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HEALING HE WOUNDS:

SPEECH, IDEN I Y,& RECONCILIA ION INRWANDA AND BEYOND

December 2010

Te Program in Holocaust and Human RightsStudies, & the Human Rights and Genocide Clinic,

Benjamin N. Cardozo School of Law

Professor Sheri Rosenberg, Director

In Association with Global Action to Prevent War

Dr. Robert Zuber, Director



© 2010 Te Program in Holocaust and Human Rights Studies,& the Human Rights and Genocide Clinic, Benjamin N. Cardozo School o Law In Association with Global Action to Prevent War

All rights reserved.

Permission is granted or non-commercial reproduction, copying, distribution,and transmission o this publication or parts thereo so long as you give ullcredit to the sponsoring organizations, editors and authors; you do not alter,trans orm, or build upon the publication or parts thereo ; and or any subsequentreuse or distribution you may clear to other these terms.

Cover Photo Credits:UN Photo: http://www.unmultimedia.org/photohttp://www. ickr.com/photos/con gmanagerhttp://www. ickr.com/photos/genvesselhttp://www. ickr.com/photos/ciathttp://einside.kent.eduhttp://peacedocumentary.orghttp://www.natcreole.com



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AcknowledgmentsTis report is dedicated to the memory o Alison Des Forges, who inspired

us all to heed the cries o genocide victims.

Tis report was the work o many hands, and we wish to especially acknowledge the panelists,moderators and commentators whose wisdom and insight shared during a 2009 con erenceat the Benjamin N. Cardozo School o Law gave us a solid and durable oundation orwriting this more comprehensive work.

From the Cardozo School o Law, Pro essor Sheri Rosenberg was the driving orce behindthe con erence and much o the analysis and scholarship that punctuates this report.Especially in the nal months prior to publication, she has been ably assisted by Daniel

Stewart, International Human Rights Clinical eaching Fellow, as well as Eliza Gabai andJeremy Davidson.

From Global Action to Prevent War, many sta members labored over the con erenceproceedings, policy recommendations and pre-publication logistics. Special thanks goesout to Je Benvenuto, Melina Lito, Jenneth Macan Markar, Katherine Prizeman, RubenReike, Paul aylor and Robert Zuber.

We nally wish to acknowledge the many persons worldwide – UN ofcials, policymakers,diplomats, peacekeepers, lawyers, civil society leaders and diverse women and men preventing

risks to address atrocity crimes and help ensure that societies which have emerged romdeep cycles o violence do not once again become its victims.

and resolving violence in pre- and post-con ict settings who have taken great personal



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able of Contents

1 Foreword

2 Introduction

5 I. Conference Proceeding Summary

5 Sheri P. Rosenberg, Cardozo School o Law

7 Al red Ndabarasa, Rwandan Mission to the UN

8 Panel I: Te Challenges o Reconciliation a ter Identity-Based Con ictModerated by Jens Meierhenrich, Harvard University

9 Mark Drumbl, Washington and Lee University School o Law

11 Jacqueline Murekatete, Miracle Corners o the World

11 Harvey Weinstein, University o Cali ornia, Berkeley

12 Panel II: Freedom o Speech and the Legislation o Memory

Moderated by Edwin Baker, University o Pennsylvania

13 Jacqueline Bakamurera, Assistant Attorney General in Rwanda

13 Susan Benesch, Georgetown University Law Center

14 Peter Molnar, Central European University

15 Lars Waldor , University o London

16 erry George, screenwriter and director o Hotel Rwanda

17 Panel III: Constructing Post-Genocide Identity in Rwanda

Moderated by Joyce Apsel, New York University

18 Nigel Eltringham, University o Sussex

8 Yael Danieli, Group Project or Holocaust Survivors and their children



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Moderated by Sheri Rosenberg, Cardozo School o Law

23 Justine Uvuza, (Former) Rwandan Ministry o Gender and Women

23 Noel wagiramungu , PhD Candidate, u ts University

24 Scott Straus, University o Wisconsin

27 II. Reconciliation: Wrestling with Ethnic Identity

28 Identity

31 III. Comparative Analysis of Laws

36 Incitement to Genocide

37 Level o Criminal Sanction38 IV. Policy Recommendations

38 o the Rwandan Government and Other States

39 o the International Community

40 V. Conclusion

41 Annex I: Comparative Legislation

41 Relevant Rwandan Laws

55 ‘Hate Speech’ and Incitement to Violence Laws

72 Incitement to Genocide

77 Annex II: Further Readings

22 Panel IV: Te Way Forward

19 Lee Ann Fuji, George Washington University

20 imothy Longman, Vassar College

21 Catharine Newbury, Smith College

32 Genocide Denial

33 Hate Speech

46 Genocide Denial Laws



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1

HEALING HE WOUNDS: SPEECH, IDEN I Y, &RECONCILIA ION IN RWANDA AND BEYOND

Foreword

is attempting to establish positive, trusting relationships across racial, ethnic or religiouslines. Developing cross-ethnic relationships is necessary to ensure the trust required orreconciliation and a sustainable peace. Many post-con ict countries seek reconciliationthrough rebuilding a multicultural society based on mutual respect. In Bosnia-Herzegovina,Northern Ireland, and Burundi, to name a ew, care ully calibrated power-sharingarrangements coupled with relevant legislation aim to support this multicultural vision.

Te government o Rwanda has taken a di erent approach. Te Rwandan governmentseeks unity and reconciliation with policies and laws that aim to eliminate distinctionsbetween ethnic groups entirely. Te government’s position is that this policy is necessary in Rwanda because o the ne arious role that ethnic identity played in the lead up to the1994 genocide. Trough promulgating several laws, most prominently laws on ‘genocideideology’, the government has made certain speech that evokes ethnicity a criminal o ence.Ultimately, the Rwandan government seeks to overcome the ethnic identity categories

Rwandan society as a whole - perceive and de ne themselves, their culture, and theirnational history.

Rwanda’s idiosyncratic approach presents several challenges to the more common methodso reconciliation in the a termath o genocide or ethnic con ict. On the one hand, thegovernment’s e ort, apparently ocused on shaping the individual’s civic identity, may

railroads or blacks and whites: “Tere is no caste here. Our constitution is color-blind,

color blindness may be an ideal to aim or, the project to erase ethnic identity in Rwandagoes urther than mere anti-discrimination measures – it seeks to erase the very concept

rom the hearts and minds o the people.

Tis report, drawing on the insights brought orth at an international, interdisciplinary con erence that took place at Cardozo Law School in 2009, examines the interplay o thegenocide ideology laws, ree expression and identity ormation, and their relationship tothe reconciliation process. We hope that this report will shed some light or policy makers

and scholars alike on the need to deeply consider the delicate balance between preventingethnic manipulations that can lead to a recurrence o genocide with the need to promote

A central challenge con ronting all societies emerging rom genocide or ethnic con ict

o the past (Hutu, utsi, wa) by attempting to trans orm the very way individuals -and

rom the United States Supreme Court’s in amous ruling which upheld “separate but equal”appeal to the Western liberal ideal. o quote Justice John Marshall Harlan in his dissent

and neither knows nor tolerates classes among citizens.” On the other hand, whilelegal



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course, substantial, so that lessons learned in one context will not obviously translate intoanother. Nonetheless, thinking through the Rwandan approach sheds light on similarchallenges con ronted by other multi-ethnic states torn apart by deep ethnic con icts and

genocide.

Introduction

Since the 1994 genocide, Rwanda has struggled to create a stable society and lasting peacethrough promoting a program o unity and reconciliation. In pursuit o this objective, theRwandan government seeks to prevent or eradicate what is termed ‘genocide ideology.’From the government’s perspective, human beings will not engage in systematic slaughter

spontaneously. Mass atrocity begins with hate translated into words and ideas rom

be ore a single gun is red or machete is raised. In sum, “without genocide ideology, thereis no genocide.”1 Tere ore, according to the government and others, to prevent a uturegenocide, ‘genocide ideology’ must be abolished.

Genocide ideology is broadly de ned with di erent meanings in law and in populardiscourse. A Rwandan Minister has described genocide ideology as a “spirit.” A 2006Rwandan Senate Report de nes genocide ideology as “a set o ideas or representationswhose major role is to stir up hatred and create a pernicious atmosphere avouring theimplementation and legitimization o the persecution and elimination o a category o the population.”2 Te existing law de nes genocide ideology as “an aggregate o thoughtscharacterized by conduct, speeches…” and provides or up to 25 years in prison or rst

negationism pursue similar and overlapping goals as the genocide ideology law. Tese lawstogether seek to punish those who espouse genocide ideology. Te laws jointly afrm thatgenocide ideology is characterized by thoughts, speech or conduct which deny or minimize

arouses or indicates hatred toward an ethnic group, or sews the seeds o division within thecountry.3 In act, the preamble to the law on sectarianism stipulates that the law emanates

2 Rwanda: Genocide Ideology and Strategies for its Eradication , Rwanda Senate Report, at 16 (2006) (on le with authors).

3 The Law No 18/2008 of 23/07/2008 Relating to the Punishment of the Crime of Genocide Ideology, states;

This Law aims at preventing and punishing the crime of genocide ideology.

Article: 2 De nition of “genocide ideology” The genocide ideology is an aggregate of thoughts characterized by conduct, speeches, documents and other acts aiming atexterminating or inciting others to exterminate people basing on ethnic group, origin, nationality, region, color, physical ap-pearance, sex, language, religion or political opinion, committed in normal periods or during war.

Article: 3 Characteristics of the crime of genocide ideology The crime of genocide ideology is characterized in any behavior manifested by facts aimed at dehumanizing a person or a

Article: 1 Purpose of this law

long- term stability and reconciliation. Te relevant di erences among countries are, o

seemingly rational men – political and religious leaders, intellectuals and journalists-

the 1994 genocide, harms the dignity o the victims o the 1994 genocide, incites to genocide,

time o enders. Closely related laws on discrimination, sectarianism (divisionism), and

1 Tharcisse Karagurama, Denial is the Seed of Future Genocide , S tar t ribune , June 25, 2010 http://www.startribune.com/opinion/commentary/97195164.html (last visited Nov. 17 2010).



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sowing division among them.”

Trough these laws, the government legislates a very speci c narrative o Rwandan history as part o its goal to create a Rwandan identity that overcomes the ethnic categories o thepast (Hutu, utsi and wa) in order to prevent a uture genocide and acilitate reconciliation.Over the years, these laws have been interpreted in a manner that con ates the concept

will be explored urther, the judicial mechanisms established to punish allegedgenocidaires contribute to this ofcial narrative. While it is apparent that Rwanda has legitimatereasons to adopt legal instruments to combat negationism and division, some wonderwhether the government’s suppression o ethnic identity needlessly suppresses the pain ul

objectives.

On March 30, 2009 the Program in Holocaust and Human Rights Studies at the BenjaminN. Cardozo School o Law held an interdisciplinary, international con erence:Healing the Wounds: Speech, Identity, and Reconciliation in Rwanda.Te Con erence broughttogether an outstanding diversity o scholars, advocates, and diplomats in the elds o law,

the 15th anniversary o the Rwandan genocide, examined the relationship between ree

individual and group conceptions o identity are de ned, en orced and managed throughthe intervention o law. Tis report presents the proceedings and urther examines, usingprimarily a comparative law approach, the main issues raised. It should be noted that sincethe con erence, Rwanda has recently undertaken a review o its genocide ideology law, witha view toward its amendment.4

Te authors chose a multi-disciplinary approach to addressing this topic. It is simply notpossible to begin to understand the complex situation in Rwanda or other societies acingsimilar challenges through the lens o any one academic discipline. For example, a lawyerseeking to redress the harms su ered by the people in Rwanda cannot do her job i shecannot name that harm. She cannot name the harm unless she understands the myriad ways

ideology.

2° marginalizing, laughing at one 's misfortune, defaming, mocking, boasting, despising, de -grading, creating confusion aiming at negating the genocide which occurred, stirring up ill feel-ings, 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

which aim at propounding wickedness or inciting hatred;

group of persons with the same characteristics in the following manner:

rom a need to “punish anyone ound guilty o ueling con icts among Rwandans and

o genocide ideology with any ethnic-based discourse or criticism o the government. As

ethnic dialogue that Rwanda requires or reconciliation or even veils other less noble policy

psychology, anthropology, political science and history. Te Con erence, organized around

speech, identity ormation and reconciliation. In particular, it explored the ways in which

print/39220?print=now (last visited Nov. 16, 2010).

1° threatening, intimidating, degrading through defamatory speeches, documents or actions

4 See Rwandan Cabinet Reviews Genocide Ideology Law, r adio France int’l, (Aug. 11, 2010), www.english.rfi.fr/



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in which harm was in icted and continues to traumatize its victims. For that she needs the

give meaning and context to both the immense su ering and what is needed to repair that

What is reconciliation? Is it a process, a goal, or even a misnomer or social co-existence•

a ter genocide?

What role do cultural and national identities play in reconciliation?•

Which identities now seem most salient in contemporary Rwanda?•

identities?

When are governments justi ed in limiting reedom o speech in the interests o other•

societal values?

Is it ever justi ed or the law to place limits on historical debate?•

I so, can such restrictions uel uture con ict rather than diminish its likelihood?•

What role can domestic and international criminal law play in building identities and•

ostering reconciliation?

Te report is divided into our sections. Section One presents a summary o the con erence,Healing the Wounds: Speech, Identity, and Reconciliation in Rwanda. Section wo providesan examination o the main themes raised at the con erence, incorporating urther researchand policy developments. Section Tree provides a comparative study o legislationpromulgated in countries which, like Rwanda, seek to deal with issues o genocide denial,divisionism, and the dignity o genocide victims. Section Four incorporates the precedingsections into speci c and general recommendations targeting a wide range o actors.

insight o other disciplines, such as psychology, anthropology, history and politics to help

su ering or individuals and Rwandan society as a whole.

the con erence and this report sought to address speci c questions including:o explore the multi arious issues subsumed in the context o reconciliation a ter genocide,

•

What normative roles should the law play in shaping individual and collective



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Introduction

Sheri P. Rosenberg, Benjamin N. Cardozo School of L .aw

utsis and moderate Hutus. Rwanda was a country o approximately 7 million. oslaughter that number o people in that short a period o time - utilizing rudimentary tools such as machetes - requires an enormous amount o public participation. Essentially,neighborhoods rose up and people literally slaughtered their neighbors. When the genocide

and elsewhere returned while many Hutus ed to the Democratic Republic o Congo.

Te Rwandan government imprisoned hundreds o thousands o allegedgenocidaires.A tera period o time it began releasing these alleged perpetrators back into their communities.Now, the perpetrators live side-by-side with survivors who saw their amilies - husbands,children, mothers - slaughtered by that very same person who now lives approximately twodoors away. o deal with this overwhelming situation the government instituted a unique

day, but essentially it is a local orm o justice where victims directly con ront the accusedin ront o the community and a panel o lay judges.

Building on my areas o research and work, last January Dean David Rudenstine, Amy

Rwanda and anzania to study issues o justice and reconciliation in Rwanda. We remaingrate ul to members o the Rwandan government and Rwandan civil society who graciously embraced us and gave o their time to meet with us and answer our questions.

Te trip was trans ormative, as we soaked in the absolute beauty o the country, its rollinghills, and exuberant spirit. Upon our return, we continued to think, to research and towrite about Rwanda. We also have established a relationship with our colleagues, bothpro essors and students, at the University o Butare Law School.

One challenge in Rwanda, o the many we encountered, is the question o how a State goesabout re-identi ying itsel - i you will- a ter a war and a genocide that literally tore apartthe Rwandan people, and divided them physically, spiritually and mentally by ethnic groups;ethnic groups that urther divide by language, status as a returnee a ter the genocide, statuso perpetrator and survivor, and so on. As we all know, identities are multi- aceted. We allde ne ourselves and are de ned by others in many di erent ways.

In this very complex web o genocide and identity structures, how can a State, and theindividuals that make up the State, even begin to de ne itsel in a way that makes co-

Rwandan civic identity actually mean something to the people who either perpetrated the

I. Conference Proceedings Summary

In April o 1994 genocide took place in Rwanda, taking the lives o 800,000 to 1 million

was over, Rwanda began the enormous task o rebuilding. Many utsi exiles rom Uganda

orm o trial known as theGacaca system. You will hear more about this throughout the

Sugin, Head o International Programs, sixteen Cardozo students and mysel traveled to

existence, reconciliation and governance possible? Can the State’s e orts to shape a



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genocide, survived it or returned rom abroad therea ter? Can people honestly begin tosee themselves as one Rwandan people, rather than Hutus, utsis or wa? Or as victimsand survivors, which generally translate into utsi and Hutu respectively? Or should they even try to toss out ethnic afliations in the name o a Rwandan identity? Can the two

identities co-exist? What role does the law play in this process?

by establishing the Ministry o Unity and Reconciliation and the National Commissionor the Fight against Genocide, as well as numerous programs at all levels o society to

Ingandos, a kind o solidarity camp, established or various populations to attend, which aremeant to acilitate the reconciliation process.

A cornerstone o the government’s attempts at reconciliation appears to be its interestin creating a Rwandan identity that overcomes the ethnic categories o the past: Hutu,

utsi and wa. oward this end, the government has promulgated laws dealing withdiscrimination, sectarianism, and the punishment o genocide ideology.

While we heard quite a bit about ‘genocide ideology’ while we were in Rwanda, no ofcialwe asked could de ne it precisely, and a Rwandan Minster described it as a “spirit.” Te2008 law on genocide ideology gives some content to the term, but it is quite broad, leavingroom or arbitrary application.

During the course o the day, we will explore the interplay o these laws and identity andtheir relationship to reconciliation. Tis is an intentionally inter-disciplinary endeavor. Itis simply not possible to begin to understand the complex situation in Rwanda throughthe lens o any one discipline. For example, a legal academic seeking to redress the harmssu ered by the people in Rwanda cannot do her job i she cannot name that harm. Andwe cannot name the harm unless we understand the myriad ways harm was in icted andcontinues to traumatize its victims. For that we need other disciplines, such as psychology,anthropology, history, politics to help give meaning and context to both the immense

su ering and what is needed to repair that su ering or individuals and the Rwandansociety as a whole.

Tough uid terms such as law, identity and reconciliation de y strict categorization, we

o reconciliation a ter identity-based con icts, taking account o what victims/survivorsthemselves view as necessary to healing a ter mass trauma, a deeper understanding o theconcept o reconciliation, and ways that transitional justice needs to transition.

Our second panel addresses questions such as whether it is justi ed or the law to place

limits on historical debates. When are governments justi ed in limiting reedom o speechin the interest o other societal values, such as preventing genocide in a country that has

Te Rwandan government has taken on this challenge and as seen by its name theGovernment of Unity and Reconciliation is working to recreate the Rwandan state

encourage unity and reconciliation. Te programs include, or example, theGacaca and the

will attempt to cabin the discussions in the ollowing way: irst we explore core concepts



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just experienced genocide?

Our third panel will ocus speci cally on the reconciliation process in Rwanda. Teparticipants will look at a very localized level to reveal how daily li e is un olding andisolate which identities now seem salient and also look to the historical, political and legalcontext to reveal the ways in which these aspects are contributing to the reconciliationprocess in Rwanda.

Finally, in light o what we have learned, during the ourth panel the participants willprovide recommendations or moving orward in areas such as women’s participation,improvement o legal processes, and the place o multiple discourses in society.

While we may get into relatively high levels o abstraction during the day in order to beardown on some o these questions and seek policy prescriptions, in the end, this con erence

is aimed at commemorating the victims o the Rwandan genocide. Tey are always at thecenter o our thoughts.

Alfred Ndabarasa, Second Consular, Rwandan Mission to the UN

Al red Ndabarasa expressed his gratitude that so many people are eager to contribute to asa e and peace ul Rwanda, and pointed out the difculties that the Rwandan government

aces in dealing with the a termath o the 1994 genocide.

Ndabarasa stressed that the renzy and brutality o the killings in 1994 Rwanda will alwaysbe incomprehensible, and that countless stories are yet to be told about the inhumanity o Rwandans against their neighbors, relatives, co-workers, old women and children.Ndabarasa argued that the Belgian Protectorate entrenched ethnic identities and divisions

extremely difcult to explain why a mass o people can be driven to such insanity.

Ndabarasa explained that it was very difcult to set up a unctioning government in thea termath o the genocide. Tere was no real in rastructure, and not enough lawyers or

other responsible leaders. He also stressed that reconciliation is difcult in Rwanda, as

Rwanda has. According to Ndabarasa, di erences in Rwanda need to be exploited or thecommon good, which is what the current government attempts to do. He explained that thecurrent government undertakes deliberate re orms to improve the general living conditions

or Rwandans. Tese re orms take place in the educational sector, they address economicchallenges in order to reduce poverty, and they intend to improve the accountability o political leaders to the public. Ndabarasa emphasized that Rwandans need to takeresponsibility or themselves. What is important is a genuine attempt to seek solutions

based on Rwandan cultural values. Finally, Ndabarasa argued that there are dangeroustendencies in Rwandan society to deny and negate the genocide. Ndabarasa asserted that

that climaxed in the 1994 genocide. However, according to Ndabarasa, it remains

victims and perpetrators are o ten neighbors, but that reconciliation is the only choice that



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this is a common reaction in post-genocide societies.

Panel I: he Challenges of Reconciliation after Identity-Based Conflict

Moderator:

Jens Meierhenrich (Harvard University)

Panelists:

Yael Danieli (Director, Group Project or Holocaust Survivors and Teir Children)

Mark Drumbl (Washington and Lee University School o Law)

Jacqueline Murekatete (Miracle Corners o the World, Rwandan Survivor)

Harvey Weinstein (University o Cali ornia, Berkeley)

o provide a oundation or the day’s proceedings, the rst panel examined broadly thechallenges o reconciliation a ter identity-based con ict. Te panelists discussed di erentapproaches to, and rameworks or, managing the complexities o reconciliation processes,including the role o law in implementing and acilitating reconciliation processes, theimportance o addressing the needs o victims and survivors, and the salience o current

conceptions o reconciliation. In general, the panelists agreed that there is no universalde nition o reconciliation, making it difcult to measure reconciliation in any meaning ulway. Yael Danieli and Harvey Weinstein argued that multidisciplinary and multidimensionalapproaches are needed to promote reconciliation and social reconstruction in shatteredsocieties. Weinstein also raised doubts about the use ulness o the very concept o reconciliation. Mark Drumbl ocused on whether international criminal law and atrocity trials contribute to reconciliation e orts a ter mass atrocities. Jacqueline Murekatete,hersel a genocide survivor, emphasized that addressing the needs o victims and survivors

Jens Meierhenrich introduced the panelists and the topic o reconciliation. Meierhenrichnoted the conceptual difculties inherent in the concept o reconciliation, such as determiningthe limits and permits o reconciliation, the desirability o reconciliation, and the challengein pursuing such a policy while ensuring that it does not lead to a version o coercion thatexpects too much o victims o mass violence. Lastly, Meierhenrich cautioned that despitethese difculties, one should not assume that reconciliation is impossible or being pursuedincorrectly by the Rwandan government.

Yael Danieli stressed in her remarks that achieving reconciliation a ter massive traumais an extremely difcult and complex process. Her thesis was that massive trauma causes

is crucial or the success o reconciliation processes, a point that all panelists agreed upon.



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integrated ramework is capable o adequately describing and addressing the problems.Moreover, she strongly emphasized that it is crucially important to care ully consider theviews and needs o victims and survivors o mass atrocities. According to Danieli, social

support and the opportunity to articulate needs are important to victims coping withtraumatic stress, whereas judicial remedies can support healing processes only to a limitedextent – in act, judicial approaches might actually contribute to worsening traumas i they are executed poorly.

Danieli there ore suggested a comprehensive ramework or dealing with massive trauma,

accorded to each element should vary according to the speci c needs ound in di erentsituations and cultures. First, the individual dimension deals with the re-establishment

through compensation, restitution, rehabilitation, and commemoration. Second, the societal

and education. Tird, on a national level it is important to repair the nation’s ability to

prosecutions, apology, securing public records, education, creating national mechanisms

Finally, on the international level, the commitment o the international community to

has to be asserted. Tis can be achieved through the creation o ad hoc tribunals as wellas permanent mechanisms or prosecution, securing public records, education, creatinginternational mechanisms or monitoring human rights abuses, con ict resolution includingthe Responsibility to Protect, and preventive interventions. Danieli’s main conclusion wasthat it is only possible to adequately address the complex challenges o reconciliation a teridentity-based con ict by dealing with these our dimensions simultaneously and in acomplementary ashion.

Mark Drumbl approached issues o reconciliation by looking into the intersections

developments, objectives, and challenges o international criminal law, he expressedskepticism about the ability o international criminal law to e ectively contribute toreconciliation. His main argument was that atrocity trials contribute to the consolidationo the normative value o law, but not equally to reconciliation and other purposes thatinternational criminal law claims to serve. Tis is especially true since international criminaljustice does not adequately address the collective nature o crimes such as genocide.

such diverse and complex destructions that only a multidimensional, multidisciplinary and

which consists o our dimensions: individual, societal, national, and international. She stressedthat the various dimensions o this ramework should complement one another. Te weight

dimension deals with relieving the victims’ stigmatization and separation rom society. Such

o equality in respect o the victims’ values, power and dignity. Tis can be accomplished

problems can be addressed through commemoration, memorials to heroism, empowerment

or monitoring human rights abuses, con ict resolution and preventive interventions.

combat impunity, to provide and maintain equal value under law and to promote redress

provide and maintain equality under law and to ensure justice. Tis is accomplished through

between international criminal law, transitional justice and reconciliation. By discussing

Drumbl identi ed our major developments in international criminal law: institution



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building, increased judicial and jurisprudential output, the creation o epistemic

several international criminal law institutions have emerged over the past years: theInternational Criminal ribunal or Yugoslavia, the International Criminal ribunal

International Criminal Court. Another major development in the ield, he explained,is the judicial and jurisprudential output o these institutions. So ar, 70 o enders have

According to Drumbl, the emergence o an epistemic community is another importantdevelopment. International prosecutions and international law have prodded nationaljurisdictions to intentionally pursue atrocity trials as one mechanism o post-con licttransitions. In Rwanda alone, at least 10,000 individuals have come be ore specialized

Universal jurisdiction has emerged and attracted considerable attention. An entire

Drumbl, however, raised questions about the ability o international criminal law to promote

that international criminal law ascribes to itsel are retribution, deterrence, reconciliation,

o law. He raised doubts about the capacity o international criminal law to achieve any o those goals, with the exception o consolidating the normative value o the law. In

Hence, Drumbl identi ed our challenges that international criminal law has to grapple within order to strengthen its impact on reconciliation processes. First, international criminallaw has to go through a process o re-nationalization, meaning that the law must move

rom technique to context. International criminal law should be better contextualized by taking into consideration local circumstances, including traditional approaches to disputeresolution and integrating the victims’ perspectives. Te challenge is or the law to revisit

its relationship with the domestic in order to promote synergy and oster bottom-up input.Second, there is the challenge o diversity. International criminal law, which ocuses on the

communities and political management. Regarding institution building, he noted that

or Rwanda, hybrid tribunals, national tribunals with international expertise and the

been prosecuted by the IC Y; 35 have been convicted by the IC R; the Special Courto Sierra Leone has convicted 8 o enders and the ICC currently deals with 4 situations.

chambers, with many more appearing be ore the neo-traditionalGacaca proceedings.

generation consisting o young and mid-stream lawyers has matured, becoming pro essi-onal specialis ts in international criminal tribunals. hus, a transnational and networ-

ant to recognize the political management role o international criminal institutionsthat expands well beyond the law itsel . International criminal law a ects domestic pol-itical structures, and promotes the rule o law and transparency. Furthermore, interna-tional criminal law might contribute to hollow out reprehensible governments, and is some-times even used by governments to consolidate their power and stigmatize opponents.

ked epistemic community o international criminal lawyers has emerged. Finally, it is import-

peace, humanitarian justice and ultimately reconciliation. He pointed out that the goals

truth-telling, rehabilitation, re-integration and the consolidation o the normative value

particular, he expressed skepticism about the ability o international criminal law to promote

universal de nition o reconciliation that could be measured, monitored or determined.reconciliation, especially when reconciliation is an indeterminate concept. Tere is no



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individual, does not necessarily speak to the collective nature o atrocity crimes in whichthe criminality, by and large, is not transgressive but con ormist. Hence, other modalitieso justice that may be better equipped to deal with the collective nature o atrocity crimesshould be considered, like truth commissions, memorialization, public inquiries, traditional

the law must move rom aith to science. Finally, truth is an important challenge, meaningthat the law must move rom convenience to discom ort. By prosecuting select individuals,the systematic nature o atrocity crimes – which includes state behavior, the actions o

things - is hidden rom view. Tus, elements that provide the oundation or massive andwidespread atrocity crimes are neglected. By blaming a ew individuals or the murdero scores o people, we assuage ourselves in a convenient truth. Drumbl concluded by saying that there is still very little known about the relationship between atrocity trials and

reconciliation, but he is deeply skeptical that international criminal law is currently capableo e ectively promoting reconciliation.

Jacqueline Murekatete initially pointed out that, although it has been 15 years since theRwandan genocide, reconciliation is still a very difcult and sensitive topic to discuss, asthe wounds o the genocide are still very resh or many genocide victims and survivors.Nevertheless, she stressed that reconciliation is certainly something that needs to bediscussed in the Rwandan context, as Hutus and utsis have to learn peace ully to coexist.

Murekatete stressed that reconciliation is a human process that requires time and hasto happen on an individual level, rather than being initiated by the State or even theinternational community. More attention should be given to the perspective o victimsand survivors. She explained that many victims are in search o acknowledgement or their

ear and isolation, thus it is important to re-establish and even elevate the human worth o survivors in society. According to Murekatete, addressing the needs o victims and survivorsis crucial or reconciliation to be success ul in Rwanda.

Murekatete pointed out that the Rwandan genocide did not happen in a vacuum, but had

era as the root cause o the 1994 genocide. Murekatete there ore supported the Rwandangovernment’s dedication to unity, peace, and reconciliation. She stressed the importance o

ghting genocide ideology, revisionism and ‘negationism’ in Rwanda and welcomed stepslike the removal o the country’s ID system. She emphasized that Rwandans have to learnto peace ully coexist and to see themselves as Rwandans, rather than as Hutus or utsis. Inconclusion, she reafrmed that taking the views o victims and survivors seriously as well aspromoting unity and a common identity are important actors in reconciliation processes.

Harvey Weinstein ’s remarks questioned the utility o the very concept o reconciliation,advocating an ecological ramework or the reconstruction o societies, which includes

re-integrative practices and community service. Tird, scrutiny is important, meaning that

international organizations, transnational capital and colonial legacies amongst other

trauma, looking or an apology rom the perpetrators. Many survivors still live a li e o

much precedents. She identi ed the arrival o colonial powers and the subsequent colonial



12

insights rom di erent disciplinary elds and places in society. In the rst instance, Weinsteinsuggested that we should con ront the mythology o closure and reconciliation.

Weinstein called the concept o reconciliation a dead end, which has only taken us on adetour away rom things that really need to be done in order to rebuild shattered societies,particularly in the long term. He is highly skeptical whether reconciliation and closure are

easible goals to be achieved in post-con ict societies. According to Weinstein, emphasizingthe goal o reconciliation only raises the expectation o survivors that their lives can beimproved in the short term; that survivors, victims and perpetrators can all easily livetogether within a common social ramework. Given the schisms that still exist in Rwanda,the goal o reconciliation can only be pursued as a long-term strategy and must be basedon collective identity and collective memory. Charismatic politicians with the ability tomobilize people can always initiate renewed discord and con ict. And on an individual

thing people tend to orget is that social breakdown usually occurs over a airly long periodo time. In most cases, clear episodes o violence, political instability, ethnic violence, etc.,precede mass atrocities. Likewise, i reconciliation is indeed a viable option, then it is only so in the long term.

Finally, he presented results o research in post-genocide countries, revealing that justiceand reconciliation do not seem to be high priorities in these countries. He stressed that weneed to pay more attention to what elements are really needed or social reconstruction a termass atrocities, or instance the promotion o empathy. A complex ecological ramework isneeded which builds upon and integrates insights rom di erent academic disciplines andsocial sectors.

Panel II: Freedom of Speech and the Legislation of Memory

Moderator:

Edwin Baker (University o Pennsylvania Law School)

Panelists:

Jacqueline Bakamurera (Assistant Attorney General in Rwanda)

Susan Benesch (Georgetown University Law Center)

Peter Molnar (Central European University)

Lars Waldor (University o London)

Building on the previous conceptual debate, this panel explored the relationship between

level, eelings, thoughts and memories can always come back. Weinstein stressed that one



13

law and the ormation o identity in Rwanda. In particular, the panelists examined the 2008

revisionism. Tey urther addressed the ollowing questions: Do these legal regulations helposter reconciliation in Rwanda? Can legal restrictions on speech ever be justi ed? How

should one deal with the problems o political abuse o legal provisions regarding speech?Jacqueline Bakamurera identi ed Rwanda’s colonial legacy as the root cause o ethniccon ict and the 1994 genocide, and supports the law on genocide ideology as important tothe reconciliation process. Lars Waldor was slightly more skeptical o the genocide ideology law or de ning the crime o genocide ideology too broadly. While Waldor clearly statedthat it is legitimate to have restrictions on speech in a place like Rwanda - a point that all

Rwandan laws. Peter Molnar tried to establish a compromise between speech restrictionsand open discourse, by arguing that prohibitions o speech should be justi ed on the basis

o public danger arguments. Susan Benesch criticized international criminal law regardingspeech, arguing that it is incapable o determining which speech should be punishable.

Edwin Baker introduced the panel by asking whether legislation suppressing speech orpress reedom is ever an e ective or progressive way to deal with past or uture problems,or, is it always counter-productive towards achieving its intended goals? He noted that theidea o ree speech may clash with legislation that cra ts, constructs, or rein orces memory.Baker emphasized the value o memory, as it enables us to honor and learn rom the past.However, he noted that at the same time, it is important to create new identities and

relationships as a way to move beyond the past.Jacqueline Bakamurera identi ed the ethnic di erences created by the colonial powers as

genocide ideology as important steps in the Rwandan reconciliation process.

She argued that be ore the arrival o colonial powers, the Rwandan people lived togetherin harmony. Economically, Rwandans were divided into three classes, but regardingethnicity they saw themselves as one people. According to Bakamurera, the colonial powersintroduced ethnic di erences to Rwanda, encouraging ethnicity-based discrimination. Tesocial distinctions that were manu actured during the colonial era led to ethnic tensionsthat nally resulted in the 1994 genocide. Bakamurera stressed that the genocide le t many people – survivors as well as perpetrators – with massive traumas and con icting ideas aboutthe origins o the genocide. In this context, the Rwandan government started to create anew era in Rwandan history, one that would move beyond the legacies o the colonial era.Te government is now trying to remove discrimination and to promote reconciliation, inpart through restricting genocidal speech. Bakamurera argued that the law on genocidalspeech is an important step contributing to reconciliation in Rwanda, and important orbuilding a common uture or Rwandans instead o remaining in a state o trauma.

Susan Benesch critiqued international criminal law regarding incitement to genocide and

Rwandan law on genocide ideology and the related laws on negationism, sectarianism and

panelists agreed upon - he identi ed some negative consequences o the vaguely-de ned

the root cause o the 1994 genocide and praised theGacaca system as well as the law on



14

hate speech. She argued that the IC R ails to clearly distinguish between hate speechand incitement to genocide, and questioned whether the law is equipped to determinewhich types o speech should be punishable.

Benesch explained that be ore the Rwandan genocide there was scant international criminallaw jurisprudence on speech. Te Nuremberg ribunal tried two cases regarding speech,but therea ter there were no developments or more than 50 years until the IC R handeddown the world’s rst conviction or incitement o genocide in theAkayesu Case in 1998.Te IC R has produced most o the existing international criminal law on speech throughnumerous indictments and prosecutions. In act, the IC R has made speech a key actoro its jurisprudence in general. From the international criminal law perspective, Beneschstated, the idea that poisonous speech helped to bring about the Rwandan genocide hasbecome a core component o the Rwandan genocide narrative.

According to Benesch, however, this narrative is paradoxical in two ways. First, someresearch conducted since the genocide questions whether speech really played such animportant role in catalyzing the genocide. Te IC R was surely correct that R LM andthe newspaper Kangura bore messages o prejudice and ear, but some credible doubts havebeen raised as to whether those messages did indeed pave the way or genocide to happen.Secondly, the IC R never needed to establish causation regarding the role o speechin the Rwandan genocide. Te crime o incitement to genocide is a so-called ‘inchoate’crime, meaning a separate crime that promotes the commission o another crime. Te legalreasoning behind the concept o inchoate crimes is precisely to prosecute people or onecrime, in order to prevent the commission o another and possibly more serious crime.From a legal perspective, to prove that somebody committed incitement to genocide doesnot necessitate establishing that speech actually caused anyone to commit genocidal acts.Tus, by making speech such a key actor in the genocide narrative, the IC R unwittingly encouraged the Rwandan government to restrict speech.

Moreover, Benesch argued that the IC R con used incitement to genocide with hatespeech. While incitement to genocide is a crime under international law, codi ed orthe rst time by the 1948 Genocide Convention, hate speech is ‘only’ criminalized underdomestic law and in di erent ways in di erent countries. Tere certainly are cases in theRwandan context that clearly constitute the crime o incitement to genocide. Beneschstressed, however, that it is o ten extremely difcult to determine incitement to genocide,as social breakdown happens gradually, so that in ammatory speech with catalytic e ectsmust occur well be ore the actual genocide. Benesch concluded by stating that law is a very clumsy and inadequate instrument or deciding which speech should be criminalized andpunishable.

Peter Molnar argued that a ‘public danger’ argument or regulating speech in Rwanda

could help to reconcile the tension between the urge to regulate speech, on the one hand,and open discourse on the genocide and Rwanda’s past, on the other.



15

Molnar made clear that the restriction o public discourse by hate speech laws andthe prohibition o sectarianism and genocide ideology are highly controversial issues.According to Molnar, the Committee to Protect Journalists repeatedly criticized theRwandan government or using the content-based laws to, in act, suppress political dissent.

Moreover, Molnar pointed out that extensive restrictions on Rwandan public discourse,which o ten prevent people rom reely articulating their political opinions, are nothelping reconciliation e orts. Unbalanced restrictions o public speech do not contributeto building a healthier society, but might turn out to inter ere with such e orts. He statedthat empowering survivors and victims by providing enough space or public discussions iscrucially important or reconciliation to be success ul. However, Molnar also admitted thatsome restrictions on the Rwandan public discourse are necessary and appropriate.

Hence, Molnar suggested adding another element to the current system o policies and lawsregarding speech restrictions, namely a ‘public danger’ argument. Molnar recommended thatrestrictions on the public discourse should be justi ed on the basis that certain speech causesimmediate danger to Rwandan society. He stressed that such a danger-related test mighthelp to reduce the abuse o legal regulations or political purposes. According to Molnar, apublic danger argument could pave the way or a compromise that would keep the publicdiscourse restricted, but would allow Rwandan society to have more open discussions onthe genocide at the same time. He particularly emphasized that the education system andeducational institutions should be allowed to engage in more open discourse, as a lack o discussion and discourse at that level might prove to be extremely dangerous.

Lars Waldorf stressed the urgent need to have strict laws countering hate speech in aplace like Rwanda, but critiqued the Rwandan law on genocide ideology or de ning thecrime too broadly. He argued that the punishment o genocide ideology should be reserved

or a narrow and well-de ned crime, as de ning genocide ideology broadly has severalnegative consequences, not only in terms o the potential or political abuse, but alsoregarding reconciliation e orts and the ability to success ully prosecute genocide suspectsin Rwanda.

Waldor stressed that it is de nitely important to have strict hate speech laws in Rwanda,pointing out that there are still genocidairesliving amongst survivors and victims. He gavethe example o a grenade thrown at the main genocide memorial to demonstrate thatthere are still unresolved hostile tendencies in Rwandan society . Moreover, ‘negationist’propaganda is being preached and pumped out by genocidairesacross the border in Eastern

the Rwandan government has a legitimate reason to adopt several legal instruments tocombat negationism, revisionism, and genocide ideology. Te problem, however, is thatgenocide ideology became a catch-all phrase. In 2004, a parliamentary commission issueda report denouncing BBC, Voice o America, and numerous Christian churches as conduitso genocide ideology. Te commission also accused Care International, Norwegians

Congo, in trials o the IC R and by Rwandan exile groups based in Europe. Hence,



16

within the Rwandan population.” Waldor urther explained that a report o a specialcommission created by the Senate examining the causes and cures or genocide ideology de ned genocide ideology very broadly. Te report also included what they termed political

broadsides such as saying that Rwanda is a totalitarian regime, stating that the governmentmakes accusations o divisionism against political opponents and civil society associations.Tus, the Senate report con ated the concept o genocide ideology with any ethnic-based

the current government would constitute genocide ideology. Te law on genocide ideology,which was ormally passed in 2008, de nes genocide ideology very broadly, opening it topolitical manipulation. Article 2 and Article 3 o the law are very revealing in this regard.

Waldor went on to argue that there are at least our negative consequences rom de ninggenocide ideology broadly. First, genocide suspects cannot be trans erred or prosecution

rom the IC R in Arusha to Rwanda, as they would not be able to receive a air trial.Te primary concern has been that potential de ense witnesses might re use to testi y

or ear o being accused o genocide ideology. Te IC R already ruled against proposedtrans ers arguing that the possibility o accusations o genocide ideology would impedea air trial. Second, de ning genocide ideology broadly to encompass activities o humanrights activists like Alison de Forge trivializes the ght against genocide ideology. Tird, abroad de nition rein orces Rwanda’s culture o accusatory practices, and denunciations o genocide ideology engender ear and mistrust amongst the population. Finally, accusations

o genocide ideology against some o the most prominent Hutu opponents o the genocideas well as against some o the most well-known Hutu rescuers are counter-productive

or building a oundation or long-term coexistence in Rwanda. Hence, Lars Waldor advocated de ning the crime o genocide ideology narrowly and to reserve punishment orthis narrowly de ned crime.

erry George , screenwriter and director o the lmHotel Rwanda, shared both hispro essional and personal experience with ethnic con ict and reconciliation. He spokegenerally about how A rica has gone rom being totally ignored, to the gradual increase in

media exposure ollowing various con icts on the continent. He highlighted the utility o boiling down the various types o internal and external con icts that the Rwandan genocide

comprehend the true nature o what had happened.

George also spoke about his personal experience with reconciliation growing up in NorthernIreland, noting that 20 years ago it seemed to have less o a chance at peace ul co-existencethan Israel and Palestine, but suggested that the contemporary structures in place areenabling progress. Although hatred and resentment still exist, and are not likely to go away any time soon, the right leadership could make it possible to move orward regardless. Parto the key to establishing this leadership came rom recognizing the di erences between

People Aid and the development arm o the Irish Catholic Churches o “sowing division

discourse or political criticism.. According to Waldor , any mention o human rights abuses by

orced individuals to encounter in motivating outsiders to begin to address, consider and



17

South A rica as an example o a nation where the victor allowed concessions, rather thanimposing absolute dominance, in order to oster reconciliation.

During a question and answer session, George addressed concerns rom a Rwandan citizen

writing history. Te Rwandan citizen was also concerned that by sharing his experiences,

argued that the impact o his story being shared in the United States would have a minimale ect on the situation in Rwanda, despite any media attention it might receive.

Te Rwandan speaker said that although he appreciated the story, he didn’t agree with

the speaker to ocus on the goodwill and attention or Rwanda that the lm brought,

On the lm’s possible shortcomings, George o ered the ollowing: “Feature lms aboutnon- ction events are the cognac o a story. You distill it down, you distill it down, youdistill it down to its strongest and purest orm, and you hope that you keep as much o thereality and the truth as you possibly can.”

Panel III: Constructing Post-Genocide Identity in Rwanda

Moderator:

Joyce Apsel (New York University)

Panelists:

Nigel Eltringham (University o Sussex)

Lee Ann Fuji (George Washington University)

imothy Longman (Vassar College)

Catharine Newbury (Smith College)

Following the discussion o legal restrictions on expression promulgated by the Rwandangovernment to overcome ethnic divisions and thereby promote unity and reconciliation, the

occurs in general, and in Rwanda in particular. Te panelists touched on the complexity o Rwandan identities, the role o ethnicity, the political dimensions o identity construction,and how individual and group conceptions o identity are de ned and en orced through the

the competing cultures o the British, the Catholics and the Protestants. He pointed to

third panel explored the social, political and historical ways in which identity ormation

that in sharing the story o Paul Rusesabagina (the hero o Hotel Rwanda ) the lm was re-

Rusesabagina was essentially continuing the same ideology that created the con ict. Georgedenounced the idea that Rusesabagina sharing his experiences and ideas was dangerous, and

Rusesabagina’s account o what had happened at the des Hotel Mille Collines. George urged

instead o Rusesabagina’s account o the story.



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intervention o law. Nigel Eltringham made the point that ethnicity can be an importantelement in identity construction in post-genocide Rwanda, i Rwandans are allowed tocreate a psychological narrative that re ers to ethnicity in a air and benign way. LeeAnn Fuji stressed that identity is, in act, a political category that revolves around power

criminal justice, arguing that the Rwandan way o pursuing criminal justice rein orcesthe role o ethnicity in identity construction. Finally, Catharine Newbury argued thathistorically identities in Rwanda have undamentally been shaped by actors other than

Joyce Apselnoted in her introductory remarks that through all these discussions one cannothelp but think about the ways in which genocide and mass atrocity cause trans ormationsand shi ts in old identities, and the creation o new identities. Apsel argued that be orediscussing post-genocide identity in Rwanda, one must consider a ew threshold questions:What is reconciliation? What does the term “post-genocide” really mean? What do suchterms mean in light o the spillover e ects o genocide, and the ongoing ormation andshi ting o identities a ter genocide has occurred? Apsel noted that the third panel would

and negative aspects o the persistence o identity. She highlighted the act that “thereare a multiplicity o identities being ormed, and a multiplicity o narratives, on the local,national, regional, and international levels.”

Nigel Eltringham argued that re erence to ethnicity is an important element o a dialoguewith the past, which is needed in order to make sense o the present. According toEltringham, ethnicity can play a positive role in the process o identity construction inpost-genocide Rwanda, but only i there is enough space to create a psychological narrativethat incorporates a benign concept o ethnicity.

Eltringham stressed that we always locate ourselves and others with re erence to the past.In order to understand events or the behavior o others, we situate behavior with re erence

he highlighted, the government has demarcated an arti cial and limited realm in whichsuch a dialogue with the past is permitted. Tis realm consists o speci c physical sites,

that legal regulations prevent and proscribe re erence to ethnicity outside o those speci csites. According to Eltringham, however, Rwandans still locate themselves and othersby re erence to ethnicity. People literally talk about ethnicity all the time in Rwanda.However, instead o promoting a healthy dialogue with the past - which includes ethnicity - the Rwandan government promotes another dialogue with another past, namely thepre-colonial past. Tis pre-colonial past is outside o people’s own personal recollection.Tus, Rwandans cannot criticize this pre-colonial past on the basis o their own personalexperiences. However, the past never exists independently o our relationship with it.

relations. imothy Longman commented on the linkage between identity, ethnicity and

explore the context o identity rom historical identity, the role o peasants and the positive

to its place in a person’s li e or to its place in the history o the social setting. In Rwanda,

ethnicity- or instance rural/urban or rich/poor.

specialized chambers,Gacaca hearings, or annual commemorations. He urther explained



19

According to Eltringham, it is a myth that the past is a place that exists somewhere elsewhere one can simply return. Tere are not two worlds – the world o past happeningsand the world o our present knowledge o those events -, rather there is only one world,the world o present experience. Te present has its own preoccupations, struggles, and

interests, which revise the way the past appears to us.Eltringham went on to argue that in Rwanda, there are many people who are trying torevise their relationship with the past in order to resituate ethnicity in ways that are notnecessarily harm ul. For him, this is not genocide denial, or revisionism, or ‘negationism,’but simply an ongoing dialogue with the past, in which the Rwandan government is engagedas well. He stressed that people also create psychological truth, not just historical truth.Tese psychological truths are important or the needs o the present, regardless o whetherthey actually re ect reality. What is important, however, is that ethnicity is present inthis dialogue with the past - the creation o a new psychological reality -, i only so thatethnicity can then be underplayed. Rather than seeing ethnicity as a static oreign country,one should welcome or at least acknowledge the ability o people to abricate a betterpast where ethnicity had only a benign character. According to Eltringham, this couldenable Rwandans to include ethnicity as one element in a complex pattern o identity,including gender, age, occupation, origin and so orth. He argued that the past always helpspeople; it unctions as a tool to assist people in understanding their present situation and tomake in ormed choices or their uture. For Eltringham, this important dialogue with thepast, which helps Rwandans to make sense o their present situation, necessarily requires

re erence to ethnicity. Te Rwandan government, however, appears to only see negativepotential in engaging ethnicity and thus prescribes any re erence to it. Eltringham arguedthat as the Rwandan government tries to make connections to Rwanda’s pre-colonial past,it is not keen on people seeing positive ethnic developments prior to 1990, in part becauseresituating ethnicity as something that is not historically maligned involves placing themain responsibility or the genocide on the shoulders o the political elites who were inKigali during the time o incitement and genocide. According to Eltringham, that issomething that the current government does not want to happen.

Lee Ann Fuji argued that identity is a political concept that revolves around questionso power. According to Fuji, identities in Rwanda are more complex than they are o tenpresented, going well beyond categories o victims/perpetrators or utsi/Hutu. Fuji’scentral point was that identities are deeply political. Tere ore, the identity categoriesthat emanated rom the Rwandan genocide – or instance victim and perpetrator - arepolitical as well. Trough telling stories about personal encounters in Rwanda, Fuji madethe case that it is just too simple to explain Rwandan identities only by re erence to Hutu/Perpetrator and utsi/Victim. She stressed that utsis are not necessarily privileged inpost-genocide Rwanda. Some utsis su er rom discrimination by other utsis, and some

utsis actually became perpetrators a ter the genocide ended, simply because they had thepower to do so. Fuji explained that power and violence are still heavily intertwined, and



20

that it is easy or victims to become perpetrators when they get into positions o power.At the same time, she stressed, not all Hutus can or should be classi ed as perpetrators,as some Hutus were victims as well. In general Rwandans and their identities are not asmonolithic as outsiders o ten think.

Te Rwandan government, however, de nes ‘victim’ in a way that precludes the possibility that there are also Hutu victims o the genocide. Moreover, the victim category isnormatively loaded, as there is an implicit assumption o innocence. Since only utsis areclassi ed as victims, only utsis can be called innocent, ignoring the act that victims canalso become perpetrators. Fuji stressed that this uncom ortable reality reminds us thatthe categories o victims and perpetrators are by no means mutually exclusive. Peoplecan inhabit both categories at once. Drawing simple conclusions means ignoring thecomplexities o identities and realities. Fuji urther argued that most returnees belong to amodern and well-educated social class that pro ts the most rom the direction Rwanda hastaken. Te returnees share a common history that is ar di erent rom those o Rwandanswho never le t. Fuji argued that belonging to this political and cultural class shapes identity more than any ethnic dimensions. According to Fuji, there ore, complexity and politicsshould be at the heart o the discussion about Rwandan identities.

justice system. He argued that the post-genocide justice system in Rwanda contributes torein orcing ethnic identities, rather than to eliminating ethnicity rom identity discourses.

Longman started his presentation by pointing out that to talk about ethnicity in Rwanda

not to completely reject the current government’s program. By telling the personal storieso some Rwandans, Longman highlighted the degree to which people in Rwanda have haddi erent experiences with the genocide that a ect how they now relate to identity. Becauseo their particular experiences, some Hutus eel that they are persecuted in contemporary Rwanda, simply because they are Hutu. Other Hutus, however, eel that the current regime

eel that the current government is de ending their interests, while others eel that it doesnot represent them at all. According to Longman, this highlights the importance o thepast in constructing identity, and the diversity o identities in the Rwandan context.

Longman went on to argue that one o the purposes o using legal mechanisms in transitionaljustice processes is to help individualize guilt. Trough mechanisms o internationalcriminal justice it is possible to identi y and prosecute selected Hutus that are guilty o genocide crimes, rather than holding all Hutus responsible or the genocide. He pointedout, however, that the decision to hold so many people accountable or the Rwandangenocide has actually had the opposite e ect. Only genocide crimes can be tried be ore

committed speci cally because o someone’s identity. Tus, the a orementioned courts only

imothy Longman addressed the relationship between ethnicity, identity and the Rwandan

is not to deny the ull impact o genocide; it is not to argue in support o violence; and it is

is open to many di erent interests. Likewise with the genocide survivors: some survivors

the Gacaca and domestic genocide courts. Genocide, however, means a crime that was



21

prosecute crimes that were committed by one ethnic group against another. Te Rwandangovernment decided to hold people accountable or genocide even in case o minor crimes;

or instance, even property crimes were tied to genocide. At the same time, the Rwandan

deal with crimes that were committed by the Rwanda Patriotic Front. Longman explainedthat even the smallest crimes committed by Hutus against utsis are being tried in thesecourts, whereas severe crimes committed by utsis against Hutus are not. Some governmentofcials said that two million people, in particular Hutu men, should have been put on trial.Te assumption is that virtually all Hutu are guilty o genocide crimes. Placing a generalcloud o guilt on all Hutus leads to a collectivization o guilt, which is rein orced by theway ‘justice’ is being pursued and trials are being run.

According to Longman, all o the above contributes to keeping ethnicity alive or many people in Rwanda. I you are a Hutu, you have to live in ear o being accused o genocidecrimes, because there is an implicit assumption o guilt. Instead o removing ethnicity as akey actor in the lives o Rwandans, the Rwandan justice system actually helps to rein orcenotions o ethnic di erence, rein orcing the Hutu/ utsi divide and perpetuating ethnic-based decision making.

Catharine Newbury argued that con icts o non-ethnic nature, or instance between north/south, rural/urban, rich/poor played an important role in the lead-up to the Rwandangenocide. By examining Rwandan history, which is an important actor in shaping theidentities o Rwandans, she asserted that ethnicity was not always as central to Rwandansas the ofcial narrative would have us believe.

Newbury stressed that it is always a process that leads to genocide, not a single moment.Hence, it is important to care ully study the past. Rwandans tend to interpret currentevents through the prism o past experiences. According to Newbury, those experiencesinevitably shape people’s identities in the present. Moreover, identities in Rwanda are

and determines identities to a signi cant degree. With a changing context, identities

Rwandans, or that are important today.

At some moments in Rwanda’s history, ethnic identities have been more important thanat other times. Newbury noted that in the 1980s ethnicity was not the main problem inRwanda; there were regional rivalries between the north and the south, between people

rom rural areas and urban areas, and between the rich and the poor. In particular, the ruralpopulation elt that the urban elites did not take their problems seriously, which partly de-legitimized State authority. Newbury argued that the urban-rural problem was an

important actor in the lead up to con ict and ultimately genocide. Te genocidal events,then, contributed to deepening ethnic divisions in Rwanda and it is there ore understandable

government decided that the Gacaca courts as well as the special genocide courts cannot

contextual. She argued that the context o State power, institutions and policies shapes

change as well, meaning that identities such as Hutu, utsi and wa have changed overtime. Also, Hutu, utsi and wa are not the only identities that have been important to



22

that the post-genocide government seeks to address the question o ethnicity today.

Newbury, however, went on to argue that the Rwandan law on genocide ideology tends tostrengthen the importance o ethnicity rather than to diminish it. Tere is a big dangerthat the laws against divisionism and genocide ideology could be used to – and in somecases already have been used to – suppress open expression o popular concern. Such anapproach could well undermine legitimacy and social peace, rather than enhance it. Withthe problems o the rural population still not being addressed adequately, this could proveto be an explosive combination.

Panel IV: he Way Forward

Moderator:

Sheri P. Rosenberg (Benjamin N. Cardozo School o Law)

Panelists:

Noel wagiramungu (PhD Candidate, Fletcher School, u ts University)

Justine Uvuza (Former Rwandan Ministry o Gender and Women in Development, PhDCandidate, Newcastle University)

Scott Straus (University o Wisconsin)

Te ourth panel discussed how to move orward in post-genocide Rwanda. Te paneliststouched on the crucial role o women in the reconciliation process, the importance o

political path taken by the government currently in Rwanda. Justine Uvuza stressed thatthe role o women has to be strengthened, as they currently play a predominant role inRwanda. Noel wagiramungu emphasized the complexity o Rwandan identities andmade recommendations to strengthen voices in the middle. Finally, Scott Straus expressedconcern about the political dynamics in contemporary Rwanda, arguing that the laws ongenocide ideology and the narrow space allowed or public debate might lead to renewedcon ict in Rwanda.

Sheri Rosenberg introduced the ourth and nal panel, noting that the day’s discussionsexempli ed the complexity at the heart o these issues. She contrasted, or example,Mark Drumbl , who noted that individual criminal justice does not quite capture the collectivenature o crimes such as genocide, against another panelist who argued that the Gacacasystem approximates “something like collective guilt.” Rosenberg urther highlighted thetensions inherent in restricting speech, emphasizing that individuals have very deeply heldpoints o view about what speech should or should not be protected. Rosenberg suggested an

strengthening moderate voices in the political spectrum and the potential pit alls o the



23

honest exchange, where di erent points o view could be negotiated and mediated betweenall interested parties. Lastly, Rosenberg highlighted the tensions that arose throughout theday around the topic o reconciliation; tension between those advocating or reconciliation,those who eel it is too soon to talk about reconciliation, and those who question the value

o discussing it at all.Justine Uvuza discussed the important role that women can play in the Rwandanreconciliation process, arguing that women have more capacity to work pragmatically towards reconciliation than men.

Uvuza also pointed out that besides the international community’s e orts to addressproblems in post-genocide Rwanda, there are domestic options or resolving this complexand difcult situation that build on Rwandan culture and tradition. She urther stressed

deeply entrenched distinctions between ‘us’ and ‘others’ were important prerequisites orthe perpetration o genocide. Women can play a key role in overcoming this distinctionbetween ‘us’ and ‘others’, which is at the heart o genocide ideology and which is stillwidespread in Rwanda. She stressed that women can help to overcome the considerable

and some in the international community.

Uvuza also noted that the majority o the genocide survivors were emale. In the a termatho the genocide, women stood up and became community leaders as well as nancial

providers; women were key in keeping amilies and communities together; they oundedhomes or orphans and built shelters. According to Uvuza, women also ormed community-based associations that brought together survivors and the relatives o the perpetrators,even including those perpetrators who con essed and asked or orgiveness. She urtherstressed that women are already institutionally involved in reconciliation e orts, or

Rights Commission. Women can play - and in many ways already do play - a special rolein overcoming ethnic di erences. Tere ore, she recommended strengthening women’scon dence in leadership and outspokenness. According to Uvuza, women are betterat reconciliation than men. Tey are also more pragmatic when they are in leadershippositions, and are more willing to see the humanity in the other side. Hence, women haveto be put in positions where they can have an impact on public policies. According toUvuza, this set o public policies needs to include policies to secure the basic needs o theRwandan population; i somebody has nothing to eat or nowhere to live, it makes littlesense to talk about healing trauma.

Noel wagiramungu pointed out the complexity o identity categories in Rwanda and

the voices o those in the middle.

that or Rwandans, reconciliation is not an option, but an obligation. According to Uvuza,

amount o genocide denial, which is still articulated by perpetrators, their sympathizers

instance through working orGacaca courts, the Supreme Court, and the Rwandan Human

advocated that Rwandans acknowledge these complexities, promote debate and strengthen



24

wagiramungu argued that there are good arguments suggesting that contemporary A rican States are mere continuations o the colonial States. He stressed that in many A rican countries, the State is nothing more than an entity at the mercy o various degreeso international recognition. Moreover, some claim that in many A rican States there is

nothing like a ‘society’ at all, but only social orces competing or State capital. In Rwanda,

(amongst others) over power, resources, and international support. Currently, there seemsto be something like a utsi aristocracy emerging, as there is an implicitly held assumptionthat utsi power is a precondition or utsi survival. Another Rwandan dilemma that

wagiramungu identi ed can be ramed in terms o democracy versus security. Te politicalcompetition between Hutus and utsis runs along this distinction. Hutu parties advocatedemocracy, as democracy is based on demographics and the Hutus are the national majority.Te utsi parties, however, strongly advocate utsi rule and control o security, as utsis

are the minority and eel that they need to protect themselves rom the Hutus. Tis is adifcult political dilemma to deal with.

waigiramungu stressed that identity categories in Rwanda are complex, meaning thatthere are no ‘black and white’ classi cations o Hutus and utsis. He pointed out thatthere are some signi cant di erences amongst utsis as well as amongst Hutus. Tere arecertain elements that divide Rwandans and other elements that uni y them, even within theparameters o the genocide. For the way orward, waigiramungu there ore recommendedthat Rwandans acknowledge the complexity o their situation, and promote a debate that

particularly strengthens voices in the political middle.

Scott Straus articulated a concern about Rwanda’s uture, arguing that the long-term e ectso the coercive and punitive control over public space that the current government exercises

just public discourse, and pleaded or a more open and permissive public space, so thatdebates can be aired without ear o punishment.

Straus questioned whether the law on genocide ideology and related laws are able toaccomplish the goals o building a more peace ul and reconciled Rwanda. He expressedhis belie that we cannot think about the e ects o these laws without thinking about thepolitical context in which they take shape. Straus was also skeptical whether so-called‘genocide ideology’ really existed in a large part o the Rwandan population be ore the

o themselves were the most important actors in the 1994 genocide. He was particularly concerned about three points: political exclusion, the lack o debate about the causes o thegenocide, and the need to acknowledge di erent orms o victimization during and a ter

the genocide.

he explained, there is an intense struggle between Hutu and utsi elites, military elites

might lead to renewed con ict instead o reconciliation. He critiqued the controls over

genocide. Moreover, he questioned whether the categories o Hutu, utsi and wa in and



25

First, Straus raised concerns about political exclusion in Rwanda, which stems to a largedegree rom the suppression o any orm o criticism in Rwanda. He pointed out that anyonewho seriously disagrees with the orthodoxy o the current regime, and openly questionsthe political establishment, is treated with deep skepticism and might even be accused

o genocide ideology. According to Straus, an unequivocal instrumentalization o thememory o the genocide takes place in contemporary Rwanda. Tis, however, underminesempirical memories o the genocide and works against unity and reconciliation. Strauspointed out that this orm o political exclusion is part o a longstanding coercive traditionin Rwanda.

Second, Straus argued that there is the need or a broader discussion on the causes o thegenocide in Rwanda. He explained that the political restrictions that have been imposedaround public speech re ect a narrow view o the causes o the genocide. Tis narrow view, however, is not supported by most empirical and micro-level research. Accordingto Strauss, the dynamics o the genocide were considerably more complex at the national,communal, pre ectural, and neighborhood levels, than the concept o genocide ideology

state were all critical actors in uencing why the genocide ultimately happened. Tus, thegenocide was not a simple product o genocide ideology, whatever that actually means.According to Straus, ethnic identities certainly played a role in the genocide, but the

approach to the genocide’s causes that underpins the current genocide laws is simplistic atbest, and is being deliberately manipulated or political ends at worst. He there ore arguedthat meaning ul steps towards reconciliation in Rwanda require an open and honest publicdiscussion o the causal dynamics o the genocide; it requires people rom various positionsto be able to speak in a permissive political climate about what they saw, what they did, andwhat they know about what happened in 1994.

Tird, Straus stressed that there needs to be broader acknowledgment o the su ering andvictimization that occurred in 1994 and onwards. He argued that we should go beyond the

persistent claim that to recognize other su ering beyond the genocide is tantamount toclaiming a double genocide or to denying the genocide. He explained that there was seriousvictimization on the part o the RPF as it advanced and secured the country in 1994; itdid not constitute genocide, but it caused su ering, violence and many deaths. Moreover,there was serious victimization and su ering in the Democratic Republic o the Congoat the hands o Rwandan troops in 1996 and 1997. Tere was serious victimization in

as well in the second major Congo con ict, in which Rwanda was an important player.According to Straus, these are issues that need to be addressed i there are to be realistic

discourse undermine the claim that the justice and reconciliation processes were attempts

implies. Te causal dynamics involved social networks, power, political opportunity,rivalries, straight orward coercion, horizontal peer pressure and ear. Straus argued thatthe dynamics o the civil war, the assassination o the President and the power o the local

prospects or reconciliation in Rwanda. Moreover, he argued that limitations on open

the counter-insurgency campaigns in the northwest o Rwanda and serious victimization



26

to reveal the truth, inviting a deep skepticism that might well ultimately harm Rwanda inthe longer term.

Straus concluded by saying that Rwanda is on course or short-term stability, but possiblelong-term disorder. He stressed that resentments building up in the shadow o the military hegemony that has existed or generations will poison prospects or peace and, in act, may well lead to renewed con ict.



27

II. Reconciliation: Wrestling with Ethnic Identity

Reconciliation is an objective requently pursued, yet rarely de ned. O ten it is not even

both. Pro essor Harvey Weinstein does not believe that reconciliation is a use ul concept,suggesting that closure is a mythology and reconciliation is an illusion.5 Others alsoadvocate jettisoning the term, arguing that societies should pursue ‘coexistence’ rather thanreconciliation during the post-genocide transition.6 In spite o these valid reservations,

process - or goals - o programs and policies that deal with a past characterized by severe

or ethnic cleansing, to a new democratic state, the term is loosely used to mean peoplereestablishing connections across racial, ethnic or religious lines.”7 Tere are minimalist

and maximalist, or “so t” and “hard”, notions o reconciliation. In its most modest sense,reconciliation means simply that ormer enemies obey laws rather than kill one another.8 At its maximal conception, reconciliation is understood as mutual healing and mutual

orgiveness. It seeks repentance by the perpetrators and requires orgiveness by the victims.In the middle lies the civic view o reconciliation which the International Center or

ransitional Justice has de ned as creating “the conditions under which citizens can onceagain trust one another as citizens.”

Reconciliation (however it is perceived) proceeds, i at all, on multiple levels. Dr. Danielisees the entire reconciliation project as one that seeks to promote the healing o identity a tertrauma. Massive trauma, such as that which occurs during genocide, re ects such diverseand complex destruction that only a multidimensional, integrated ramework is adequateto describe it. Tus, Danieli suggests a comprehensive ramework or reconciliation thatconsists o our dimensions: individual, societal, national, and international. Te individualdimension deals with the re-establishment o equality and dignity or the victims. Tesocietal dimension deals with the victim’s stigma and separation rom society. Te nationaldimension seeks to address the nation’s ability to provide and maintain equality andjustice, while the international dimension deals with the commitment o the international

community to help states seek justice and accountability. Regardless o one’s conception o 5 See supra Panel IV, Straus argues that reconciliation, by de nition, implies that genocide’s victims forgive their attackers,something that may not be a realistic expectation in Rwanda. See also Scott Straus, Origins and Aftermaths: The Dynamics of Genocide in Rwanda and Their Post-Crime Implications, in M aSS c riMeS and PoSt -c onFlict P eace building 122-141 (SimonChesterman, Beatrice Pouligny, & Albrech Schnabel, eds., United Nations University Press 2007).6 See Aneelah Afzali & Laura Colleton, Constructing Coexsistence: A Survey of Coexistence Projects in Areas of Ethnic Con-

ict , in i Magine c oexiStence : r eStoring H uManity a Fter Violent e tHnic c onFlict 3 (Antonio Chayes & Martha Minow eds.,Jossey-Bass 2003) (hereinafter “Chayes and Minow”). Coexistence has been de ned as “[a] relationship between two or moreidentity groups living in close proximity to one another that is more than merely living side by side but includes some degreeof communication, interaction, and cooperation.” Eileen F. Babbitt, Evaluating Coexistence: Insights and Challenges , Chayesand Minow at 102, 113.7 Sheri P. Rosenberg, What’s Law Got to Do with it:? The Bosnia v. Serbia Decision’s Impact on Reconciliation , 61 RutgersL. Rev. 131, 138 (2008) (citing Eric Stover & Harvey M. Weinstein, Introduction: Con ict, Justice and Reclamation, in M y n eigHbor , M y e neMy : J uStice in tHe a FterMatH oF M aSS a trocity 1, 4 (Eric Stover & Harvey M. Weinstein eds., CambridgeUniversity Press 2004).)8 Eileen F. Babbitt, Evaluating Coexistence: Insights and Challenges , Chayes and Minow at 102, 113.

clear whether scholars and practitioners use the term to identi y a goal, a process or

reconciliation is a term o ten used by policymakers and scholars alike to describe either the

con ict. “In the context o the transition rom identity-based atrocities, such as genocide



28

reconciliation, the key issues acing societies recovering rom genocide, and the multinationaland international organizations that seek to assist them, are developing mutual trust amongpreviously warring groups and inspiring con dence in the new government.

Identity

Identity re ers to peoples’ membership in a social group. Such social categories are almost

groups. Identities are important because they give structure to our personal and sociallives. Identity is both a psychological and a sociological term. It is psychological becauseit helps the individual produce order in her personal li e. It is social because it situatesthe individual within the collective and the embrace o a social group. In many societies,

identity based on ethnic collectivities has come to orm the basis o politically- ocusednational communities. When ethnic-based orms o social identi cation are present at anational level, groups use ethnic identi cation to vie or political power and other bene tso society.

Societies recovering rom genocide must con ront ethnic identity categories that both pre-existed and were o ten cemented by the genocide. Such con rontation is a complex projectbecause identity is neither static nor unitary. Rather, identity categories are contextual,

the basis upon which individual and collective identities are built.9 Likewise, communalidentity categories, especially those linked to political structures, are built upon narrativespassed on rom generation to generation. Narratives are particularly important to ‘local’identities that have been re-shaped in large part through national identi cation.

According to Catherine Newbury, the salience o ethnic identity in Rwanda has ebbedand owed, taking on more or less importance at di erent historical points. Accordingto Newbury, or a long time it was not the ethnic divide that mattered in the political

individuals have multi aceted identities. A ter genocide there is an ongoing ormation and

genocadaire , returnee/local, old caseload re ugee/new caseload re ugee, Anglophone/

At the end o 1994, many utsis rom Uganda returned to Rwanda and now orm the9 Kwame Anthony Appiah, t He e tHicS oF i dentity 245 (Princeton University Press 2005).

as Hutu and utsi, those complex ethnic realities are o ten reduced to these now amiliarcategories. In other words, the new identity ormations are a misleading way to label entiregroups o people. For example, Anglophones are essentially equated with utsis.Over many years, utsis su ered severe discrimination, even persecution, in Rwanda.As a result, many had ed to neighboring Uganda where they learned English.

limitless, and include religious, class, gender, sexual orientation, national and ethnic

socially constructed and dynamic. Interpretations o history and shared narratives provide

or communal sense, but rather the urban-rural divide. As Dr. Joyce Apsel explains,

Francophone, northerner/southerner. While one may try to dismantle ethnic labels such

trans ormation o identity structures- this is no less true in the case o Rwanda. Sincethe genocide several identity categories have arisen: survivor/perpetrator or suspected



29

is the ofcial name given to the genocide memorial week.

During the genocidal violence ethnic identity was deeply political; the killings were not

demonstrates with personal narratives rom Rwandan citizens, people have lived experienceswhich e ect how they relate to identity. Tere ore, ‘identity constructs’ such as ‘survivor’

perceptions o identi y or political relationships, including relationships with the Rwandangovernment.

Each society con ronts identity structures in the a termath o the total social breakdowno genocide based upon social and political contingencies in that society be ore and a terthe con ict. Rwanda is the most densely populated country in A rica where those whocommitted crimes and genocide live next door to those who were targeted during the

during a civil war. Te utsi RPF army was victorious, and many Hutus ed to neighboringCongo, where some continue to espouse genocidal intentions. Te Rwandan governmentis now led by President Paul Kagame, the ormer RPF commander.

reconciliation project seeks to substitute re erences to ethnicity with the identity category o Banyarawanda. Alluding to identities other than the ofcially sanctioned Banyarawanda is met with public shaming and even legal sanction. And while one may – in act must -

Hutus and utsi have e ectively been removed rom public discourse.10 Te salient questionthat emerges rom the Rwandan experience is whether policies aimed at eliminating ethnicmemories and hence identities can actually dismantle ethnic hatred in pursuit o buildingthe mutual trust necessary or peace ul coexistence or reconciliation?

Te Rwandan approach has it skeptics. Generally, they argue that reconciliation requiresthat a violent past be con ronted, not obliterated. Moreover, they argue that becauseidentities are dialogically constructed, it is not possible to dismantle ethnic identi cation.

concurrent, simultaneous oreign country, which we can reely visit. Te past does notexist independently o our relationship to it.” Rather, reconciliation requires reckoningwith past ethnic cleavages where “recognition o what actually happened – o the victims’

experience and the prepetrators’ responsibility, and ultimately the broader structures o 10 Susanne Buckley-Zistel, Remembering to Forget: Chosen Amnesia as a Strategy for Local Coexistence in Post-GenocideRwanda , 76 J. Int’l Afr. Inst. 132 (2006).

speci cally means a ‘survivor o the 1994 genocide against the utsis.’ In act, that phrase

Further complicating the matter is what Dr.Fuji describes as the ‘politicization o identity.’

there were not many Jews le t in the country. Further, the genocide in Rwanda occurred

As Nigel Elthringham noted earlier, one cannot simply erase history: “[ he] past is not a

majority o the English-speaking population in Rwanda. Similarly, in Rwanda, ‘survivor’

entirely based upon ethnic hatred, but also related to power and politics. So too identitiesa ter the genocide continue to be deeply political. Moreover, as imothy Longman

or ‘perpetrator’ do not represent a clearly-de ned, monolithic identity group with shared

genocide. Tis is markedly di erent rom, or example, Germany, where a ter the Holocaust

Whatever inter- or intra-ethnic lines exist in Rwanda today, Rwanda’s unity and

commemorate the 1994 genocide against the utsis, past and present tensions between



30

cause and e ect – can allow some healing to take place.”11 Most skeptics recognize thevery difcult balancing act Rwanda must engage in between salvaging what is good about

happen again. Nonetheless, they believe that the current eclipsing o ethnic identi cation

categories, necessarily complimented by proscribed historical narratives, prevents the kindo trans ormation necessary to render uture con agrations along ethnic lines a thing o

lead in the long term to renewed violence. Tus, Noel wagiramungu urges Rwandans to

middle ground.

11 Eve Hofman, The Balm of Recognition , in H uMan r igHtS , H uMan W rongS 280 (Nicholas Owen ed., Oxford UniversityPress 1999).

ethnic identi cation categories, and ensuring that the worst ethnic manipulations never

the past. In other words, while this policy may lead to short-term stability, it may very well

acknowledge the complex Rwandan identity categories, to debate them and to promote a



31

III. Comparative Analysis of Laws

Te Rwandan genocide ideology law encapsulates Rwanda’s approach to dealing withthe ne arious manipulation o ethnic identity categories that existed during and since thegenocide. It is simultaneously retrospective and prospective. It is retrospective in thatit looks to the Rwandan government’s historical narrative, which perceives the massparticipation during the genocide as a result o widespread Hutu indoctrination o hatredagainst the utsi social category.12 As a result the law is primarily concerned with ensuring

stemming rom the Hutu diaspora in the DRC, as well as continued genocidal ideations13 Tus, it seeks prospectively to

root out incitement to a renewal o the cycle o violence, including genocide.

genocide establish a need to legislate against denying the genocide, promoting divisionism,or inciting racial and ethnic hatred. Te Rwandan government rmly believes that ideology laws are necessary to prevent a uture genocide, to protect the dignity o victims o the

time genocide ideology has been con ated with re erence to ethnic discourse and politicalcriticism. For example, individuals have run a oul o the law by re erencing alleged crimescommitted by the RPF during the con ict. Tese individuals have been ound guilty o negating the genocide. According to the government ’s narrative, re erence to alleged RPF

o the government can all under the category o genocide ideology.14 In the end, the e ect,i not the intent, o this law has been an attempt to criminalize and eventually eradicate

Rwanda has chosen a particular and unique approach. While pursued through laws thatsome criticize as vague and overly broad, these laws di er only in scope, rather than inkind, rom laws that have been promulgated in other parts o the world. Rwanda hasacknowledged that it may need to amend its genocide ideology law. It is in the processo reviewing the law or possible revisions. It is there ore worth examining some o theseother laws. Te body o laws in Rwanda that have addressed the genocide can be examinedunder three major headings: genocide denial laws; hate speech laws; and incitement togenocide laws. Te ollowing examination introduces some o the approaches taken by States rom di ering jurisdictions: or a comprehensive analysis o this material, see12 Supra panels III & IV, Fuji and Straus, arguing that the genocidal dynamic depended less on inter-ethnic hatred and racistindoctrination than on wartime power struggles in the context of dense human settlement.13 See supra note 2; Rapport d’analyse sur le problème d’idéologie du genocide evoquée au sein des établissements scolaires,Rwanda National Assembly (December 2007); République Rwandaise, Rapport de la Commission Parlementaire ad hoc créeen date du 20 Janvier 2004 par le Parlement, Chambre des Députés, Chargée d’examiner les Tueries Perpetrées dans la Prov -ince de Gikongoro, l’idéologie Génocidaire et Ceux qui la Propagent Partout au Rwanda (June 30, 2004); Republique Rwan -daise, Assemblée Nationale, Rapport de la Commission Parlementaire de Controle Mise en Place le 27 Decembre 2002 Pour Enqueter sur les Problemes du MDR (April 14, 2003).

are dismantled. It is also prospective, echoing the government’s genuine security concerns

14 Supra note 2 at 17–18.

Most agree that Rwanda’s history and the role o incitement leading up to the 1994 Rwanda

that the ethnic identity structures that were undamental to causing the 1994 genocide

among Hutu intellectuals, educators and armers alike.

genocide and to prohibit any action that promotes disharmony among groups. Over

crimes amounts to arguing that there was a double genocide. Moreover, general criticism

ethnic identity altogether, both as a matter o individual conviction and societal truth.



32

Appendix A infra.

Genocide Denial Laws

Many national jurisdictions have enacted legislation to hold individuals civilly or criminally liable or the denial or diminishment o genocide, either generally or as related to speci chistorical events. Within this range exists quite di erent approaches to the role o law inaddressing acts o denial.

In France, a central objective or the introduction o the Gayssot Law o 1990 was toremove the issue o the ‘ alse contestation o genocide’15 rom the judicial branch in France,which had become an open orum or controversial legal debates on the realities o theHolocaust. Tis law criminalizes the contestation o the Holocaust without permittingthe judicial branch to examine questions concerning the historical validity o the crimesat issue. Instead, the legislative branch has determined such questions surrounding theHolocaust to be acts that are not subject to judicial enquiry. Te law states, under Article24bis, Press Act o July 29 1881 (amended by Act No. 90-615 o July 13 1990, known asthe Gayssot Law):

under this law) taken to the Human Rights Committee, which monitors the InternationalCovenant on Civil and Political Rights, ound that “[Mr. Faurisson’s] conviction there oredid not encroach upon his right to hold and express an opinion in general, rather the courtconvicted Mr. Faurisson or having violated the rights and reputation o others.”17

In other jurisdictions, the laws have demanded that criminal acts involve an elevatedwrong ul purpose in the mind o the individual seeking to deny a genocide. Te ‘Denial o

18 in Israel states in paragraph 2:

15 See Robert A. Kahn, Holocaust Denial and the Law: A Comparative Study 37 (Palgrave 2004) .

public places or meetings’.17 Faurisson v. France, U.N. Doc. CCPR/C/58/D/550/1993 (1996).18 Denial of Holocaust (Prohibition) Law, 5746-1988, SH No. 1187 p. 196 (Isr.).

16 These means must be ‘uttered in public places or meetings’ or be items ‘sold, distributed , offered for sale or exhibited in

16

a French or an international tribunal, will be punished…’

o Article 9 o the above-mentioned statute or by a person ound guilty o such crimes by which were committed by members of an organization declared criminal by the application

international military tribunal, annexed to the London Agreement o 8 August 1945, and

or more crimes against humanity as they are de ned by the article o the statute o the

‘Tose who have disputed, by one o the means stated in Article 23 , the existence o one

A legal challenge to this law by Robert Faurisson (who had been convicted in France

the Holocaust (prohibition) Law, 5746-1986’

‘A person who, in writing or by word o mouth, publishes any statement denying or

diminishing the proportions o acts committed in the period o the Nazi regime, which

are crimes against the Jewish people or crimes against humanity, with intent to de end the



33

o be ound guilty o denial or diminishment in Israel, the alleged wrongdoer must possessthe ‘intent to de end the perpetrators’ or show them sympathy. In Portugal, the intentinstead is one ‘to incite to racial or religious discrimination or to encourage it’.19 Tis ocuson the mind o the wrongdoer seeks to ensure that ignorant but not harm ul individualswill not ace the prospect o criminal sanction. In Switzerland, the motive o the speakermust be demonstrated and the denial must have been directed at someone ‘because o theirrace, their ethnic belonging or their religion’.20

A urther limiting device that aims to balance respect or the memory o victims o genocidewith the value o ree speech that may help limit uture returns o genocidal violence isseen in German legislation, which limits the criminalization o denial to statements made

‘in a way likely to disturb public peace’.21 Denial without the risk o disturbance is thus notpenalized.

Hate Speech Laws

A common thread throughout these laws is how to balance the value and the danger o reedom o speech. All o the laws rom a variety o jurisdictions have attempted not only

to protect reedom o speech given its inherent place o honor and value within human

rights laws and international instruments, but have also addressed the relative value o reespeech legislation and hate speech legislation in regulating ethnic con ict and violence.Free speech in the context o ethnic divisions may be abused, threatening to lead to violenceor discrimination against certain groups within a polity. However, the construction o theselaws also suggests the value o ree speech in bringing divisions to the sur ace, whereby theassessment and rebuilding o identity can occur in the open. Te lines drawn in the context

International human rights treaties have permitted restrictions on the reedom o speech invery limited circumstances. For example, Articles 19 and 20 o the International Covenanton Civil and Political Rights state:

o hate speech laws suggests that many legislatures see open discussion o ethnic di ere-nces, perceived or real, as vital to help ensure that the potential or violence or discriminat-ion in society is minimized.

20 Schweizerisches Strafgesetzbuch [StGB], Code pénal suisse [Criminal Code], June 18,1993, SR 311, art. 261bis, para. 4 (Switz.).21 Strafgesetzbuch [StGB] [Penal Code], Nov. 13, 1998, Bundesgesetzblatt [bgb l], as amended, § 130, para. 3 (Ger.) .

19 C.P. 240 2(b). (Article 240 of the Portugese Penal Code 2(b)).

perpetrators o those acts or to express sympathy or identi cation with them, shall be liableto imprisonment or a term o ve years.’



34

‘Article 19

Article 20

Tis regulation o hate speech that ‘constitutes incitement to discrimination, hostility or

dangerous e ects on public order or harm to the human dignity o protected groups.22 India has also set out sanctions or speech that is likely to lead to enmity or ill-will betweengroups within society.23 Tis ocus on consequences that might ow rom permitting thepublic dissemination o hatred underscores many states’ concerns with hate speech as thecatalyst or harm to certain groups, either physical or mental.

intentions o speakers are clearly to demonize an o ten vulnerable group in society. Underthe United Kingdom’s Public Order Act 1986, Article 18, paragraph 1(a) states:

‘A person who uses threatening, abusive or insulting words or behaviour, or displays any 22 Strafgesetzbuch [StGB] [Penal Code] Bundesgesetzblatt [BGBl] No. 60/1974, as amended, § 283 (Austria) states: Incite-ment to hostile action –

(1) Whoever, publicly, in a manner likely to endanger public order urges or incites others to commit a hostile act…to a race,

nation, tribe or state, shall be punished by imprisonment for up to two years.

(2) The same punishment shall be imposed on anybody who publicly in a manner which violates human dignity stirs up hateagainst any of the groups referred to in Subsection (1) or insults it or seeks to disparage it.’23 See generally The Indian Penal Code, No. 45 of 1860, P en . c ode (1860) §153A

in Austria also limits penal sanctions to speech to one o two speci c consequences: either

1. Everyone shall have the right to hold opinions without inter erence.

2. Everyone shall have the right to reedom o expression; this right shall include reedom

to seek, receive and impart in ormation and ideas o all kinds, regardless o rontiers, either

3. Te exercise o the rights provided or in paragraph 2 o this ar ticle carries with it special

duties and responsibilities. It may there ore be subject to certain restrictions, but these shallonly be such as are provided by law and are necessary:

orally, in writing or in print, in the orm o art, or through any other media o his choice.

(a) For respect o the rights or reputations o others;

(b) For the protection o national security or o public order (ordre public), or o public

health or morals.

1. Any propaganda or war shall be prohibited by law.

2. Any advocacy o national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law.’

violence’ ensures that only the most dangerous utterances are prohibited. Likewise, legislation

Te potential value o discussions o ethnic identity is signi cantly reduced when the



35

(a) he intends thereby to stir up racial hatred…’

Te intentions o the actor may be quite difcult to prove, yet the criteria above are sufcient

to separate non-criminal conduct rom that warranting legal sanction. Kenya, which hasexperienced communal violence in the past decade, has included a similar ocus on theintentions o the alleged wrongdoer in Article 13 o its National Cohesion and IntegrationAct (2008).

private and public spheres. Tis distinction not only respects the value o private thoughtsand spaces, but it also recognizes that the likelihood o the harm ul consequences o speech

(and thus the appropriate legal sanction) is vastly increased in cases when there is broadpublic dissemination. In response, or example, under Article 163 o the Criminal Code o the Federation o Bosnia and Herzegovina, public incitement and in ammation o hatredcan lead to ve years imprisonment.24

One method utilized by several states has been to explicitly carve out exemptions rom

groups, perhaps the clearest expression o the value o ree speech or the promotion o unity among di erent groups. For example, under Article 18 o the Commonwealth RacialDiscrimination Act 1975 (as amended through 2009) in Australia:

‘Section 18(C) does not render unlaw ul anything said or done reasonably and in goodaith:…

(c) in making or publishing:

(i) a air and accurate report o any event or matter o public interest;

or

(ii) a air comment on any event or matter o public interest i the comment is an ex

o a genuine belie held by the person making the comment.’

more than hate speech limitations.

24 ‘(1) Whoever publicly incites and in ames national, racial or religious hatred, discord or hostility among constituent

peoples and others who live in the Federation, shall be punished by imprisonment for a term between one and ve years.’

written material which is threatening, abusive or insulting, is guilty o an o ence i :

hate speech and incitement to genocide is the need to draw a clear distinction between theA common element o these laws across many jurisdictions dealing with genocide denial,

criminal legislation or valid orms o speech that deal with racial, ethnic, or other protected

on ethnic di erences or con icts can contribute to peace ul coexistence as much i notHowever, most o these laws seem to uphold rmly held convictions that open discussiondepend on the particular circumstances o each nation’s history and ethnic characteristics.hand and protecting vulnerable groups by implementing hate speech laws on the other, willIt is sel -evident that the appropriate mix or protecting reedom o speech on the one



36

Incitement to Genocide

Te line separating criminal sanction or incitement to violence based on group hatred andthe more speci c crime o incitement to genocide is not easily drawn. While acceptingthe legal de nition o genocide, the distinction between these two acts will depend on thecontext (both present and historical) in which these statements are made. Marking thedistinction between hate speech and the international crime o incitement to genocide is

Te crime o incitement to genocide was rst codi ed in the 1948 Convention on thePrevention and Punishment o the Crime o Genocide (“Genocide Convention”), whichstates in Article 3:

Tose national jurisdictions that have incorporated ‘incitement to genocide’ into their

Convention.

esh out the contours o the two requirements that the incitement be ‘direct and public’. Teribunal explained that the public element required an examination o two relevant actors

- “the place where the incitement occurred and whether or not assistance was selectiveor limited.”26 Te incitement was public i it was made in a public place, “or to members

o the general public at large by such means as the mass media … radio or television.”27

Te ribunal went on to explain that the direct element should be evaluated according tocontext and content, as a speech constituting direct incitement in one country might notquali y as direct incitement in another setting.28 Te court determined that a case-by-case

27 Id.

now the subject o a major project o the UN Ofce o the Special Advisor on the Preven-tion o Genocide.

It has been le t primarily to the International Criminal ribunal or Rwanda (IC R) to

26 Id. 556.25 Convention on the Prevention and Punishment of the Crime of Genocide, Art. 3, Dec. 12. 1948.

28 Id. at 557. In this context, see the current work conducted by the Of ce of the Special Adviser on the Prevention of

Genocide and Dr. Susan Benesch concerning dangerous speech on the road to genocide.

The project’s aims are to (1) design a blueprint for monitoring danger ous speech in countries at risk of genocide

and mass atrocities, (2) develop and test a method ology for gauging the dangerousness of specific speech acts, and

(3) produce policy response options to limit the effects of dangerous speech.

‘Te ollowing acts shall be punishable:(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

25

(d) Attempt to commit genocide;

(e) Complicity in genocide.

municipal legislation have generally made direct use o the text rom the Genocide



37

evaluation was necessary to determine whether, “in light o the culture o Rwanda and thespeci c circumstances o the instant case, acts o incitement can be viewed as direct or not,by ocusing mainly on the issue o whether the persons for whom the message was intended immediately grasped the implication thereof .” (Emphasis added.)29

Tere are a variety o crimes discussed in this section, each with their own elementsand purposes. However, it is notable that the minimum punishment set out in Article4 o Rwanda’s Genocide Ideology Law or an adult (10 years) is themaximumsentenceimposed by any other nation with respect to any o the crimes discussed. As there seemsto be a common purpose to Rwanda’s laws and those o other nations examined here, this

divergence in sentencing is quite troubling, even conceding the divergent political, socialand economic situations o states. Tere may be additional concerns over the criminalizationo speech by children as young as 12 years old under Rwandan law. As Rwanda itsel hasdemonstrated, there are many approaches to address deeply held prejudices that might notdirectly involve the criminal justice system but those approaches still depend on the equity,transparency and clarity o that system.

Level of Criminal Sanction

29 Id. at 558.



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IV. Policy Recommendations

o the Rwandan Government and Other States

Broaden the public discourse.Te Rwanda government should ensure that its laws and

policies aim to acilitate a broad space or public discourse about the context o the 1994genocide. Restrictions on discussions that are intended only to explore aspects o thehistorical narrative and/or to analyze and dissect the past, present and uture place orethnic identity may well be counter-productive in achieving the dissolution o genocidalviolence that must be the ultimate aim o any such endeavors.

Examine the utility of each law dealing with ethnic identity as linked to the genocide . TeGenocide Ideology Law o 2008 has proved especially problematic in its interpretationand application by the judicial authorities in Rwanda. It is somewhat unclear what distinctobjectives are being achieved by this law that are not achievable through the existinggenocide denial law (No. 33bis/2003) and the law on discrimination and sectarianism (No.47/2001). It will be important or Rwanda, during its planned re-examination o the 2008law, to consider how each o these laws operates in relation to the others so as not to createundue discretionary authority or state prosecutors.

Equally problematic is the open-ended language characteristic o much o the text o the2008 Law. Te use o such vague language within a criminal statute providing or penaltiesas high as 25 years’ incarceration places an un air burden on Rwandan citizens to divine the

amendments to current legislation in Rwanda dealing with the ethnic con icts in a post-

While the project that gives rise to genocide ideology laws, specifically the promotion of unity

pecially loosely cra ted laws combined with robust punitive sanctions and a lack o transpar-

can inspire and maintain public con dence. In addition:

ency on implementation, can impede speech necessary to healing in the name o speech th-at can incite urther violence. hus as a general matter, we urge governments to ensure that

Provide increased training and resources on aspects of ethnic-based crimes to the judicial branch and the national prosecuting authority . While there are many potential legislative

genocidal society, judges and prosecutors still ind genocide ideology cases to be some o themost difficult cases to handle. As a result, the rationales for decisions whether to prosecute or

speech or conduct that is illegitimate under the legislation.

or whether to convict diverge from case-to-case, increasing confusion about the scope and re-ach o the law. As part o a review o the law, the Government may wish to consider task-ing a person or pre erably a panel o persons (and also pre erably with involvement by UN or

other international experts) with developing guidelines and standards or the prosecutiono genocide ideology cases.

and reconciliation, is laudable, our basic concern remains that any genocide ideology laws, es-

any incitement related laws are care ully circumscribed, integrate proportionate punitive sanc-tions and are attached to transparent mechanisms or indictments and prosecutions that



39

o the International Community

Promote post-conflict efforts that are uniquely attentive to the identity categories that existed before, during, and after the conflict. Tis examination has attempted to highlight theimportance o addressing post-genocide con ict situations with due regard to the very particular mix o ethnic identity history, politics and grievances that will occur in a variety o di erent situations. It is simply not possible to create a one-size- ts-all approach toaddressing ethnic identity and reconciliation in post-con ict settings.

categories in found in Rwanda or other post-conflict settings. Support should be provided tolocal initiatives that seek to educate individuals about how to rame and address issues o mutual concern through communication, con ict prevention and cooperation. NGOs andothers can assist in identi ying success ul local initiatives in post-con ict settings and insharing lessons learned and best practices with actors in other global regions.

Place pressure on governments to comply with international human rights and humanitarianlaw standards. Ensure that post-con ict and con ict unding and support is dependent onachieving ‘good aith’ compliance with accepted standards o reedom o expression andnon-discrimination. Share with governments collective wisdom about how and in whichsituations genocide ideology and related laws are likely to exacerbate – rather than alleviate– the potential or ethnic con ict.

Support capacity for legislative drafting:In particular, support states emerging rom genocideor identity-con ict to dra t legislation that can help prevent a return to violence, balancingthe need to protect identity categories and reedom o expression. In particular, the UNshould consider providing an appropriate, voluntary mechanism – perhaps in partnership

with Legal A airs and the Ofce o Genocide Prevention – to provide expert advice on

his may help to alleviate what some perceive as a problem o over-en orcement o casesrelated to genocide ideology.

Identify and increase capacity support for local initiatives that seek to build trust among all identity

dra ting precise legislation ocused on incitement, and related matters. In this instance‘precise’ means that the law enables any individual to regulate conduct with a reasonablemeasure o certainty as to the legal consequences o a given action.



40

In our work on this report, the authors have been humbled by the resilience o the Rwandanpeople and the strides that society has made toward seeking a better uture. Te authorshave also been struck by the extraordinary activity taking place worldwide, to map out and

been particularly attentive to the many ways in which countries emerging rom genocideand related crimes are seeking remedies – legal, educational, economic, security and more –to prevent a return to the cycles o violence that have already devastated populations.

In the Con erence that ormed the conceptual basis or this report, the diverse contributions

Rwanda experience can be instructional or similar e orts taking place (or contemplated)in other countries. Our motivation is partially tied to curiosity about the nature ande ects o genocide denial and hate speech laws, but also tied to our belie that overly broad laws, which seek to constrain one’s individual and collective sense o identity, canactually exacerbate tendencies or countries emerging rom violence to return to conditionso violence (recidivism). Our work is grounded in a belie that the responsibility to heal

For the many persons worldwide who have been watching and rooting or Rwanda’s

emergence rom the cloud o atrocity crimes, the hope is that the country can continueto steer a course that mitigates possibilities or any return to violence steeped in ethnicmanipulations.

V. Conclusion

ethnic divisions widened by atrocity crimes, and even to weave a new national narrative

hate speech laws should support rather than undermine.

address the causes, incitements and security implications o atrocity crimes. We have also

o scholars, government ofcials and advocates were ocused on nding ways in which the

rom diverse regional and cultural strands, is a noble e ort- one which genocide denial and



41

ANNEX I

COMPARATIVE LEGISLATION

Relevant Rwandan Laws

Constitution of the Republic of Rwanda

As cited in the preamble to the Genocide Ideology Law, Article 9 o the Constitutionre ects the undamental principle sought to be en orced through the Genocide Ideology Law. It states:

‘Te State o Rwanda commits itsel to con orm to the ollowing undamental principlesand to promote and en orce respect thereo :

Fighting the ideology o genocide and all its mani estations;

Eradication o ethnic, regional and other divisions and promotion o national unity;

Equitable sharing o power;

Building a State governed by the rule o law, a pluralistic democratic government, equality o all Rwandans and between women and men re ected by ensuring that women are grantedat least thirty per cent o posts in decision making organs;

Building a State committed to promoting social wel are and establishing appropriate

mechanisms or ensuring social justice;Te constant quest or solutions through dialogue and consensus.’

Article 13 is also relevant:

‘Te crime o genocide, crimes against humanity and war crimes do not have a period o limitation.

Revisionism, negationism and trivialization o genocide are punishable by law.’

Genocide Ideology Law30

It is necessary to examine the law under examination in this Report in ull, but the mostrelevant Articles are set orth herein:

‘Considering the fact that after the genocide of 1994, the crime of genocide ideology is still persisting in the country;

30 LAW N°18/2008 OF 23/07/2008 RELATING TO THE PUNISHMENT OF THE CRIME OF GENOCIDE IDEOL-OGY.



42

After considering the fact that it necessary to prevent and punish genocide ideology in order not for genocide to be committed again in the country:

Adopts:[…]

Chapter 1. GENERAL PROVISIONS

Article: 1 Purpose of this law

Tis Law aims at preventing and punishing the crime o genocide ideology.

Article: 2 Def inition of “genocide ideology”

Te genocide ideology is an aggregate o thoughts characterized by conduct, speeches,documents and other acts aiming at exterminating or inciting others to exterminate peoplebasing on ethnic group, origin, nationality, region, color, physical appearance, sex, language,religion or political opinion, committed in normal periods or during war.

Article: 3 Characteristics of the crime of genocide ideology

Te crime o genocide ideology is characterized in any behavior mani ested by acts aimed atdehumanizing a person or a group o persons with the same characteristics in the ollowingmanner:

1° threatening, intimidating, degrading through de amatory speeches, documents or actionswhich aim at propounding wickedness or inciting hatred;

2° marginalizing, laughing at one’s mis ortune, de aming, mocking, boasting, despising,degrading, creating con usion aiming at negating the genocide which occurred, stirringup ill eelings, taking revenge, altering testimony or evidence or the genocide whichoccurred;

3° killing, planning to kill or attempting to kill someone or purposes o urthering genocideideology.



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Chapter 2. PENAL IES

Article: 4 Sentencing the crime of genocide ideology

Any person convicted o the crime o genocide ideology as mentioned in Articles 2 and

3 o this Law shall be sentenced to an imprisonment o ten (10) years to twenty ve (25)years and a ne o two hundred thousand (200.000) to one million (1.000. 000 ) Rwandan

rancs.

In case o recidivism, the penalty provided or in the preceding paragraph shall bedoubled.’

Law on Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes31

Tis 2003 law sets out the law on negationism and minimization o genocide in Article 4:

‘Shall be sentenced to an imprisonment o ten (10) to twenty (20) years, any person whowill have publicly shown, by his or her words, writings, images, or by any other means, thathe or she has negated the genocide committed, rudely minimized it or attempted to justi y 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 associationor a political party, its dissolution shall be pronounced.’

Law on Prevention, Suppression and Punishment of the Crime of Discrimination and Sectarianism32

Articles 1-5 & 8 provide the relevant substantive law or the purposes o the Report:

‘Chapter 1. DEFINITIONS OF TERMS

Article: 1

According to this law:

1° Discrimination is any speech, writing, or actions based on ethnicity, region or country o origin, the colour o the skin, physical eatures, sex, language, religion or ideas aimed atdepriving a person or group o persons o their rights as provided by Rwandan law and by International Conventions to which Rwanda is party;

2° Sectarianism means the use o any speech, written statement or action that dividespeople, that is likely to spark con icts among people, or that causes an uprising whichmight degenerate into stri e among people based on discrimination mentioned in articleone;

ITY AND WAR CRIMES.32 LAW NO 47/2001 of 18/12/2001 ON PREVENTION, SUPPRESSION AND PUNISHMENT OF THE CRIME OF DIS-CRIMINATION AND SECTARIANISM.

31 LAW N 0. 33 BIS/2003 of 06/09/2003 ON REPRESSING THE CRIME OF GENOCIDE, CRIMES AGAINST HUMAN-



44

3° Deprivation o a person o his/her rights is the denial o rights provided by Rwanda Law and by International Conventions to which Rwanda is party.

Chapter 2. GENERAL PROVISIONS Article: 2

Tis law aims at punishing any person guilty o the crime o discrimination andsectarianism.

Article: 3

Te crime o discrimination occurs when the author makes use o any speech, writtenstatement or action based on ethnicity, region or country o origin, colour o the skin,physical eatures, sex, language, religion or ideas with the aim o denying one or a group o persons their human rights provided by Rwandan law and International Conventions towhich Rwanda is party.

Te crime o sectarianism occurs when the author makes use o any speech, writtenstatement or action that causes con ict that causes an uprising that may degenerate intostri e among people.

Article: 4

Tis law does not prevent the state or rom taking decisions that give Rwandan nationalspowers and rights di erent rom those o oreigners.

Chapter 3. SANCTIONS

Article: 5

Any person guilty o the crime o discrimination or sectarianism mentioned in article 3 o this law, is sentenced to between three months and two years o imprisonment and nedbetween ty thousand (50,000) to three-hundred thousand (300,000) Rwandan Francs oronly one o these sanctions.

When the o ender o the crime o discrimination or sectarianism is a government ofcial,a ormer government ofcial, a political party ofcial, an ofcial in the private sector, or anofcial in nongovernmental organization, he/she is sentenced to between one year and veyears o imprisonment and ned between ve hundred thousand (500.000) to two million(2.000.000) Rwandan Francs or one o those two sanctions.

[…]



45

Article: 8

Any person who makes public any speech, writing, pictures or images or any symbols overradio airwaves, television, in a meeting or public place, with the aim o discriminatingpeople or sowing sectarianism among them is sentenced to between one year and ve yearso imprisonment and ned between ve hundred thousand (500.000) and two million(2.000.000) Rwandan Francs or only one o these two sanctions.’



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Genocide Denial Laws

Comparative genocide denial laws

Austria: Section 3(h) o the Prohibition Act states that:

33

Punishment or this crime is imprisonment or between 1 and 10 years.34 Tis law requirespublication or utterances that are in the public domain and/or accessible to a sufciently

large number o people in order to be applicable. No urther acts, consequences or intentions(other than that to deny or minimize) is required on the part o the o ender.

Belgium: Article 1 o the Law o 23 March 199535 states:

Te circumstances given in Article 444 o the Belgian Penal Code are as ollows: either inpublic meetings or places; or in the presence o several people, in a place that is not publicbut accessible to a number o people who are entitled to meet or visit there; or in any placein the presence o the o ended person and in ront o witnesses; or through documents,

printed or otherwise, illustrations or symbols that have been displayed, distributed, sold,o ered or sale, or publicly exhibited; or nally by documents that have not been madepublic but which have been sent or communicated to several people. Te law explicitly

ocuses on one act o genocide, and links the de nition o the crime to that o the GenocideConvention 1948.

Norms (Leiden and Boston: Tel Aviv university and Martinus Nijhof, 2005), at p. 87.35 Moniteur Belge No. 7996 of 30 March 1995.

‘A person shall also be liable to a penalty [ ] i , in print or in broadcast or in some other

medium, or otherwise public ly in any manner accessible to a large number o people, i he

denies the National Socialist Genocide or other National Socialist crimes against humanity,or seeks to minimize them in a coarse manner or consents thereto or to justi y them.’

‘Whoever, in one o the circumstances indicated by Article 444 o the Penal Code, denies,

o eight days to one year and to a ne o twenty sex to ve thousand rancs.

grossly minimizes, tries to justi y or approves o the genocide committed by the German

National-Socialist regime during the Second World War will be punished by imprisonment

For application o the ormer, the term genocide is intended in the sense o Article 2 o the International Convention o 9 December 1948 or the prevention and repression o the

crime o genocide.’

33 Osterreich, StGBI 13/1945, amended version BCBI 148/1992.34 See N. Osin & D. Porat (eds.), Legislating against Discrimination: An International Survey of Anti-Discrimination



47

Czech Republic : Article 261(a) o the amended Constitution o 16 December 199236 states:

Tis law, as with those set out above, includes attempted justi cation within the list o actsthat are criminalized, expanding the scope o application beyond mere denial. Te actionmust be done ‘publicly’. Te Czech Republic has criminalized these acts with respect toall crimes committed by two groups: Nazis and communists. Te emphasis is there ore on theactor more than on the crime o genocide itsel .

France : Under Article 24bis, Press Act o July 29 1881 (amended by Act No. 90-615 o July 13 1990, known as the Gayssot Law):

37

A central objective or the introduction o this law was to remove the issue o the ‘ alsecontestation o genocide’38 rom the judicial branch in France, which had become an openavenue or controversial legal debates on the realities o the Holocaust. Tis law criminalizesthe contestation o the Holocaust without permitting the judicial branch to examinequestions concerning the historical validity o the crimes at issue. A legal challenge to thislaw taken to the Human Rights Committee that monitors the International Covenant onCivil and Political Rights ound that “[his] conviction there ore did not encroach upon hisright to hold and express an opinion in general, rather the court convicted Mr. Faurisson

or having violated the rights and reputation o others.”39

Germany : Article 130, paragraph 3, o the German Penal Code (amended 1994) states:

38 See Robert A. Kahn, Holocaust Denial and the Law: A Comparative Study (Palgrave, New York: 2004) at p. 37.39 Faurisson v. France, Communication No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993(1996).

‘Te person who public ly denies, puts in doubt, approves or tries to justi y Nazi or communist

genocide or other crimes o Nazis or communists will be punished by prison o 6 months

to 3 years.’

‘Tose who have disputed, by one o the means stated in Article 23, the existence o one

or more crimes against humanity as they are de ned by the article o the statute o the

which were committed by members o an organization declared criminal by the applicationo Article 9 o the above-mentioned statute or by a person ound guilty o such crimes by

international military tribunal, annexed to the London Agreement o 8 August 1945, and

a French or an international tribunal, will be punished…’

‘Whoever publicly, or at a meeting, denies, diminishes, or approves o an act committed

under the regime o National Socialism, o the kind described in Artic le 220A, paragraph

public places or meetings’.

36 This amended section 261(a) was introduced by the 2001 Law Against Support and Dissemination of Move-ments Oppressing Human Rights and Freedoms.37 These means must be ‘uttered in public places or meetings’ or be items ‘sold, distributed , offered for sale or exhibited in



48

Article 220A re ers to the de nition o the crime o genocide. Te German criminalprovision explicitly limits the reach o this section by requiring that the action by an allegedo ender is committed ‘in a way likely to disturb public peace’. Te law does not require thatthe alleged o ender intend to disturb the public peace to be held liable.

While the political and sociological explanations or the introduction o this law inGermany are beyond the scope o this Report, the judicial interpretation o this law (andits predecessors) indicates somewhat o a shi t in the objective underlying the stated legalpurpose o the law. Cases rom the 1970s, including the Supreme Court decision in theZionist Swindle case,40 indicate that prosecutions under these laws were intended to stopthe moral harm to the Jewish population or whom the Holocaust was a central event o

their sel -understanding.

As time progressed, the courts in Germany took ‘judicial notice’ (theOffenkundigkeit doctrine under German law) o the Holocaust, thereby removing the judicial branch asan avenue or historical debates on the occurrence or otherwise o the Holocaust. hesedevelopments, and the amendments set out above, coincided with the rising prominenceo right-wing parties and Holocaust denial in the newly-reuni ied German republic. heobjective o the implementation o the law, as illustrated by the “disruption o peace”requirement eatured in paragraph 3, there ore ocused more on removing Holocaust

denial or approval as an activity or civil unrest. However, as recent as 1994 in theHolocaust Denial Case in the Federal Constitutional Court, a ocus on Jewish ‘personality’ or dignity was stressed as an important rationale or the necessity o a genocide denial law.41

Hungary : Amendments to the Hungarian criminal code were passed this year. In March2010, legislation was passed, making it a criminal o ense to ‘publicly hurt the dignity o a victim o the Holocaust by denying or questioning the Holocaust itsel , or claim itinsigni cant.” Such acts can be punished by a prison sentence o up to three years.’42 InJune 2010, a urther bill was passed that equated Communist-era crimes with those o theHolocaust.

Again, the law explicitly ocuses on the damage to the dignity o a victim o the Holocaustor Communist era crimes through denial or diminishment o these events. Te actionstaken must be conducted ‘publicly’.

40 BGHZ ( Entscheidungen des Bundesgerichthofes in Zivilsachen ) 75 (September 18, 1979).41 BVerfG 13 April 1994, 90 BVerfGE 241.42 See http://www.genocidepreventionnow.org/2010/06/laws-banning-holocaust-denial.html (last checked 11.08.10).

2, in a way likely to disturb public peace shall be punished by imprisonment up to ve years,

or a monetary ne.’



49

Israel: Te Denial of the Holocaust (prohibition) Law, 5746-198643 states:

Israel’s laws include several speci c elements o relevance in analyzing genocide deniallegislation. First, under paragraph 2, in addition to the intent to publish a statement, thealleged wrongdoer must intend to ‘de end the perpetrators o those acts or to expresssympathy or identi cation with them’.

Second, this additional element o intent is not included in paragraph 3, which criminalized

the publication o a statement ‘expressing praise or sympathy or or identi cation with actsdone’ during the Nazi era. Te di erence between paragraphs 2 and 3 suggests that theintent o the actor is important in determining what conduct to criminalize under theseauspices.

Tird, paragraph 4 protects reedom o speech by ensuring that reportsabout bannedpublications are not themselves included as criminal acts, as long as the intent o thepublisher is not to urther support or those expressing sympathy towards Nazi crimes.

Luxembourg : Te crimes o ‘negationism or revisionism’, set out in Article 457-3 o therevised Criminal Code, permits a prison sentence o between one week and six months

or anyone who, in some public manner, ‘has contested, minimized, justi ed or deniedthe existence o war crimes or crimes against humanity as de ned in the statutes o the International Military ribunal o 8 August 1945 or the existence o a genocide asde ned by the Act o 8 August 1985.’44 Luxembourg’s law is there ore explicitly tied to the

ramework o an international instrument or its domestic interpretation, although Article457-3 does only criminalize these acts i justi ying the acts o a person ‘recognized as guilty43 Sefer Ha-Chukkim No. 1187 of 9 Tammuz 5746 (16 July 1986), at p. 196.

EN.asp (last checked on 8.18.10).

‘2. A person who, in writing or by word o mouth, publishes any statement denying or

are crimes against the Jewish people or crimes against humanity, with intent to de end thediminishing the proportions o acts committed in the period o the Nazi regime, which

to imprisonment or a term o ve years.

perpetrators o those acts or to express sympathy or identi cation with them, shall be liable

3. A person who, in writing or by word o mouth, publishes any statement expressing

praise or sympathy or or identi cation with acts done in the period o the Nazi regime,

imprisonment or a term o ve years.

which are crimes against the Jewish people or crimes against humanity, shall be liable to

4. Te publication o a correct and air report o a publication prohibited by this Law shall

sympathy or identi cation with the perpetrators o crimes against the Jewish people ornot be regarded as an o ence thereunder so long as it is not made with intent to express

against humanity.’

44 See http://www.coe.int/t/dghl/monitoring/ecri/legal_research/national_legal_measures/luxembourg/luxembourg%20sr_



50

bya Luxembourg, oreign or international court ’ (emphasis added).

Poland: Articles 1 and 55 o the Act o 18 December 1998 on the Institute o National

Remembrance Commission or the Prosecution o Crimes against the Polish Nationstates:

Te Polish legislation on genocide denial alls within a much broader legislative schemeencompassing a a period o time de ned as approximately 45 years; crimes committed by two sets o actors (Nazis and communists); and an intent to encompass other ‘crimes againstpeace, crimes against humanity or war crimes.’ Article 55 urther permits the Polish judiciary to undertake examinations o the actual record on such crimes as it requires contradictiono a crime ‘contrary to acts’, and could thus be de ended against by contestation o theempirical reality o any given event.

Portugal: Article 240, paragraph 2(b), states:

‘Article 55: He who publicly and contrary to acts contradicts the crimes mentioned in

Article 1, clause 1 shall be subject to a ne or a penalty o deprivation o liberty o up to

three years. Te judgment shall be made publicly known.

Article 1: Tis Act shall govern - I. the registration, collection, access, management and use

o the documents o the organs o state security created and collected between 22 July 1944

and 31 December 1989, and the documents o the organs o security o the Tird Reich andthe Union o Soviet Socialist Republics concerning:

a) crimes perpetrated against persons o Polish nationality and Polish citizens o other

- Nazi crimes,

- Communist crimes,

- Other crimes constituting crimes against peace, crimes against humanity or war crimes’.

ethnicity, nationalities in the period between 1 September 1939 and 31 December 1989:

‘2 - Whoever in a public meeting, in writing intended or dissemination, or by any meanso media:

(…)

(b) de ames or slanders an individual or group o individuals because o race, color, ethnic

or national origin or religion, particularly through the denial o war crimes or against

peace and humanity…with the intent to incite to racial or religious discrimination or to



51

Te legislation o Portugal, under Article 240, paragraph 2(b) o the Penal Code, explicitly links denial o war crimes, crimes against humanity or against peace (which includesgenocide or the purposes o this legislation) to both the de amation or slander o anindividual and to the necessary intent o inciting racial or religious discrimination. Whilethe denial o genocide would automatically be counted as de amation o slander (though itis acially unclear whether the legislation allows or contestation o the actual matrix o agenocide), the wrongdoer’s alleged illegal actions must be intended to incite discrimination,which there ore limits the reach o the law.

Romania: Article 6 o the Emergency Ordinance No. 31 o March 13, 2002 states:

‘Denial o the Holocaust in public, or to the e ects thereo is punishable by imprisonmentrom 6 months to 5 years and the loss o certain rights.’

Romania has adopted legislation that is analogous to that in France that is intended not topermit judicial examination o the acts o the Holocaust.

Switzerland: Article 261biso the Swiss Penal Code, which entered into orce on 1 January 1995, states in paragraph 4:

Te maximum prison sentence under this law is 3 years. Te Swiss legislation links thecriminalization o denial to thereasono a ecting human dignity because o race, ethnicity or religion. Tere ore, denial without urther motivation is not criminalized.

Continued support for ‘genocidal’ organizations

In speci c historical situations involving genocidal crimes, the wrongdoers have beencentered on a set o identi able symbols and afliations, continued support or whichhas been explicitly criminalized within certain jurisdictions as either a violation o thedignity o victims or as a necessary measure to ensure that the criminal organization is notallowed to return or re ourish. Tese measures highlight a variety o legal tools availablein combating structures that have led to genocide. However, these measures will present

greater threats to the reedom o speech, expression and association i the organizational orinstitutional structures that supported genocide are less clearly de ned.

encourage it, shall be punished with imprisonment rom 6 months to 5 years.’

‘[He] who, publicly, by word o mouth, in writing, by image, by gesture, by assault or in any

other way, belittles or discriminates in a way which a ects the human dignity o a person

or the same reason, denies, grossly minimizes or tries to justi y a genocide or other cr imes

against humanity…shall be punished with imprisonment or a ne.’

or a group o persons because o their race, their ethnic belonging or their religion or who,



52

Under Article 21, paragraph 2, o theGrundgesetz(Basic Law) o the Federal Republico Germany, the Constitutional Court has the power to rule on the constitutionality o political parties that ‘by reason o their aims or the behavior o their adherents, seek toundermine or abolish the ree democratic basic order or to endanger the existence o the

Federal Republic o Germany…’ Te GermanStrafgesetzbuch(or Penal Code) outlaws the‘dissemination o means o propaganda o unconstitutional organizations’45 and the ‘use o symbols o unconstitutional organizations’.46 Tese bans are cabined quite strictly however,as seen in the text o each section:

Section 86a bans the use o symbols o those organizations listed in Section 86, in particular‘ ags, insignia, uni orms, slogans’ and similar symbols that will be mistaken or o ensiveones. Tere is, under Section 86a(3) and 86(3), the possibility o interpreting an exemptionto this blanket ban in cases in which the propaganda or symbol was used ‘to urther civil

enlightenment, to avert unconstitutional aims, to promote art or science, research orteaching, reporting about current historical events or similar purposes’, and the GermanConstitutional Court’s jurisprudence on this issue suggests an increasing unwillingness to

nd violations o this law or cases in which the intention o the alleged wrongdoer was notto support the purposes o banned organizations.47

Article 269/B o the Hungarian Penal Code includes a similar provision, stating:45 Section 86.46 Section 86a.47 See generally Nazi Symbols case, BGH, March 15 2007, 51 Entscheidungen des Bundesgerichtshofes in Strafsa-chen.

‘Section 86

Whoever domestically disseminates or produces, stocks or imports or exports or makes

publicly accessible media or dissemination domestically or abroad, means o propaganda:

o a party which has been declared to be unconstitutional by the Federal Constitutional

substitute organization o such a party;

Court or a party or which it has been determined, no longer subject to appeal, that it is a

[…]

National Socialist Party shall be punished with imprisonment or not more than 3 years

or a ne.

Means o propaganda within the meaning o subsection (1) shall only be those writings which

are directed against the ree, democratic constitutional order or the idea o internationalunderstanding.’

means o propaganda, the contents o which are intended to urther the aims o a ormer



53

Te exemptions to the application o this law under subsection (2), as well as therequirements o paragraphs (a)-(c) that the usage be made in clearly public settings, ensuresthat prohibitions are only placed on illegitimate intentions.

Regional instruments

Te Council o the European Union has addressed denial and minimization within the

ramework o combating racism and xenophobia. Council Framework Decision 2008/913/JHA on ‘combating certain orms and expressions o racism and xenophobia by means o criminal law’ sets out the o ences concerning racism and xenophobia in Article 1, whereparagraphs (c) and (d) provide:

‘(1) Te person who

Distributes;

Uses be ore great a large number o people;

Exhibits in public;

a swastika, the SS sign, an arrow-cross, sickle and hammer, a ve-pointed red star or asymbol depicting the above…shall be punishable with a ne.

(2) Te person who commits the act de ned in subsection (1) or the purposes o the

dissemination o knowledge, education, science, or art, or with the purpose o in ormation

about the events o history or the present time, shall not be punishable.’

‘1. Each Member State shall take the measures necessary to ensure that the ollowing

intentional conduct is punishable:

(c) publicly condoning, denying or grossly trivialising crimes o genocide, crimes against

humanity and war crimes as de ned in Articles 6, 7 and 8 o the Statute o the International

Criminal Court, directed against a group o persons or a member o such a group de nedby re erence to race, colour, religion, descent or national or ethnic origin when the conductis carried out in a manner likely to incite to violence or hatred against such a group or a

member o such a group;

(d) publicly condoning, denying or grossly trivialising the crimes de ned in Article 6 o the Charter o the International Military ribunal appended to the London Agreement o

8 August 1945, directed against a group o persons or a member o such a group de ned

by re erence 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 amember o such a group.



54

Te nal sentence o paragraph 1(c) was introduced over concerns over the breadth o the law absent urther limitation. Acts o denial must be intentional and likely to inciteviolence or hatred against the targeted group. As demonstrated in paragraph 2, the greaterpossibility or Member States to limit which acts they criminalize expresses the concernthat public condonation, trivialization or denial,without further intent or consequences

owing rom these utterances, is not sufciently respective o ree speech concerns, and isnot sufcient ‘wrongdoing’ to lead to criminal sanction. Te penalties or these actions inArticle 3 are intended to be ‘e ective, proportionate and dissuasive’.

A preceding Council o Europe Protocol – the Additional Protocol to the Convention

on cybercrime, concerning the criminalization o acts o a racist and xenophobic naturecommitted through computer systems (2003) – included Article 6 onDenial, grossminimization, approval or justif ication of genocide or crimes against humanity:

1. Each Party shall adopt such legislative measures as may be necessary to establish theollowing conduct as criminal o ences under its domestic law, when committed intentionally

and without right:

distributing or otherwise making available, through a computer system to the public,material which denies, grossly minimises, approves or justi es acts constituting genocideor crimes against humanity, as de ned by international law and recognised as such by naland binding decisions o the International Military ribunal, established by the LondonAgreement o 8 August 1945, or o any other international court established by relevantinternational instruments and whose jurisdiction is recognised by that Party.

2. A Party may either

a. require that the denial or the gross minimisation re erred to in paragraph 1 o thisarticle is committed with the intent to incite hatred, discrimination or violence against

any individual or group o individuals, based on race, colour, descent or national or ethnicorigin, as well as religion i used as a pretext or any o these actors, or otherwise

2. For the purpose o paragraph 1, Member States may choose to punish only conduct

abusive or insulting.

which is either carried out in a manner likely to disturb public order or which is threatening,

[…]

4. Any Member State may, on adoption o this Framework Decision or later, make a

statement that it will make punishable the act o denying or grossly trivialising the crimes

re erred to in paragraph 1(c) and/or (d) only i the crimes re erred to in these paragraphshave been established by a nal decision o a national court o this Member State and/or

an international court, or by a nal decision o an international court only.’



55

b. reserve the right not to apply, in whole or in part, paragraph 1 o this article.

Paragraph 2 highlights the concerns o some States that a blanket criminalization o thisorm o action, whereby a speech act is criminalized with no urther intent or actions, is too

restrictive upon the rights to ree speech and ree expression. Permitting States to requirethe denial/minimization to be accompanied with intent to incite hatred, discrimination orviolence permits the law to ocus on an objective o stopping denial’s utilization as a tool

or ethnic hatred.

Te European Court o Human Rights however has ound that even non-contestationlaws as streamlined as that o France (seesupraon the Gayssot Law) do not violate Article10 on reedom o expression. Most recently, inGaraudy v. France ,48 the Court held thatthe Gayssot Law criminalizing Holocaust denial was not a violation o the Conventionbecause to permit this category o historical act to be denied is an acceptance o an abuse

o rights, which is not permitted under Article 1749 o the Convention. In addition, suchlimitations would be permitted under the limitations clause o Article 10, paragraph 2.50

‘Hate Speech’ and Incitement to Violence Laws

International law standards

Te International Covenant on Civil and Political Rights (ICCPR) sets out the coreelements o the reedom o speech and expression, as well as the legitimate limitations onthis right under this instrument:

48 Case No. 65831/01 of 24 June 2003 (Grand Chamber).49 ‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any ac-tivity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to agreater extent than is provided for in the Convention.’50 ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, con-ditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of nationalsecurity, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in con dence, or for maintaining the authority and impartiality of the judiciary.’

‘Article 19

1. Everyone shall have the right to hold opinions without inter erence.

2. Everyone shall have the right to reedom o expression; this right shall include reedomto seek, receive and impart in ormation and ideas o all kinds, regardless o rontiers, either

3. Te exercise o the rights provided or in paragraph 2 o this artic le carries with it specialduties and responsibilities. It may there ore be subject to certain restrictions, but these shall

only be such as are provided by law and are necessary:

orally, in writing or in print, in the orm o art, or through any other media o his choice.

(a) For respect o the rights or reputations o others;



56

Paragraph 3 o Article 19 clearly permits States to implement ‘certain restrictions’ on therights o reedom o expression. However, as the Human Rights Committee set out in itsGeneral Comment No. 10 on Article 19: ‘[When] a State party imposes certain restrictionson the exercise o reedom o expression, these may not put in jeopardy the right itsel .Paragraph 3 lays down conditions and it is only subject to these conditions that restrictionsmay be imposed: the restrictions must be “provided by law”; they may only be imposed orone o the purposes set out in subparagraphs (a) and (b) o paragraph 3; and they must bejusti ed as being “necessary” or that State party or one o those purposes.’51 Te scopeo this limitations clause should additionally be narrowed interpreted given the explicitrequirement in Article 20 that certain orms o conductmust be prohibited under a State’slaws. Te prohibition on ‘advocacy o national, racial or religious hatred’ under paragraph2 must constitute ‘incitement to discrimination, hostility or violence’ to all under themandatory ban; while this may seem unduly limited in prohibiting hatred, it displays thetension between protecting vulnerable populations and maintaining the core rights o reespeech and expression.

Te International Convention on the Elimination o All Forms o Racial Discrimination(CERD) sets out key measures that States should adopt to ensure the eradication o theoriesand practices o racial superiority and hatred:

51 Human Rights Committee, General Comment 10, Article 19 (Nineteenth session, 1983), Compilation of GeneralComments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 11

(1994).

(b) For the protection o national security or o public order (ordre public), or o public

health or morals.

Article 20

1. Any propaganda or war shall be prohibited by law.

2. Any advocacy o national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law.’

‘Article 4

or theories o superiority o one race or group o persons o one colour or ethnic origin,

or which attempt to justi y or promote racial hatred and discrimination in any orm, and

undertake to adopt immediate and positive measures designed to eradicate all incitement to,or acts o , such discrimination and, to this end, with due regard to the principles embodied

in the Universal Declaration o Human Rights and the rights expressly set orth in article5 o this Convention, inter alia:

States Parties condemn all propaganda and all organizations which are based on ideas

(a) Shall declare an o ence punishable by law all dissemination o ideas based on racial



57

Te promotion o prohibitions o conduct that supports racial superiority or discriminationmust take into account the Convention’s de nition o ‘racial discrimination’, set out in

paragraph 1 o Article 1: ‘In this Convention, the term “racial discrimination” shall meanany distinction, exclusion, restriction or pre erence based on race, colour, descent, ornational or ethnic origin which has the purpose or e ect o nulli ying or impairing therecognition, enjoyment or exercise, on an equal ooting, o human rights and undamental

reedoms in the political, economic, social, cultural or any other eld o public li e.’ It isclear that merely re erencing or recognizing ethnic or racial di erences – whether basedon an empirical grounding or a social construct – does not constitute racial discrimination,and is there ore not covered by the Convention. Article 4 is care ully drawn to requireprohibitions o actions that are either sufciently possessive o racial hatred as to permit

immediate action, or to be accompanied with the requisite intent to incite hostility ordiscrimination that is itsel o legitimate concern or a State.52

Each o the regional human rights instruments addresses reedom o expression andaccompanying conceptions o legitimate restrictions on this right. Te AmericanConvention on Human Rights prohibits any ‘advocacy o national, racial or religious hatredthat constitutes incitements to lawless violence or to any other similar action’; there isalso a limitations clause on the right o reedom o expression, care ully drawn as in theICCPR. 53 52 See CERD General Comment No. 15, paragraph 3: ‘Article 4 (a) requires States parties to penalize four categories of mis -conduct: (i) dissemination of ideas based upon racial superiority or hatred; (ii) incitement to racial hatred; (iii) acts of violenceagainst any race or group of persons of another colour or ethnic origin; and (iv) incitement to such acts.’ Committee on theElimination of Racial Discrimination, General Recommendation 15, Measures to eradicate incitement to or acts of discrimi-nation (Forty-second session, 1993), U.N. Doc. A/48/18 at 114 (1994), reprinted in Compilation of General Comments andGeneral Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.6 at 204 (2003).53 ‘ Article 13. Freedom of Thought and Expression

1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart infor-mation and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subjectto subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a. respect for the rights or reputations of others; or

b. the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private con-

incitement to such acts against any race or group o persons o another colour or ethnic

origin, and also the provision o any assistance to racist activities, including the nancing

superiority or hatred, incitement to racial discrimination, as well as all acts o violence or

thereo ;

(b) Shall declare illegal and prohibit organizations, and also organized and all other

propaganda activities, which promote and incite racial discrimination, and shall recognize

participation in such organizations or activities as an o ence punishable by law;

or incite racial discrimination.’(c) Shall not permit public authorities or public institutions, national or local, to promote



58

Te A rican Charter on Human and Peoples’ Rights includes the right to ree expressionas well the duty ‘to respect and consider his ellow beings without discrimination, and tomaintain relations aimed at promoting, sa eguarding and rein orcing mutual respect andtolerance.’54

Article 10 o the European Convention on Human Rights addresses reedom o expressionand its legally valid limitations:

It is clear that paragraph 2 o Article 10 sets out limitations on this right which may be necessary in a democratic society. It is thus a high bar to justi y the imposition o arestriction on reedom o expression, and one that ought not to be taken without precisionand clarity. Te ECtHR has made it clear that any legal restrictions on ree speech in thename o regulating hate speech must include an intent requirement – i.e. that the speakerintended to stir up racial hostility through their speech, and was not merely discussing orpresenting views that themselves may be o ensive. See, or example,Jersild v. Denmark,55 which stated that a journalist’s presentation o the racist views o others could not becriminalized, as it was “undisputed that the purpose o the applicant in compiling thebroadcast in question was not racist.”56

Te Council o Europe Framework decision set out above on combating racism andxenophobia by means o criminal law also addresses incitement to violence or hatred againstcertain de ned groups:

trols over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawlessviolence or to any other similar action against any person or group of persons on any grounds including those of race, color,religion, language, or national origin shall be considered as offenses punishable by law.’54 African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21I.L.M. 58 (1982), entered into force Oct. 21, 1986, Articles 9 and 28.

56 Id. at para. 36.

‘1. Everyone has the right to reedom o expression. Tis right shall include reedom to

hold opinions and to receive and impart in ormation and ideas without inter erence by

public authority and regardless o rontiers. Tis Article shall not prevent States romrequiring the licensing o broadcasting, television or cinema enterprises.

be subject to such ormalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests o national security, territorial

integrity or public sa ety, or the prevention o disorder or crime, or the protection o

health or morals, or the protection o the reputation or rights o others, or preventingthe disclosure o in ormation received in con dence, or or maintaining the authority and

impartiality o the judiciary.’

2. Te exercise o these reedoms, since it carries with it duties and responsibilities, may

55 Application no. 15890/89, Grand Chamber Judgment, 23 September 1994.



59

Te Framework decision is alert to the necessity o maintaining the distinction between thepublic and the private dissemination o prohibited viewpoints. Additionally, the prohibitedact must be to incite ‘violence or hatred’ against one o the de ned groups, a standard thatwill ensure a distinction is drawn between higher and lower level conduct or criminalsanctions to apply. Paragraph 2 o Article 1 permits States to require an even higher burdenbe ore criminalizing conduct in this arena.

Comparative laws on hate speech and incitement

Te ollowing section presents and analyzes a selection o national laws addressing hatredand incitement against ethnic or racial groups within national borders, and is intendedto present examples rom jurisdictions that have con ronted heightened tensions in thisrespect. It is neither comprehensive nor exhaustive, but meant to illustrate instructiveexamples.

Australia: Article 18 o the Commonwealth Racial Discrimination Act 1975 (as amendedthrough 2009) addresses behavior directed at individuals or groups because o theirmembership o a racial, national or ethnic group. Under Article 18(B), i one o the reasons

why an act is done is the race or ethnic origin o the person being addressed or who theocus o the behavior is, then the act considers the behavior to have been done or the

malign and illegitimate reason. Article 18(C) and (D) set out that public acts or comments,i ‘reasonably likely, in all the circumstances, to o end, insult, humiliate or intimidateanother person or a group o people’ and the act is done because o the race o the personor people in the group, are illegal. Article 18(C)(2) makes it clear that these acts must bedone in public: they must be communicated to the public; done in a public place; or done‘in the sight or hearing o people who are in a public place.’ Te exemptions to this sanctionare set out in Article 18(D):

‘1. Each Member State shall take the measures necessary to ensure that the ollowing

intentional conduct is punishable:

(a) publicly inciting to violence or hatred directed against a group o persons or a membero such a group de ned by re erence to race, colour, religion, descent or national or ethnic

origin;

(b) the commission o an act re erred to in point (a) by public dissemination or distributiono tracts, pictures or other material;

2. For the purpose o paragraph 1, 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.’

‘Section 18(C) does not render unlaw ul anything said or done reasonably and in good



60

Te distinction between a air comment on an event or matter which is a sincerely held andgenuine belie – which is not unlaw ul – as compared to the acts in Article 18(C) that areprohibited must be care ully calibrated and delineated by the judicial branch. Te attemptto harmonize concerns or racial equality and the security o ethnic or racial groups isbalanced against demands or ree expression.

Austria: Article 283 o the Penal Code states:

Paragraph 2 o Article 283 is the more open-ended o the two aspects to this criminalpunishment. Te action must take place ‘publicly’; it must violate the human dignity o the intended target or targets; and the language used must stir up hatred or be insultingor disparaging. Te objective o this legislation is ocused on the dignity o the individualsthreatened by the words used in paragraph 2, and or public order in paragraph 1. Separatingthese two objectives may assist in clari ying the interpretation o each section as these

measures are applied.

Federation of Bosnia and Herzegovina: Sel -evident parallels can be drawn between therecent histories o Rwanda and Bosnia. Te Criminal Code o the Federation sets outthe criminalization o ‘inciting national, racial or religious hatred, discord or hostility’ inArticle 163:

aith:…

(c) in making or publishing:

(i) a air and accurate report o any event or matter o public interest; or

(ii) a air comment on any event or matter o public interest i the comment is an expressiono a genuine belie held by the person making the comment.’

‘Incitement to hostile action –

(1) Whoever, publicly, in a manner likely to endanger public order urges or incites others to

or up to two years.commit a hostile act…to a race, nation, tribe or state, shall be punished by imprisonment

(2) Te same punishment shall be imposed on anybody who publicly in a manner which

violates human dignity stirs up hate against any o the groups re erred to in Subsection (1)or insults it or seeks to disparage it.’

‘(1) Whoever publicly incites and in ames national, racial or religious hatred, discord or

hostility among constituent peoples and others who live in the Federation, shall be punishedby imprisonment or a term between one and ve years.



61

Te Article exhibits a graduated list o acts, so that additional elements o unlaw ul behavioror consequences are open to higher levels o criminal penalty. Exclusively verbal acts that

ocus on inciting and in aming hatred are set out in paragraph 1, and are separated romthe use o duress or abuse, or i acts result in riots or violence. Paragraph 1 does indicatethat penal sanctions o up to 5 years can be meted out to those publicly inciting hatred toracial groups. Greater sanctions are open to those who abuse their ofcial post or authority,or i the actions result in ‘riots, violence and other grave consequences’.

Canada: Articles 319 o the Canadian criminal code addresses incitement o hatred:

(2) Whoever perpetrates the criminal o ence re erred to in paragraph 1 o this Article by

employing duress and abuse, jeopardizing the sa ety, exposing national, ethnic or religious

symbols to derision, damaging other people’s belongings, desecrating monuments or graves,

shall be punished by imprisonment or a term between one and eight years.

(3) By the punishment re erred to in paragraph 2 o this Article shall be punished whoeverperpetrates the criminal o ence re erred to in paragraph 1 o this Article by abusing his

ofcial post or authority or i that act resulted in riots, violence and other grave consequencesto li e o constituent peoples and others who live in the Federation.

(4) Whoever perpetrates the criminal o ence re erred to in paragraph 2 o this Article by

abusing his ofcial post or authority or i that act resulted in riots, violence and other graveconsequences to li e o constituent peoples and others who live in the Federation, shall bepunished by imprisonment or a term between one and ten years.’

‘319

(1) Everyone who, by communicating statements in a public place, incites hatred againstany identi able group where such incitement is likely to lead to a breach o the peace isguilty o

(a) an indictable o ence and is liable to imprisonment or a term not exceeding two years;

or

(b) an o ence punishable on summary conviction.

(2) Everyone who, by communicating statements, other than in private conversation,

will ully promotes hatred against an identi able group is guilty o

(a) an indictable o ence and is liable to imprisonment or a term not exceeding two years;or

(b) an o ence punishable on summary conviction.



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Te placing o this Article directly ollowing that o incitement to genocide indicatessomewhat that the Canadian legislative branch recognized the close connection betweenincitement o racial hatred and incitement to genocide at the extreme o hate-speech.Article 319, paragraph 1, requires that the incitement to hatred be ‘likely to lead to abreach o the peace’ to criminalize the action. Under paragraph 2, publicly communicatingstatements to promote hatred is indictable i one o the exemptions under paragraph 3 isnot present. Tese broad set o exemptions under paragraph 3 indicate the law’s objective togo as ar as protecting populations rom hatred, but to leave ample room or ree discussion

and expression on issues o race, ethnicity, nationality and religion. Ensuring that merediscussion o race or ethnicity in negative ways is not criminalized is central to the Canadianapproach.

France: A range o legislative enactments address racial or ethnic hatred within France,including Articles 23, 24, 29, 32, & 42 o the Law o July 29 1881 (Press Act); and R624-3and R625-7 o the French Penal Code. Most relevant are Articles 23 and 24(5):

(3) No person shall be convicted o an o ence under subsection (2)

(a) i he establishes that the statements communicated were true;

(b) i , in good aith, he expressed or attempted to establish by argument an opinion on a

religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which

was or the public bene t, and i on reasonable grounds he believed them to be true; or

(d) i , in good aith, he intended to point out, or the purpose o removal, matters producing

or tending to produce eelings o hatred toward an identi able group in Canada.’

‘Article 23: Persons who by speeches, cries or threats uttered in public places or meetings,or by writings, printed matter, drawings, engravings, paintings, emblems, pictures or any

other medium or writing, words or pictures sold, distributed, o ered or sale or exhibitedin public places or meetings, or by posters or notices exhibited to the public, directly incite

a person or persons to commit an act constituting a crime or an incitement is ollowed by

an overt act, as accessory thereto.

Article 24(5): Anyone who, by one o the means listed in Article 23, has incited to



63

Tese articles present the criminalization, with penalties o both nes and up to oneyear imprisonment possible, o the public utterance o words or dissemination o writtenmaterial that has incited discrimination, hatred or violence against an ethnic or racialgroup. A prosecution would there ore need to show that the words or deeds o the allegedwrongdoer have led to the negative results set out in Article 24(5).

Germany: Te same section that sets out the Holocaust denial laws examined in SectionIII above provides or the ollowing laws on criminalizing public incitement to hatred orviolence:

discrimination, hatred or violence against a person or group o persons on account o their

origins or their membership or non-membership o a given ethnic group, nation, race orreligion will be punished by a term o imprisonment o one month to one year and a ne

o 2000 to 300000 rancs, or one only o these two penalties.’

‘(1) Whosoever, in a manner likely to disturb the public peace

incites hatred against segments o the population or calls or violent or arbitrary measures

against them; or

assaults the human dignity o others by insulting, maliciously maligning, or de aming

segments o the population,

shall be liable to imprisonment rom three months to ve years.

(2) Whosoever

with respect to written materials (section 11 (3)) which incite hatred against segments o

the population or a national, racial or religious group, or one characterised by its ethniccustoms, which call or violent or arbitrary measures against them, or which assault the

human dignity o others by insulting, maliciously maligning or de aming segments o thepopulation or a previously indicated group

(b) publicly displays, posts, presents, or otherwise makes them accessible;

(c) o ers, supplies or makes them accessible to a person under eighteen years; or

(d) produces, obtains, supplies, stocks, o ers, announces, commends, undertakes to import

or export them, in order to use them or copies obtained rom them within the meaning o

(a) disseminates such written materials;



64

paragraph 1, the incitement o hatred or the assault on human dignity o ‘parts o pulation’ (a term le t unde ned in the legislation) must be committed in a ‘mannerto disturb the public peace’. Paragraph 2 addresses the dissemination (through a

o means that ensure they are presented to a wider public audience) o writtenials inciting hatred, or through the use o ‘telecommunication services’, and thoseted under this provision may ace imprisonment o no more than three years o ae distinction between the two paragraphs and the amount o punishment appearsarily depend on the risk to public peace, indicating again the dual objectives in the

tion o reducing threats to public peace and to protecting the human dignity o theseted populations.

disseminates a presentation o the content indicated in No 1 above by radio, media services,

or telecommunication services shall be liable to imprisonment o not more than three years

or a ne.’

Nos. (a) to (c) or acilitate such use by another; or

‘153A: Promoting enmity between di erent groups on grounds o religion, race, place o

birth, residence, language, etc., and doing acts prejudicial to maintains o harmony.-

(1) Whoever

(a) by words, either spoken or written, or by signs or by visible representations or otherwise,

promotes or attempts to promote, on ground o religion, race, place o birth, residence,language, caste or eelings o enmity, hatred or ill-will between di erent religious, racial,language or regional groups or castes or communities, or

divisions, superiority and hatred. Articles 153A and B state:India: Te ederal Indian Penal Code addresses concerns over racial, religious or ethnic

(b) commits any act which is prejudicial to the maintenance o harmony between di erentreligious, racial, language or regional groups or castes or communities, or

(c) organizes any exercise, movement, drill or other similar activity intending that violence

or knowing it to be likely that the participants in such activity will use or be trained to use

criminal orce or violence, or participates in such activity intending to use or be trained

participants in such activity wil l used or be trained to use criminal orce or violence, against

any religious, racial, language or regional group or caste or community and such activity

community,

to use or be trained to use criminal orce or violence or knowing it to be likely that the

amongst members o such religious, religious, racial, language or regional group or caste or

or any reason whatsoever causes or is likely to cause ear or alarm or a eel ing o insecurity



65

Article 153A broadly penalizes any action likely to promote ‘enmity, hatred or ill-willbetween di erent religious, racial, language or regional groups or castes or communities’, avery broad measure set against a nation with a history o ethnic and religious divisions atselect points. Tere does not appear to be a limitation to public dissemination or comment,but the Indian Supreme Court has indicated that the alleged wrongdoer must intend toachieve the result o enmity to be held liable under Section 153(A).57

Article 153B is even broader in its protections o social harmony through promoting equality o citizenship through criminal sanctions. Any assertion o ‘di erences’ with respect toability to participate in the li e o India is open to 3 years imprisonment; yet any assertiono mere di erence or the presence o distinctions is not sufcient to all under this Article.Tere is a notable absence in the statutory language o a requirement o public utteranceto be held liable.

57 See Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 Supreme Today 127.

shall be punished with imprisonment which may extend to three years, or with ne, or with

both.’

‘153B. Imputations, assertions prejudicial to national-integration.-

(1) Whoever, by words either spoken or written or by signs or by visible representations orotherwise,-

(a) makes or publishes any imputation that any class o persons cannot, by reason o their

bear true aith and allegiance to the Constitution o India as by law established or upholdthe sovereignty and integrity o India, or

being members o any religious, racial, language or regional group or caste or community ,

(b) asserts, counsels, advises, propagates or publishes that any class o persons shall, by reason o their being members o any religious, racial, language or regional group or caste

or community , be denied or deprived o their rights as citizens o India, or

regional group or cast or community, and such assertion, counsel, plea or appeal causes

or is likely to cause disharmony or eelings o enmity or hatred or ill-will between suchmembers and other persons,

any class o persons, by reason o their being member i any religious, racial language or

both.’shall be punished with imprisonment which may extend to three years, or with ne, or with

(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation o



66

Kenya: Having experienced several incidents o large-scale violence along ethnic, racial ortribal lines in recent years, Kenyan legislation is worthy o comparison. Article 13 o theNational Cohesion and Integration Act (2008) explicitly targets ‘hate speech’:

Article 13 requires that the alleged act be done in some orm o public manner, and be‘threatening, abusive or insulting’. In addition, the actor must intend to stir up ethnichatred, or it must be very likely to be stirred up in all the circumstances. Te maximumpenalty is 3 years imprisonment. Tere are thus several requirements in order to nd anindividual criminally liable under this statute.

Kenyans also endorsed the proposed Dra t Constitution in a re erendum in August 2010.Article 33 on Freedom o Expression states:

‘(1) A person who-

(a) uses threatening, abusive or insulting words or behaviour, or displays any written

material;

(b) publishes or distributes written material;

(c) presents or directs the per ormance the public per ormance o a play;

(d) distributes, shows or plays, a recording o visual images; or

(e) provides, produces or directs a programme;

which is threatening, abusive or insulting or involves the use o threatening, abusive orinsulting words or behaviour commits an o ence i such person intends thereby to stir up

ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred

up.

(2) Any person who commits an o ence under this section shall be liable to a ne not

exceeding one million shillings or to imprisonment or a term not exceeding three years orto both.

(3) In this section, “ethnic hatred” means hatred against a group o persons de ned by re erence to colour, race, nationality (including citizenship) or ethnic or national origins.’

‘(1) Every person has the right to reedom o expression, which includes—

(a) reedom to seek, receive or impart in ormation or ideas;

(b) reedom o artistic creativity; and

(c) academic reedom and reedom o scienti c research.



67

Te Constitution clearly states that prohibitions on incitement, hate speech, and certainorms o ‘advocacy o hatred’ do not violate the right to reedom o expression, ensuring

that the National Cohesion and Integration Act remains constitutional.

South Africa: In the radical legal trans ormation that emerged with the end o apartheid, aseries o legislative measures have been implemented to eradicate the racial divisionism thatcemented apartheid or such a signi cant period o time. First, the Films and PublicationsAct 65 o 1996 states in Article 29:

(2) Te right to reedom o expression does not extend to—

(a) propaganda or war;

(c) hate speech; or

(d) advocacy o hatred that—

(i) constitutes ethnic incitement, vili cation o others or incitement to cause harm; or

(ii) is based on any ground o discrimination mentioned or contemplated in Article 27

(4).

(3) In the exercise o the right to reedom o expression, every person shall respect the

rights and reputation o others.’

‘(1) Any person who knowingly distributes a publication which, judged within context-

(a) amounts to propaganda or war;

(b) incites to imminent violence; or

shall be guilty o an o ence.

incitement to cause harm,

(2) Any person who knowingly broadcasts, exhibits in public or distributes a lm which,

judged within context-


(b) incitement to violence;

(c) advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes



68

Article 29 contains two key limitations to the scope o the prohibited conduct. First, oradvocacy o hatred, it must constitute ‘incitement to cause harm’ to be penalized underthis legislation. Interpreted in combination with the subsections (a) and (b) o each o paragraphs 1-3, it is evident that South A rica’s objectives is penalizing speech acts that areintended to lead to social unrest and physical violence o some sort. Given the institutionalracism that persisted or so long, and the continuing realities o race within the society,

it would appear especially prudent to ensure that legislation does not constrain speechthat deals and discusses race. Second, the list o exemptions is both deep and broad in


(c) advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes

incitement to cause harm,


(3) Any person who knowingly presents an entertainment or play in public which, judged

within context-



(c) advocates hatred that is based on race, ethnicity, gender or religion, and which constitutesincitement to cause harm,


(4) Subsections (1), (2) and (3) shall not apply to-(a) a bona de scienti c, documentary, dramatic, artistic, literary or religious publication,

lm, entertainment or play, or any part thereo which, judged within context, is o such

nature;

(b) a publication, lm, entertainment or play which amounts to a bona de discussion,

(c) a publication, lm, entertainment or play which amounts to a bona de discussion,

argument or opinion on a matter o public interest.’

argument or opinion on a matter pertaining to religion, belie or conscience; or



69

paragraph 4 o Article 29. Although there may be some concern over the power given tothe judicial branch in interpreting quite open-ended terminology as ‘bona des’ in thiscontext, paragraph 4 serves to protect the legitimate sphere o debate in difcult areas suchas race, nationality and religion within a recently polarized society such as South A rica.

Te Promotion o Equality and Prevention o Un air Discrimination Act, 2000 (amended2003) also deals with the dissemination o theories or racial in eriority in Article 7:

Tis Act, while not a criminal statute, prohibits a broad spectrum o ideas based on racialsuperiority which could lead to civil sanctions and penalties. Te wide range o discretionary reparation measures available to the judicial branch in matters such as these permits

exibility in response that is not present i automatic penal sanctions are applied.

United Kingdom: Te Public Order Act 1986 sets out to ensure that words or behaviorwith illegitimate motivations are criminalized. Under Article 18:

‘[No] person may un airly discriminate against any person on the ground o race,

including—

(a) the dissemination o any propaganda or idea, which propounds the racial superiority

or in eriority o any person, including incitement to, or participation in, any orm o racial

(b) the engagement in any activity which is intended to promote, or has the e ect o promoting, exclusivity, based on race…’

violence;

‘(1) A person who uses threatening, abusive or insulting words or behaviour, or displays any

written material which is threatening, abusive or insulting, is guilty o an o ence i —

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) An o ence under this section may be committed in a public or a private place, except

that no o ence is committed where the words or behaviour are used, or the written material

is displayed, by a person inside a dwelling and are not heard or seen except by other persons

in that or another dwelling.

(3) A constable may arrest without warrant anyone he reasonably suspects is committing

an o ence under this section.

(4) In proceedings or an o ence under this section it is a de ence or the accused to prove



70

As observed in the preceding statutory instruments addressing incitement or hatred againstethnic or racial groups, the UK requires urther intent or negligence on behal o the allegedwrongdoer to hold them liable. In this instance, incitement o racial hatred is the key determinative actor as to culpability. Tat same element o the o ense is included in Articles19-23 that address the publication or distribution o written materials; the per ormance o a play; the broadcast o a program (television or radio); and even the possession o racially

in ammatory material. Te legislation does not require that such racial hatred has beenstirred up (or has in turn led to any acts o violence or discrimination), but it does ensurethat benign uses o these materials or benign utterances are not criminalized.

United States of America:Te First Amendment o the US Constitution regulates reedomo speech, and states: “Congress shall make no law respecting an establishment o religion,or prohibiting the ree exercise thereo ; or abridging the reedom o speech, or o thepress; or the right o the people peaceably to assemble, and to petition the Government

or a redress o grievances.” Te contours o this right to reedom o speech have beenextensively examined by the Supreme Court o the United States, and it is impossible to setout all the complexities o their decisions. Nevertheless, the seminal case o Brandenburg v. Ohio58 made it clear that when speech crosses into calling or imminent unlaw ul actionand is likely to produce such an event then restrictions may be placed on this right.59

Switzerland: Article 261bis sets out extremely broad terminology on the criminalization

o racial discrimination and genocide denial:

58 395 U.S. 444 (1969).

advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent law-less action and is likely to incite or produce such action. ” (Emphasis added.) Id. At 447.

that he was inside a dwelling and had no reason to believe that the words or behaviour

used, or the written material displayed, would be heard or seen by a person outside that or

any other dwelling.

an o ence under this section i he did not intend his words or behaviour, or the writtenmaterial, to be, and was not aware that it might be, threatening, abusive or insulting.’

(5) A person who is not shown to have intended to stir up racial hatred is not guilty o

‘He who, publicly, incites hatred or discrimination toward a person or group o personsbecause o their racial, ethnic or religious adherence;

He who, publicly, propagates an ideology with the intention to belittle or denigrate in asystematic manner members o a race, ethnic group or a religion;

He who, or the same reason, organizes or encourages actions o propaganda or participatesin them;

59 “The principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe



71

Te maximum punishment or any o these crimes is a ne or three years in prison.Paragraph 2 is the most particular aspect o this legislation, ocusing on ‘ideology’; however,the intention o this propagation must be to ‘belittle or denigrate in a systematic manner’members o certain groups. How to recognize these intentions rom coded messages isa difcult judicial endeavor, but the quali ers included in this criminal legislation willdecrease the likelihood o penalizing air and open debate on difcult topics.

He who, publicly, by word o mouth, in writing, by image, by gesture, by assault or in any other way, belittles or discriminates in a way which a ects the human dignity o a person

or a group o persons because o their race, their ethnic belonging or their religion or who,

against humanity…shall be punished with imprisonment or a ne.’

or the same reason, denies, grossly minimizes or tries to justi y a genocide or other crimes



72

Incitement to Genocide

International and comparative laws

Te crime o incitement to genocide was rst codi ed in the 1948 Convention on the

Prevention and Punishment o the Crime o Genocide (“Genocide Convention”), whichstates in Article 3:

60

Article 3 was the basis or the provisions on incitement to genocide in the statutes orthe International Criminal ribunal or the Former Yugoslavia (“IC Y”),61 and theInternational Criminal ribunal or Rwanda (“IC R”),62 and the Rome Statute or the

International Criminal Court (“ICC”)63. As the select jurisprudence will show below, ithas primarily been within international tribunals that the contours and requirements o this criminal activity have been de ned. Canada’s detailed provisions on incitement togenocide parallel the concerns o the Genocide Convention, and seek to en orce Canada’sinternational obligation that each State criminalizes incitement to genocide.

60 Convention on the Prevention and Punishment of the Crime of Genocide, Art. 3, Dec. 12. 1948.61 “Article 4, Genocide: 1. The International Tribunal shall have the power to prosecute persons committing genocide as de-

ned in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article. … 3. Thefollowing acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commitgenocide; (d) attempt to commit genocide; (e) complicity in genocide.” Statute of the International Tribunal for the Prosecutionof Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, art 4, May 25 1993.62 “Article 2, Genocide: 1. The International Tribunal for Rwanda shall have the power to prosecute persons committinggenocide as de ned in paragraph 2 of this Article or of committing any of the other acts enumerated in paragraph 3 of thisArticle. 3. The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and publicincitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide. Statute of the InternationalCriminal Tribunal for Rwanda, art. 2, July 1, 1994.63 Article 25, Individual criminal responsibility 3. In accordance with this Statute, a person shall be criminally responsibleand liable for punishment for a crime within the jurisdiction of the Court if that person: (e) In respect of the crime of geno-cide, directly and publicly incites others to commit genocide. Rome Statute of the International Criminal Court, art. 25, Nov.10, 1998.

‘Article 3

Te ollowing acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

‘318

(1) Everyone who advocates or promotes genocide is guilty o an indictable o ence andliable to imprisonment or a term not exceeding ve years.



73

Article 318, paragraph 2, incorporates only two o the ve acts listed in Article 2 o theGenocide Convention, limiting the scope o the Convention’s application in Canada. Tepenal sanction is a maximum term o ve years.

Te most common method that municipal systems have utilized in criminalizing all ormso genocide (as required under the Genocide Convention) is through directly implementingthe text o the Genocide Convention into national law. For example, the United Kingdomstated in its Genocide Act 1969, Article 1, paragraph 1: “A person commits an o ence o genocide i he commits any act alling within the de nition o ‘genocide’ in Article II o

the Genocide Convention…”.64 In addition, many nations will address such speech actsunder the umbrella legislation dealing with hate speech and incitement to violence – see,

or example, the text o the German laws set out in the preceding section.

Jurisprudence on the incitement to genocide 65

Te earliest prosecutions or acts ‘tantamount to incitement to genocide’66 involved JuliusStreicher at the Nuremberg ribunal ollowing the end o World War II. Te InternationalMilitary ribunal ound Streicher guilty or speeches and publications in theDer Sturmer newspaper that “in ected the German mind with the virus o anti-semitism, and incited theGerman people to active persecution … or the extermination o the Jewish race”.67

A signi cant number o cases have been tried at the International Criminal ribunal orRwanda. Te most oundational or assessing the contours o the crime o incitement togenocide is set out in theAkayesujudgment o 1998. On April 19th, 1994, Akayesu gavea speech at a public meeting, or which he was accused o direct and public incitement to64 Halsbury’s Statutes. 4 th ed., vol. 12, p. 530. See similar implementation in the United States65 For a cogent discussion on the jurisprudence related to the crime of incitement to genocide, see Susan Benesch, Vile Crimeor Inalienable Right: De ning Incitement to Genocide , 48 V a . J. i nt ’ l l. 485 (2008); Gregory S. Gordon, A War of Media,Words, Newspapers, and Radio Stations: The ICTR Media Trial Verdict and a New Chapter in the International Law of HateSpeech , 45 VA. J. INT’L L. 139 (2004);66 Benesch, supra note 59, at 14.67 Famous World Trials: Nuremberg Trials, 1945 – 1949, Julius Streicher , Univ. of Missouri-Kansas City School of Law,http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/NurembergStreicher.html, (last visited Oct. 13, 2010).

(2) In this section, “genocide” means any o the ollowing acts committed with intent to

destroy in whole or in par t any identi able group, namely

(a) killing members o the group; or

(b) deliberately in icting on the group conditions o li e calculated to bring about itsphysical destruction.

(3) No proceeding or an o ence under this section shall be instituted without the consent

o the Attorney General.

(4) In this section, “identi able group” means any section o the public distinguished by

colour, race, religion or ethnic origin.’





75

incitement ailed to produce the result expected by the perpetrator.”78

Te IC R has also ound individuals involved with the broadcast media guilty o incitementto genocide. In Prosecutor v Nahimana(“Te Media Case”), all three de endants were oundguilty o direct and public incitement to commit genocide.79 All three de endants were

ound guilty o direct and public incitement to commit genocide.80 In assessing theirculpability, the court noted “the importance o taking context into account when consideringthe potential impact o expression.”81 Te court looked to international jurisprudence romthe United States and the European Court o Human Rights, to determine whether the speeches at issue constitute protected ree speech, or incitement alling “outside the scopeo reedom o speech protection.”82 In analyzing the de endants’ speeches and publications,the court examined their purpose, text, and context.83 In determining purpose, the courtexamined whether the articles and broadcasts conveyed “historical in ormation, politicalanalysis, or advocacy o an ethnic consciousness regarding the inequitable distributiono privilege in Rwanda.”84 Where the purpose is “ethnic consciousness [and not] thepromotion o ethnic hatred”,85 the speech or publication does not constitute incitement.86 In analyzing the text, the court noted that “the actual language used in the media has o tenbeen cited as an indicator o intent.”87 Te court re erred to Faurisson v France ,88 where theHuman Rights Committee ound that use o the term “magic gas chamber” suggested ananti-Semitic intent, rather than “bona fide historical research.”89

78 Id. ¶ 560 -561.79 Prosecutor v Nahimana, Case No. ICTR 99-52-T, Summary, (Dec. 3, 2003), (“Nahimana Summary”), Judgment.80 Nahimana Summary, supra note 14, verdict. Hassan Ngeze, the former Editor-in-Chief of the virulently anti-Tutsi newspa-per “Kangura”, Ferdinand Nahimana and Jean Bosco Barayagwiza, the co-founder and board member of the RTLM, respec-tively, were convicted based on their responsibility for the media they controlled. Id. ¶ 87.

81 Id. ¶ 88.82 “The jurisprudence on incitement also highlights the importance of taking context into account when considering the poten-tial impact of expression. Other factors relating to context that emerge from the jurisprudence, particularly that of the EuropeanCourt of Human Rights, include the importance of protecting political expression, particularly the expression of oppositionviews and criticism of the government.” Id. See also , Gordon, supra note 6 at 15.83 Gordon, supra note 6 at n.139. Gordon notes that purpose and text, analyzed simultaneously by the court, should be con-sidered separately. Additionally, Gordon creates a new category, “relationship between the speaker and the subject,” which hesuggests the court looks at in rendering a decision, “The special protections developed by the jurisprudence for speech of thiskind recognize the power dynamic inherent in the circumstances that make minority groups and political opposition vulner-able to the exercise of power by the majority or by the government. The special protections for this kind of speech should

accordingly be adapted, in the Chamber’s view, so that ethnically speci c expression would be more rather than less carefullyscrutinized to ensure that minorities without equal means of defense are not endangered. Prosecutor v Nahimana, Case No.ICTR 99 - 52 - T, Judgment and Sentence, (Dec. 3, 2003), (Nahimana Judgment), ¶ 1008. 84 supra note 33 ¶ 9385 Id.86 Id. 87 Nahimana Judgment, supra note 37 ¶ 1001

89 “A concurring opinion in the Faurisson case highlighted evidence that the motivating purpose of the author … was notan interest in historical research … [and] noted the ‘tendency of the publication to incite to anti-semitism,’ relying on thistendency to distinguish the author’s work from bona de historical research that should be protected against restriction ‘evenwhen it challenges accepted historical truths and by so doing offends people’ … his references to … the ‘magic gas chamber’and the context, i.e. a challenge to well-documented historical facts with the implication ‘under the guise of impartial academicresearch that the victims of Nazism were guilty of dishonest fabrication,’ to support its nding of anti-semitic purpose, theopinion concluded: ‘The restrictions placed on the author did not curb the core of his right to freedom of expression, nor didthey in any way affect his freedom of research; they were intimately linked to the value they were meant to protect - the rightto be free from incitement to racism or anti-semitisim;’ Nahimana Judgment, supra note 41 ¶ 989.

88 Faurisson v. France, Communication No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993 (1996).



76

In analyzing context, the court looked at “the tone o the statement”,90 and the environmentin which the statement was made. Te court noted that a “statement o ethnic generalizationprovoking resentment against members o that ethnicity would have a heightened impactin the context o a genocidal environment.”91 A speech made in this environment indicates

that incitement to violence was the intent o the statement.92

Te national prosecution o incitement to genocide has been quite limited. In November1992, Leon Mugasera, ormer Vice President o the Gisenyi MRND party in Rwanda,made an in ammatory speech, which “eventually led the Rwandan authorities to issuethe equivalent o an arrest warrant”,93 and in 1993 Mugasera ed to Canada. In 1995, theCanadian Minister o Immigration “commenced proceedings ... to deport [Mugasera] onthe basis that by delivering his speech, he had incited to murder, genocide and hatred, andhad committed a crime against humanity.”94 In upholding the validity o the deportationorder, the Canadian Supreme Court noted that no “direct causal link between the speechand any acts o murder or violence” need be established to support an allegation o incitement to genocide.95 Tey explained that there are two requirements or an action tobe considered incitement to genocide, “the act o incitement must be direct and public.”96 Te interpretation o these elements by the Supreme Court was essentially identical to thato the IC R in the Akayesujudgment.

91 Id.92 Id.93 Mugasera v Canada, [2005] S.C.R. 100, 4 (Can.).94 Id. 95 Id 96 Id. at 7.

90 supra note 37, ¶ 94.



77

ANNEX II

FUR HER READINGS:

Amnesty International,Safer to Stay Silent: The Chilling Effect of Rwanda’s Laws on ‘Genocide

Ideology’ and ‘Sectarianism’ (London, Amnesty International: 2010).Joyce Apsel & Helen Fein,Teaching About Genocide: An Interdisciplinary Guidebook withSyllabi for College and University TeachersNew edition (Institute o the Study o Genocide& Amer. Socio. Ass’n: 2002).

Article 19,Comment on the Law Relating Relating to the Punishment of the Crime of Genocide Ideology in Rwanda(London, Article 19: 2009).

Edwin C. Baker, Media that Citizens Need , 147 U. Pa. L. Rev., 317 (1998).

Edwin C. Baker, Harm, Liberty, and Free Speech, 70 S. Cal. L. Rev. 979 (1997).

Edwin C. Baker, Press Rights and Government Power to Structure the Press, 34 U. Miami L.Rev. 819 (1980).

Edwin C. Baker, Utility and Rights: Two Justifications for State Action Increasing Equality,84 Yale L. J. 39 (1974).

Susan Benesch,Vile Crime or Inalienable Right: Defining Incitement to Genocide , 48 Va. J.Int’ l L. 485 (2008).

Susan Benesch,Inciting Genocide, Pleading Free Speech,21 World Pol’y J. 62 (2004).

Voiced by Victims/Survivors,” InHandbook of Restorative Justice: A Global Perspective 343 –354, Dennis Sullivan & Larry i t eds. (New York, N.Y., aylor & Francis: 2006).

Mark Drumbl, Atrocity, Punishment, and International Crimes(Cambridge, CambridgeUniversity Press: 2007).

Mark Drumbl, Pluralizing International Criminal Justice , 103 Mich. L. Rev. 1295 (2005).

Mark Drumbl, Collective Violence and Individual Punishment: The Criminality of MassAtrocity, 99 Nw. Univ. L. Rev. 539 (2005).

Mark Drumbl, “Te (Al)lure o the Genocide rial: Justice, Reconciliation, andReconstruction in Rwanda”, inEffective Strategies for Protecting Human Rights217 – 234,David Barnhizer, ed. (Ashgate Dartmouth: 2001).

Mark Drumbl, Punishment, Post-Genocide: From Guilt to Shame to Civis in Rwanda, 75 N.

Y. Univ. L. Rev. 1221 (2000).Mark Drumbl, Rule of Law Amid Lawlessness: Counseling the Accused in Rwanda’s Domestic

Yael Danieli, “Essential Elements o Healing a ter Massive rauma: Complex Needs



78

Genocide Trials, 29 Colum. Hum. Rts. L. Rev. 545 (1998).

Record at the International Criminal Tribunal for Rwanda, 11 J. Genocide Res. 55 (2009).

Nigel Eltringham, A War Crimes Community: The Legacy of the International Criminal Tribunal for Rwanda Beyond Jurisprudence , 14 New Eng. J. o Int’l &Comp. L. 314 (2008).

Nigel Eltringham, Invaders Who Have Stolen the Country: The Hamitic Hypothesis, Race and the Rwandan Genocide , 12 Soc. Identities 425 (2006).

Nigel Eltringham, “Te Blind Men and the Elephant: the Challenge o Representing theRwandan Genocide” in The Ethics of Anthropology96 – 112, Pat Kaplan, ed. (London,Routledge, 2003).

Lee Ann Fuji, Transforming the Moral Landscape: The Diffusion of Genocidal Norm inRwanda, 6 J. Genocide Res. 99 (2004).

Phillip Gourevitch, We Wish to Inform You That Tomorrow We Will be Killed With Our Families: Stories from Rwanda(New York, N.Y., Picador: 1999).

Jean Hatz eld,The Antelope’s Strategy: Living in Rwanda After the Genocide (New York,N.Y., Farrar, Straus & Giroux: 2009).

Jean Hatz eld,Machete Killers: The Killers in Rwanda Speak(New York, N.Y., Farrar, Straus& Giroux: 2005).

Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda(New York,N.Y., Human Rights Watch: 2008).

Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda(New York, N.Y.,Human Rights Watch: 1999).

Human Rights Watch, Attacked by All Sides: Civilians and the War in Eastern Zaire (New York, N.Y., Human Rights Watch: 1997).

Human Rights Watch, Forced to Flee: Violence Against Tutsi in Zaire (New York, N.Y., HumanRights Watch: 1996).

International Center or ransitional Justice,Transitional Justice and DDR: The Case of Rwanda (2009).

Phuong Pham, Harvey Weinstein, & imothy Longman, Trauma and PTSD Symptoms

in Rwanda: Implications for Attitudes Toward Justice and Reconciliation, 292 J. o the Amer.Med. Ass’n 602 (2004).

Nigel Eltringham,“We are not a Truth Commission”: Fragmented Narratives and the Historical

Lee Ann Fuji, Killing Neighbors: Webs of Violence in Rwanda, 47 J. o Modern A r. Stud.631 (2009).



79

imothy Longman,Placing Genocide in Context: Research Priorities for the Rwandan Genocide ,6 J. o Genocide Res. 29 (2004).

imothy Longman & Téoneste Rutagengwa, Memory, Identity, and Community inRwanda, in My Neighbor, My Enemy: Justice and Social Reconstruction in Rwanda and the Former Yugoslavia162 – 182, Harvey Weinstein & Eric Stover, eds. (Cambridge, CambridgeUniversity Press: 2004).

Alison Des Forges & imothy Longman, “Legal Responses to Genocide in Rwanda”, inMyNeighbor, My Enemy: Justice and Social Reconstruction in Rwanda and the Former Yugoslavia 49 – 68, Harvey Weinstein & Eric Stover, eds. (Cambridge, Cambridge University Press:2004.)

imothy Longman, Phuong Pham, Harvey Weinstein, & Alice Karekezi, “Connecting

Justice to Human Experience: Attitudes, in My Neighbor, My Enemy: Justice and Social Reconstruction in Rwanda and the Former Yugoslavi a 206 – 225, Eric Stover & Harvey Weinstein, eds. (Cambridge, Cambridge University Press: 2004).

Sarah Warshauer Freedman, Déo Kambanda, Beth Lewis Samuelson, Innocent Mugisha,Immaculée Mukashema, Evode Mukama, Jean Mutabaruka, Harvey Weinstein, & imothy Longman, “Con ronting the Past in Rwandan Schools”, inMy Neighbor, My Enemy: Justice and Social Reconstruction in Rwanda and the Former Yugoslavia248 266, Harvey Weinstein& Eric Stover, eds. (Cambridge, Cambridge University Press: 2004).

imothy Longman, “Identity Cards, Ethnic Sel -Perception, and Genocide in Rwanda”,in Documenting Individual Identity: The Development of State Practices in the Modern World 345-357, Jane Caplan & John orpey eds. (Princeton, N.J., Princeton University Press:2002).

imothy Longman, Church Politics and the Genocide in Rwanda, 31 J. o Religion in A r.163 (2001).

imothy Longman, “Christian Churches and Genocide in Rwanda”, inIn the Name of God:Religion and Genocide in the Twentieth Century139-160, Omer Bartov & Phyllis Mack, eds.(New York, N.Y., Berghahn Books: 2001).

imothy Longman, “Nation, Race, or Class? De ning the Hutu and utsi o East A rica”,in The Global Color Line: Racial and Ethnic Inequality and Struggle from a Global Perspective 103-130, Joseph Feagin & Pinar Batur-Vanderlippe eds. ( JAI Press: 1999).

imothy Longman, “Civil Society and the Rwandan Genocide”, inState, Conflict, and Democracy in Africa339-358, Richard Joseph (Boulder, CO, Lynne Rienner: 1998).

imothy Longman, Protecting the Powerful and Empowering the Weak: The Contradictory

Nature of Christian Churches in Rwanda, Burundi, and Congo, 41 A r. Stud. R. 49 (1998).



80

imothy Longman, “Rwanda: Chaos rom Above”, inCritical Juncture: The African State in

imothy Longman, “Democracy and Disorder: Violence and Political Re orm in Rwanda,”in Political Reform in Francophone Africa287-306, David Gardinier & John Clark eds.

imothy Longman, Genocide and Socio-Political Change: Massacres in Two Rwandan Villages,23 Issue: A Journal o Opinion 18 (1995).

Jens Meierhenrich,Genocide: A Reader (Ox ord, Ox ord University Press: 2011).

Jens Meierhenrich, The Transformation of Lieux de Mémoire: The Nyabarongo River inRwanda, 1992-2009, 25 Anthro. oday 13 (2009).

Jens Meierhenrich,Varieties of Reconciliation, 33 Law & Social Inquiry 195 (2008).Jens Meierhenrich,The Trauma of Genocide , 9 J. o Genocide Res. 549 (2007).

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