of reading for listening.

And so to the analysis. My hope is that what follows will provide the practices briefly described above with a little more texture. As I say, this book is intended as an opening not an end. It has been envisioned as a preliminary exploration and exemplification: not just an argument for an acoustic jurisprudence, but an attempt actually to show what it might mean to start taking responsibility for questions of sound in legal thought and practice. (p.60)

Notes:

(1) Clifford Geertz, ‘Thick Description: Toward an Interpretive Theory of Culture’ in The Interpretation of Cultures: Selected Essays (Basic Books, 1973) 3–30

(2) Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda (Human Rights Watch, 1999) 6

(3) Ibid; Scott Straus, The Order of Genocide (Cornell University Press, 2006).

(4) On Western complicity in the genocide see Gérard Prunier, The Rwanda Crisis: History of a Genocide (Columbia University Press, 1995); Michael Barnett, Eyewitness to a Genocide: The United Nations and Rwanda (Cornell University Press, 2002); Linda Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (Zed Books, 2000). Nesam McMillan argues that a tendency to frame the Rwandan genocide in terms of Western shame has deflected attention away from the potential legal issues raised by the international failure to act and the global responsibility of other countries regarding the genocide. See Nesam McMillan, ‘“Our” Shame: International Responsibility for the Rwandan Genocide’, Australian Feminist Law Journal 28 (June 2008) 3.

(5) Statute of the International Tribunal for Rwanda, UNSC Res 955 (8 November 1994) UN Doc S/RES/955, annex (‘ICTR Statute’).

(6) Statement of Rwanda (6 October 1994) UN Doc A/49/PV.21, 5.

(7) Statement of Rwanda (8 November 1994) UN Doc S/PV.3453.

(8) Statement of Rwanda (8 November 1994).

(9) ICTR Statute, art 28(1) and (2). On Rwanda’s varying relations with the Tribunal, see for instance Cedric Ryngaert, ‘State Cooperation with the ICTR’, International Criminal Law Review 13(1) (2013) 125; Yves Beigbeder, International Criminal Tribunals: Justice and Politics (Palgrave, 2011) 93–5.

(10) UNSC Res 977 (22 February 1995) UN Doc S/RES/977.

(11) ‘First Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda’ (24 September 1996) UN Doc A/51/399-S/1996/778, annex (‘First Annual Report of the ICTR’) 5.

(12) See International Criminal Tribunal for Rwanda, ‘About ICTR’, accessed 10 February 2015, <http://41.220.139.198/AboutICTR/GeneralInformation/tabid/101/Default.aspx>. On the history of the ICTR and other major international criminal tribunals, see Virginia Morris and Michael P Scharf, The International Criminal Tribunal for Rwanda (Transnational Publishers, 1998) vol 1, chs 1–3; William A Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press, 2006) pt 1.

(13) UNSC Res 808 (22 February 1993) UN Doc S/RES/808.

(14) UNSC Res 1165 (30 April 1998) UN Doc S/RES/1165.

(15) For a detailed account of the organization of the ICTR, see Morris and Scharf (1998) vol 1, ch 9.

(16) ICTR Statute, art 7.

(17) ICTR Statute, art 1.

(18) GacacaPhil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge University Press, 2010)

(19) Statistics from International Criminal Tribunal for Rwanda, ‘The ICTR in Brief’, accessed 10 February 2015, <http://www.unictr.org/en/tribunal>

(20) For more positive appraisals of the Tribunal, see for instance Djiena Wembou, ‘The International Criminal Tribunal for Rwanda: Its Role in the African Context’, International Review of the Red Cross 37(321) (1997) 685; Erik Møse, ‘Main Achievements of the ICTR’, Journal of International Criminal Justice 3(4) (2005) 920; Payam Akhavan, ‘Justice and Reconciliation in the Great Lakes Region of Africa: The Contribution of the International Criminal Tribunal for Rwanda’, Duke Journal of Comparative and International Law 7(2) (1997) 325.

(21) Prosecutor v Akayesu (Judgement) ICTR-96-4-T, T Ch I (2 September 1998) (‘Akayesu judgment’).

(22) Prosecutor v Kambanda (Judgement and Sentence) ICTR-97-23-S, T Ch I (4 September 1998) (‘Kambanda judgment and sentence).

(23) Prosecutor v Nahimana (Judgement and Sentence) ICTR-99-52-T, T Ch I (3 December 2003) (‘Nahimana judgment and sentence’), also known as the ‘Media case’.

(24) For some representative examples of these criticisms, see Larry May, Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005); Payam Akhavan, Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime (Cambridge University Press, 2012); Alison des Forges and Timothy Longman, ‘Legal Responses to Genocide in Rwanda’ in Eric Stover and Harvey M Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Ethnic Cleansing (Cambridge University Press, 2004) 53–5; Timothy Longman, Phuong Pham, and Harvey M Weinstein, ‘Connecting Justice to Human Experience: Attitudes Towards Accountability and Reconciliation in Rwanda’ in Eric Stover and Harvey M Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Ethnic Cleansing (Cambridge University Press, 2004); Nancy Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press, 2010); Avitus A Agbor, Instigation to Crimes against Humanity: The Flawed Jurisprudence of the Trial and Appeal Chambers of the International Criminal Tribunal for Rwanda (ICTR) (Brill, 2013); Kirsten M F Keith, ‘Justice at the International Criminal Tribunal for Rwanda: Are Criticisms Just?’, Law in Context 27(1) (2009) 78; Todd Howland and William Calathes, ‘The UN’s International Criminal Tribunal: Is it Justice or Jingoism for Rwanda? A Call for Transformation’, Virginia Journal of International Law 39(1) (1998) 135; Hanna Morrill, ‘Challenging Impunity? The Failure of the International Criminal Tribunal for Rwanda to Prosecute Paul Kagame’, Brooklyn Journal of International Law 37(2) (2012) 683.

(25) UNSC Res 1966 (22 December 2010) UN Doc S/RES/1966, art 1.

(26) UNSC Res 1966 (22 December 2010) art 27.

(27) UNSC Progress Report (18 November 2013) UN Doc S/2013/679, annex I, para 57.

(28) UNSC Progress Report (15 May 2014) UN Doc S/2014/343, para 84.

(29) ‘Warrant of Arrest and Orders for Transfer and Detention and for Search and Seizure’, Prosecutor v Bikindi, ICTR-01-72-0039 (5 July 2001).

(30) ‘Request of Whereabouts of 3 Scripts of Mr A Waday’, Prosecutor v Bikindi, ICTR-01-72-0026 (29 May 2002).

(31) ‘Takeover of Mr Simon Bikindi’, Prosecutor v Bikindi, ICTR-01-72-0016 (27 March 2002).

(32) ICTR Statute, arts 2, 3. See Prosecutor v Bikindi (Indictment) ICTR-01-72-I (4 July 2001) (‘Bikindi indictment’).

(33) Bikindi indictment, 1.

(34) Bikindi indictment, para 28 (emphasis removed).

(35) Bikindi indictment, para 8.

(36) Bikindi indictment, para 10.

(37) Prosecutor v Bikindi (Second Amended Indictment) ICTR-01-72-I (15 June 2005) (‘Bikindi second amended indictment’) para 16.

(38) Bikindi indictment, para 46. What this amounted to, as the Chamber would later point out, was essentially a particularly severe form of discrimination: Prosecutor v Bikindi (Judgement) ICTR-01-72-T, T Ch III (2 December 2008) (‘Bikindi judgment’) paras 390–5.

(39) Bikindi judgment, paras 200–205 (‘7.1.1.6 Other Songs’). See Prosecutor v Bikindi (Transcript) ICTR-01-72-T, T Ch III (Various dates) (‘Bikindi transcript’): 11 October 2006, 40; 9 October 2007, 36, 55; 17 October 2007, 14; 20 February 2007, 25.

(40) Exhibit No P73(E), ‘Prosecution Joint Expert Report of Gamaliel Mbonimana and Jean de Dieu Karangwa: “Thematic Analysis of the Songs”’, Prosecutor v Bikindi, ICTR-01-72-0152 (13 September 2006) 7.

(41) Bikindi judgment, paras 197–8.

(42) Originally the prosecution claimed that this song’s title should be Twasezereye ingoma yo cyami (‘We Said Goodbye to the Monarchy’) whereas Bikindi said it should be simply Twasezereye. In later iterations of the indictment, however, the prosecution also adopted this shorter version: Bikindi judgment, para 188.

(43) Bikindi judgment, para 190.

(44) For the debate concerning the songs’ titles at trial, see Bikindi transcript: 14 February 2007; 23 October 2007; 25 October 2007; 2 November 2007; 6 November 2007. For the Chamber’s discussion of this issue, see Bikindi judgment, paras 188–90.

(45) Bikindi judgment, para 214.

(46) Bikindi judgment, para 209.

(47) Bikindi judgment, para 211.

(48) Bikindi judgment, para 211; Exhibit No P73(E), Prosecutor v Bikindi (13 September 2006), 23.

(49) Bikindi judgment, para 254.

(50) Bikindi judgment, para 218.

(51) Bikindi judgment, para 229.

(52) Bikindi judgment, para 219.

(53) Bikindi judgment, para 221.

(54) Bikindi judgment, para 211; Exhibit No P73(E), Prosecutor v Bikindi (13 September 2006), 18–9.

(55) Bikindi judgment, para 244.

(56) Bikindi judgment, para 233.

(57) Bikindi judgment, para 236.

(58) Bikindi judgment, para 235.

(59) Bikindi judgment, para 252.

(60) Bikindi judgment, para 254.

(61) Bikindi judgment, para 239.

(62) Bikindi judgment, para 255.

(63) See Chapter 7 for further discussion of the issue of the ‘deployment’ of Bikindi’s songs by radio presenters at RTLM and Radio Rwanda.

(64) Bikindi judgment, para 406.

(65) Bikindi judgment, para 254.

(66) Bikindi judgment, para 422.

(67) ICTR Statute, arts 2(3)(c) and 6(1).

(68) Bikindi v The Prosecutor (Judgment) ICTR-01-72-A, Appeals Chamber (18 March 2010) (‘Bikindi appeal’) 2.

(69) ‘More ICTR Convicts Transferred to Mali and Benin to Serve Their Sentences’, United Nations International Criminal Tribunal for Rwanda, 3 July 2012, <http://www.unictr.org/en/news/more-ictr-convicts-transferred-mali-and-benin-serve-their-sentences>

(70) Gregory S Gordon, ‘Music and Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law’, Santa Clara Law Review 50(3) (2010) 607; Donald G McNeil Jr, ‘Killer Songs’, The New York Times, 17 March 2002, <http://www.nytimes.com/2002/03/17/magazine/killer-songs.html?src=pm>; Justin La Mort, ‘The Soundtrack of Genocide: Using Incitement to Genocide in the Bikindi Trial to Protect Free Speech and Uphold the Promise of Never Again’, Interdisciplinary Journal of Human Rights Law 4(1) (2010) 43; Thijs Bouwknegt, ‘Rwandan Genocide Singer Sentenced to Jail: The Drumbeats of Mass Slaughter’, Radio Netherlands Worldwide, 2 December 2008 (copy on file with author); Bill Berkeley, ‘Sounds of Violence’, New Republic 211(8–9) (1994) 18; Robert H Snyder, ‘“Disillusioned Words like Bullets Bark”: Incitement to Genocide, Music, and the Trial of Simon Bikindi’, Georgia Journal of International and Comparative Law 35(3) (2007) 645.

(71) Katharina Margetts and Nicole Janisiewicz, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, Journal of International Criminal Justice 7(2) (2009) 397, 397

(73) Gordon (2010) 2, 3. See also Gregory S Gordon, ‘“A War of Media, Words, Newspapers, and Radio Stations”: The ICTR Media Trial Verdict and a New Chapter in the International Law of Hate Speech’, Virginia Journal of International Law 45(1) (2004) 139; Susan Benesch, ‘Vile Crime or Inalienable Right: Defining Incitement to Genocide’, Virginia Journal of International Law 48(3) (2008) 485; Susan Benesch, ‘Inciting Genocide, Pleading Free Speech’, World Policy Journal 21(2) (2004) 62.

(74) Jason McCoy, ‘Mbwirabumva (“I Speak to Those Who Understand”): Three Songs by Simon Bikindi and the War and Genocide in Rwanda’ (PhD dissertation, Florida State University, 2013).

(75) Nahimana judgment and sentence, 3 December 2003.

(76) Dina Temple-Raston, ‘Journalism and Genocide’, Columbia Journalism Review 41(3) (2002) 18. The invocation of Bob Dylan in particular here is not insignificant. Dylan is the archetype of the Western protest singer, whose mythology relates to a very particular history of rock’s relation to Anglo-American rebellion, on the one hand, and the canonization of the folk musician as ‘artist’, on the other. See Simon Reynolds, The Sex Revolts: Gender, Rebellion and Rock’n’Roll (Harvard University Press, 1995); Michael Gray, The Art of Bob Dylan (Hamlyn, 1981); Greil Marcus, Mystery Train: Images of America in Rock’n’Roll Music (5th rev edn, Plume, 2008); Greil Marcus, Invisible Republic: Bob Dylan’s Basement Tapes (Picador, 1997); Greil Marcus, Bob Dylan by Greil Marcus: Writings 1968–2010 (Public Affairs, 2010).

(77) ‘Singer Sentenced to 15 Years for Incitement’, Freemuse, accessed 11 February 2015, <http://www.freemuse.org/sw31145.asp>

(78) UN ICTR Judicial Records Database <http://www.unictr.org/en/cases>.

(79) Ethics approval for this fieldwork was granted in advance by the University of Melbourne Human Research Ethics Committee.

(80) See UNSC Res 1966 (22 December 2010) arts 1, 27.