THE Peter Erlinder case has given rise to extensive debate about the rights and wrongs of genocide denial laws. Many critics of his arrest claim that Rwanda’s genocide denial laws are unclear and too wide ranging and that it is a law that should not even be on the books in the first place.
Let me start by addressing the necessity for such a law. Opponents claim it is antithetical to free speech, but just about every country on the planet has restrictions on free speech in different forms. From defamation to race hatred, there are plenty of laws around the world that restrict the concept of free speech. Why should genocide denial be any different?
And here is where we come to the crux of the argument of those who dispute the necessity of this law. The recurring criticism is that it is too ‘vague’. Yet reading the relevant law in conjunction with Gasabo High Court’s reasoning on the matter reveal this argument to be wrong.
Article 4 of the law states that “Shall be sentenced to an imprisonment of ten (10) to twenty (20) years, any person who will have publicly shown, by his or her words, writings, images, or by any other means, that he or she has negated the genocide committed, rudely minimised it or attempted to justify or approve its grounds, or any person who will have hidden or destroyed its evidence.’
Setting aside the somewhat inelegant language, this does not exactly suggest a lack of clarity. Genocide denial rests in the expression-essentially in writing or in speech- of denial or negation of genocide. As such there is a specific actus reus that would trigger a prosecution.
It should be noted that ‘denial’ and ‘minimizing’ are on the same spectrum here- people who try to minimize the genocide are almost always straightforward deniers in disguise. Meanwhile those who deny It are evidently seeking to downplay it.
Here the legal elements would be along the following lines: denying the genocide ever happened, denying it specifically targeted a certain group, denying it was organized and planned at very high levels and tagging it as unavoidable deaths linked to inter-population fighting as a result of war.
The word ‘any other means’ does not suggest a lack of clarity either- legislation in other Countries have similar language and that is for the simple reason that the law cannot cater for every eventuality.
And the key words there ‘negation’ ‘minimised’ and ‘justify or approve’ are not exactly phantom expressions. Any cursory visit to the dictionary will make it clear what the law intended. What then is this ‘hazy’ language that opponents of the law claim?
So if we turn to Erlinder, what exactly did he do that constitutes genocide denial? As the Court noted, in 2009 he published an article in which he described the Rwandan genocide as ‘civilian on civilian killings.’ Erlinder’s article- and subsequent ones as well- continued this theme, but it was the aforementioned description of the genocide that proved the core of the prosecution case, and rightly so.
By stripping the genocide of its element of planning, removing the victims from the equation and linking it repeatedly to the current government, Erlinder clearly had a case to answer.
Here we have the requisite forms of expression (his writing)in a public forum (his writings were disseminated worldwide) denying and downplaying the genocide (denying any reference of its military and political planning and referring to it as ‘civilian on civilian killings’).
In these respects, he met the Article 4 requirements for denial and downplaying of genocide.
And while all these comments were made outside Rwanda, we are not exactly in uncharted territory here. In 2008, an Australian academic was charged with holocaust denial for material he published on his website and he only avoided extradition to Germany on a technicality.
From a legal standpoint, the Government of Rwanda was right to arrest and charge Mr Erlinder with genocide denial.
Minega Isibo is a lawyer