Is genocide different? Dealing with hate speech in a post-genocide society.

• Author: Allen, Jennifer M.

1. INTRODUCTION 146 II. RWANDA, GENOCIDE, AND SPEECH 148 1. A BRIEF HISTORY OF THE RWANDAN GENOCIDE 148 2. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA AND THE 150 MEDIA CASE 3. MERE HATE SPEECH? NAHIMANA'S CONVICTION FOR PERSECUTION 152 4. RWANDA AFTER THE GENOCIDE 154 5. SPEECH IN RWANDA: GENOCIDE IDEOLOGY AND DIVISIONISM 156 III. APPROACHES TO HATE SPEECH 158 1. GERMANY 159 2. ISRAEL 161 3. THE EUROPEAN UNION 163 4. THE UNITED STATES 165 IV. FINDING THE RIGHT WAY FOR RWANDA 168 1. RWANDA'S APPROACH: VAGUE AND OVERBROAD 168 2. WHY THE UNITED STATES' APPROACH WON'T WORK 169 3. FINDING A MIDDLE GROUND 171 V. CONCLUSION 174 I. Introduction

   In January 2010, Victoire Ingabire returned to Rwanda after sixteen years of exile in the Netherlands to campaign for the presidency at the head of the United Democratic Force Party) Her presence was immediately met with controversy, as her campaign touched on the ethnic tensions that sparked Rwanda's 1994 genocide where the country's majority Hutu population killed approximately 800,000 Tutsi and moderate Hutu. (2) Ingabire has called for prosecuting Tutsi for war crimes and crimes against humanity committed against Hutu during the 1994 conflict and for commemorating Hutu victims. (3) In April 2010, she was arrested on charges of denying the genocide, spreading genocide ideology, divisionism, and collaborating with Rwandan rebels based in the eastern Democratic Republic of Congo (DRC). (4)

   Peter Erlinder, an American lawyer and law professor, traveled to Rwanda to assist in Ingabire's defense. (5) After Erlinder arrived, he was also arrested on charges of denying the genocide. (6) Ingabire and Erlinder both adamantly deny the charges against them. Ingabire has consistently maintained that advocating for recognizing and prosecuting crimes against humanity that Tutsi committed against Hutu during the genocide does not constitute a denial that the genocide happened. (7) The government disagrees and finds her talk of Tutsi massacres to be both a violation of Rwandan law and dangerous revisionism that could reignite conflict. (8)

   The legal underpinning for the charges against Ingabire and Erlinder originated in 2002, when Rwanda passed a broadly worded law criminalizing "sectarianism." (9) The government later began to charge individuals with crimes associated with "genocide ideology," defined in a 2008 law as dehumanizing a person or group by such vague actions as "propounding wickedness," "laughing at one's misfortunes," and "stirring up ill feelings." (10) Ingabire and Erlinder's cases serve as examples of the Rwandan government using these laws to crackdown on opposition voices.

   Every nation, in crafting and interpreting its speech laws, must balance the tension between allowing citizens to express themselves and deciding when that expression crosses the line into dangerous threats to others or to the country as a whole. The stakes for getting that balance right, however, are exponentially higher in post-conflict nations such as Rwanda. Rwanda may have erred in overzealously prosecuting Ingabire, Erlinder, and others like them, but the government has a valid concern that failing to identify and act on a legitimate threat has the potential to rekindle a conflict that has already taken hundreds of thousands of lives. So should a country have greater latitude to restrict speech in the aftermath of genocide? Which considerations should it take into account in deciding whether and how to limit speech? How can a nation struggling to establish the rule of law provide effective checks on the potential misuse of speech restrictions?

   This article examines these questions by comparing how legal regimes with a broad range of experiences have answered speech questions for themselves, and how their solutions may or may not work for Rwanda. Part I will discuss the 1994 Rwandan genocide, the role that hate speech played in the rise of violence, and the state of the country post-genocide. Part Il will provide a comparative analysis of approaches to hate speech in the United States, Germany, Israel, and the European Union (EU) as starting points for a broader discussion on post-conflict speech restrictions. Finally, Part III will expand on elements to consider in crafting post-conflict speech restrictions, explain how different legal regimes have addressed these elements, and suggest ways in which Rwanda could draw on other countries' examples to strike an effective, workable balance between preserving national stability and protecting its citizens' right to free speech.

2. Rwanda, Genocide, and Speech

   1. A Brief History of the Rwandan Genocide

      On 6 April 1994, the plane of Juvenal Habyarimana, the president of Rwanda, was shot down. (11) President Habyarimana and several other important figures died in the crash. (12) The incident triggered a wave of violence resulting in the death of more than 800,000 people in a little over three months, with most of the victims from the minority Tutsi population. (13) A brief discussion of the history leading up to the conflict provides a useful context to understand the current tensions in the country and the rationale used to justify the Genocide Ideology Law.

      The ethnic categorization and subsequent hostility between the Hutu and Tutsi developed over the course of the 20th century and significantly intensified when Belgium became the colonial power in the 1920s and 1930s. (14) The Belgians cemented an already growing separation between the two ethnic groups by decreeing that only Tutsi could be officials, giving them increased power over the Hutu. (15) The Belgians also registered the entire population and issued ethnic identity cards which all adult Rwandans were required to carry. (16) Domination by the minority Tutsi population, with the support of Belgium, continued until the end of the colonial era in the 1950s. The departure of the Belgians led to the ascendency of the Hutu in the 1960 elections, which were followed by the often-violent expulsion of many Tutsi from regions that had previously been predominately Hutu. (17) Many of the Tutsi fled and became refugees on the margins of neighboring countries. (18)

      A generation later, Tutsi who grew up as refugees formed the Rwandan Patriotic Front (RPF) with the goal of overthrowing President Habyarimana and establishing a new government. (19) In 1990, the RPF crossed the border and attacked Rwanda. (20) The RPF attack was followed by years of sporadic fighting between the two sides, with numerous cease-fire agreements signed and broken. (21) Ethnic tensions continued to run very high in the country and racist views were being encouraged by both radio and print media. (22) In 1994, as attempts to implement a peace agreement slowly unwound, the President's death set off a wave of violence. (23) The Hutu targeted and killed approximately 800,000 Tutsi and moderate Hutu in what the International Criminal Tribunal for Rwanda (ICTR) later found to be "a campaign of mass killing intended to destroy, in whole or at least in very large part, Rwanda's Tutsi population"--meeting the definition of genocide. (24) By the end of the conflict, the RPF had taken full control of the country and they have continued to dominate Rwandan politics since. (25) The RPF drove approximately two million Hutu refugees, including many of those who planned and committed the genocide, into neighboring countries. (26) Several thousand still remain in what is now the eastern part of the DRC, acting as a destabilizing force in the region. (27) During the violence, many international humanitarian law violations were committed by both sides. (28)

   2. The International Criminal Tribunal for Rwanda and the Media Case

      Reports by the UN Special Rapporteur for Rwanda and a Commission of Experts established by the UN Security Council concluded that genocide occurred in Rwanda. (29) These reports led the Security Council to establish the icriz in November of 1994. (30) The ICTR's mandate is to "prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994." (31)

      The Tribunal is located in Arusha, Tanzania, and has three Trial Chambers where cases are heard by three-judge panels. (32) The first trial began in January 1997 and the tribunal has heard a number of notable cases. (33) In the case of Jean-Paul Akayesu, the tribunal was the first to interpret the definition of genocide and obtained the first conviction since the adoption of the Genocide Convention in 1948. The Akayesu case was also the first time rape was found to be an element of the crime of genocide.' With his guilty plea, Prime Minister Jean Kambanda also became the first head of state to be convicted of genocide and the first accused to acknowledge his or her guilt for acts of genocide. (36)

      On 28 November 2007, the ICTR Appeals Chamber released its opinion in the appeal of three leading members of the Rwandan media in another well-known case, unsurprisingly nicknamed the Media Case. Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze were convicted of various crimes including direct and public incitement to commit genocide and persecution. (37)

      Ferdinand Nahimana and Jean-Bosco Barayagwiza established a radio station called Radio television libre des mine collines (RTLM), that started broadcasting in July 1993 and became very popular. (38) Nahimana and Barayagwiza supervised RTLM's activities, controlled its finances, and were considered the top two individuals in charge. (39) The ICTR Appeals Chamber found that RTLM's broadcasts after 6 April 1994 substantially contributed to the commission of acts of genocide. (40) The radio station broadcast statements about "exterminating the Inkotanyi [enemy] (41) so as 'to...