Causation in the Manyemanya Scenario

The Manyemanya (fictional) scenario brings to fore a critical complexity in prosecuting hate speech in international criminal justice. This challenge lies in placing a direct causal relationship between the hate speech in question, and the atrocities that were committed. Such a direct causal relationship becomes blurred and is rendered a bit obscure when one focuses on issues: first, whether the defendant’s act caused the result. Secondly, the issue of remoteness of time and place: for example, if the hate speech was spewed in January 1990 and the atrocities committed four years later, can you establish a direct causal relationship where there is an apparent remoteness of time? In addition to the issue of remoteness of time, what of the case where hate speech was disseminated in City X and atrocities committed in another city located three hundred kilometres away (City Y): how would a court deal with such remoteness in place? Lastly, in situations of multiple actors operating at different times in various ways, how does a court determine with certainty the operative cause of any atrocity? Even though these issues may appear too remote because they are coined from an abstract scenario, the Trial Chamber’s judgment in the Prosecutor v Vojislav Šešelj (ICTY, Prosecutor v Vojislav Šešelj, Case No IT-03-67-T, Trial Chamber III, Judgment, 16 September 2016 (MICT-16-99)) should suggest that determining whether hate speech was the operative cause of atrocities remains a legal puzzle whose solution may not within the radar any time soon. This chapter does not provide an answer to all the issues raised above: rather, it is narrowed to the technicalities in establishing a direct causal link in cases where some intervening act would have occurred. Using the Manyemanya scenario, the chapter identifies, discusses and applies specific legal principles in such scenarios, thereby debunking the view that the “but for” test is the only test. Rather, it argues that in addition to the numerous principles that suggest a departure from the “but for” test, resort to “contributory causes” may be sensible. More importantly, even in the complex cases of news intervening acts, common law courts have developed principles that guide the establishment of a causal link between the act of a defendant and the result that ensues.