“27 YEARS AFTER THE AGAINST THE TUTSI: THE IMPORTANCE OF ACCOUNTABILITY FOR GENOCIDE AND ITS DENIAL”

Providence Umurungi Head of International Justice and Judicial Cooperation Department, Ministry of Justice- Introduction

❑ The 1994 Genocide against the Tutsi in Rwanda happened 49 years after , 46 years after the adoption of the 1948 UN Convention on prevention and punishment of the crime of genocide. ❑ Twenty Seven Years later, concerted efforts at national and international to prosecute and punish perpetrators of genocide against Tutsi registered some success, even though the war against shows itself as a lifelong struggle. ❑ It is important to hold accountable all genocide perpetrators and its deniers for multiple reasons. ❑ This short presentation will explore following points:

1. Context 2. Importance of accountability for Genocide and its Denial 3. Subsisting challenges 4. Way forward Context

❑ The Genocide against Tutsi occurred in the face of an informed and passive international community, despite previous experience of the Holocaust;

❑ As the legal response to the genocide needs to achieve multiple, often competing goals: Justice, Reconciliation and Deterrence, all possible was done with the aim to breaking the cycle of fear m repression and impunity that had too long characterized Rwandan politics; ❑ The model developed by Rwanda existed at three levels:

➢ The International Criminal Tribunal for Rwanda (ICTR) as an international community's effort to hold some of the most serious perpetrators accountable for their crimes; ➢ The Rwandan national judicial system coexisted with the ICTR for the most serious crimes, and handled thousands of trials of genocidevr; ➢ The Gacaca courts that used a traditional community-based legal approach to try all but the most serious of crimes but more specifically serve Truth, Justice, Unity and Reconciliation. Importance of accountability for Genocide and its denial

❑ Accountability matters not only for peace but also to restore dignity, to serve truth and justice, and ensure deterrence. ❑ Genocide is the negation of Humanity to Humankinds and its punishment must go beyond physical territorial borders of countries. ❑ The duty to Prosecute Genocide or to Extradite its suspects to a jurisdiction that will prosecute is a matter of Customary International Law; ❑ The obligation to prosecute Genocide derives from the United Nations Convention of December, 9th 1948 on the Prevention and Punishment of the Crime of Genocide, that creates a legal obligation on states parties to take steps to provide effective penalties for those responsible for genocide; ❑ Holding accountable perpetrators wherever they are, strengthens the Rule of Law by enhancing both international and domestic criminal laws enforcement; ❑ No country in the world should accept to be a safe haven for criminals of the most serious crime: genocide Importance of accountability for Genocide and its denial (cntd)

Rwanda has issued so far 1146 indictments against genocide fugitives, out of which : ❑ Some foreign national jurisdictions decided to try genocide fugitives that were on their territories even if the crime was committed in Rwanda : So far 23 cases have been tried and completed , mostly in Europe : ( Belgium 9, 3,Sweden 3, Canada 2, Netherlands 2, Germany 1, Finland 1, Norway 1, Switzerland 1). ❑ Some countries have decided to extradite or transfer suspects to Rwanda ( ICTR 3, Netherlands 3, USA 4, Uganda 3, Denmark 2, Canada 2,Germany 1, Norway 1, Malawi 1, DRC 3). ❑ At International level, UN ICTR : 93 individual cases among whom 62 were sentenced. Importance of accountability for Genocide and its denial (cntd)

❑ The first ever international tribunal to deliver verdicts in relation to genocide, and the first to interpret the definition of genocide set forth in the 1948 Geneva Convention. It also is the first international tribunal to define rape in international criminal law and to recognise rape as a means of perpetrating genocide. ❑ Landmark reached in the "Media case", where the ICTR became the first international tribunal to hold members of the media responsible for broadcasts intended to inflame the public to commit acts of genocide. ❑ Most importantly, the Appeal chamber held, in Prosecutor v Karemera case that the commission of genocide against the Tutsis in 1994 is a “a fact of common knowledge” of which trial Chambers must take “judicial notice “. Importance of accountability for genocide denial (ctd)

❑ Genocide denial is the final stage of a genocidal process. It is the ultimate stage after classification, symbolization, , dehumanization, organization, polarization, preparation, persecution and extermination as highlighted by Scholar Greg Straton. ❑ Genocide and its denial are interlinked. According to historian Yves Thernon, those who prepare and execute genocide, they prepare at the same time ways to deny it . ❑ In the Rwandan context, Genocide scholar Linda Melvern, shows us that the stage of denial can be traced back during discussions at the UNSC in 1994. The interim government in 1994 started a campaign at the United Nations to spread the theory of spontaneous, out of control violence and promote the legitimacy of its actions within an international platform. Importance of accountability for genocide denial (ctd)

❑ As the final stage of genocide, Genocide against Tutsi denial took different forms during last 27 Years: – Literal denial (1994-1998) that claimed that no genocide took place in Rwanda. It involved systematically negating the facts of genocide, and keeping silent about genocidal plans and killings; – Interpretative denial (1998-2003) for which the 'drama' of violence was acknowledged, that it was an inter ethnic conflict, and it was recast as something other than genocide. Facts were twisted to deny that the killings constituted genocide. – Implicatory genocide denial (2003 to date) that acknowledges that genocide took place, but involves explicit counter-accusations to blame the 'other side'. Claiming a double genocide . Importance of accountability for genocide denial (ctd)

❑ Accountability for genocide denial matters :

❑ Although the prohibition of genocide denial is not recognized in international law, not in the Genocide Convention of 1948, some countries have already enacted national laws punishing genocide denial, by extending their laws prohibiting .

❑ Rwanda, France and Belgium have laws punishing genocide denial ❑ One of the arguments of genocide deniers is /expression versus genocide denial : freedom of speech can never be an absolute right as it always takes place in a context of competing values. ❑ In this regard, international law declares that speech limitations have to be necessary, lawful and to follow a legitimate aim to protect the rights of others or the democratic order.

Importance of accountability for genocide denial (ctd)

Accountability for genocide denial matters :

❑ We note that in some States ( France, Canada, USA, Germany…) had strong case jurisprudence on holocaust denial. “…. ❑ In USA : rather than to regulate freedom of speech by the content of certain expressions, regulations were based on the danger that certain expressions pose to society. ❑ Canada : Canadian courts found Zündel guilty under the Canadian Human Rights Act for using telecommunication devices to distribute hateful messages against minorities. In the aftermath, Zündel was deported to Germany in 2005 where he was convicted and sentenced to 5 years in prison for inciting hatred and denying the Holocaust

Importance of accountability for genocide denial (ctd)

Accountability for genocide denial matters :

❑ France : Gayssot Law references to the IMT the example of notorious Holocaust denier , a former academic, illustrates how French courts deal with Holocaust denial. Faurisson was fined in 1983 by French courts for antisemitic expressions that were falling under the French hate speech statute after making remarks on a radio show that supported Holocaust denial. Subsequently, in 1990, after the adoption of the Gayssot Law, Faurisson was convicted again of Holocaust denial after he gave an interview to a far-right magazine where he described Nazi Germany death camp destruction facilities like gas chambers as a myth and was sentenced to a 250,000 franc fine of which 100,000 francs were suspended.

❑ France : that existed and revised of its law on freedom of speech. Due to the claim “L’article 173 modifie l’article 24 bis de la loi sur la liberté de la presse et punit d’un an d’emprisonnement de 45 000 euros d’amendes l’infraction de nier, minorer ou banaliser de façon outrancière tout génocide punie par une juridiction française ou internationale » This include the genocide against the Tutsi.

Challenges

❑ Genocide denial weakens society's ability to detect the reemergence of discourse and acts that may lead to new atrocities. It must be fought against. ❑ Genocide denial dehumanizes the survivors and the victims — and rips them of both recognition and justice. ❑ Genocide denial hampers the fight against impunity for Genocide and associated crimes and, eventually, the possibility of reconciliation healing. ❑ The increase of Social Media Platforms which became a new ground of the commission of genocide denial crime and its spread. Challenges

❑ Lack of political will of some States which host genocide suspects and refuse to cooperate in bringing them to justice or extradite them. ❑ Rwanda has received very few responses to requests for cooperation contained in the more than 1,100 perpetrator indictments sent to many countries. • Criticism against the criminalization of the genocide ideology and genocide denial pretending to defend the Right to Freedom of Speech; All these call again for Genocide and Genocide denial accountability. Way forward ❑ The first step to take is to pass laws at national levels which criminalize the denial of genocide. Passing laws prohibiting the denial of genocide would greatly contribute to setting the record straight and reducing the chances of political leaders and opinion makers holding shameful discourse about ❑ There should be any compatibility between genocide denial, justification of trivialization with the freedom of speech; ❑ Acting individually all collectively as part of international organizations, Countries should come out of their state of indifference and put their weight behind efforts towards justice and reconciliation ❑ All countries should do much more to fight genocide impunity and genocide denial, by adopting laws criminalizing both genocide and its denial; Way forward ❑Laws that prohibit genocide denial and the establishment of a Remembrance Day would be insufficient to counter denial effectively: Education is needed to hope to have a lasting impact against denial. ❑Owners of social media platform should be urged to control seriously their business especially during the genocide commemoration weeks by blocking genocide denial messages or holding them responsible over such actions for failing to do so.

Fighting Genocide and its Denial must move from simple wishes and slogans, and become a day to day Reality. THANK YOU- MURAKOZE