1. Introduction: genocide denial and memory wars
In Inglourious Basterds, the American filmmaker Quentin Tarantino daydreams about the way the Second World War should have ended. Locked into a movie theatre in France, the general staff of the Nazi party is burnt alive by a young Jewish woman whose family was exterminated a few years earlier. In a visionary flood of flames and bullets, the Nazi party, the metaphor par excellence of unspeakable evil, is judged and punished by its victims, whose sentence mirrors the judgement of history. Although victims of mass atrocities may write history in the movies, this is usually far from the case in reality. Everyday life is something more complicated. Here historical truths are elaborated, selected, manipulated, and reinterpreted, in a carousel that provides room also for the shocking opinions of revisionists and negationists. The Holocaust, the Armenian, and the Rwandan genocide, as well as other genocidal massacres, are constantly subjected to a process of denial. As a consequence, it seems unquestionable that filmmakers are not the only ones tempted to rewrite crucial chapters of contemporary history. Lawyers and historians are deeply involved in the process of truth-seeking, truth-teaching, and, sometimes, ‘truth-freezing’, when the basic truths on which post-Second World War democracies are grounded are challenged. How should opinions that clearly deny established historical truths be dealt with in societies that have witnessed genocide and other gross human rights violations? How should freedom of research and expression be balanced with other needs in contexts where the universal condemnation of mass atrocities is the quintessential element of the memory pact which forms the foundation of a common, peaceful life?Footnote 1 Post-genocide societies must repeatedly face these and a number of other challenges. Successive waves of historical revisionism targeting the main assumptions underlying the pledge to prevent a new genocide in Europe or elsewhere have pushed several states to reinforce the historical memory through criminal law. This choice appears questionable: can the lawmaker replace the historian establishing an uncontroversial truth about the past by limiting the freedom of opinion and speech? What are the consequences of such a policy under the perspective of criminal law and memory-building process?
The very concept of genocide is heatedly debated in both legal and historical terms, in particular with regard to the psychological element of the crime, the so-called mens rea of the perpetrator and to the targeted group. While some scholars consider the Holocaust a historically unique event, the quintessential genocide, others place under the genocide label a body of heterogeneous events such as colonial slaughters and the conquest of Americas, the conflict in Darfur, the Vendée uprising during the French revolution, the Revolt of the Hereros in South Western Africa, al-Anfal Campaign against Kurds, the Ukrainian Holodomor, and the Third Punic War (149–146 BC). The director of the Journal of Genocide Research has confirmed this state of uncertainty by affirming that to date genocide ‘lacks both a satisfactory conceptual definition and a consensus as to the inner make-up. . ..Without a conceptual definition one is impeded in separating genocidal events from the non-genocidal’.Footnote 2 As scholarly literature has warned, the analogy with Holocaust-denial laws, on which the request to approve norms to protect the memory of certain events is often based, might be fallacious.Footnote 3
The 1948 UN Convention on the Repression and Prevention of the Crime of Genocide, while requiring contracting states to prohibit ‘direct and public incitement to genocide’, does not include any provision criminalizing the denial of genocide. The only international agreement aimed at criminalizing the denial of genocide is the 2003 Additional Protocol to the Convention on cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems. Article 6 paragraph 1 of the Protocol in particular requires each state party to adopt legislative measures criminalizing conducts such as ‘distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimize approves or justifies acts constituting genocide or crimes against humanity, as defined by international law’. Surprisingly however, under paragraph 2 of the aforementioned Article 6 a party may also ‘reserve the right not to apply, in whole or in part, paragraph 1 of this article’. This protocol shows the reluctance of states members of the Council of Europe to punish conducts consisting of the simple expression of ideas, no matter how historically unfounded or reproachable they are.Footnote 4 The general debate on genocide denial needs to be located in the Rwandan context, where in 1994 a large part of the Tutsi population, as well as those Hutus opposing the genocidal regime of President Juvenal Habyarimana, were exterminated.Footnote 5
2. The Rwandan genocide and its challenges
The 1994 Rwandan genocide was the result of complex historical, political, and economic dynamics.Footnote 6 In three months between April 7 and mid-July 1994, the genocidal violence triggered by the Hutu-led Rwandan government claimed the lives of hundreds of thousands of Tutsis and moderate Hutus. Far from being a spontaneous outbreak of atrocity, the 1994 Rwandan genocide was ‘premeditated, meticulously planned and systematically perpetrated’.Footnote 7 The media played a crucial role in the hate campaign that led to the genocide, in particular the newspaper Kangura, which published a racist manifesto called the ‘Hutu Ten Commandments’ and the Radio Télévision Libre des Mille Collines, the ‘sole source of news as well as the sole authority for interpreting its meaning’ during the genocide, according to Alison des Forges.Footnote 8 Decades after the conviction of Julius Streicher, editor-in-chief of the anti-semitic newspaper Der Stürmer, by the Nuremberg Tribunal, the media responsibilities in the Rwandan genocide have been ascertained by the ICTR jurisprudence in the Media Case. Footnote 9
When contemplating the most suitable approach to post-genocide justice to be adopted after the 1994 mass slaughters, Rwandan authorities had no pre-prepared script to draw upon. The cyclical waves of violence that have characterized Rwanda's national history since 1959 and the scale of the genocide impacted on the country so deeply that foreign models could not be simply transplanted. The issues surrounding the polarization Hutu–Tutsi in particular – considered as one of the causes of the slaughters and itself the consequence of manipulated and socially-constructed identities – emerged as a crucial problem to be addressed in order to encourage a sustainable process of national reconciliation.Footnote 10 Post-genocide justice in Rwanda, despite its retributive features, was marked since its outset by a strong emphasis on reconciliation, shared by both international and domestic jurisdictional mechanisms, encompassing a textured and sophisticated web of courts. The effort to address the genocide legacy took a threefold shape, being grounded on a United Nations (UN) sponsored international ad hoc tribunal, domestic criminal courts, and the neo-traditional community-based Inkiko Gacaca.Footnote 11 The International Criminal Tribunal for Rwanda (ICTR) was established in Arusha, Tanzania, in 1994. It is tasked with prosecuting individuals responsible for genocide, war crimes, and crimes against humanity committed in Rwanda or by Rwandans in the neighbouring countries between 1 January and 31 December 1994.
In August 1996 the jurisdiction on crimes against humanity and genocide committed in Rwanda as of 1 October 1990 was given to national courts through the Organic Law 08/1996 (these crimes were previously absent in the Rwandan Criminal Code). Although the Loi Organique 8/1996 does not deal with gacaca courts, it has divided genocide perpetrators into four categories, also adopted by the first gacaca 2000 Organic Law. The first group of suspects encompasses the masterminds (for whom in the initial draft of the law the death penalty was foreseen); the second group includes perpetrators who caused the death of the victims; the third category refers to those responsible for offences that did not cause death; the fourth and last group includes those responsible for offences to property. The 1996 Organic Law established specialized chambers within the national courts to hear genocide-related cases and introduced the common law practice of plea-bargaining through which sentences could be reduced if the accused made a timely guilty plea and named their accomplices.
The institution of gacaca courts (provided with the same temporal jurisdiction as the national tribunals), based on the adaptation of local, pre-colonial models, dates back to 2000 and marks the shift from classic retributive justice to a community-based, potentially inclusive mode of justice. It is interesting to note the different jurisdiction ratione temporis of the ICTR on the one hand and the Rwandan national courts and gacaca on the other. While the jurisdiction of the former is limited to crimes committed in Rwanda or by Rwandans in the neighbouring countries from 1 January to 31 December 1994, the jurisdiction on genocide-related crimes for Rwandan ordinary courts and gacaca tribunals dates back to 1 October 1990, suggesting a different interpretation of Rwanda's recent history.
Article 143 of the Rwandan constitution introduces the gacaca as ‘specialized’ courts, clearly stressing that ‘no special courts shall be created’. Article 152 defines their jurisdiction, the same as the national court, namely on genocide and crimes against humanity.
In the immediate aftermath of the genocide, there was extensive debate on the post-conflict justice device to be used. Given the peculiarities of the Rwandan case – i.e. a vast number of victims and perpetrators, a very high level of social involvement in the genocide and strong social polarization – many scholars thought that the retributive path could not be followed to restore justice and secure national reconciliation. One of the models proposed was that of the South African Truth and Reconciliation Commission (TRC). The underpinning argument for this option was that, while the ICTR, a very slow and expensive machine, was able to try only a few génocidaires, the Rwandan national courts often set up unfair trials and made indiscriminate use of imprisonment. However, a South Africa-type solution was refused by the government as it contemplated the possibility of issuing an amnesty. Therefore in 1996, given the appalling backlog before national courts, the Rwandan government expressed its will to revive the traditional gacaca courts.Footnote 12 The goal of the gacaca system is manifold: to speed up the trials and empty the prisons, to involve the local communities in establishing the truth concerning the genocide-related crimes and, through that, to promote reconciliation and eradicate the culture of impunity. In October 2001 about 250,000 lay judges were elected by the Rwandan population while simultaneously 11,000 gacaca courts were set up. More than one million Rwandans were tried before the latter, the large majority of genocide-related cases. Despite the remarkable efforts to respect the duty to prosecute genocide perpetrators, the Rwandan Government has not yet addressed the issues surrounding the offences perpetrated by the Rwandan Patriotic Army (‘RPA’), the military wing of the Rwandan Patriotic Front (‘RPF’), the party ruling the country since July 1994. The RPA is suspected to be responsible for several thousands of human rights violations.Footnote 13
3. Constitutional efforts to come up with the legacy of the genocide
The effort to come to terms with the legacy of the genocide has marked the 2003 Rwandan Constitution, as well as several pieces of legislation. The 2003 constitution is premised on the intention of eradicating Hutu–Tutsi ethnic cleavage. Under Belgian rule, the identity Hutu–Tutsi polarization had gained increasing relevance, with the colonizing rulers implementing a kind of divide and rule policy. The colonization's contribution to the escalating tension between the two groups was one of the main factors which fed into the 1994 genocide. Hutu–Tutsi identities were ‘socially constructed’ and politically manipulated before and during the genocide.Footnote 14 The Rwandan Constitution tries to address the legacy of the genocide by overcoming ethnic division and discrimination. Crucial for this purpose are the provisions entrenched in the Preamble, as well as those in Articles 9 (fundamental principles), 11 (equality principle and discrimination prohibition), 13 (revisionism prohibition, which makes revisionism, negationism, and trivialization of genocide punishable under the national law) and 33 (freedom of opinion). The Preamble of the Rwandan 2003 Constitution puts a strong emphasis on the necessity of overcoming the legacy of the genocide and rebuilding the national unity. It solemnly affirms that the Rwandan state is based on the principle of rule of law, on the respect for fundamental human rights, pluralistic democracy, equitable power sharing, tolerance, and resolution of issues through dialogue. It expressly highlights the adherence of the African country to the principles of human rights enshrined in the United Nations Charter of 26 June 1945 and in several other instruments of international law. The constitutional Preamble stresses Rwanda's privilege of having one country, a common language, a common culture, and a long shared history, which ought to lead to a common vision of the national destiny. The Preamble moreover commits Rwandans to ensuring equal rights between Rwandans and between women and men without prejudice to the principles of gender equality and complementarity in national development.Footnote 15 Article 9 of the Constitution calls upon every Rwandan citizen to fight against genocide ideology and ethnic division, while Article 54 bans the creation of ethnic-based parties.Footnote 16 In addition, the Constitution sets up two important commissions to deal with the legacy of the genocide and overcome social divisions. The first is the National Unity and Reconciliation Commission envisioned in Article 178 of the Rwandan Constitution; this is charged with reporting annually about the reconciliation policies in the country. The second commission, the National Commission for the Fight against Genocide, set up pursuant to Article 179 of the Constitution, is tasked with organizing a permanent debate on the genocide and its consequences as well as prevention strategies.
The 2003 Constitution, in its efforts to redress the recent history of the country, in many ways guarantees the right to the Rwanda nationality. It further states that ‘Rwandans or their descendants who were deprived of their nationality between 1st November 1959 and 31 December 1994 by reason of acquisition of foreign nationalities automatically reacquire Rwandan nationality if they return to settle in Rwanda’ and that ‘All persons originating from Rwanda and their descendants shall, upon their request, be entitled to Rwandan nationality’.Footnote 17 Article 14 includes a very meaningful victim-centred provision establishing that
The State shall, within the limits of its capacity, take special measures for the welfare of the survivors of genocide who were rendered destitute by the genocide committed in Rwanda from October 1st, 1990 to December 31st, 1994, the disabled, the indigent and the elderly as well as other vulnerable groups.
The link between memory and constitution-making process is indeed remarkable in Rwanda. During political transitions in the aftermath of mass atrocities history is often reinterpreted and rewritten. The contribution of transitional justice can be crucial in this regard.Footnote 18 Once framed in constitutional instruments, transitional justice mechanisms become a sort of ‘complementary constitutional factor which builds and shapes the political body of the new nation’.Footnote 19 From Rwanda's constitutional framework it emerges clearly that the genocide represents a historical watershed as well as a historical well-established truth. To show how the memory of analogous historical truths is protected against revisionism and negationism in different countries that have experienced the consequences of the Nazi rule or other instances of genocide is the goal of the next paragraphs of this article.
4. An overview of laws on genocide denial in the aftermath of the Second World War
Before deepening the controversial issues raised by the Rwandan Law on genocide ideology it is useful to consider the modalities through which other countries have dealt with the criminalization of genocide denial.Footnote 20 Freedom of expression is not an absolute right and is often subject to limitations in different constitutional systems and international instruments. In Europe and elsewhere, progressive waves of historical revisionism, coupled with the rise in the political arena of extreme-right movements denying Nazi crimes have aroused fear and feelings of instability. Questioning the perpetration of Nazi crimes has certainly a very peculiar meaning in all those countries that have experienced the human rights abuses of the Second World War and triggers an ongoing debate as to how public institutions should address such provocative conduct. The European Commission took the lead in this regard and made a Proposal for a Council Framework Decision on Combating Racism and Xenophobia in November 2001.Footnote 21 At that time only a few EU member states (ten out of twenty-seven; namely, Austria, Belgium, the Czech Republic, France, Germany, Lithuania, Poland, Romania, Slovakia, and Spain) had adopted provisions openly criminalizing the denial of the Holocaust and other instances of mass atrocities.Footnote 22 Most of the European countries lacked a specific provision aimed at punishing the negation of these atrocities and relied on general penal provisions protecting public order or punishing racist behaviours.Footnote 23 The lack of a universal approach to negationism is evidence of the difficulty that countries face when adopting measures that can to some extent limit the freedom of expression granted in their constitutions as well as in regional and universal human rights instruments. Some countries labelled as ‘militant democracies’ however, have embraced a more radical orientation, which culminated in the enactment of specific provisions sanctioning negationism.Footnote 24 Israel was the first state to adopt such an approach to historical revisionism by enacting the Denial of Holocaust (Prohibition) Law 5746 in 1986. The law prohibits denying or diminishing the proportions of the crimes of the Nazi regime, crimes against the Jewish people, or crimes against humanity, if committed ‘with intent to defend the perpetrators of those acts or to express sympathy or identification with them’. The penalty foreseen by the law is imprisonment for a term of five years. A similar policy was later implemented in Germany (a country where, needless to say, the burden of the past plays an important role in the public debate), in order to face the so-called Auschwitzlüge (the Auschwitz lie).Footnote 25 The German constitutional architecture is deeply shaped by the will to protect democratic institutions against any authoritarian temptation. Evidence of such a commitment can be found in different articles of the German Basic Law (Grundgesetz hereinafter ‘GG’). Article 20 GG, for instance, provides all Germans with the so-called Recht zum Widerstand (right to resistance) against those who want to overthrow the constitutional order.Footnote 26 The need for protecting the ‘Staatsrecht’ also underlies Article 21 of the German Basic Law, which affirms that political parties whose aim is to imperil the free and democratic constitutional order are unconstitutional. On such a premise, the German Constitutional Court (Bundesverfassungsgericht) in a famous 1956 judgement declared illegal the German Communist Party (Kommunistische Partei Deutschlands, KDP).Footnote 27 Open criminalization of the Holocaust denial was introduced in the German Criminal Code in 1994, through Section 130 (3):
Whoever publicly or in a meeting approves of, denies or renders harmless an act committed under the rule of National Socialism of the type indicated in Section 220a subsection (1) [Genocide], in a manner capable of disturbing the public peace shall be punished with imprisonment for not more than five years or a fine.
Later, in 2005, a new provision dealing with the Nazi past was introduced in the German Criminal Code, Section 130(4):
Whoever, publicly or at a meeting, disturbs the public peace in a manner that violates the dignity of the victims by approving of, glorifying, or justifying National Socialist rule of arbitrary force shall be liable to imprisonment of not more than three years or a fine.
Before these provisions were passed, in Germany Holocaust denial was punished under other articles of the Criminal Code, namely Section 130(1) (agitation of the people)Footnote 28, 185 (insult)Footnote 29, 186 (malicious gossip)Footnote 30, and 189 (disparagement of the memory of deceased persons)Footnote 31. It is worth stressing that under the 1994 provision, only the denial of Holocaust is subject to punishment, as Section 130(3) of the German Criminal Code does not refer to other genocides or other instances of mass atrocity. This choice is of a political nature, and it is hard to understand why the denial of the other instances of genocide should not be addressed by a similar criminal provision. The choice to exclusively fight for the historical acknowledgement of the Holocaust seems questionable also in the light of the 1948 Genocide Convention, whose Preamble clearly declares that ‘at all periods of history genocide has inflicted great losses on humanity’.
One condition is required in order for Holocaust denial to be punishable under the German law: the denial must be carried out ‘in a manner capable of disturbing the public peace’, even though this element is almost considered as given by the German Constitutional Court.Footnote 32 It is worth at this point assessing the rule concerning the genocide denial against the background provided by the German Basic law. Article 5(1) of the GG establishes that:
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
Article 5(2) clarifies the limits of freedom of expression established in order to protect youth and personal honour, while subsection 3 deals with the freedom of scholarship, research and teaching:
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.
(3) Art and scholarship, research, and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.
With regard to Article 5 of the GG, the German Constitutional Court in the Lüth case, has pointed out that the freedom of expression is ‘in a certain sense the basis of every freedom whatsoever’.Footnote 33 It is possible at this point to ask what are the prerequisites on the basis of which this freedom can be limited so far as Holocaust denial is concerned. In the reasoning of the Court, Holocaust denial would fall outside the remit of Article 5 GG because such an act is based on false statements which go against clearly established historical facts. In other words Article 5 of the Grundgesetz protects freedom of opinion, but not statements that are incontrovertibly recognized as false.
The Constitutional Court also refers to the notion of ‘special moral responsibility’ which obliges the German lawmaker to criminalize some forms of negationism.Footnote 34
France has recently radicalized the use of legal instruments to sanction particular interpretations of the past. Beside a contested law punishing Holocaust denial, France passed a law acknowledging the Armenian genocide,Footnote 35 and one in 2001 declaring the slave trade a crime against humanity.Footnote 36 Also in France, genocide denial was punished under general rules of the national criminal code before the enactment of ad hoc provisions. The 1881 Law on the Freedom of the Press was amended in 1972 in order to punish hate speech.Footnote 37 The so-called Loi Gayssot Footnote 38 further amended the 1881 Act, by introducing a new rule, the section 24 bis, which reads as follows:
Anyone who disputes the existence of one or more crimes against humanity as defined in Article 6Footnote 39 of the Statute of the International Military Tribunal annexed to the London agreement of 8 August 1945 which have been committed either by the members of an organisation declared criminal under Article 9 of the Statute or by a person found guilty of such crimes by a French or international court shall be liable to [one year's imprisonment and a fine of €45,000, or one of those penalties only].
The French law does not refer to genocidal slaughters other than the Holocaust covering ratione temporis the years 1939–45. Unlike the German law, however, the Loi Gayssot does not punish the trivialization (downplaying) of the Holocaust. The French law also lacks any reference to racist or anti-Semitic motivations of the denier. Furthermore, it does not require the prohibited conduct to disturb the public peace, representing an instance of pure ‘content-based’ restriction of the freedom of expression.Footnote 40 This explains why its adoption through the French Senate was particularly troubling (the Loi Gayssot was only passed after three unsuccessful attempts), and why both French historians and Holocaust victims have heavily criticized it. Madeleine Rebérioux in 1996 correctly argued that the Loi Gayssot would pave the way to new provisions aiming at legally recognizing other genocides.Footnote 41 The constitutionality of the law was never subjected to the control of the French Constitutional Council. French domestic tribunals have argued for the compatibility of the Loi Gayssot with the European Convention on Human Rights (ECHR).Footnote 42 The French ordinary courts have repeatedly affirmed that the criminalization of Holocaust denial is compatible also with the European Convention of Human Rights (ECHR) and in particular with Article 10 granting freedom of expression.Footnote 43 The French jurisprudence on the Loi Gayssot based its conclusions on: (i) the compatibility of the goals pursued by Section 24 bis with the restrictions that can be applied to the freedom of expression under Article 10(2) of the ECHR; (ii) the reading of Article 10 of the ECHR in light of the provisions entrenched in Article 17 of the Convention, which prohibits the ‘abuse of right’.Footnote 44
The dangers underlying any attempt to establish uncontroversial interpretations of the past emerged clearly in France when, in 2005, the ‘loi Mekachera’ was approved. This provided that ‘School courses should recognize in particular the positive role of the French presence overseas, notably in North Africa’.Footnote 45 The loi Mekachera met fierce resistance by historians and intellectuals, who set up a Comité de Vigilance face aux Usages publics de l’Histoire (CVUH).Footnote 46 Paragraph 2 of Article 4 of the law, including the positive evaluation of the French colonial role in North Africa was finally abolished in January 2006 by the Conseil Constitutionnel. Resistance has also met Bill No. 610 punishing denial of the Armenian Genocide, not yet in force because of the growing hostility that the ‘lois mémorielles’ face in France. A law presented in May 2007 before the French Assemblée Nationale in order to officially recognize the genocide in Vendée during the French revolution, triggered the question as to how far the legislator can proceed in the legal qualification of certain historical events.Footnote 47 These examples clarify very well the paradoxes that can result from the misappropriation of the role of the historian by the legislator.
Spain represents another interesting instance of a country involved in a process of legal interpretation of its history. The Ley de Memoria Histórica (‘Historical Memory Law’) dealing with Franco's dictatorship legacy approved on 31 October 2007 is a recent example.Footnote 48 In 1995 Section 607(2) was introduced in the Spanish Criminal Code in order to criminalize genocide denial affirming that:
Dissemination by any means of ideas and doctrines that deny or justify the crimes set forth in the precedent epigraph of this section [acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group] or that aim at reinstating regimes or institutions that shelter practices contributive of those crimes is punishable with imprisonment from one to two years.Footnote 49
The norm envisages a penalty ranging from one to two years. Doubts were expressed by the Spanish tribunals charged with applying Section 607(2) of the criminal code in relation to its compatibility with Article 20(1) of the Spanish Constitution, which guarantees freedom of expression.Footnote 50 In Ruling 235/2007, the Spanish Constitutional Court provided a negative answer, establishing that to prohibit through a criminal sanction the denial of genocide-related crimes is inconsistent with the constitutionally-protected right to freedom of expression.Footnote 51 The Spanish Constitutional Court in Ruling 235/2007 noticed ‘an evident clash between sections 607.2 and 20.1 [of the Constitution]’. The constitutional judges held that ‘section 20.1 protects subjective and biased opinions on pacific historical facts even though they are mistaken or lacking justification, unless they involve either contempt towards human dignity or a risk to pacific coexistence among citizenry’. The Court, while clarifying that Spain is not a ‘militant democracy’Footnote 52 introduces an interesting differentiation between simple denial (which can not be prosecuted) and justification of genocide. Pursuant to the reasoning of the Spanish Constitutional Court, the mere denial of genocide as a historical event if not coupled with praising the wrongdoer falls within the speech constitutionally protected in Spain.
Another interesting case is that of the countries of the former Soviet block that have engaged in a process of coming to terms with their past after the fall of the Berlin Wall. These countries had to deal with both the legacy of the Nazi violence and the regimes backed by the USSR. PolandFootnote 53, Czech RepublicFootnote 54, and LithuaniaFootnote 55 have opted for the criminalization of the denial or trivialization of the crimes of the respective communist regimes. It is not surprising that in such a setting the intention to publicly condemn the violence of some regimes of the Soviet block and to criminalize the denial of their violence emerged. Similarly, it is self-evident also the risk that history might be manipulated for political reasons.Footnote 56
The European Court of Human Rights in the case Handyside, pointed out that freedom of expression ‘constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual's self-fulfilment’.Footnote 57 In its jurisprudence it has also affirmed that the right to express offensive, shocking, and disturbing ideas is protected under the ECHR, and that such a right refers also to historical debate, ‘a sphere in which it is unlikely that any certainty exists and in which the dispute is still ongoing’.Footnote 58 The Court, however, has also clearly stated that freedom of expression does not include a freedom to deny ‘clearly established historical facts’.Footnote 59 In developing its case law on Article 10 of the ECHR the Court has also often referred to its doctrine of the ‘margin of appreciation’ and availed itself of an interpretation of Article 10 ECHR in the light of Article 17, which prohibits the so-called abuse of rights.Footnote 60 Finally, before taking into consideration the Rwandan law on the genocide ideology, it is worth considering the 2008 EU FD on racism and xenophobia.Footnote 61 Pursuant to Article 1(1) of the framework decision, EU member states have to adopt provisions to criminalize the following acts:
(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;
(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.
Article 3 of the EU FD requires states to adopt criminal penalties ‘of a maximum of at least between 1 and 3 years of imprisonment’.
Interestingly, pursuant to point 6 of the Preamble of the EU FD, ‘Member States acknowledge that combating racism and xenophobia requires various kinds of measures in a comprehensive framework and may not be limited to criminal matters’. Moreover, point 6 acknowledges the differences existing in the approach to negationism opted for in different countries: ‘Since the Member States’ cultural and legal traditions are, to some extent, different, particularly in this field, full harmonization of criminal laws is currently not possible’.Footnote 62 Consistently with such a recognition, states are allowed to introduce a further condition to punish the conducts at stake: ‘Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting’. Further prudence is expressed in Article 7: the EU FD in fact cannot impair ‘fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty on European Union’. It is to be stressed first of all that the scope of the EU FD is broader than most of the similar national provisions mentioned, as it refers to genocide in general, and not only to the Holocaust, while simultaneously covering also crimes against humanity and war crimes. Secondly, the EU FD obliges states to punish the prohibited conduct, but in order to respond to their concerns regarding freedom of expression, such an obligation is limited to those cases where ‘the conduct is carried out in a manner likely to incite to violence or hatred’.Footnote 63 The wording of the provisions entrenched in the EU FD is quite controversial and has raised concerns as to the precise content of the sanctioned conducts.Footnote 64 Consequently, doubts can be expressed as to whether it fully respects the principle of legality, a cornerstone of international criminal law and its corollary, the principle of specificity.Footnote 65 Finally it is interesting to highlight that other European countries as the United Kingdom have de facto refused to adopt the EU FD, arguing that the legislation against racism previously enacted was not to be integrated.Footnote 66 Consequently, the legal framework addressing genocide denial of EU member states after the expiry of the deadline to adopt the EU FD on racism and xenophobia remains extremely heterogeneous.Footnote 67
5. The policy on divisionism, sectarianism, and genocide denial in Rwanda
From the aftermath of the genocide the Rwandan Government has been actively campaigning against ‘divisionism’, ‘sectarianism’, and ‘genocide ideology’, which constitute the target of criminal provisions respectively adopted in 2001, 2003 and 2008.Footnote 68 Four parliamentary commissions have dealt with these phenomena between 2003 and 2008. Legislation to fight genocide denial, unlike in Europe, where initiatives aiming at protecting the memory of gross human right violations were adopted four or five decades after the commission of these crimes, has been enacted in Rwanda a few years after the 1994 massacres. This makes the Rwandan context very different from the European setting. Just to mention one difference, while witnesses of the Holocaust in Europe have almost disappeared, victims and witnesses of the genocide are alive in the African country. Rwandan policy regarding genocide denial allows us to glance simultaneously at the government's idea of reconciliation and at the respect granted for human rights.
Post-genocide Rwanda had to face the challenge of genocide denial. In the aftermath of the genocide several incidents demonstrated that the ideology underlying the 1994 slaughters has not been completely eradicated. In April 2008, during the month devoted to genocide mourning, the Kigali Memorial Centre was attacked with a grenade which killed a guard.Footnote 69 Negationists’ ideas are reportedly disseminated in Eastern Congo, during ICTR hearings and nationwide through radio broadcasting.Footnote 70 Considering also the crucial role that hate-speeches and hate-propaganda played during the genocide, it is not surprising that provisions aimed at fighting the genocide ideology and negationism have been adopted in Rwanda. Article 13 of the Rwandan Constitution establishes that ‘Revisionism, negationism and trivialisation of genocide are punishable by the law’. The Rwandan Constitutional Charter protects freedom of opinion and expression under Article 34. Constitutionally sanctioned limits to freedom of expression are ‘public order and good morals, the right of every citizen to honour, good reputation and the privacy of personal and family life’ as well as the protection of youth and minors.Footnote 71 The conditions for exercising freedom of expression are determined by the Rwandan law. Rwanda is also a party to the African Charter Human and People's Rights, which through its Article 9 embodies similar principles: ‘1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law’.
On 18 December 2001 the Rwandan Parliament adopted Law 47/2001 on Prevention Suppression and Punishment of the Crime of Discrimination and Sectarianism. Article 3 of the Law defines respectively the crime of discrimination and sectarianism:
The crime of discrimination occurs when the author makes use of any speech, written statement or action based on ethnicity, region or country of origin, colour of the skin, physical features, sex, language, religion or ideas with the aim of denying one or a group of persons their human rights provided by Rwandan law and International Conventions to which Rwanda is party.
The crime of sectarianism occurs when the author makes use of any speech, written statement or action that causes conflict that causes an uprising that may degenerate into strife among people.
Both crimes are punished with a term of incarceration ranging from three months to two years (one to five years for government or NGOs officials). On the basis of the 2001 law a parliamentary commission accused the main opposition party, the Mouvement Democratique Republicain (‘MDR’), of spreading divisionism and lobbied for its dissolution.Footnote 72 According to the NGOs Human Rights Watch (‘HRW’) and Avocats Sans Frontières (‘ASF’) the definition of the prohibited conduct under the law is too vague, so vague that also judges who had convicted individuals for this crime were not able to define ‘sectarianism’.Footnote 73 From a qualitative analysis of the Rwandan jurisprudence based on law 47/2001 several problematic issues emerge.Footnote 74 Rwandan tribunals in fact often do not explain the legal element on the basis of which the conviction is based – discrimination or sectarianism – (Tribunal de Base Nyakabuye, District Rusizi, 09/11/2007; Tribunal de Grande Instance Gicumbi, 04/02/2010).Footnote 75 Moreover, the analysis of elements constituting the offences considered, namely ‘the aim of denying one or a group of persons their human rights’ and generating ‘conflict that causes an uprising that may degenerate into strife among people’ is often missing. The 2009 report by the Rwandan Ministry of Justice to the African Commission of Human Rights made a clear link between divisionism on the one hand, which is not defined by Rwandan law, and sectarianism and discrimination on the other. In fact in the words of the Ministry of Justice divisionism
is closely linked to discrimination and sectarianism, [defined in Law 47/2001]. Divisionism is though generally understood as the use of any speech, written statement or action, that is likely to divide people or spark conflict among people, or cause an uprising which might degenerate into strife among people based on discrimination . . .. It is thus considered illegal to do anything that is tantamount to divisionism based on race, tribal, ethnic, religion or region in Rwanda’.Footnote 76
The UN Human Rights Committee in 2009 expressed concerns regarding the abuse of divisionism laws aimed at limiting the freedom of expression and affirmed that Rwanda ‘should cease to punish the so-called acts of divisionism’.Footnote 77
The denial or minimization of the genocide was criminalized through Law 33 bis of 2003. Article 4 of this affirms that
Shall be sentenced to an imprisonment of ten (10) to twenty (20) years, any person who will have publicly shown, by his or her words, writings, images, or by any other means, that he or she has negated the genocide committed, rudely minimised it or attempted to justify or approve its grounds, or any person who will have hidden or destroyed its evidence. Where the crimes mentioned in the preceding paragraph are committed by an association or a political party, its dissolution shall be pronounced.
It seems that two categories of conduct are considered by Law 33 bis 2003. On the one hand the negation, (rude) minimization, justification, and approval of the genocide. On the other the concealment or destruction of genocide-related evidence. ASF has expressed concerns regarding the impact of such a provision on testimony sworn before gacaca courts.Footnote 78 A telling case regarded a 46-year-old farmer who before a gacaca court has declared: ‘Est-ce que je vais témoigner sur le génocide des Tutsi, sur celui des Hutu ou sur celui des Twa?’ (‘Should I testify about the genocide of the Tutsi, that of the Hutu, or Twa ?’) On the basis of Article 4 of Law 33 bis 2003 he was convicted to three years’ imprisonment by the Tribunal de Grande Instance of Nyagatare. The judge held that
ces parole démontrent que le prévenu n’accorde aucun valeur au genocide de Tutsi de 1994 commis au Rwanda, car il n’y a eu au Rwanda qu’un seul génocide qui a été commis à l’encontre des Tutsi, qu’il n’y a eu aucun génocide des Hutu ou des Twa, qu’il a ainsi minimisé le génocide en disant qu’il y a eu d’autres génocides.Footnote 79
In this case both the analysis of the element constituting the offence and any reasoning regarding the intentionality of the crime are also missing.
5.1. The Rwandan Law 18/2008 on genocide ideology
The policy surrounding the memorialization of the genocide in Rwanda is epitomized by the newly adopted law on the genocide ideology.Footnote 80 This measure, passed in July 2008, raises deep concerns as to its compatibility with basic human rights norms and, in particular, with the right to freedom of opinion and expression granted in universal and regional human rights instruments ratified by Rwanda. What is striking is that the Rwandan authorities had started to prosecute suspects of ‘genocide ideology’ even before the 2008 law was adopted.Footnote 81 The law on the genocide ideology finds a basis in Article 9 of the Rwanda Constitution, which demands the state's engagement in ‘fighting the ideology of genocide and all its manifestations’. The constitution, however, does not define the scope and the meaning of ‘genocide ideology’.
According to Article 1 of Law 18/2008, the objective of the Genocide Ideology Law, is to prevent and punish the crime of genocide ideology. The law states that ‘it is necessary to prevent and punish genocide ideology in order not for genocide to be committed again in the country’, implicitly supposing that the law is a crucial mechanism in order to grant the non-recurrence of the genocide. According to Article 2, the genocide ideology is
an aggregate of thoughts characterized by conduct, speeches, documents and other acts aiming at exterminating or inciting others to exterminate people basing on ethnic group, origin, nationality, region, colour, physical appearance, sex, language, religion or political opinion, committed in normal periods or during war.
The crime of genocide ideology, outlined in Article 3 of the law:
is characterized in any behaviour manifested by facts aimed at dehumanizing a person or a group of persons with the same characteristics in the following manner: 1) threatening, intimidating, degrading through defamatory speeches, documents or actions which aim at propounding wickedness or inciting hatred; 2) marginalising, laughing at one's misfortune, defaming, mocking, boasting, despising, degrading creating confusion aiming at negating the genocide which occurred, stirring up ill feelings, taking revenge, altering testimony or evidence for the genocide which occurred; 3) killing, planning to kill or attempting to kill someone for purposes of furthering genocide ideology.
The law punishes several heterogeneous conducts conducive to genocide ideology and is not limited to criminalize the denial of the 1994 genocide. Some actions, such as, ‘creating confusion aiming at negating the genocide which occurred’, ‘mocking’, ‘boasting’ or ‘laughing at one's misfortune’ are ill-defined and, in my opinion, may easily be the object of abusive interpretation, consequently violating the principle that criminal law has to be strictly construed. The concept of genocide ideology is hence set out too broadly, not allowing Rwandans to identify the prohibited conducts. In order to include a wide range of behaviours within the reach of criminal law, the Rwandan legislator seems to disregard the principle of legality and of specificity. According to the British NGO Article 19, the inaccurate definition by the lawmaker of the precise criminal offences is equivalent to a breach of the prohibition of the retroactive application of criminal law established under instruments binding Rwanda such as the International Covenant on Civil and Political Rights (ICCPR, Article 15), and the African Charter on Human and Peoples’ Rights, (Article 7.2). According to Article 4 of the ICCPR, even in time of public emergency which threatens the life of a nation, it is a non-derogable principle. The principle nullum crimen, nulla poena sine lege is also embodied also in Article 20 of the Rwandan Constitution of 2003. The Law 18/2008 also lacks any reference to the requirement of intentionality of the criminalized conduct, namely, that the offender wants to cause harm. This has attracted the criticism of the European Union, that before the law was passed required the Rwandan Government to pay ‘attention to the quality of the drafting, in particular in relation to specifying more clearly the principles of legality, intentionality and supporting freedom of expression’.Footnote 82
Similar concerns were previously raised by the 2001 Rwandan law prohibiting ‘sectarianism’. The assessment of the Genocide Ideology Law is to be accomplished against the background provided by the ICCPR, in particular Articles 19 and 20. Article 19 outlines the right to freedom of opinion and expression, providing also the cases in which a limitation can be established by the law.Footnote 83 According to the Human Rights Committee General Comment 10 of June 1983 on Article 19 of the ICCPR (replaced through General Comment 34/11), the right to hold opinions without interference entrenched in Article 19 ‘is a right to which the Covenant permits no exception or restriction’. Restrictions to the freedom of expression are admissible under Article 19(3) of the ICCPR only when they are necessary, respectful of the principle of proportionality, and established by the law for pursuing specific aims, namely ‘for respect of the rights or reputations of others or the protection of national security or of public order, or of public health or morals’. Consequently, ‘the list of aims in Article 19(3) of the ICCPR is exclusive in the sense that no other aims are considered to be legitimate as grounds for restricting freedom of expression’.Footnote 84 The aims provided by the Rwandan legislator, namely ‘to prevent and punish genocide ideology in order not for genocide to be committed again in the country’, however, seem to fall outside the umbrella provided by Article 19(3). Similar conclusions can be drawn on the basis of the new General Comment 34 of 2011 on Article 19 of the ICCPR (hereinafter ‘GC 34’). According to the Human Rights Committee GC 34, freedom of expression is a necessary condition for the full development of the person and is essential for any society.Footnote 85 It is also the basis for ‘the full enjoyment of a wide range of other human rights’.Footnote 86 Pursuant to GC 34 the obligation to respect freedom of opinion and expression is binding on executive, legislative, and judicial power.Footnote 87
Article 20 of the ICCPR prohibits ‘any propaganda for war’ as well as ’any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.
Rwanda, being an adherent to the ICCPR, is obliged to implement the principles entrenched in Article 20 approving consistent national legislation prohibiting the actions referred to therein.Footnote 88 According to GC 34
Articles 19 and 20 are compatible with and complement each other. The acts that are addressed in article 20 are all subject to restriction pursuant to article 19, paragraph 3. As such, a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3.Footnote 89
According to the Human Rights Committee, the only difference between acts addressed in Article 20 and acts that may be subject to restriction under Article 19 consists of the fact that states have an obligation to criminalize only the former. Merely under this point of view Article 20 ICCPR ‘may be considered lex specialis with regard to article 19’.Footnote 90
In the light of the reasoning of the Human Rights Committee and, given the ambiguous formulation of the prohibited conducts, the aims pursued, and the restriction of the freedom of expression under the Genocide Ideology Law, one may conclude that the latter is in conflict with Article 19(3) and 20 of the ICCPR.
Law 18/2008 provides severe penalties for those convicted of genocide ideology. According to Article 4
Any person convicted of the crime of genocide ideology . . . shall be sentenced to an imprisonment of ten (10) years to twenty five (25) years and a fine of two hundred thousand (200,000) to one million (1,000,000) Rwandan francs. In case of recidivism, the penalty provided for in the preceding paragraph shall be doubled.
Moreover ‘Any person found guilty of the ideology of genocide who was convicted of the crime of genocide, shall be sentenced to life imprisonment’ (Article 5). The Law on Genocide Ideology also targets organizations, imposing fines and their dissolution on those that commit the crime in question.Footnote 91 Of most concern, however, is the body of provisions regarding children. Article 9 establishes that a child found guilty of genocide ideology is brought to a rehabilitation centre for up to 12 months, if (s)he is younger than 12. If (s)he is between 12 and 18 years old, the child receives half of the sentence envisaged by the law for adults, which can be partially or fully served in a rehabilitation centre. This provision clearly contravenes international hard and soft law from children's rights instruments requiring the ‘best interest of the child’ as a parameter governing child-focused policies.Footnote 92 The principles set out in the Convention on the Rights of the Child (‘CRC’) and in the Beijing RulesFootnote 93 demand that recourse to prison is used only as a last resort and for the shortest time for children, while the law on genocide ideology provides the possibility that children 12 years old serve their sentence in prison, where they risk being abused, as often they are not separated from adults.Footnote 94 The law risks limiting debates among children in classrooms on crucial matters such as Rwanda's history, strongly undermining the right to freedom of expression (Article 13) and the child's right to education (Article 28–9) embodied in the CRC.Footnote 95 Finally, the law embodies provisions regarding adults guilty of inculcating genocide ideology in children (Article 11): ‘In case it is evident that the parent of the child referred to in Article 9 of this Law, the guardian, the tutor, the teacher or the school headmaster of the child participated in inoculating the genocide ideology’ they risk a sentence of 15 up to 20 years. Under Law 18/2008 the meaning of the wording ‘in case it is evident’ remains obscure. Similarly, the law does not clarify whether the aforementioned wording suggests a burden of proof lower than the minimum standard usually required in criminal trials such as proving facts ‘beyond any reasonable doubt’.Footnote 96 It is also possible that such a provision criminalizes parents, guardians, tutors, and teachers who respect and encourage the freedom of thought of children, consequently violating Article 14(2) of the CRC affirming that
States Parties shall respect the rights and duties of the parents, and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.Footnote 97
Interestingly, a provision aimed at punishing false accusations of genocide ideology encompassed in an earlier draft of the law was finally deleted. According to that draft, slanderers were subjected to half of the sentence foreseen for those found guilty of genocide ideology.
5.2. Impact of Law 18/2008 on Rwandan society
Data provided by the Rwandan Government to Amnesty International shows several cases of prosecution based on the crimes of genocide ideology and sectarianism. In 2007, a year before the law was approved, the Rwandan courts of first instance had to deal with 792 cases of genocide ideology. The following year, 618 cases were heard at first instance. In 2009 the cases of genocide ideology discussed before Rwandan courts numbered 435. The percentage of acquittals was generally high.Footnote 98 The broad fashion in which the ambiguous terms and prohibitions of the law have been interpreted has raised the concerns of human rights monitoring bodies and NGOs. Among the latter, the London-based NGO, Article 19, has stated that:
Reports of authoritative media and human rights non-governmental organisations indicate that the legacy of genocide is being manipulated by the Rwandan government to suppress political dissent and opposition in a range of ways, but most significantly through the cases involving the crime of genocide ideology. According to available information, about 1,300 such cases were initiated in the Rwandan courts in the 2007–2008 judicial year, even before it was defined by the Genocide Ideology Law itself. Rwandan authorities have used prosecution, or the threat of prosecution under the law to trample opposition, including calls for justice for war crimes committed by the ruling Rwandan Patriotic Front (RPF). A range of Rwandan and foreign individuals and media organisations have been caught as actual or potential violators of the Genocide Ideology Law . . . Moreover, teachers and pupils at schools have been directly warned by prominent political figures that children “found guilty of harbouring the genocide ideology [can] be denied admission in any school in the country . . . [and] also be prosecuted in the courts of law when he or she turns the prescribed age”.Footnote 99
The reconciliation policies run by the Rwandan Government are often accused of aiming to fix an uncontroversial version of the nation history based on non-questionable truths. According to a study conducted by Human Rights Watch on the handbooks used to train Rwandans during solidarity camps named ingandos Footnote 100, the three tenets of that “truth” relevant to judicial issues and frequently mentioned by officials are:
The Catholic Church assisted the colonial administration in introducing the divisions among Rwandans that led to the genocide and hence bears responsibility for much of the violence against Tutsi from that time forward.
Hutu political leaders organized a genocide of the Tutsi minority and the Hutu population – perhaps all of it – was misled into following their evil plan.
Although some RPA soldiers may have killed civilians, these crimes were the unfortunate result of wartime or were occasional acts of revenge and have been punished.Footnote 101
The four parliamentary investigation commissions set up between 2003 and 2008 on ‘divisionism’ and ‘genocide ideology’ have made a clear link between these offences and the speaking out against the RPF crimes.Footnote 102 According to the commissions, examples of revisionism include affirming that ‘Hutus [are] detained on the basis of some simple accusation’ or that ‘[there are] unpunished RPF crimes’. The fourth commission, moreover, has reported the spreading of genocide ideology in 26 schools out of the 32 visited.Footnote 103 The list of the organizations accused of spreading genocide ideology include, CARE International, Trocaire, Norwegian People's Aid, 11-11-11, Kolping Family, Pax Christi, Voice of America, British Broadcasting Corporation, and Human Rights Watch, as well as the Catholic Church, the Association of Pentecostal Churches in Rwanda, Jehovah's Witnesses, Seventh Day Adventists, the International United Methodist Church, and the Mennonites.Footnote 104 In order to eradicate genocide ideology six thousands teachers have been trained and the commission urged them to start their classes every day with three minutes aimed at stigmatizing the genocide ideology.Footnote 105 Such a climate, inclined to sanction the speaking of a truth different from the official one, has reportedly wielded a remarkable influence on post-genocide justice and on gacaca trials in particular, conditioning debates and testimonies. The case of Célestin Sindikubwabo, reported by Human Rights Watch, is a clear example of such a climate. When testifying before a gacaca court in Nyakizu district in October 2006, he declared that the defendant fled to Burundi in order to escape RPF troops, who were killing civilians. As a consequence he was later arrested and sentenced to a prison term of 20 years for ‘gross minimization of the genocide’.Footnote 106 Sindikubwabo is not the only victim of this policy, which risks jeopardizing the process of national reconciliation because it does not allow Rwandans to debate and freely reconstruct the events connected with the genocide. The most (in)famous case of the application of Law 18/2008 concerns Victoire Ingabire, a political opponent who was prevented from running for the 2010 presidential election due to accusations formulated also on the basis of Law 18/2008.Footnote 107 Accusations were also formulated against Alison des Forges, a leading scholar author of a seminal work on the Rwandan genocide.Footnote 108 Serious concerns have been expressed by the ICTR Trial Chambers as to the influence that the genocide ideology law might exert on witnesses testifying before Rwandan courts in the Kanyarukiga Case:
The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed. There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent. The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to “genocidal ideology”.Footnote 109
Similar reasoning followed the British High Court in cases regarding the extradition to Rwanda of individuals suspected of genocide indicted in the United Kingdom.Footnote 110 In order to address this issue the Rwandan Government amended the domestic legislation regulating the trials of accused transferred from other jurisdictions by establishing that ‘no person shall be criminally liable for anything said or done in the course of trials’.Footnote 111
6. Conclusion
The criminal punishment of the crime of negationism has proven extremely problematic in Europe as well as in Rwanda, two extremely diverse post-genocide contexts where the adoption of anti-denial provisions was differently scheduled and prioritized. The domestic legal frameworks addressing genocide denial in Europe are expression of a textured variety of legal traditions. Some countries punish exclusively the Holocaust denial, others, more comprehensively, the negation (but sometimes also the trivialization) of genocide. The ambiguous way in which some criminal provisions are drafted has often raised concerns as to the precise content of the sanctioned conducts.
The denial of crimes against humanity, war crimes, and crimes against peace is also sometimes criminalized. The reference to crimes against peace is particularly problematic, as some instances of crime of aggression are heatedly debated.Footnote 112 While some EU members adopt a rather careful approach to the restriction of freedom of expression, requiring several conditions for genocide denial to be punishable, the French Loi Gayssot represents a case of pure ‘content-based’ restriction of the freedom of expression. The United Kingdom considers the adoption of a normative ad hoc against negationism inconsistent with the constitutionally granted right to freedom of speech as well as a dangerous limitation to historical research. The negation of historically established truths is punished in Germany, but not in Spain, where only the justification of genocide, but not the denial, is criminalized. From such a diverse attitude towards negationism it is difficult to understand what the object of the criminal protection should be, whether the social peace, public order, or historical memory.Footnote 113 Moreover, if the fight against oblivion is a reasonable and legitimate goal, can we conclude that also an obligation to remember exists? What should the scope of such an obligation be? Contesting the statement by Santayana that ‘Those who forget the past are condemned to repeat it’Footnote 114, Tzvetan Todorov has warned us that ‘the memory remedy seems to be ineffective’.Footnote 115 That said, the increasing hostility of historians towards national criminal codes and international provisions including norms which prevent them from freely qualifying and interpreting historical events is not surprising. Human history is replete with instances of mass-atrocities, the gravity of which cannot and should not be subject to a process of legal hierarchization. One should be aware that the denial of historically established facts should not be confused with the free interpretation of the same facts. In other words, to deny that the Holocaust occurred and to deny that a certain massacre, the occurrence of which is not questioned, amounts to genocide, are two different issues.
The Rwandan Government has paid constant attention to the way the genocide is elaborated and remembered and has established countrywide memorial centres. An interesting 2008 amendment replaced the more ethnically neutral term ‘genocide’ included in the Preamble, Articles 51 and 179 of the Rwandan Constitution with the new wording ‘genocide of the Tutsi’.Footnote 116 No doubt exists that the 1994 genocide, like other atrocities, was a watershed in the national history the causes of which are to be analyzed, openly discussed, and, to the extent possible, understood.
Several forums, formal and informal, were and are available for this purpose including schools, solidarity camps, universities, debates organized by the National Reconciliation Commission and, last but not least, hearings before gacaca courts. All these settings could be used to improve the dialogue on Rwanda's history. Gacaca courts, the main national transitional justice mechanism, in particular, offered the ideal setting where the truth regarding the genocide could in principle be reconstructed by the local communities that were directly affected by its unparalleled violence. The Rwandan government, however, has not resisted the temptation to adopt a law that hinders such a debate, fixing an uncontroversial version of the genocide-related events. This is not unusual in post-genocide contexts, as the European saga on the Holocaust denial provisions has demonstrated. The Rwandan Law, however, emerges as particularly ill-drafted. Law 18/2008 on genocide ideology openly disregards both the principle of legality and specificity of criminal law. Moreover, violating Article 19 of the ICCPR and several articles of the CRC, it represents not only a breach of human rights standards agreed upon by Rwanda, but also a dangerous limitation to the public debate concerning the genocide. The actual impact of law on the genocide ideology on testimonies during criminal trials in general and gacaca hearings in particular remains to be precisely evaluated. Data available allow us however to conclude that Law 18/2008 has not encouraged witnesses involved in genocide trials to testify. This is a missed opportunity for post-genocide justice in Rwanda. It is unquestionable that there should exist the right to defend the dignity of the victims of the 1994 massacres, as well as the duty to punish genocide denial where it represents a clear danger or where it aims at generating further violence. One of the most effective ways to ensure a non-recurrence of mass atrocities is to encourage free circulation of ideas and to enable access to education, rather than only attempting to criminalize views which question the existence or seek to belittle the horror of past crimes.
In November 2012 Tharcisse Karugarama, Rwandan Minister of Justice argued before parliament for amendments to the law against Genocide ideology. In the word of Karugarama the new draft law addresses the ambiguity of Law 18/2008 on genocide ideology by defining ‘clearly constitutive elements of such offences’.Footnote 117 The review process of Law 18/2008 is currently pending.
