Music and Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law
![handle is hein.journals/saclr50 and id is 623 raw text is: MUSIC AND GENOCIDE: HARMONIZING
COHERENCE, FREEDOM AND NONVIOLENCE
IN INCITEMENT LAW
Gregory S. Gordon*
Music can... / Engender fury... /....
When Orpheus strikes the trembling lyre
The streams stand still, the stones admire;
The listening savages advance... / ....
And tigers mingle in the dance.
--Joseph Addison1
[The] first principles of justice that ultimately define a
system of law [are] the principles of uniform application of
rules, of consistency, of evenhandedness, of fairness.
-United States Supreme Court Justice William Brennan2
I. INTRODUCTION
Can singing a song constitute incitement to genocide? A
recent decision by the International Criminal Tribunal for
Rwanda (ICTR) in the prosecution of Rwandan Hutu
extremist pop singer Simon Bikindi said that it can.3 But it
failed to say precisely why.4 This is problematic because a
*Assistant Professor of Law, University of North Dakota, School of Law. I am
grateful for the contributions made by my Research Assistant, Amber
Hildebrandt, and for the support of my wonderful wife and children. I would
also like to thank Dolph Hellman and Professors Carol Pauli and Susan
Benesch for their insights.
1. JOSEPH ADDISON, A Song for St. Cecilia's Day, in THE POETIC WORKS OF
JOSEPH ADDISON 52-53 (Elibron Classics 2006) (1856).
2. Straight v. Wainwright, 476 U.S. 1132, 1135 (1986) (Brennan, J.,
dissenting).
3. See Prosecutor v. Bikindi, Case No. ICTR-01-72-T, Judgment, [ 249
(Dec. 2, 2008) (finding that Bikindi's songs advocated Hutu unity against a
common foe and incited ethnic hatred and that they were deployed in a
propaganda campaign in 1994 in Rwanda to incite people to attack and kill
Tutsi...).
4. Instead, as discussed at Part III.D infra, the Tribunal did not engage in
this analysis because it found Bikindi was not responsible for broadcasting the
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Music and Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law
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