Advocacy of Genocide and Holocaust Denial: A Special Case?
Module 6: Hate Speech
Some commentators argue that the issues of advocacy for genocide and denial of the Holocaust constitute special cases within the debate on hate speech and incitement. According to the 1948 Genocide Convention, “direct and public incitement to commit genocide” is a punishable act,(1) following the role of the media in perpetuating hatred against Jewish people in Germany and advocating for their extermination. In the landmark ICJ case of South Africa v Israel, South Africa argued that the language used by Israeli soldiers and entertainers about Palestinians in Gaza sparked war and is proof of Israel’s intent to commit genocide. One of the provisional orders made by the ICJ in its judgment is for Israel to take measures within its power to prevent and punish the direct and public incitement of genocide. The ICJ referred to comments made by senior Israeli politicians that contained inciting and dehumanising rhetoric.(2)
Likewise, in Rwanda, the media played a crucial role during the genocide in drumming up hatred and distributing propaganda, which led to the first prosecutions at the International Criminal Tribunal for Rwanda (ICTR) for “direct and public incitement to commit genocide.” In the same way as hate speech, incitement to genocide was defined as an inchoate crime, meaning it is not necessary for genocide to actually have occurred for the crime to have been committed, but it did require intent.
One of the most notable cases brought against journalists at the ICTR was Nahimana et al, known as the Media Trial.(3) Two of the respondents were the founders of a radio station that broadcast anti-Tutsi propaganda before the Rwandan genocide and the names and licence plate numbers of intended victims during the genocide.(4)
The Rome Statute establishing the International Criminal Court also establishes the crime of incitement to genocide.(5)
The genocide of the Jews in Nazi-occupied Europe was such a formative event in the creation of the European human rights system that Holocaust denial — claiming that the genocide did not occur — is an offence in several countries and is treated in a particular fashion within the European Court of Human Rights jurisprudence, even when compared to similar cases of historical revisionism.(6)
Rwanda and the ideology of genocide, sectarianism, and divisionism
In 2017, the African Court on Human and Peoples’ Rights dealt with a case concerning speech that allegedly spread “the ideology of genocide, sectarianism, and divisionism” in Ingabire Victoire Umuhoza v Rwanda.(7)
The case related to the arrest of a leader of a Rwandan political party who had made statements relating to the Rwanda Genocide and, more specifically, highlighting that crimes against humanity were committed against the Hutu people and not only the Tutsi people. The Court found that Rwanda had violated the right to freedom of expression and that the restriction was not necessary and proportional, because the speech did not deny or minimise the crimes committed against the Tutsis and were statements “of the kind that is expected in a democratic society and should thus be tolerated, especially when they originate from a public figure as the Applicant is.”
In 2021 the Africa Commission received a case, Agnes Uwimana-Nkusi v Rwanda, that concerned the conviction of journalists Agnes Uwimana-Nkusi and Saidati Mukakibibi on the grounds of defamation and threatening national security following the publication of three articles criticising the government.(8)
The journalist published articles detailing allegations of corruption among high-profile public officers, the human rights situation in Rwanda, and other government shortcomings. The government argued that the articles intended to incite violence and strife against the government by using defamatory statements devoid of evidence.
Having exhausted all available domestic remedies, Media Dence (Media Legal Defence Initiative as it was then), filed a complaint to the Commission on behalf of the journalists arguing Rwanda violated their rights to freedom of expression and to a fair trial. The Commission considered whether discussing the 1994 Rwanda Genocide amounted to genocide denial. Considering Rwanda’s history, it assessed if implementing penal code articles was necessary and proportionate. The Commission emphasised democratic governance contexts in evaluating public order protection and incitement definitions. While acknowledging the sensitivity around the genocide, it found the journalists’ articles did not incite violence or threaten security. The Commission criticised criminal defamation laws, deeming them disproportionate restrictions on journalism. It stressed the vital role of freedom of expression in democracy, particularly in fostering political discourse and holding officials accountable. Consequently, the Commission ruled Rwanda’s actions violated Article 9 of the Charter by unjustly restricting the journalists’ freedom of expression.