If nevertheless the Belgian legislator had to advance the adoption of this law at any cost, we argue that the law could reach the following objectives:
1. Protect the memory of the victims while allowing the search for the truth.
A law against the denial, minimization, justification or endorsement of the Tutsi genocide will aim to protect the memory of victims and survivors.
Indeed, subject to what has been stated in points 1 and 2, it may be appropriate to grant a specific legislative defense against those who, knowingly, do not hesitate to scorn the individual or collective memory of victims or survivors of this genocide.
However, in the specific context of the genocide of Tutsis in Rwanda, there are still many uncertainties about a number of major facts, there are still many "unknowns" that remain the subject of heated debate within Civil society, academics, international human rights organizations, politicians, journalists and even judicial institutions.
The appeal of drafting a law against the denial of the Tutsi genocide is therefore combined with the need to shed light on all these unknowns, and the legislator will have to be particularly cautious in order to prevent the law from being diverted from its purpose and used instead serve to stifle the emergence of the truth around these "unknowns".
The most important "unknown" is undoubtedly that of the identity of the perpetrators of the attack on President Juvénal HABYARIMANA's plane on 6 April 1994, an attack that is often considered to be an element that triggered the genocide. In this regard, the Parliamentary Commission of Inquiry on Rwanda had in the meantime stressed the importance of shedding light on this event through its recommendation No. 52.
Other "unknowns", such as the role and responsibilities of the RPF or the involvement of certain foreign governments are major elements in the history of the Tutsi genocide that must be clarified.
How then can one purport to draft a law punishing the denial, minimization, justification or endorsement of the genocide of Tutsis in Rwanda when the factual history of this genocide is not fully established and is still being unearthed on a daily basis?
This question is all the more crucial as we observe the application in Rwanda of a similar law that serves purely and simply to break anyone who wants to shed light on these "unknowns", like Mr. Peter ERLINDER , an American lawyer representing the opponent Victoire INGABIRE, who was imprisoned in Rwanda for 1 month for "denialism".
It is in the same vein that we observe intimidation campaigns against individuals or associations wishing to shed light on these "unknowns" and specifically with regard to the RPF's responsibility.
For example, the report of the Rwandan Parliament dated 11 February 2013, which specifically accuses researchers, academics, lawyers, UN experts, human rights associations, journalists and even judges like the Spanish judge Fernando Andreu MERELLES who, on 6 February 2008, issued 40 arrest warrants against senior RPF officials for crimes committed in Rwanda and the Democratic Republic of Congo between 1990 and 2002.
We therefore urge the Belgian legislator to be more discriminating and to not permanently muzzle research around these "unknowns", particularly because Belgium, being the country outside of Africa which has hosted the largest number of refugees of Rwandan origin should, for the sake of harmony within this community, partake in exposing the truth without being content with the version that is unilaterally and partially peddled by the RPF regime which is currently in power in Rwanda.
It would seem to us premature to counter denialism since the victims and witnesses are still here to testify to what happened.
The rush to adopt this law raises suspicion and suggests a desire to impose propaganda through legislation, hence the use of a term like "Hutu power" in the bill itself, wording of a text of the law.
2. Avoiding the stigmatization of an ethnic group as the "executioners"
In the aftermath of the terrorist attacks in Belgium and France in recent months, many politicians, journalists and citizens, who, aware of the danger of stigmatization and the associations thereof, have alerted public opinion to the need to avoid association between a minority of Islamic fundamentalists and the majority of French Muslims. For example, in the aftermath of the Charlie Hebdo massacre, while the whole of France was still in shock and the midst of emotion, Laurent Fabius, advocated avoiding the word "Islamist" in order not to favor "A sort of vision of continuity between the Muslim, who practices his religion which is a religion of peace, and something that could be a certain interpretation of the religion".
Similarly, in respect of other horrors experienced by humanity in the past, it would be unthinkable to unanimously condemn and associate the authors of such barbarities to a community whether it be national, ethnic, racial, or religious.
By way of illustration, when the Holocaust is mentioned, it is natural for everyone to make a distinction between the Nazi authors, and the German people in general who, as such, are alien to this horror. Thus, a commentator who mentions the genocide of the Jews and attributes it to the "Germans" would be immediately and rightly called to order, because of the dangers that such a stigmatization represents for the generations of Germans to come, whereas those responsible for the Holocaust are a minority of Germans trained in the murderous ideology of Nazism.
Yet in the case of Rwanda, more than 23 years later, when we talk about the genocide committed against Tutsis, many people still do not hesitate to equate all Hutus with the perpetrators of the genocide, thus stigmatizing, consciously or unconsciously, all members of an ethnic group, men, women and children of present and future generations.
For example, following the attacks in Brussels on 22 March 2016, the press announced the arrest of a Rwandan, a certain "Hervé B.M.". Jean Pierre Martin, a commentator that is well know for the quality of his reporting for RTL-TVI, commented on Facebook "Can you tell me who is this ‘sal… hu ...’ who was arrested in Bxl?" And added: “the genocide perpetrators have converted to Islam, I must know who it is so I can finish commemorating the mourning of Rwandans."
In its edition N ° 15, of April 2016, the weekly VIF L'EXPRESS, raised the slippage of Jean-Pierre Martin in these terms: "A bastard Hutu? that is more stigmatizing than honorable. Moreover, his ethnicity is not registered on the mailbox. As for labeling him a genocide perpetrator, he was born in 1990 and was only 4 years old at the time it occurred.” However, this was too late as the damage was already done.
More recently, at the beginning of September 2017, a Belgian non-profit organization organized the screening of the film "Inkotanyi" which traces the route used by RPF troops who took power in Rwanda in July 1994. The non-profit organization then offered free seats to those able to answer the competition question which was worded as follows: "Which ethnic group is considered to be responsible for the genocide of Tutsis in 1994 in Rwanda?". The stigma is frightening.
But perhaps the best example of the dangers of this terrible stigma is the program "Ndi umunyarwanda" (I am Rwandan) launched in June 2013 by Paul Kagame, the current head of state of Rwanda. In his speech on 30 June 2013 during the "Youth Connect Dialogue" he said, speaking to the 800 or so young people present, that the Hutus had to apologize to the Tutsis for the genocide committed on their behalf. "Even if you did not kill, get up and ask forgiveness for those who killed in your name.” And Paul Kagame pointed out that those who would be afraid or ashamed to apologize for the genocide committed on their behalf were providing indirect support to the killers. "When one is afraid through actions and words, to recognize the crimes committed in your name, one supports the actions of those who committed those crimes, and one benefits from them, and it should be that way".
Several young Hutus, some born in 1994, then stood up or knelt to apologize for "the genocide committed on their behalf".
This policy of collective guilt of all Hutus was subsequently formally endorsed by the Government following its annual retreat held in November 2013, when the Government declared "in this context, the Government members have the same understanding of the program ndi umunyarwanda and its value. They are committed to spreading this program to other Rwandans because there is no other way to rebuild the country. They also acknowledged that the genocide committed against the Tutsis was committed on behalf of the Hutus, and that in order for Rwandan society to heal, it is necessary that those on whose behalf the genocide was committed ask for forgiveness from those against whom the genocide was committed; condemn it, dissociate themselves from those who committed it as well as thoughts that lead in the wrong direction from that which Rwanda has come from. "
This policy of blaming an entire ethnic group is stigmatizing and dangerous. It stifles the chances of genuine national reconciliation and, even worse, risks perpetuating, for generations to come, the ethnic divisions that have sadly marked the history of Rwanda.
We ask the Belgian legislator to pay particular attention to the semantics used in the terms of the bill intended to legislate against the denial of the genocide of Tutsis in order to avoid these connotations with all the dangers they entail.
In this respect, the French legislator has opted to be cautious.
The Belgian bill thus attributes responsibility for the genocide of Tutsis to what it calls the "Hutu Power" regime and explains that the genocide was committed against "Tutsis and moderate Hutus". The terms used by the draft law to label the perpetrators of the Tutsi genocide and to label the victims are inadequate and likely to expose Hutus as a whole to adverse public opinion.
Indeed, the "Hutu Power" Regime never existed in Rwanda, and nowhere in the Arusha judgments to which the bill refers, has there been any questions raised about such a regime.
On the contrary, the Appeals Chamber of the International Criminal Tribunal for Rwanda has definitely ruled on this notion of "Hutu Power" in these terms:
"94. Finally, the Trial Chamber observed that the Prosecution frequently employed the term "Hutu Power" throughout the Indictment, pre-trial brief, and closing brief in relation to public rallies, without fully explaining what the term meant.243 After considering the context in which the term was used, the Trial Chamber was explained that, in its understanding, the notion meant "opposition to power-sharing with the RPF and, thus, a general opposition to the Arusha Accords".244 The Trial Chamber was not convinced that the term was synonymous with the genocidal ideology to massacre Tutsis "(http://unictr.unmict.org/en/cases/ictr-98-44).
Labeling an imaginary "Hutu Power" regime to hold it accountable for a crime as serious as genocide, and referring to an equally imaginary ethnic group, that is, the "Moderate Hutus" in the backbone of the bill is of great concern to us.
Since this regime and this group have never in fact existed, it is the Hutus who are ultimately labelled, ipso facto, as being responsible for the genocide of the Tutsis, in the bill proposed by the Deputy Gilles Foret.
In this bill, the Hutus appear as the executioners and are stigmatized as an ethnic group that exterminated the Tutsis in 1994. It is necessary to draw the attention of the Belgian legislator to the fact that, through the historical ties that bind the Belgian and Rwandan people, it is necessary to avoid such an approach, because it divides Rwandans in a contextual situation where they need to unite.
The bill states that there are more than 30,000 Rwandans (Hutus and Tutsis) in Belgium.
If this is true, wisdom would require the Belgian legislator to help these 30,000 souls and their future generations to live and to build together in peace and harmony instead of sowing, through such a law, the ingredients for hatred between Hutus and Tutsis in Belgium.
3. Avoiding the use of the law for purposes of political intimidation and propaganda
When one studies Rwandan jurisprudence where the laws against denial, revisionism and genocidal ideology have been applied in Rwanda, it is legitimate to ask questions about what would happen in Belgium.
Indeed, in Rwanda, these laws have become instruments of repression of any dissenting voice against the RPF regime.
Such application is obviously difficult to imagine in Belgium, but the mere fact of promulgating a law with contains such massive gaps, will no doubt open a door to all kinds of abuses, against which the legislator should rather protect us.
However, like all other mass crimes, what is relevant in the case of Rwanda if this law is adopted is to properly frame the criminalization of the denial of the genocide of Tutsis so as not to fall victim to the propaganda of one or the other party to the Rwandan conflict.
Also, one wonders why this penalization could not be done through the implementation of laws which curb the incitement of hatred.
Indeed, for there to be a denial of mass murder, it is necessary that there be an intention to injure (to sow hatred against the Tutsis in this case).
Actual acts of hatred and not just words that hurt, shock or worry others, an organization of victims, a political party or the state.
A denialist statement is an allegation, in bad faith, of erroneous facts or the negation of historical facts (The laws against denialism and the question of their extent - Edouard DELRUELLE). It is a historical lie in order to harm. Such acts can be punished in Belgium and elsewhere.
The legal characterization of the crimes in question does not matter, because, in the end, it is this vehicle of hatred that must be fought in the name of social peace. What must be condemned is therefore a form of language that is valued in one's environment and whose intent and effect is to incite hatred, violence or discrimination.
In light of the foregoing, and in a democratic state like Belgium, before proceeding to penalize the denial of the genocide committed against the Tutsis in 1994 in Rwanda, it is useful to verify and to note the realities of this denial.
It is this observation which would then highlight the need to protect a social peace that would be threatened here and now, in Belgium itself, because of a legal vacuum that would exist and which would allow the possible deniers to convey hatred against Tutsis.
By denialists, we insist, we must understand liars who deny historical facts or invent them in order to incite hatred against the Tutsi population and not people from diverse backgrounds, journalists, researchers, human rights defenders, politicians and even judges, who are led, in the exercise of their profession, to express opinions or to take actions, judged wrongly and in bad faith by denialists who do not want any the history of crimes committed against Rwandans to be revealed.
Ultimately, if the empirical facts prove the existence of Tutsi genocide deniers that would threaten social peace in Belgium, it might be appropriate to fill such a legal vacuum by specifically protecting the population concerned.
4. Foster the culture of a common history
It is clear that any person, association and political party that has worked or been involved in the drafting of this document unequivocally recognizes that the Tutsis of Rwanda have been victims of genocide.
These same people convey their gratitude to the Belgian State for being among the initiators of the recognition of the genocide of Tutsis in Rwanda.
Nevertheless, as was pointed out during the parliamentary proceedings of the "Law of 25 March 1995 intended to repress the denial, minimization, justification or endorsement of the genocide committed by the German National Socialist regime during the Second World War" it must be ensured that historians are not hampered in their research. Moreover, judicial investigations should not be hindered.
"...it is not possible to think of reconciliation between Hutu and Tutsi in Rwanda without a prior reconciliation with History. In a 1996 visit to Kigali, I asked to be taken to a school so I could talk to a history teacher. My host, an aide to the vice president [Paul Kagame], said this would be difficult since history teaching in schools had stopped. I asked why. Because there is no agreement on what should be taught as history, was the reply. History in Rwanda comes in two versions: Hutu and Tutsi. "
This passage from the book "When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda
", written by Professor Mahmood MAMDANI, current director of the Institute of Social Research at Makerere University in Kampala and lecturer at the University of Columbia, is unfortunately still relevant.
It cannot be denied that the current Rwandan government continues to invoke the fear of a new genocide in order to reduce fundamental freedoms both inside and outside the country.
Indeed, anyone who dares to speak about the crimes that have been committed by the Rwandan Patriotic Front, led by the current Rwandan President Paul KAGAME, is described as a genocide denialist, divisionist or revisionist. The same goes for anyone who denounces the government's repression of its opponents.
Several journalists, political opponents and artists, have been imprisoned for genodice denialism. Regardless of whether they are Hutu or Tutsi survivors of the genocide. As soon as one criticizes a political project of the current government, as soon as one dares to sing a tune not endorsed by the power, one incurs the prison OR even death.
It is therefore necessary at all costs to avoid or even put an end to all manipulations. This is what the philosopher Paul RICOEUR described as "manipulated memory" in his book "Memory, History, Forgetting". For the author, it is about the ideological manipulation of the memory. In this case, the holders of the power use the memory "in the quest to reclaim identity". This manipulation of memory is intended to legitimize the authority of the power in place, so that it appears as a "legitimate power to be obeyed".
It is therefore essential that such a law is geared towards the reconstruction of a shared past, rather than in the endorsement of a single political version of history that would be challenged.
For that purpose, the law should, for example, unequivocally provide for the precise discourse which, according to the legislator, consists of denying the genocide of the Tutsis and not merely enumerate actions described in a general manner whose interpretation remains totally subjective.
This would, however, be legally impossible since the role of the judge is precisely to apply the law to individual and concrete circumstances which must be defined in a general and abstract manner.
But how could a Belgian judge concretely apply this law if there is not yet a shared history and the only official version conveyed by the Kigali regime is still truncated until some light is shed on all those responsible?
It is therefore necessary to ensure that the laws concerning the genocide in Rwanda do not contribute to the existence of "two versions" of the history of Rwanda, but on the contrary, allow Rwandans, whether Tutsi or Hutu or Twa to agree on a collective story.
A collective history is fundamental for the emergence of a collective memory and ultimately the reconciliation of Rwandans.
1. Who are we and what are our objectives?
2. Is the law appropriate in principle?
3. Is the law timely in its content?