Freedom of Expression, Media Manipulation and Denial of Genocide in Rwanda

Freedom of Expression, Media Manipulation and Denial of Genocide in Rwanda Tim Gallimore Abstract
Political radicals in the Rwandan Diaspora, genocide deniers, and some human rights organizations argue that Rwandas laws prohibiting genocide denial and genocide ideology violate freedom of speech and constitute media censorship and political suppression. This paper discusses challenges faced by Rwanda in preserving an accurate history of the 1994 Genocide against the Tutsi while countering genocide denial and genocide ideology in a context that supports freedom of expression. Keywords Rwanda, post-genocide recovery, human rights, holocaust laws, double standards.
Introduction
Rwanda faces critical challenges to preserving national unity and ensuring an accurate history of the 1994 genocide by countering the forces of genocide denial and genocide ideology threatening the reoccurrence of mass atrocities. Politically radicalized groups in the Rwandan Diaspora are actively campaigning to deny the 1994 genocide against the Tutsi and are promoting genocide ideology from the haven of Western countries where they sought exile and which safeguard free speech.
Facing the continuing threat of genocide, as manifested in the ideology and actions of those who vowed to finish the job begun in 1994, Rwanda promulgated laws prohibiting genocide ideology; denying, negating, minimizing, justifying or approving of genocide; and 1 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
prohibiting discrimination and sectarianism. Genocide deniers and some human rights organizations argue that Rwandas laws to resist genocide denial and to combat genocide ideology violate freedom of speech and amount to media censorship and political suppression.
This article analyzes the challenges that Rwanda faces in preserving an accurate history of the genocide, countering genocide denial and genocide ideology in a context that supports freedom of expression and other human rights. The article describes the political background of Rwanda and the mass media hate messages that provided the context for the genocidal ideology. It examines the arguments and techniques of the genocide deniers in their attempt to manipulate the Western media, human rights organizations, policymakers and opinion leaders. The article also compares Rwandas law constraining genocide denial with laws elsewhere that prohibit Holocaust and genocide denial. The article concludes with an argument that the Rwandan laws are necessary for post-genocide recovery and that these laws comport well with the emerging doctrine of the international responsibility to protect vulnerable populations from human rights abuses.
Rwanda Political Background
The Republic of Rwanda is a landlocked country in east central Africa with a population of 11 million comprised of Hutu, Tutsi and Twa ethnic groups. Known as the land of a thousand hills and habitat for the famous silverback gorillas, this once idyllic country is now infamous for the genocide that occurred in 1994, when government soldiers, militias, and ordinary civilians went on a 100-day rampage to exterminate the Tutsi ethnic group. 2 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
Rwanda was a complex and advanced monarchy prior to and during colonial rule by Germany and Belgium.1 The monarch ruled the country through his official representatives drawn from the Tutsi nobility until 1956 when, voting on strictly ethnic lines, the Hutu obtained an overwhelming majority and realized their political strength. Around 1957, the first political parties formed and they were ethnically, rather than ideologically, based. There were four political parties, the Mouvement Dmocratique Rpubicain, Parmehutu ("MDR Parmehutu"), which clearly defined itself as the Hutu grassroots movement; the Union Nationale Rwandaise ("UNAR"), the party of Tutsi monarchists; and, between the two extremes, Aprosoma, predominantly Hutu, and the Rassemblement dmocratique rwandais ("RADER"), which brought together moderates from the Tutsi and Hutu elite.
Political unrest broke out in November 1959, the first victims of which were the Hutu. In reprisal, the Hutu burned and looted Tutsi houses. This was the start of a cycle of violence that resulted in the establishment on 18 October 1960, by the Belgian authorities, of an autonomous provisional government headed by Grgoire Kayibanda, President of MDR Parmehutu (the
The historical and socio-cultural background information about Rwanda is taken from The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, paragraphs 78-129. This was the first decision rendered by the International Criminal Tribunal for Rwanda (ICTR). The decision, as with all others of the ITCR, uses this official account of the history and context of the country in statements and legal decisions about the 1994 genocide in Rwanda. The ICTR was established on November 8, 1994 by Security Council Resolution 955. The ICTR is a temporary (ad hoc) tribunal with the mandate to prosecute those who have the greatest responsibility for planning and carrying out the genocide in Rwanda. The ICTR indicted 93 people. Eighty-three have been arrested. Seventy-five people have been judged with 12 acquitted and 63 convicted and sentenced to prison. December 2014 is the deadline for the ICTR to close.
3 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
Hutu). After the Tutsi monarch fled abroad, the Hutu opposition declared the Republic of Gitarama, on 28 January 1961, and set up a legislative assembly. On 6 February 1961, Belgium granted self-government to Rwanda. Independence was declared on 1 July 1962, with Grgoire Kayibanda named as President of the First Republic. General Juvnal Habyarimana, Army Chief of Staff, seized power through a coup on July 5, 1973. In 1975, President Habyarimana instituted the one-party system with the creation of the Mouvement Rvolutionnaire National pour le Dveloppement (MRND). There was therefore a single centralized organization, both for the State and the party, which stretched from the Head of State down to basic units known as cellules, with even smaller local organs, each comprising ten households, below the cellules. The cellules and local organs were, indeed, more of party organs, than administrative units (ICTR-99-52-T, Judgment and Sentence, para. 106).
Periodic attacks against the Tutsi continued under the Habyarimana regime. These successive waves of violence and expulsion created sizeable communities of Tutsi refugees in the neighboring countries of Zaire (now Democratic Republic of Congo), Tanzania, and Uganda, where they fled into exile to avoid being killed. In the 1980s, Tutsi exiles, particularly those living in Uganda, organized themselves to launch incursions into Rwanda. They also formed a political organization, the Rwandan Patriotic Front (RPF), with a military wing called the Rwandan Patriotic Army (RPA). The first objective of the exiles was to return to Rwanda, but the Rwandan authorities and President Habyarimana objected to their return, allegedly saying that land in Rwanda would not be sufficient to feed all those who wanted to return.
On October 1, 1990, the RPF launched an attack from Uganda, which provided a pretext for the Habyarimana regime to arrest thousands of opposition members in Rwanda considered to be supporters of the RPF. The RPF attacks continued and, in retaliation, the military and paramilitary death squads killed Rwanda-residing Tutsi politicians and civilians. Faced with a worsening internal situation that attracted a growing number of Rwandans to the multi-party system and under pressure by foreign donors who demanded not only economic, but also political reforms, President Habyarimana was compelled to accept the multiparty system in principle. On December 28, 1990, the preliminary draft of a political charter to establish a multi-party system was published. On June 10, 1991, the new constitution introducing the multi-party system was adopted, followed on June 18 by promulgation of the law on political parties and the formation of the first parties, the Mouvement Dmocratique Rpublicain (MDR), the Parti Social Dmocrate (PSD), the Parti Liberal (PL), and the Parti Dmocrate Chrtien (PDC).
In March 1992, a group of Hutu hard-liners founded a new radical political party, Coalition for the Defense of the Republic (CDR), that was more extremist than Habyarimana himself and that opposed him on several occasions. To make the economic, social and political conflict resemble an ethnic conflict, Habyarimanas entourage, and the army in particular, launched propaganda campaigns that often fabricated events supposedly perpetrated by RPF infiltrators. The Hutu population was goaded to defend itself against and the RPF and to attack and kill their Tutsi neighbors. The government-run Radio Rwanda and the private radio station RTLM played a major role in this anti-Tutsi propaganda. People close to President Habyarimana founded RTLM in 1993.) 5 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
Negotiations between the RPF rebels and the Rwanda government led to the first ceasefire in July 1992 and the first part of the Arusha Accords. The protocols signed following these accords established a transitional government and a transitional assembly with the participation of the RPF in both institutions.
Amidst growing political schism and turmoil, on August 4, 1993, the Government of Rwanda and the RPF signed the final Arusha Accords and ended the war that had started on October 1, 1990. The Accords provided for the establishment of a transitional government to include the RPF. Habyarimana and anti-Tutsi hardliners in his political party and cabinet refused to implement the power-sharing agreement and violence continued. The leaders of the CDR and the PSD were assassinated in February 1994. In the days that followed, Hutu-led Interahamwe and the Impuzamugambi paramilitary militias massacred Tutsi as well as Habyarimana's Hutu opponents. Meanwhile, anti-Tutsi propaganda on the media intensified. RTLM radio constantly stepped up its attacks that became increasingly targeted and violent.
At the end of March 1994, the transitional government was still not established and Rwanda was on the brink of bankruptcy. International donors and neighboring countries pressured the Habyarimana government to implement the Arusha Accords. On April 6, 1994, President Habyarimana and other heads of State of the region met in Dar-es-Salaam, Tanzania to discuss implementing the peace accords. On the return journey to Rwanda on April 6, 1994, the aircraft carrying President Habyarimana and the President Ntaryamirai of neighboring Burundi, was shot down near the Kigali airport, killing all aboard. The Rwandan army and the militia 6 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
immediately erected roadblocks around the capital city of Kigali. Before dawn on April 7 1994, in various parts of the country, the Presidential Guard and the militia began killing the Tutsi as well as Hutu known to favor the Arusha Accords and power sharing between Tutsi and Hutu. The killing of Tutsi, including women and children, continued nationwide until July 18, 1994, when the RPF, led by Paul Kagame, captured Kigali. An estimated 900,000 people had been killed in the 100 days of organized genocide. The bodies of many Tutsi victims were systematically thrown into the Nyabarongo River, a tributary of the Nile. The underlying intention of this act was to "send the Tutsi back to their place of origin," to "make them return to Abyssinia," in keeping with the allegation that the Tutsi were foreign to Rwanda, having originated from the Nilotic regions.
Genocide Ideology
Genocide ideology grew out of the myth created by European colonial rulers who ascribed superior intellect and physical beauty to the minority Tutsi population who they said came from Ethiopia to Rwanda where they found the indigenous Hutu cultivating the land. According to the myth, the Tutsi used their cunning to rule and dominate the majority Hutu. The colonial system of indirectly ruling Rwanda through a Tutsi monarchy furthered this myth. The Belgian colonizers introduced identity cards in Rwanda and, with them, promoted identity based on ethnicity. In time, the myth became the dominant historical narrative accepted by both major ethnic groups. The power relationship in Rwandan society continued until the independence movement, with the founding of political parties divided along ethnic lines. The ideology of Hutu power can 7 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
interpreted as a backlash against the historical dominance of the Tutsi under colonial rule. Therefore, the first political party in Rwanda was one of exclusion, discrimination and divisionism. The post-colonial Rwandan State was always anti-Tutsi and promulgated an ideology of hate, exclusion and discrimination that sanctioned violence against the minority Tutsi population. With the founding of the political parties in the 1990s, that history of violence and impunity coalesced into the genocide ideology of extermination. Extremists who were ready to use slaughter to hold on to political power constructed an ideology of genocide from a faulty history that had long been accepted by both Hutu and Tutsi (Des Forges, 1995, p. 45).
For years President Habyarimana and officials around him had cultivated and used propaganda to manipulate and control the Rwandan population in order to maintain themselves in power. Members of the genocide regime recruited propagandist trained at university level to sway public opinion in the country. Manuals, historical publications and notes on domestic application of Nazi propaganda techniques were found in government offices in Rwanda in the aftermath of the genocide (Human Rights Watch, 1999).2 Copies of films about Hitler and Nazism were found in Habyarimanas residence after the family fled to France at the start of the genocide in April 1994 (Chretien, p. 257).
In a mimeographed document entitled Note Relative la Propagande dExpansion et de Recrutement, found in Butare prefecture, one propagandist tells others how to sway the public most effectively. Obviously someone who had studied at university level, the author of the note presents a detailed analysis of a book called Psychologie de la publicit et de la propagande, by Roger Mucchielli, published in Paris in 1970. The author of the note claims to convey lessons learned from the book and drawn from Lenin and Goebbels. He advocates using lies, exaggeration, ridicule, and innuendo to attack the opponent in both his public and his private life.
The psychological preparation of the population to exterminate the Tutsi was masterminded by politicians who misused the Rwandan news media, primarily the radio. Besides the radio stations, there were other propaganda agents, the most notorious of which was Lon Mugesera, vice-president of the MRND (Hutu) in Gisenyi Prfecture and a lecturer at the National University of Rwanda. In 1991, he published two pamphlets accusing the Tutsi of planning genocide of the Hutu. Also in 1991, Leon Mugesera, one of the governments genocide propagandists, wrote a pamphlet in which he accused the Tutsi of planning to establish an empire in east-central Africa and also compared Tutsi to Nazis imperialists who saw themselves as a superior race. Mugeseras linking the plot for a Tutsi empire to the Nazis was picked up by Kangura several months later. In its September 1991 issue, it repeats the charge that neo-Nazi Tutsi, nostalgic for power, dream of colonial expansion (Human Rights Watch, 1999, p. 80.). During an MRND meeting in November 1992, Mugesera called for exterminating the Tutsi and assassinating Hutu opposed to the President. He referenced the idea that the Tutsi allegedly came from Ethiopia and, therefore after they had been killed, they should be thrown into the Rwandan tributaries of the Nile so that they could return to their original homelands. He exhorted his listeners to avoid the error of earlier massacres during which some Tutsi, particularly children, had been spared.3
Part of the genocide ideology was based on the fear that the RPF would conquer the country and re-impose a Tutsi monarchy. The propagandists argued that unless the Hutu killed all Tutsi, they would find themselves under minority rule again. This propaganda combined a
3
Translated 1992 Speech of Leon Mugesera, Rwanda Gateway Information Portal, http://www.rwandagateway.org/spip.php?article1340.
profound devaluation of the Tutsis, depicting them as a grave threat to Hutus, to their property, identity, and lives, with an ideology of Hutu power. This ideology essentially proclaimed that a world without Tutsis is a better world for Hutus (Staub, 2003, p. 794). The propagandists and extremist politicians also tried to convince the population that the RPF would slaughter all Hutus, unless the Hutus struck first and eliminated all Tutsi. According to Alison Des Forges, the anthropologist and expert on Rwandan history, Habyarimana and his MRND party used the Hutu power propaganda to transform the ideology of hate into the ideology of genocide after the attacks by the RPF (Des Forges, 1995, p. 46). She placed Leon Mugesera and his infamous back to Ethiopia speech at the center of this ideological transformation (Nyirubugara, 2004).4
Hate Media
Communications researchers and legal scholars have characterized the pre-genocide communication environment in Rwanda as an era of hate media. Never has the media played such a crucial role in encouraging genocide as it did in Rwanda. Indeed, some Rwandan media, both print and radio, were created for the sole purpose of furthering the genocide (Kamatali,
Nyirubugara challenges the argument of Des Forges and Ungor that the Hutu Power ideology was developed by the then ruling party MRND - and its ally, the CDR, all Hutu-dominated, and thought out by Leon Mugesera, Ferdinand Nahimana and Hassan Ngeze (Ungor, 2004:p 345). He further compares Nahimana to Nazi ideologist Rosenberg and the Hutu Power ideology to its Nazi counterpart (p.347). Ungor specifically links Leon Mugeseras propaganda activities and genocide ideology to Ferdinand Nahimana and Hassan Ngeze, leaders of the Rwandan hate media who were convicted by the ICTR in 2003.
2002, p. 67). Most notorious among the Rwandan hate media were Radio Television Libre des Mille Collines (RTLM) and the Kangura newspaper.5
Based in the capital city of Kigali, RTLM was able to reach the entire country using a network of transmitters owned and operated by the government station, Radio Rwanda. The content of RTLM was at first like most western-style programming featuring popular music, informal commentaries, interviews and talk-shows which invited listeners to call in to the station and give their comments.
With the assassination of President Melchior Ndadaye in neighboring Burundi in October 1993, RTLM programs changed and began inciting to ethnic hatred against Tutsi (International Media Support [IMS], 2003, p. 16). Ndadaye, a Hutu, was killed by officers from the mainly Tutsi army in Burundi that led to a cycle of revenge killings between Tutsi and Hutu in Burundi. It was at this point that the RTLM station went on its campaign of spreading genocide ideology. It warned that the ethnic violence in Burundi would spill over into Rwanda, and that the RPF was a dangerous enemy poised to conquer Rwanda and dominate the Hutu majority. RTLM denounced opposition party members and those who criticized the government as RPF accomplices and traitors. The station called for a final solution and urged the public to join in the fight against the RPF and to eliminate all Tutsi living in Rwanda.
For a complete listing of the genocide-era hate media, see Jean-Pierre Chretien. (1995). Rwanda: Les Medias du Genocide.
During the few months prior to the genocide, RTLM was on the frontline in broadcasting ethnic propaganda, lending the microphone to ordinary people in order to mobilize them for the last fight. RTLMs messages and slogans were supported by several extremist newspapers with Kangura on the front line (IMS, 2003, p. 17). In mid 1991, Kangura had a circulation of about 10,000 and was printed free of charge at the national printing press. In December 1990, Kangura published the Ten Hutu Commandments that embodied the ethnic hatred and propaganda of the pre-genocide media. Among other things, Hutus were commanded not to associate with Tutsi because all Tutsis are dishonest in business and claimed that their only goal is ethnic superiority. The Tenth Commandment required that Hutu Ideology must be taught to Hutu of every age. Every Hutu must spread the word wherever he goes. Any Hutu who persecutes his brother Hutu for spreading and teaching this ideology is a traitor (Totten & Bartrop, 2008, p. 200-2001). The ten Hutu commandments were a true incitement to hatred, and discrimination against Tutsi (IMS, 2003, p. 14).
The genocide organizers used the media to spread their ideology of ethnic hatred. But the RTLM broadcasts went well beyond advocacy of hatred and genocide ideology. The station incited the population to murder and other criminal acts in 1994 (ICTR-99-52-T, Judgment and Sentence, para. 486-487). On several occasions, the broadcasts called for listeners to kill Tutsi. Valerie Bemeriki, an RTLM journalist, was convicted and imprisoned in Rwanda for her role in the genocide. She admitted that she and other journalists used RTLM broadcasts to guide the military and paramilitary death squads to their enemies, the Tutsi (Mukagasana, 2001, p. 95.
On December 3, 2003, the International Criminal Tribunal for Rwanda (ICTR) convicted three Rwandans for having used the media to commit the crime of genocide by inciting the Rwandan population to commit murder. They were Ferdinand Nahimana and Jean-Bosco Barayagwiza, who controlled and managed the RTLM radio station, and Hassan Ngeze, the owner, founder, and editor of the Kangura newspaper.6 The Trial Chamber also reviewed the role of CDR, the political party that the ICTR found to have spearheaded the Hutu Power movement and created a political framework for the genocide. In the so-called Media Case, the Tribunal established the principle that those who use the media to incite the public to commit genocide can be punished for their communication because it amounts to persecution as a crime against humanity.7 The ICTR Media Case is of particular significance for Rwanda because of the centrality of the media in creating an environment of hate and suspicion that was necessary to carry out the genocide but, more importantly, because of the medias potential for combatting genocide ideology by re-educating the society (Gallimore, 2008, p. 247-248).
It is generally agreed that the mass media played a central role in the Rwandan genocide. The media were used as instruments of propaganda, hatemongering, conspiracy, incitement,
6
Ferdinand Nahimana was founder and ideologist of Radio Tlvision des Mille Collines (RTLM). Jean-Bosco Barayagwiza was a high-ranking board member of RTLM and founding member of the Coalition for the Defence of the Republic (CDR). Hassan Ngeze was the chief editor of the Kangura newspaper. All were convicted on December 3, 2003 for genocide, incitement to genocide, conspiracy to commit genocide, and crimes against humanity, extermination and persecution. Nahimana, and Ngeze were sentenced to life imprisonment and Barayagwiza to 35 years imprisonment. Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T.
7
The Appeals Chamber, however, reversed the finding in Nahimana et al. because, while the factual basis for the conviction was consistent with a joint agenda to commit genocide, it was not the only reasonable conclusion from the evidence. See Bagasora et al., Case No. ICTR-9841-T, Paragraph 2089 reviewing the Tribunals case law on the issue of conspiracy.
surveillance and tactical operations for the mass killings. However, the greatest role that the media played in the genocide was to promulgate a pervasive genocide ideology that served as sanction for ordinary citizens to commit grave crimes against their neighbors. The media, especially radio, enabled and perpetuated the historical impunity in Rwandan society wherein the government sanctioned, if not rewarded, Tutsi murder.
Genocide Denial Campaign
According to genocide scholar Gregory Stanton, the crime of genocide has eight clearly defined stages. These include classification of the target group; the dehumanization of its people; and the preparation for extermination. It is worth noting that in the fifth stage (polarization) hate groups broadcast polarizing propaganda (Stanton, 1998). The last and eighth stage in this process is denial; this is when the perpetrators cover up and destroy evidence, block investigation, proclaim innocence, minimize the number killed and justify the killing as self-defense. They also claim that the deaths of the perpetrating group exceed that of victimized group. Stanton cautioned that although genocide is a process that incorporates eight predictable stages, the process is not linear, with all stages operating throughout the process. Denial of genocide in Rwanda began even while it was underway; the United States tried to avoid moral and legal responsibility to intervene by refusing to use the word genocide to describe what was happening in plain sight of the entire world (Power, 2001).
One researcher argues that denial is a psychological tool to enable the perpetrators to maintain their moral self-conceptions (Moshman, 2007, p. 115). Denial is also important to bystanders as a basis for not intervening. In the case of Rwanda, denial was a collaborative international effort led by the United States (Moshman, 2007, p. 129). Therefore, it was critical for the U.S. government to maintain that what was happening in Rwanda was civil war and not genocide. It was not until the genocide was nearly complete that the U.S. acknowledged that acts of genocide had taken place. Since then, there has been a steady campaign by multiple groups and individuals worldwide to deny the genocide of the Tutsi in Rwanda.8 First and foremost among these deniers are the defense attorneys who participated in the International Criminal Tribunal (ICTR) (2003), especially Peter Erlinder. He defended Major Aloys Ntabakuze in the Military I trial. Erlinder has attended conferences organized by dissident groups in Europe specifically to deny the genocide. Erlinder, an American, has also written articles accusing the ICTR, the United Nations, and the United States government of covering up war crimes committed by the RPF and questioning whether there was genocide in Rwanda. In May 2010 he was arrested for genocide denial and spent three weeks in a Rwandan jail. Erlinder entered the country claiming that he was there to represent opposition politician, Victoria Ingabire, herself jailed on genocide denial
In Canada for example, the most notorious non-Hutu denier has been Robin Philpot, yet his only link to Rwanda is his brother John, who was a defense lawyer at the ICTR for one of the Genocide convicts. Others deny the Genocide to cover up the role of some countries and organizations who were involved in the 1994 Genocide against the Tutsi. These include French Judge Bruguiere, former UNAMIR chief Jacques-Roger Booh-Booh, former Australian investigator Michael Hourigan and American academic Christian Davenport. Interestingly, each of these cites the others as their proof that the 1994 Genocide against Tutsi was nothing but an American imperial plot. Michael Ngabo, Deniers of the 1994 Genocide against the Tutsi on Rampage, New Times, April 23, 2011, http://www.newtimes.co.rw/news/index.php?i=14604&a=40468.
8
and other charges. Erlinder was released on humanitarian grounds to seek mental health treatment after he allegedly tried to commit suicide in jail (Kron, 2010).
Erlinder headed the association of defense attorneys at the ICTR. These defense attorneys adopted a legal strategy to deny that genocide had happened. The strategy called for them never to use the word genocide while arguing their cases before the Tribunal in alluding to criminal charges against their clients. They referred to the crimes as events, massacres, mass killings, and casualties of civil war.9 Their refusal to use the term genocide of the Tutsi opposed the established legal fact declared by the ICTR in its judicial notice.10
Even while attempting to refute the charges of genocide denial brought against him by the government of Rwanda, Erlinder refused to acknowledge the Tutsi genocide by using a narrow legal definition to describe the convictions handed down by the ICTR. Erlinder claimed that:
ICTR defense lawyer Christopher Black actively promotes the view that the genocide of the Tutsi is a myth. He describes the slaughter as collective madness by the Hutu in reaction to the assassination on April 6, 1994 of their Hutu President, Juvenal Habyarimana. See Trial Transcript of the Cross-Examination of prosecution witness Alison Des Forges by Christopher Black, 13 October 2006, Prosecutor v. Augustin Ndindiliyimana, Franois-Xavier Nzuwonemeye, Innocent Sagahutu, Augustin Bizimungu, Case No. ICTR-00-56-T, http://cirqueminime.blogspot.com/2006/11/generals-trial-transcripts-of-cross_12.html.
10
The Appeals Chamber on 16 June 2006 issued a decision that the Trial Chambers must take judicial notice that between 6 April 1994 and 17 July 1994 there was genocide in Rwanda against the Tutsi ethnic group. The decision was delivered on the Prosecutor's Appeal on Judicial Notice in the trial of Prosecutor v. Karemera, Ngirumpatse and Nzirorera, ICTR-98-44AR73 (C). Judicial notice of the genocide means that the fact of the 1994 genocide in Rwanda is to be taken as established beyond any dispute and does not require any further proof. The Prosecutor no longer had to provide evidence to prove the occurrence of the genocide in each case. Prosecutions could focus on the personal involvement of each accused in the genocide.
I have never disputed the evidence that tens of thousands of Rwandan Tutsis were killed in Rwanda in 1994, under conditions that meet the definition of the Genocide Convention; (2) I have never disputed the UN characterization of the "Rwandan genocide" as having both Hutu and Tutsi victims; (3) I have never disputed the findings of October 2010 UN "Mapping Report," that between 1993-2003 the RPF, and others, committed mass violence against both Hutu and Tutsi victims (Erlinder, May 6, 2011). Erlinder also complained that the Rwanda Constitution was amended in 2009 to officially rename the "Rwanda genocide," the "Rwanda Genocide of Tutsis." He argued that, In Kagame's Rwanda, no victims other than Tutsis need apply, no matter what the facts might be (Erlinder, May 6, 2011).
Another denial tactic used by Erlinder and others is the claim that there was no conspiracy to commit genocide in Rwanda despite overwhelming evidence to the contrary. (Melvern (2006) and others have well documented the genocide conspiracy.) The tactic is a direct denial of the existence of genocide ideology. Erlinder particularly employed this denial argument subsequent to the ICTR judgment that acquitted the top Rwandan military officers of conspiracy or planning to commit genocide.11 After the judgment, Erlinder wrote that the military officers were found guilty of specific acts committed by subordinates, in specific
11
Thoneste Bagosora, the alleged mastermind of the Rwanda genocide, was tried in the socalled Military I Case alongside Gratien Kabiligi, Aloys Ntabakuze and Anatole Nsengiyumva. The Trial Chamber delivered its judgment on 18 December 2008. All four accused were acquitted of the charge of conspiracy to commit genocide. However, Bagosora, Ntabakuze and Nsengiyumva each received a life sentence for convictions on other charges. Kabiligi was acquitted of all charges. Prosecutor v. Thoneste Bagosora et al., Case No. ICTR-98-41-T.
places, at specific times, not an overall conspiracy to kill civilians, much less Rwandan-Tutsi civilians (Erlinder, Dec. 24, 2008).
Erlinder was emboldened in his denial by the finding of the ICTR Trial Chamber that the Prosecutor did not meet the standard of proof to gain convictions on the conspiracy charges. At the outset, the Chamber emphasizes that the question under consideration is not whether there was a plan or conspiracy to commit genocide in Rwanda. Rather, it is whether the Prosecution has proven beyond reasonable doubt based on the evidence in this case that the four Accused committed the crime of conspiracy (ICTR-98-41-T, Judgment and Sentence, para. 2092). The Chamber reached the decision to acquit the military officers because, in its reading, the Prosecutors charge of conspiracy was not the only plausible conclusion that could be drawn from the facts and criminal acts alleged against the accused. In explaining their finding, the judges wrote: The Chamber certainly accepts that there are indications, which may be construed as evidence of a plan to commit genocide, in particular when viewed in light of the subsequent targeted and speedy killings immediately after the shooting down of the Presidents plane. However, the evidence is also consistent with preparations for a political or military power struggle and measures adopted in the context of an on-going war with the RPF that were used for other purposes from 6 April 1994. Consequently, the Prosecution has not proven beyond reasonable doubt that the only reasonable inference to be drawn from the evidence is that the four Accused conspired amongst themselves or with others to commit genocide before it 18 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
unfolded from 7 April 1994. (ICTR-98-41-T, Judgment and Sentence, para. 1314)
Based on the ICTR judgment, Erlinder wrote that, this raises the more profound question: If there was no conspiracy and no planning to kill ethnic (i.e., Tutsi) civilians, can the tragedy that engulfed Rwanda properly be called a genocide at all? Or, was it closer to a case of civilians being caught up in wartime violence, like the Eastern Front in WWII, rather than the planned behind-the-lines killings in Nazi death camps? The ICTR judgment found the former (Erlinder, Dec. 24, 2008). According to Erlinder, It was this legal victory, based on previously suppressed UN documents that got me prosecuted for "genocide denial" by the RPF victors in the Rwanda War (Erlinder, Aug. 28, 2010).
There are other deniers too like journalist Stephen W. Smith, previously the Africa editor of Libration and Le Monde, who wrote that whilst he acknowledged that genocide did happen in Rwanda, he doubted that it had been planned (London Review of Books, Rwanda in Six Scenes, March 2011). In support of his claim, he wrote that no one appearing before the ICTR has ever been found guilty of a "conspiracy to commit genocide".12 This is grossly inaccurate.
12
Smith wrote, I cant say whether there was or wasnt a master plan for the extermination of the Tutsis, some Rwandan equivalent of the Wannsee Conference. Historians must lay that question to rest; the International Criminal Tribunal for Rwanda (ICTR), the special UN court based in Arusha and charged with trying genocidal planners and killers, has found no one guilty of conspiracy to commit genocide since it started its proceedings 16 years ago. Rwanda in Six Scenes by Stephen W. Smith, London Review of Books, Vol. 33 No. 6 17 March 2011, pages 3-8; http://www.lrb.co.uk/v33/n06/stephen-w-smith/rwanda-in-six-scenes.
There have been 11 genocide conspiracy convictions by the ICTR.13 To be fair to Smith, the six latest convictions for conspiracy came after publication of his erroneous claim. But if he had confirmed the facts, he would have known about the two conspiracy convictions dating back as far as 1998.
The first conviction for conspiracy to commit genocide is an important one because it came in the guilty plea of Jean Kambanda who served as the Rwanda prime minister in 1994. On September 4, 1998, the ICTR found Kambanda guilty on six counts, including conspiracy to commit genocide, and sentenced him to life imprisonment (ICTR 97-23-S, Judgment and Sentence). It is important to note that Kambanda admitted to conspiring with the ministers of his government, such as Pauline Nyiramasuhuko, Andr Ntagerura, Eliezer Niyitegeka and Edouard Karemera, to commit genocide. Kambanda acknowledged that he participated in meetings of the Council of Ministers, cabinet meetings, and meetings of prefects where massacres ensued, but no action was taken to intervene He was involved in decisions of the government to train, arm, direct, encourage, and praise the military and militia groups that hunted down and killed Tutsi civilians.
Dissatisfied with the life sentence that he received after his guilty plea, Kambanda sought to recant his confession and requested the Tribunal's Appeals Chamber to have the verdict quashed and a new trial ordered. On October 19, 2000, the Appeals Chamber unanimously
13
Three of the convictions were overturned on appeal and four others are still subject to review by the Tribunals appeals chamber. See http://www.unictr.org/Cases/StatusofCases/ tabid/204/Default.aspx.
rejected Kambandas claims and affirmed both the convictions and the life sentence (ICTR 9723-A, para. 10-11, and 49-50).
Elizer Niyitegeka was a journalist at Radio Rwanda, founding member of the Movement Dmocratique Rpublicain (MDR) party, and Chairman of the MDR party for Kibuye prefecture from 1991 to 1994. He was also the Minister of Information in Rwandas Interim Government. On 16 May 2003, Trial Chamber I convicted him of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, and crimes against humanity and sentenced him to life imprisonment (ICTR-96-14-T). On July 9, 2004, the Appeals Chamber affirmed the convictions and sentence. Pauline Nyiramasuhuko, the former Minister of Family and Womens Development, was convicted on June 24, 2011 and sentenced to life in prison for conspiracy to commit genocide, genocide, crimes against humanity (extermination, rape, and persecution), and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto (violence to life, and outrages upon personal dignity). In convicting her of conspiracy, the Trial Chamber noted that, As a member of the Interim Government, Nyiramasuhuko participated in many of the Cabinet meetings at which the massacre of Tutsis was discussed, and took part in the decisions which triggered the onslaught of massacres in Butare prefecture. There can be no other inference from these facts than that Nyiramasuhuko conspired with the Interim Government to
commit genocide against the Tutsis of Butare prefecture (ICTR-98-42-T) Judgment and Sentence, para. 5678).14
On September 30, 2011, Trial Chamber II convicted both Justin Mugenzi and Prosper Mugiraneza for conspiracy to commit genocide and direct and public incitement to commit genocide (ICTR-99-50-T). Other recent convicts for genocide conspiracy are Callixte Nzabonimana, Edouard Karemera and Matthieu Ngirumpatse. All three cases are on appeal as of the writing of this paper (ICTR-98-44D-T and ICTR-98-44-T).
Smith and Erlinder are not alone in using the ICTR acquittal of the military leaders on the conspiracy charges to further their campaign of denying the 1994 Rwandan genocide.15 There are still others who actively promote an idea that a standard account of the genocide is monumentally flawed. Authors Edward Herman and David Peterson in their book The Politics of Genocide claim no conspiracy to kill Tutsi had ever existed. Yet the media and genocide
14
Her case was on appeal at the writing of this paper. Prosecutor V. Pauline Nyiramasuhuko, Arsne Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi, lie Ndayambaje (Case No. ICTR-98-42-T) Judgment and Sentence, Paragraph 5678.
15
As another example of distortion and denial of the facts in the Military I case see Rwanda and the Democratic Republic of Congo in the Propaganda System, David Peterson and Edward S. Herman, Monthly Review, Volume 62, Issue 01 (May 2010), Excerpted from The Politics of Genocide (Monthly Review Press, 2009). The authors falsely claim that, Although it has failed to convict a single Hutu of conspiracy to commit genocide, the ICTR has never once entertained the question of an RPF conspiracydespite the RPFs rapid overthrow of the Hutu government and capture of the Rwandan state. This, we believe, flows from U.S. and allied support of the RPF, reflected in media coverage, humanitarian intellectuals and NGO activism, as well as the ICTRs jurisprudence. http://monthlyreview.org/2010/05/01/rwanda-and-thedemocratic-republic-of-congo-in-the-propaganda-system.
scholar Gerald Caplan has denounced Herman and Peterson as genocide deniers.16 Caplan wrote that: in order to blame the American empire for every ill on earth, Herman and Peterson, two dedicated anti-imperialists, have sunk to the level of genocide deniers. And the evidence they adduce to back up their delusional tale rests solidly on a foundation of other deniers, statements by genocidaires, fabrications, distortions, innuendo and gross ignorance. The main authorities on which the authors rest their fabrications are a tiny number of long-time American and Canadian genocide deniers, who gleefully drink each other's putrid bath water. Each solemnly cites the others' works to document his fabrications Robin Philpot, Christopher Black, Christian Davenport, Allan Stam, Peter Erlinder. In reality, there are only a relative handful of these American deniers, but the vast power of the internet makes them seem ubiquitous and forceful. Any online search for Rwanda genocide gives them a vastly disproportionate pride of place. Besides the five cited by Herman and Peterson, this rogue's gallery of American deniers also includes Keith Harmon Snow and Wayne Madsen, who will bitterly resent the authors for failing to invoke them in their book (Caplan, 2010).
16
The Organization of African Unity (OAU) appointed an International Panel of Eminent Persons to investigate the genocide in Rwanda. Caplan wrote the report issued by the panel, Rwanda: The Preventable Genocide (1998).
Another denial technique is the claim that there was a double genocide that the RPF killed more Hutus than the number of Tutsis who were killed by Hutus. Deniers also claim that a second genocide took place when the RPF invaded the neighboring Democratic Republic of the Congo (DRC) and caused an undeclared genocide of 6 million Congolese.17 Erlinder relies on the discredited UN "Mapping Report" of October 1, 2010 and the politically motivated indictment issued by Spanish Judge Abreu Merelles which describes 325,000 people killed by the RPF in 1994 and documents RPF genocide, crimes against humanity and war crimes in the Congo from 1993-2003 (Erlinder, May 6, 2011).
Genocide deniers also try to blame the victims by saying that Kagame and the predominantly Tutsi RPF rebel army caused the genocide by shooting down the plane carrying the Rwandan president in order to seize political power. Erlinder claims that, UN documents show that Kagame knowingly triggered the mass violence in Rwanda by assassinating the two Presidents, then refused to use his military superiority to help stop the mass violence he had knowingly triggered (Erlinder, Aug. 28, 2010).
Ironically, the deniers campaign to blame the RPF for causing the genocide is being supported by a few Tutsis, like Theogene Rudasingwa and other defectors from the Rwandan
17
Writing as a guest columnist for the online journal Jurist, Erlinder claimed that, In Rwanda, genocide denial, like an ink-blot test, can be whatever the RPF government perceives it to be. According to the RPF government, Hutus are the perpetrators in all cases, despite recently published findings by Dr. Alan Stam of the University of Michigan and Dr. Christian Davenport of Notre Dame that nearly twice as many Hutus were killed as Tutsis, not to mention, former U.S. Ambassador to Burundi (1994-96) Robert Krueger's eye-witness descriptions of RPF massacres of Hutus in the summer of 1994. Peter Erlinder, Genocide Denial' and the ICTR: Reflections of a Former Defense Counsel, JURIST - Forum, May 6, 2011, accessed at website: http://jurist.org/forum/2010/08/rwanda-flawed-elections-and-the-politics-of-genocide-denial.php.
government and military, who claim to have knowledge that the RPF shot down the plane on April 6, 1994. Rudasingwa, who was director of cabinet in Rwanda told the BBC that he had heard Kagame boast in 1994 that he ordered the shooting down of the plane carrying President Juvenal Habyarimana. Rudasingwa also told the BBC's Great Lakes Service that, "By committing that kind of crime Kagame has the responsibility in the crime of genocide" (BBC News Africa, 4 October 2011).
Journalists and critics have denounced Rudasingwa for his hypocrisy in accusing the very military and government that he served during the alleged crimes. One commentator wrote, But let us assume Rudasingwa told the truth: The BBC journalist could not even ask him what kind of person he is; to have known that his political party and its leader had caused the genocide in his country and yet he went on to serve as secretary general of the party, ambassador to the US and director of cabinet for more than a decade. It takes a dangerously callous and inhuman mind to be convinced of the culpability of your party and its leader in such a tragedy as the Rwanda genocide and then spend decades serving both in top positions, coming out to denounce the crime only after losing power and its associated privileges (Mwenda, 19 October 2011).
The same group of military defectors and Rwandan political officials turned dissidents also claim to have knowledge of RPF human rights violations. Gerald Gahima, a former RPF soldier and Rwandan prosecutor general now in exile in the United States claims that the RPF killed civilians and committed war crimes with Kagames knowledge (French & Gettleman, September 30, 2010).
Revisionism and trivialization are additional strategies of genocide denial. Deniers use these tactics in seeking to rewrite the history of the Genocide against the Tutsi by offering alternative narratives about what happened in 1994 and who was responsible. They do this by arguing that there were victims, both Tutsi and Hutu, and call for recognizing all victims, including commemorating the death of President Habyarimana, each April 6th. By insisting on including all victims in the memorials and commemorations, deniers seek to minimize and trivialize the deaths of the Tutsi that were specifically targeted for extermination because of their ethnic identity. The argument goes that if all victims are recognized, then no specific group of victims exceeds another in importance; they all died under similar circumstances and there is therefore no need to ascribe blame for the Tutsi extermination.
These negationists frequently issue publications and stage events that create spectacles to promulgate their views during the period of mourning and annual commemoration of the genocide victims. In a recent example, Boniface Rutayisire was arrested on April 7, 2012 when he tried to protest against the annual commemoration of the 1994 Genocide against the Tutsi in the middle of a busy suburb of Brussels, Belgium. He was taken into custody on charges of disturbing public order. Rutayisire belongs to a political group 'Banyarwanda & Tubeho Twese' that advances the view that Rwanda underwent civil war, not genocide, (The New Times, April 10, 2012).
Perhaps the best-known agent of minimizing and trivializing the Tutsi Genocide is Paul Rusesabagina, the standard-bearer of the media manipulation campaign denying the genocide. Rusesabagina became famous by the Oscar-nominated film Hotel Rwanda that depicted him as a 26 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
hero who saved 1,200 people from death by sheltering them at the Mille Collines Hotel in Kgali during the genocide. After achieving notoriety from the film, Rusesabagina set up a foundation in the U.S. to raise money for his cause and also used his newfound public platform to tell his version of the genocide story. He routinely tells the media, and anyone else who will listen to him, that there were massacres of Hutu and Tutsi in Rwanda. "Since 1994, Tutsis have been killing Hutus, and even now there are many who are being killed, or who simply disappear," he said (Chiahemen, Jan 11, 2007).
As he makes the rounds of universities and fundraises for his foundation, Rusesabagina continues to amass support from Americans who have unwittingly swallowed the Hotel Rwanda hero line. One commentator called Rusesabagina the most deadly denier of the Tutsi Genocide. That he now uses his manufactured heroism in various forums to water down the Genocide against Tutsis claiming that both Hutus and Tutsis killed, makes him the most deadly of the other deniers (Ngabo, New Times , April 23, 2011).
Rusesabaginas unsuspecting audiences do not know that the money they donate to his foundation is being channeled to the jungles of the DRC to finance the terrorist group known as Democratic Forces for the Liberation of Rwanda (FDLR). The FDLR is conducting a military campaign to destabilize and overthrow the government of Rwanda. In 2010, the Rwanda state indicted Rusesabagina for his support of the FDLR that threatens the stability of the state. "We have evidence that Paul Rusesabagina is one of those others who have been financing the same genocidal rebels of the FDLR," said Martin Ngoga, the prosecutor general of Rwanda. "We have the dates of transactions made. Money was sent from San Antonio, Texas, and received in 27 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
different banks in Bujumbura and Dar es Salaam. The people who received this money told us what the money was for," Ngoga said (Kezio-Musoke, Oct. 27, 2010). Rwanda has asked the U.S. government to arrest and extradite Rusesabagina to Rwanda for trial but to date that action has not been taken.
Rusesabagina is also implicated in the wider political campaign against the Rwandan government. He is linked to political opposition figures, including Rudasingwa and Victoria Ingabire. On October 30, 2012, Ingabire was convicted and sentenced to eight years in prison for genocide denial, promoting terrorism, and endangering state security. Rwanda says it has evidence that both Rusesabagina and Ingabire collaborated with the FDRL (Kron, Sept. 9, 2011). Gerald Mbanda, the first secretary at the Rwanda High Commission in Nairobi, reported that Paul Rusesabagina, as the local coordinator of genocide deniers, is the one who recommended Erlinder to Victoria Ingabire (Mbanda, April 1, 2011).
Ingabire was arrested in April 2010 after she visited a genocide memorial site in Rwanda and made remarks that all those who died in 1994 should be memorialized, not just Tutsi victims (Gettleman & Kron, April 21, 2010). She was charged with genocide ideology, divisionism and conspiring with the FDLR, which the U.S. and Germany have declared a terrorist organization.18
18
On August 20, 2010, Luis Moreno Ocampo the Prosecutor of the International Criminal Court (ICC) submitted a comprehensive document to the Court outlining the history of the FDLR and the crimes against humanity and war crimes including attacks against a civilian population, killings, rapes, persecution based on gender and extensive destruction of property committed by this group. The document shows how members of the former Forces Armes Rwandaises (ex-FAR) and members of the Interahamwe militias who had masterminded and executed the genocide in 1994 fled Rwanda into the refugee camps of Eastern DRC. The history shows that the ex-FAR Hutu Power ideology rebel group was a predecessor of the FDLR. While in the camps, they began to recruit and train troops and organized themselves in structured political-
Ingabire, who leads the FDU-Inkingi Rwandan political opposition party of exiles, had been living in Europe for many years before she decided to run for the office of President of Rwanda. From the first day of her return to Rwanda, Ingabire's utterances and messages on her website revealed the character of a person promoting ethnic divisions, propagating the genocide ideology and trivializing the 1994 genocide against the Tutsi (Mbanda, April 1, 2011).
Theoretical Background for Prohibiting Genocide Ideology and Genocide Denial
Communication is central to establish the norms of acceptable behavior in each society. We condone and accept the ideas that we allow to be expressed with the understanding that it is lawful, ethical and morally acceptable (legitimate) to act upon commonly accepted ideas and beliefs. However, not all ideas or ideologies are of equal value. Some ideologies, including genocide ideology, arise from base and morally deplorable motives that produce catastrophic consequences. Because some forms of behavior cannot be tolerated in a rights-protective society, we have a moral obligation at least to condemn those who would act to implement morally and politically loathsome views (Donnelly, 2003, p. 52-52).
The espousal and advocacy of hatred, injury, and extermination are anathema to the dignity of humans and to the value we place on them. Genocide ideology persecutes,
military groups designed to oppose the new Rwanda government through violent means." [Page 19] ICC 01/04, Situation in the Democratic Republic of the Congo, Prosecutions Application under Article 58 (applying for the issuance of an arrest warrant against Callixte Mbarushimana), http://www.icc-cpi.int/NR/exeres/F17147E6-CC9A-4B2F-9086-6FC7963B643B.htm.
dehumanizes, and promotes tolerance, if not acceptance, of extermination which has been labeled the the crime of crimes. The ideology of hatred and extermination is a moral affront to humanity. In a similar manner, genocide denial offends, insults, and injures the survivors of genocide and revictimizes the group targeted for extermination. Genocide denial diminishes the society by preying upon innocent individuals who are entitled to protection from death, physical injury and psychological harm. Therefore, the argument for suppression is often social and psychological (Schauer, 2010, p. 6).
Denial of genocide offends not only the survivors but also the entire society. Denial of empirical data, established facts, historical events, and legal findings based on confirmed evidence presupposes intellectual incapacity, ignorance, indifference, or moral deficiency in the audience. Denial also promotes falsehood and incivility, both of which are counter to cherished societal values.
Genocide ideology prepares and incites individuals to commit atrocities. The expressions that accompany this ideology continue to threaten public safety and harm societal values that outweigh freedom of speech. Laws against genocide ideology condemn and oppose the idea before it leads to criminal acts. Israel Charny is widely respected and credited as a prime mover in the development of the field of Genocide Studies. He warns of the power of genocide denial for inciting the unleashing of renewed genocidal violence (Charny, 2012, p. 7).
According to Charny, statements of denial constitute hate language, and even more incitement to violence (Charny, 2012, p. 5). Because genocide denial is hate speech, it is 30 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
prohibited under the human rights legal regime.19 Holocaust denial is a type of hate, but it is also a type of falsity, and we can deal with the issue of hate-based falsity only when we understand not only the harms of hate, but also the harms of falsity and the arguments for tolerating them in the name of freedom of speech (Schauer, 2010, p. 18).
Genocide denial cannot be tolerated because it counters truth as a principal value in democratic societies. We need truth (facts, accurate information) on which to base decisions, actions and beliefs. Genocide denial is the conscious embrace of known falsehood. The use of hate media to spread genocide ideology and to deny genocide particularly offends the theory of free speech and the role of the press in a democratic society. Journalism operates on the principle that societal discourse should be based on truth, the basis for informed and rational opinions that contribute to self-government and societal cohesion. Allowing or condoning genocide ideology and genocide denial presents the risk that the public, or some portion of the public, will accept them as truth.
Rwanda Laws against Genocide Denial
Independent researchers and the government of Rwanda conducted studies that documented the existence of genocide denial and genocide ideology in the country.
19
Article 4 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination prohibits hate speech.
Facing the continuing threat of genocide, as manifested in the ideology and actions of those who have vowed to finish the job they started in 1994, Rwanda promulgated laws prohibiting genocide ideology; denying, negating, minimizing, justifying or approving of genocide, and prohibiting discrimination and sectarianism.
There are actually three different laws in Rwanda with provisions against genocide denial. One law criminalizes negating, minimizing, justifying or approving of genocide. A second measure outlaws genocide ideology, and the third prohibits discrimination and sectarianism.20 Instead of applauding these measures as prudent actions of a responsible government, some western media and human rights organizations have severely criticized Rwanda and accused the government of suppressing political dissent, media censorship, and denying human rights. In 2012, the Ministry of Justice and the Rwandan Parliament started to revise the laws against genocide ideology and genocide denial to make them more compatible with the international legal regime protecting human rights and the freedom of expression.
Ingabire ran afoul of these laws. Her arrest drew even more international attention to Rwandas attempt to deal with the historical problem of abuse of freedom of expression and misuse of the media to inflame passions and to incite people to commit genocide. Much of the criticism of Rwandas laws is based on its prosecution of journalists and others who have spread genocide ideology and divisionism in the society that is seeking to develop unity and to recover
20
Law N18/2008 of 23/07/2008 - Relating To The Punishment Of The Crime Of Genocide Ideology; Law N 33 Bis/2003 of 06/09/2003 - Repressing The Crime Of Genocide, Crimes Against Humanity And War Crimes; Law N 47/2001 of 18/12/2001 - On Prevention, Suppression And Punishment Of The Crime Of Discrimination And Sectarianism.
from the 1994 genocide. Between January 2008 and September 2011, Rwanda prosecuted 1,712 people for genocide denial, spreading genocide ideology, or sectarianism (creating division in the country). The prosecutions resulted in 1,158 convictions with sentences ranging from one month to life imprisonment.21 The 69 percent conviction rate for these crimes is the same as for murder, assaults, and other serious crimes prosecuted in the Rwandan courts.
Five journalists are among those who were prosecuted for genocide ideology or related violations. The outcry from human rights organizations about censorship and political suppression in Rwanda and the volume of news coverage about a crack down on journalist would suggest that many more arrests have taken place. Since President Kagame took office in 2002, about 20 Rwandan journalists have been arrested according to a listing on the website of Reporters Without Borders (RWB). However, most of the journalists claimed by the RWB claim to have been wrongfully arrested for political suppression or censorship reasons actually were arrested for other crimes, such as drunk driving, fraud, and embezzlement.22
One of the main criticisms of the Rwandan laws is that they are vague and do not give enough notice about what types of communication and behaviors are criminal. The human rights organization Article 19 described the prohibition on genocide ideology in the Rwandan Draft Penal Code as arbitrary, undefined and containing remarkably broad concepts that may be
21
Case files and prosecution statistics from the Rwanda National Prosecution Authority on file with author.
22
Interview with Rwandan prosecutor Eric Nkwasa, July 2011 and case files in possession of the author.
exploited by authorities to suppress legitimate discussion of history, politics and personal experience (Article 19, November 2011, p. 15). In February 2011, RWB published a study based on a sample of 31 genocide ideology and genocide denial cases heard by the Rwandan courts between 2007 and 2010. Its analysis found that the facts alleged in the charges were so unclear and imprecise that the accused could not adequately prepare a defense (Avocats Sans Frontieres, 2011, p. 12 and p. 61-62). However, Rwandan judges have been able to interpret and apply the laws in more than 1,700 cases that have come before them. The 31 percent acquittal rate for these types of cases suggest that they have been successful in analyzing the charges against the accused and deciding whether they fit the definition of the prohibited acts.
The most prominent of these cases, other than the pending case against Ingabire, involves two journalists who were convicted in February 2011 for publishing articles, which the Rwandan Prosecutor General argued spread division because they were designed to dissuade Rwandans from participating in national development programs, such as the crop intensification drive, land consolidation and the credit and savings program. The two were also accused of insulting the person of President Paul Kagame by alleging that he shares the loot that some of his top military officers extort from the masses and that under his regime, Rwandan people are worse off than they were in the past (Asiimwe, April 6, 2012).
On April 4, 2012, a Rwanda Supreme Court decision upheld the convictions of journalists Agnes Nkusi Uwimana and Saidath Mukakibibi for threatening state security. Uwimanas conviction for defamation was also upheld, but convictions were overturned on the charges of genocide ideology and instilling divisionism among Rwandans. Uwimanas prison 34 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
sentence was reduced from 17 years to four years. The sentence for Mukakibibi was reduced from seven to three years. She was also fined 77, 000 Rwandan Francs.23 In upholding the convictions for threatening state security, Supreme Court Chief Justice, Sam Rugege said "Freedom of expression is not an absolute right. Like other rights, it is subject to regulation" (Agence France Press, April 5, 2012).
Manipulation of Media Reporting on Free Expression and Genocide Denial
Rwanda also faces the challenge of accurately representing itself to the rest of the world while countering the domestic threat of recurring genocide in a democracy that supports freedom of expression and other human rights. The country seems unable to overcome the Western media bias that favors unbridled expression and opposes any restrictions on media reporting. This bias prevails despite the restrictions on speech and press that are recognized and upheld in the international human rights instruments and by the laws of numerous Western nations.
Genocide deniers and human rights advocates interpret the Rwandan laws against genocide ideology and genocide denial as violating freedom of speech and suppressing political opposition. The criticism has come in Human Rights Watch reports, The New York Times articles, Amnesty International reports, Reporters Without Borders publications, policy advocacy organizations, and in an Article 19 analysis of the draft Rwandan Penal Code that includes provisions from the laws against genocide ideology and related crimes.
23
Urubanza RPA 0061/11/CS MP vs. Uwimana Nkusi Agns & Mukakibibi Saidati. [Case is being translated into English]
Human Rights Watch and The New York Times have published numerous reports and news articles criticizing the Rwandan government for allegedly suppressing freedom of the press and individual political freedom. The two organizations often quote each other in circular references to report, as facts, accusations without any supporting evidence. Leading up to the Rwanda presidential election in 2010, Human Rights Watch (HRW) published a report condemning the RPF government for what it called the steady crushing of political dissent" (Human Rights Watch, Sep. 19, 2010). HRW makes a sensational and sweeping charge about political dissent in Rwanda without verifiable data or credible independent sources for that conclusion, following a strategy of recirculating citations of undocumented charges. Readers are supposed to accept the reporting as truth simply because of publication in HRW documents or The New York Times.
The HRW report is really a commentary, an opinion piece by an HRW officer. The piece does contain the charge that the Rwandan government is steadily crushing political dissent. But the HRW official offers no evidence on which she bases that conclusion. She immediately refers to The New York Times article after making the accusation, but provides no supporting data to convince the reader of her conclusions accuracy. The New York Times article on which she appears to be basing her charge of political repression in Rwanda also demonstrates the circular citation fallacy (Gettleman, April 30, 2010). The HRW official cites HRW Director Roth (or HRW cites itself) as the source for evidence of repression in Rwanda. Roth provides the quote that President Kagame is stymieing a political opposition in Rwanda. He o offers that
conclusion without any independent data or without identifying any repressed sources that make that claim.
The New York Times article referenced by the HRW official is full of unsupported claims by unnamed and unspecified political analysts, human rights groups, critics, and political dissidents who say Rwanda is repressive. The article quotes two opposition politicians who claim to have no space to talk about the genocide. However, the charges of persecution and repression are assertions made by The New York Times reporter. The piece should have been labeled commentary or opinion, because it does not meet the journalistic news standards of the publisher.
There was recent criticism of the Human Rights Watch reporting on Rwanda and of the bias that its director, KennethRoth, has against Rwanda. Richard Johnson, a retired American diplomat, has called the credibility of Human Rights Watch into question over its coverage of post-Genocide Rwanda. Johnson issued a report based on his research of HRW. He said that the organization and Roth are on a campaign against Rwanda that is aimed at rewriting history and influencing world opinion in a slanted manner (New Times, March 22, 2013). Roth was challenged publicly about his disdain for the Rwandan government, which critics say has led him to commit serious professional mistakes as a rights advocate (New Times, April 18, 2013). The Reuters and BBC news services have also been accused of bias in their supposedly
objective news reporting about Rwanda.24 The charges of bias arise when Western media report about politics in the country, usually relying on exiles, dissidents and human rights advocates.
Reporters Without Borders is another Western human rights organization that has published reports accusing the Rwanda government of suppressing political dissent, and of arbitrarily arresting and assassinating journalists and political opponents of the RPF. According to RWB, Every year several Rwandan journalists decide to go into exile because they find the atmosphere unbearable in their home country.25 RWB is also zealous in its criticism of President Kagame, who the organization lists prominently on its website as an enemy of freedom of the press. It seldom misses an opportunity to repeat in its reports that Reporters Without Borders reminds readers that President Paul Kagame has been denounced as one of the worlds 38 predators of press freedom (Reporters Without Borders, May 21, 2002).
Genocide deniers and Rwandan defectors in the U.S. and Europe have had success in convincing traditional and social media outlets to carry their ideological propaganda. Ann Garrison of the Afrobeat Radio regularly hosts genocide deniers on her radio program and on her website and blog.26 The genocide denial campaign of the ICTR defense attorneys has also
24
For claims about Reuters and BBC biased reporting see: Andrew M. Mwenda, Here is Rudasingwas moral bankruptcy, The Independent, 19 October 2011; and William Church, Rusesabagina, Genocide And Identity Politics [opinion] Posted on January 14, 2007, http://www.bloggernews.net/13844.
25
kagame,42472.html.
26
See posting at Reporters Without Borders website: http://en.rsf.org/predator-paul-
See http://www.anngarrison.com/tags/afrobeatradio; and http://uk-africa.blogspot.com/ 2012/06/fw-dhr-rwanda-genocide-who-killed-hutu.html.
influenced the Western media, philanthropic foundations, and policy advocacy organizations. Caplan points out that the biased reports against the Government of Rwanda by human rights organizations have also provided an unqualified level of legitimacy to the deniers' malicious intentions (Ngabo, April 23, 2011).
The deniers have been so successful in gaining legitimacy that they are now being celebrated and awarded by government officials and some of the most prestigious human rights organizations. In 2005, Rusesabagina received the U.S. Presidential Medal of Freedom for heroism during Rwanda's genocide. Rwandan genocide survivors were up in arms when the Lantos Foundation for Human Rights and Justice decided to award the 2011 Tom Lantos Human Rights Prize to Rusesabagina for being an outstanding humanitarian who rescued Rwandan Tutsi from death in 1994 just as Oskar Schindler had done for the Jews during the Holocaust. The Lantos Prize commemorates the late Congressman Tom Lantos, the only Holocaust survivor ever elected to the U.S. Congress and a prominent advocate for human rights during his nearly three decades as a U.S. Representative. Former recipients of the Prize include His Holiness the Dalai Lama and Nobel Laureate and Holocaust scholar Elie Wiesel.
When members of the Rwandan Diaspora demonstrated in front of the Foundations headquarters to protest the awarding of the Prize to Rusesabagina, the Foundation issued a press release accusing the Rwandan government of manufacturing the protest in an attempt to smear the good name of Rusesabagina. According to the release, Unfortunately these attacks appear to be consistent with a disturbing pattern of censorship, intimidation and even violence that has
been directed at those who have dared voice concerns about the government of Rwanda. This pattern is not unique to Rwanda. Other authoritarian regimes have responded in a similar fashion (Lantos Foundation, Nov. 9, 2011).
The Foundations press release added that the very freedom to take part in these protests is something that wouldnt be allowed in Rwanda under the current government. As if for good measure, the Foundation added to its website a November 11, 2011 link to a posting on the African Dictator website claiming that Thanks to our AD Blogger Kamikazi, we now learn that the USA-based Lantos Foundation has charged Kagame with manufacturing controversy and protests against the awarding of its 2011 Human Rights Prize to Paul Rusesabagina.27
The Lantos Foundation awarded its prize and the controversy blew over. But Rusesabagina and Rudasingwa are still regulars on the speaking circuit in forums sponsored by prominent research and policy advocacy organizations like the Open Society Institute, Search for Common Ground, and the Council for Strategic and International Studies. These organizations give the genocide deniers a stage to propagate their ideology and to launch attacks against the Rwandan government.
Freedom of expression is now being used as a cloak for genocide deniers who manipulate the elite Western mass media and human rights organizations for their own propaganda purposes.
27
Website, http://www.africandictator.org/?p=5774&utm_source=rss&utm_medium=rss&utm_ campaign=kagame-receives-yet-another-slap-in-america, was removed shortly after the controversy. Accessed by author on November 11, 2011.
This includes the long-standing genocide denial campaign of ICTR defense attorneys and the more recent social media and Internet campaign of Rwandan defectors and genocide fugitives who have found aid and comfort in North America and Europe.
Laws Prohibiting Holocaust and Genocide Denial
The UN Charter, the Universal Declaration of Human Rights and various other international legal instruments guarantee freedom of expression. Other international conventions and treaties state that individuals should be protected from propaganda and advocacy of racial hatred.28 The advocacy of hatred by itself does not constitute genocide. However, hate speech is not a protected expression under international law.
The international conventions and treaties that explicitly protect freedom of expression also allow for significant restrictions on hate speech. In fact, governments have an obligation under international law to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (ICTR-99-52-T, Judgment and Sentence, para. 1074). More than 20 countries have laws making it a crime to deny the Holocaust. Germany, Israel, and France are among the nations that criminalize such speech.
28
The International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966; and The African Charter on Human and Peoples' Rights, adopted June 27, 1981 entered into force October 21, 1986.
In the aftermath of World War II, the National Socialist Party (Nazi party) of Germany was branded a criminal organization and banned. The International Military Tribunal at Nuremberg in 1946 ruled that the Nazi Party was a criminal organization and convicted some of his members for the massacre of the Jews in the infamous concentration or death camps in Europe. German law, however, did not just stop at banning the Nazi Party. As part of its efforts to overcome its Nazi past, Germany has criminalized denial of the Holocaust and also banned the use of insignia related to Hitler's regime and, written materials or images promoting the Nazi message. Section 130 of the German Penal Code prohibits denial or minimizing of the genocide committed under the National Socialist regime, including through dissemination of publications. This includes public denial or gross trivialization of international crimes, especially genocide/the Holocaust.29
The law has been amended a number of times since its initial passage in 1985. Holocaust denial was outlawed as an insult to the personal honor of every Jew in Germany. In 1994, Holocaust denial became a criminal offense under a general anti-incitement law. The law states that incitement, denial, approval of Nazism, trivialization or approval, in public or in an assembly, of actions of the National Socialist regime, is a criminal offense. The 1994 amendment increased the penalty from one year up to five years imprisonment. It also extended the ban on Nazi symbols and anything that might resemble Nazi slogans.
On July 8, 1986, Israel adopted a law to criminalize Holocaust denial [Denial of Holocaust (Prohibition) Law, 5746-1986]. Under the law, anyone convicted for denying or
29
German Penal Code 130 StGB, 1985 BGB1. I 965.
diminishing the acts that are crimes against the Jewish people or crimes against humanity committed in the period of the Nazi regime, with intent to defend the perpetrators of those acts or to express sympathy or identification with them, can face imprisonment for up to five years. France has long had in force a law against Holocaust denial that is not considered a violation of freedom of expression. Denial of the Holocaust is punishable under a law that is based on the findings of the Nuremberg Tribunal. Commonly known in France as the Gayssot Law (Loi Gayssot) after its author, Law No 90-615 of 13 July 1990, makes it an offense to question the existence of crimes against humanity as they are defined in the Nuremberg Charter. The French law does not explicitly criminalize denial of the Holocaust, but rather prohibits any racist, anti Semitic or xenophobic acts. Article R645-1 of the French Penal Code prohibits the public display of Nazi uniforms, insignia and emblems.
While the European Union has not prohibited Holocaust denial outright, on July 15, 1996, the Council of the European Union adopted the Joint Action/96/443/JHA to help combat racism and xenophobia. The measure gives all member nations the option to impose a maximum prison sentence of three years on those convicted for "denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes.30
In 2007, the Spanish Constitutional Court used case law on Holocaust denial from the European Court of Human Rights to sanction the prosecution of a neo-Nazi activist and owner of
30
Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, Official Journal L 328, 06/12/2008 P. 0055 0058.
a bookstore who sold publications in which the Holocaust was, as a historical fact, denied, trivialized or justified. The Spanish Court ruled that the simple denial of genocide as a historical fact without adding any subjective value judgment whatsoever is speech protected by the Constitution. However, it found that statements either glorifying or extolling the Holocaust or minimizing or trivializing its consequences, might be punished under the Spanish Criminal Code without violating the freedom of speech provisions of the Constitution (Coderch & Puig, 2008). Western European nations are not the only ones to criminalize denial of the Holocaust. Eastern European nations newly liberated from Communism followed suit. Since the fall of the Iron Curtain, the former communist nations that have enacted similar bans on Holocaust denial and public display of Nazi-era symbols or slogans include Estonia, Latvia, Hungary, the Czech Republic, and Poland.
Rwandas laws against genocide denial fit within this international regime for protecting human rights, including the right of vulnerable minority populations to be free from threat, intimidation, and extermination. The experience in Western and Eastern Europe should demonstrate that Rwandas laws are compatible with the freedom of expression. Limitations on Free Expression/Human Rights
Despite the constitutional guarantees of free expression, most nations recognize restrictions on speech and press through a media system that includes licensing of journalists and registration of publications; libel and defamation laws, as well as freedom of information and access laws and ombudsmen for professional self-regulation. Restrictions on freedom of expression and the mass media have been upheld in Western nations for many reasons, including 44 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
eliminating threat to national security, protection of state secrets, prohibiting advocacy of violent overthrow of government, eliminating threat to public safety, threat against the head of state (U.S. President), preventing incitement to commit crime, genocide denial, libel/slander, invasion of privacy, disruption of the right to a public/fair trial, and disruption of public schools. Freedom is not an absolute. In every country, freedom of expression has recognized legal limits. The human rights of all are preserved by limitations on individual expression and on the mass media. Government has an interest and a duty in protecting public safety and order, protecting human dignity, preventing incitement to violence, preventing threat, intimidation, discrimination and persecution. These threats are real, they are not imagined, especially in the case of Africa. Hate speech and hate radio preceded the recent conflicts and political violence in Rwanda, Kenya, Ivory Coast, and Senegal. In the most extreme case, hate speech, media manipulation and abuse of the freedom of expression facilitated genocide in Rwanda in 1994.
Rwanda is not alone among African countries that prohibit hate speech and incitement to violence. The South African Constitution places certain forms of expression, including "hate speech," outside the right to freedom of expression and removes it from the ambit of constitutional protection. In September 2011, Africa National Congress official, Julius Malema, was convicted of hate speech in South Africa for singing an apartheid-era song that advocated the killing of white farmers. Judge Collin Lamont ruled in the South Gauteng High Court in Johannesburg that while songs like Shoot the Boer were part of the fight against white minority rule, they now constitute hate speech as South Africa seeks to heal itself from its history of racial discrimination (Mail & Guardian, Sept. 12, 2011). The ruling represented a significant 45 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
legal test of the frontier between free speech and hate speech in South Africa, one of Africas most democratic countries.
Australias anti-discrimination law imposes restrictions on speech that insults and threatens ethnic minority populations. In September 211, popular right-wing Australian commentator Andrew Bolt was convicted under Section 18C of the Racial Discrimination Act when he questioned the racial heritage of nine fair-skinned Aborigines in an article published by the Herald and Weekly Times.31 An Australian Federal Court ordered that Bolt and the newspaper be restrained from republishing the contravening articles, and ordered the Herald Sun newspaper to publish corrective notices in the print and online versions of the newspaper.
The United States also recognizes restrictions on harmful speech. Threatening the President of the United States is a felony under the US Code Title 18, Section 871. American musician, Ted Nugent, was investigated by the Secret Service for threatening President Obama during a speech at a National Rifle Association convention in St. Louis, Missouri on April 14, 2012 (Jennings, April 18, 2012). It is also a crime to threaten Federal judges.
Andrew Adler, owner and publisher of the Atlanta Jewish Times, resigned under public pressure after he was investigated by the Secret Service for threatening President Obama in an editorial published on January 13, 2012 (Jewish Telegraphic Agency). Adler wrote a column about the threat that Iran poses to Israel. He proposed three options for the Jewish state to
31
Eatock v. Bolt [2011] FCA 1103; Eatock v. Bolt (No 2) [2011] FCA 1180.
counter the Iranian regime. One of them called for a "hit on a president in order to preserve Israel's existence" (CNN, January 21, 2012). Adler advocated that U.S. based Israeli Mossad secret service agents should to take out a president deemed unfriendly to Israel in order for the current vice president to take his place and forcefully dictate that the United States' policy includes its helping the Jewish state obliterate its enemies" (CNN, January 21, 2012).
The recent actions of the Secret Service to investigate and enforce the laws against threating the life and limb of the U.S. President are not new. For almost 40 years, the U.S. government passed legislation restricting the expression of certain antigovernment ideology and the U.S. Supreme Court continued to uphold these restrictions through a series of rulings (Demaske, 2008, p. 53). American courts have upheld laws in southern states against wearing masks and hoods to conceal identity. They upheld these laws because of the history of Ku Klux Klan racism and victimization of African-Americans by this hate group. These laws protected citizens not only against actual physical violence, but also against threats and intimidation. The rationale for upholding these restrictions on expression was the compelling state interest in protecting the civil rights of citizens to be free from violence and intimidation.32
The 2003 Virginia v. Black case upheld the prohibition of cross burning as a form of intimidation based on the Klans role in the history of racial segregation and terrorizing African Americans in the south (Virginia v. Black, 538 U.S. 343, 2003). The U.S. Supreme Court found that cross burning could be outlawed because it constitutes a true threat to individuals and
32
State v. Miller, S90A1172, 260 Ga. 669; 398 SE2d 547, (1990) case decided Dec. 5, 1990 upholding a 1951 Georgia anti-mask law.
groups in society, just as threats to the life of the U.S. President. It is important to note that the Court found cross burnings to be potent symbols of shared group identity and ideology (Kahn, 2005-2006, p. 356). This ideology of hatred and the historical record of abuses committed against racial minorities by the Klan made the burning of crosses particularly abhorrent in the eyes of the justices. In the same manner, the historical role of the Nazis in persecuting and exterminating the Jews made Germany outlaw insults and anti-Semitism as a threat to Jews and to the security of the country (Kahn, p. 184-185).
After 1945, Germans began to see anti-Semitism as a threat to the national identity of Germany as a normal nation, just as Americans view cross burning as a threat to their own identity. These trends only intensified when the emphasis shifted from anti-Semitism to Holocaust denial (Kahn, p. 186). Holocaust deniers were considered a threat to the state because they were challenging the legitimacy of laws and legal rulings on anti-Semitism by claiming that the Nazi persecution of Jews did not happen. This was seen as undermining the foundation of a government which was built on an ideological repudiation of Nazism (Kahn, p. 187). In Germanys prohibition against denying, minimizing or trivializing the Holocaust, we see a strong precedent for Rwandas repudiation of genocide and the racist Hutu Power ideology that spurred the campaign to exterminate the Tutsi. The genocide denial law and the law against divisionism are prudent steps that the Rwandan government has taken to avoid repetition of genocide.
An apparent double standard exists when human rights organizations criticize Rwanda for criminalizing genocide denial in light of the practice in numerous Western countries that have for so many years been prosecuting and punishing those who deny the Holocaust. The double standard is even more obvious when we consider that laws are being used to curb threatening speech even in countries with constitutions that are the most protective of freedom of speech.
Genocide Denial Laws and the Responsibility to Protect (Prevent Genocide)
Freedom of expression is enshrined as the primary human right in various international treaties, conventions and other legal instruments. By extension, a free press and independent media have also come to be viewed as a human right. Freedom of speech and the underlying value of personal autonomy are often at odds with other values or state interests, such as preserving public safety and public morals. Harmful speech, persecution, hatred and threat to physical safety cannot be tolerated because they threaten common/community public interests that outweigh individual rights. The restriction on speech that harms others [genocide denial, genocide promotion, persecution, hatred] is perfectly consistent with supporting all human rights.
Despite the legal documents guaranteeing human rights, the real test of human rights comes when a state or society deals with unpopular or despised deviants rather than those comfortably in the mainstream. Likewise, it is those on the social margins, especially when they have been forced to the margins, who have the greatest need and the most important uses for human rights (Donnelly, 2003, p. 237). Tutsi survivors in post-genocide Rwanda are the despised and marginalized individuals needing the most protection. 49 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
The Responsibility to Protect Doctrine under the developing international human rights legal regime also provides for restrictions on harmful speech as a way to preserve the human rights, if not the very survival, of minority populations under threat of extermination (United Nations, October 24, 2005, para. 138-140). The responsibility to protect people from human rights violations embraces three specific responsibilities: responsibility to prevent by addressing both the root and immediate causes of conflicts within countries, as well as other man-made crises; responsibility to react by responding appropriately to situations of massive human rights violations by imposing sanctions, bringing international prosecution; and, in extreme cases, intervening with military force; and responsibility to rebuild by providing full assistance with recovery, reconstruction and reconciliation particular after any military intervention (United Nations, January 12, 2009, p. 12-13).
Recognizing that the international community did not respond vigorously to ethnically inflammatory broadcasts and rhetoric in the Balkans in the early 1990s or in Rwanda in 1993 and 1994 in the months preceding the genocide, the Secretary-General of the United Nations (Kofi Annan) argued that under the responsibility to protect doctrine, governments can and should ban such expression that could incite violence.33 He went further to suggest that the international community should jam radio broadcasts of offensive, hateful and xenophobic messages and that
33
According to one researcher, Rwanda was personally wrenching for Annan. He headed the UN peacekeeping department during the genocide and was later blamed for passivity. Guilt over Rwanda, and recognition of crisis of legitimacy facing the United Nations, perhaps underlay his strong humanitarian interventionist posture. Stephen Wertheim, A solution from hell: the United States and the rise of humanitarian interventionism, Journal of Genocide Research (2010), 12 (34), SeptemberDecember 2010, 149172.
UN Peacekeepers can counter such messages with its own broadcasts and information services (United Nations, January 12, 2009, p. 24).
If under the responsibility to protect doctrine, expression that incites violence can be banned, then the Rwandan government is discharging its responsibility by outlawing and punishing genocide ideology, genocide denial, and genocide minimization under its domestic laws. These laws should be viewed as an important component of the responsibility to prevent reoccurrence of genocide and the responsibility to rebuild the society after the 1994 genocide.
Caplan argues that the Responsibility to Protect doctrine is potentially more effective than the genocide convention because there is no need to officially declare that genocide is in progress before intervening to prevent human rights abuses. That is, assuming the political will to intervene, a huge assumption (Caplan, May 21, 2009). However, since the UN Security Council adopted the responsibility to protect doctrine in 2006, it has not intervened on behalf of vulnerable victims. The United Nations has developed the doctrine, but it cannot effectuate what it has pledged (Wertheim, 2010, p. 167).
Tension between the individual human right to free expression and the group right to survival (to avoid genocide) may be one reason for the reluctance of the international community to act when populations are threatened. At the same time, human rights organizations are criticizing the Rwandan government for performing the states duty to protect the public interest (vulnerable populations) by limiting the individual human right to free expression with laws against promoting genocide ideology and genocide denial. 51 The International Journal of Conflict & Reconciliation Fall 2013, Volume 1 Number 2
Conclusion
Rwanda has taken steps to curb the threat of atrocities in its post-genocide recovery period. Those steps are based on the realities of its political history that was dominated by a Hutu power ideology of exclusionism and impunity for attempts to exterminate the minority Tutsi ethnic group. The other reality of Rwandas recent past is the role that the mass media played in disseminating the genocidal ideology, anti-Tutsi propaganda and hate messages that incited the population to commit genocide in 1994.
The on-going campaign of genocide denial further challenges social cohesion and progress in post-genocide Rwanda. It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless.34 Recognizing this reality, Rwanda has relied on its laws against genocide ideology and genocide denial as a restraint against any further attempts to exterminate the Tutsi. These laws are not unusual, despite the criticism of free expression absolutists who do not live under constant threat of annihilation.
34
"The Other America," speech by Rev. Martin Luther King, Jr., Grosse Pointe High School, March 14, 1968. http://www.gphistorical.org/mlk/mlkspeech/.
The threat of violence and incitement to violence via the mass media presents a severe challenge for African leaders like President Paul Kagame who govern under accusations and pressure from Western critics that revel in the rhetoric of social media revolution and Democratic idealism but ignore the reality of governance and pragmatic leadership needed in societies marked by conflict and poverty. Rwanda must grapple with the challenge of rebuilding and uniting a previously divided society while the critics continue to advocate for an ideal that their own Western governments continue to strive to attain.
Despite having laws in place to prevent hate speech that threatens vulnerable populations in countries where they are located, Western media and human rights organizations have allowed themselves to be manipulated by genocide deniers who abuse idealistic notions of free expression to promote the Hutu power ideology that fueled genocide in Rwanda in 1994. The deniers are thus able to use constitutional guarantees of individual freedom of expression and, by extension, media freedom, as a cloak for their ideological campaign of hate and divisionism.
The existence of Holocaust denial laws in more than 20 countries around the world demonstrates the double standard of these human rights organizations that criticize Rwanda for prohibiting genocide denial under its domestic laws. The responsibility to protect doctrine has proven ineffective to date but it does present a new tool with which to balance genocide prevention through restrictions on hate speech (and even intervention on humanitarian grounds) with the absolutist view of freedom of expression as the ultimate international human right.
The remaining challenge for Rwanda is in tailoring its laws against genocide denial and genocide ideology to allow for historical, scientific, and political discussion of genocide and to better conform to the international human rights legal regime. The other major challenge for Rwanda is to negotiate the tension between individual free speech rights and its duty to protect vulnerable populations from threat, intimidation, and extermination as it finds ways to implement human rights in a national, historical, and cultural context that preserves other societal interests.
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Freedom of Expression, Media Manipulation and Denial of Genocide in Rwanda

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Freedom of Expression, Media Manipulation and Denial of Genocide in Rwanda

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Freedom of Expression, Media Manipulation and Denial of Genocide in Rwanda Tim Gallimore Abstract

Rwanda Political Background

Genocide Denial Campaign

Theoretical Background for Prohibiting Genocide Ideology and Genocide Denial

Rwanda Laws against Genocide Denial

Manipulation of Media Reporting on Free Expression and Genocide Denial

See posting at Reporters Without Borders website: http://en.rsf.org/predator-paul-

See http://www.anngarrison.com/tags/afrobeatradio; and http://uk-africa.blogspot.com/ 2012/06/fw-dhr-rwanda-genocide-who-killed-hutu.html.

Laws Prohibiting Holocaust and Genocide Denial

German Penal Code 130 StGB, 1985 BGB1. I 965.

Genocide Denial Laws and the Responsibility to Protect (Prevent Genocide)

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