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Denialist Media Does Not Qualify for Freedom of Speech Protections

"Any good-faith defender of free speech and freedom of the media ought to situate the discourse in relation to the relevant international instruments and domestic legislation, as well as their enforcement."

Rwanda’s handling of genocide denialist Youtubers has attracted the rebuke of international human rights organisations. These organisations argue that Rwanda’s zero tolerance for genocide denial constitutes abuse of freedoms of speech and the media’s right to serve the public interest. However, the destructive capacity of the media in rallying ordinary people to go out and kill their compatriots in 1994 gives credence to the decision to restrain the denialist rhetoric on whatever platform it may be, whether mainstream media or social media. Moreover, the silence of these very organisations as western governments restrict freedom of speech and media in the coverage of the war in Ukraine raises questions whether destructive media constitutes freedom of speech only when African lives are on the line. What’s good for the goose ought to be good for the gander is an oft-repeated proverb that exposes hypocrisy of monumental proportions. 

For starters, any good-faith defender of free speech and freedom of the media ought to situate the discourse in relation to the relevant international instruments and domestic legislation, as well as their enforcement. This is something these international organisations rarely do, as they assign themselves the right to define and rule.

We can’t talk about freedom of speech and of media in the context of genocide and genocide denial without reference to the rulings of the International Criminal Court for Rwanda (ICTR). In the Media Trial of the ICTR, the court ruled that any message expressed in the context of freedom of speech places responsibility on those who run media houses and those who practice journalism to understand that the message they give to the public must carry no ambiguity, contextually or otherwise, that can be a reason for public danger. To underscore this point, the court referred to the analogy of a key witness who pointed out that the transmissions of the media, left unchecked, are like kerosine that is poured on the ground awaiting a simple ignition to catch fire. Such a situation can only be allowed to persist where a pretext to carry out genocide is needed – the 1994 presidential plane crash in Rwanda, for instance.

This ruling is crucial in a number of ways. One, when we enact a law to deal with criminal media, the issue is really not whether at that particular moment the specific media house or houses carry any potential to cause immediate damage to society. At issue is the long-term effect if the situation that warranted the enactment in the first place was allowed to emerge and continue unmitigated. Such a situation could be the transmission of genocide ideology without any hindrance, in the name of promoting freedom of speech. 

This leads us to the threshold of controls that is necessary to ensure that everyone in society exercises their freedom while cognisant of his or her obligation to do so responsibly; that is, not to abuse the very freedom by exercising it in a criminal manner, as is the case with genocide denial. But if human rights organisations are demanding a special arrangement that tolerates the criminal use of speech, then their motives have to be interrogated, especially given they are not advocating the same exceptions in the societies they operate from. Why the double standards, one might ask.

Neither is the United Nations Declaration for Human Rights open-ended. Its article 19 on free speech and freedom of the media serves as a reference point around which domestic legislation finds convergence. It provides that neither press freedom nor free speech is absolute and that limitations to such rights “shall be determined by law solely for the purpose and respect of the rights and freedom of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” What the courts do is the same all over the world: interpretation. This is done on a case-by-case basis. The reason is simple but important. UN instruments would never be broad enough to cover every context. Neither is it desirable for it to do so because the law would lose meaning and applicability, as there would need to be an example of a society with a monopoly over wisdom, whose domestic considerations would need to be exported to other societies. This would promote a form of dictatorship that the very legislation seeks to prevent.

Criminal use of speech

The crime of genocide denial manifests itself in different forms. These are best understood by a society that has suffered genocide because, as the ICTR ruled, it is all about the context: the coded language, the nuances. In other words, for the laws of genocide denial to serve the purpose of deterrence and punishment, enforcement must be able to read between the lines. It is for this reason that the conviction of those who were running RTLM was secured. Although they never mobilized in plain language for people to go and kill, the Arusha court was able to deconstruct the coded language that was used on the radio station and made conclusions regarding its objective and intent as genocidal in nature.

Crucially, this identification of coded language and its deconstruction is a permanent exercise that society engages in, in the context of genocide and denial. Every time it resurfaces in any form, whether through traditional or new technology, it invites regulation by law of the medium of transmission, as is the case with YouTube.

At any rate, as we have observed from western restrictions on media as a result of the war in Ukraine, there can never be a challenge of drawing the line between the right to freedom of speech and the duty to protect society against harmful propaganda. Indeed, those who have been claiming to provide leadership in the defense of freedom of speech have reacted by imposing restrictions at the slightest hint of a crisis. It is rather surprising that they condemn other societies, especially those which are still dealing with the effects of past tragedies, for acting equally decisively. What is happening in Rwanda in terms of restricting denialist media is not a Rwanda invention.

Time, sensibilities, education, and socialization

Proximity to the tragedy matters. For instance, the way you deal with certain things changes based on time. I am convinced that the way Germany and other countries are dealing with Nazi ideology can’t be the same way Rwanda deals with genocide ideology. Why? We are dealing with the first generation of survivors and perpetrators. Those countries are, to a large extent, exiting that generation and have a population that does not have direct contact with the Holocaust. This is unlike the situation in Rwanda, where memories are still very fresh. In other words, genocide denial is a first-generation issue in Rwanda, while it is a second or third generation issue in Germany. This explains, in part, why the tools and methods applied to deal with these issues are different from one country to another. Time informs the methods that a specific society can apply to deal with the threat of genocide denial. This also indicates that certain adjustments and methods – even those that some human rights groups are promoting without regard to context – may become appropriate with time.

There is the issue of the requisite sensibilities – since the law must take into account people’s perception of their security and vulnerabilities. It is not that surprising that an American who has not suffered genocide would tend to disparage measures to prevent its recurrence and treat genocide denial very lightly, as something that can be tolerated given the importance of speech and media freedom within the US’s own democratic context. He or she would dismiss the concern for preserving lives that prompted the enactment of such measures. Yet, people must be alive in order to enjoy the fruits of democracy.

Moreover, while someone brandishing a message of hate in the US is generally ignored, we have seen how the US government deals with any escalation, as was the case with the “incursion” on the White House on January 6th. But this is a risk that not all societies can afford to take, least of all in a country like Rwanda where at any gathering at any moment there are high chances that a survivor and a perpetrator are standing next to each other.

Then there’s education and socialisation. A society can tolerate some forms of genocide denial because it presumes that the population can practice self-regulation by identifying which message to ignore or to adhere to.

German society has had much anti-Holocaust socialisation and other societies in Europe have shaped their curriculums in ways that address this problem. In fighting denial, proximity in time and space matters, and education, socialisation about parameters of decency, and the law are necessary tools. Every society deals with the challenge based on its own historical experience.

The lesson is that countries have the responsibility to protect their people and to do so within the prevailing legal framework. Rwanda is doing it according to its own historical and social context by reaffirming that genocide denial is unacceptable regardless of the platform used to promote it.  Europeans and Americans are enacting similar restrictions in regards to the Ukraine conflict according to the context they find themselves in. For instance, “anyone publicly approving the war may be liable to prosecution”, as announced recently by the German ministry of interior. In both cases, the fact that the laws in the books do not specifically refer to Youtube technology doesn’t make any difference. International instruments do not make reference to Youtube as such because it is a new technology in relation to the period the instruments came into force. This, however, does not exempt offenders from the letter and spirit of those instruments, as the current enforcement against harmful propaganda in Europe and America is proving in the context of the war in Ukraine. The essence of the legislation is to cater for present and future situations, as far as legislators can foresee.

The objective should remain to protect people’s lives from harmful propaganda and extremist ideologies. There should not be a selective application of these sensibilities. Certainly not for genocide denial.

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