On November 22, 1992, before a large crowd in the prefecture of Gisenyi, a Rwandan leader named Léon Mugesera delivered a notorious speech. Rambling, at times even incoherent, Mugesera urged his listeners to prepare for war on their doorsteps: “You know people they call Inyenzis [cockroaches] . . . These people called Inyenzis are now on their way to attack us.”

Mugesera’s “cockroaches” were expatriate Rwandan rebels, Ugandan-backed and largely of the Tutsi minority, who had been attempting to seize power since 1990. Mugesera then directed his listeners to the Tutsi civilians who might support the rebels:

Those are the people who pushed us into allowing ourselves to be invaded . . . Why do [our leaders] not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? Are we really waiting till they come to exterminate us?

. . . Do not be afraid, know that anyone whose neck you do not cut is the one who will cut your neck. Let me tell you, these people should begin leaving while there is still time and go and live with their people, or even go to the Inyenzis, instead of living among us and keeping their guns, so that when we are asleep they can shoot us.

When Rwandan officials sought Mr. Mugesera’s arrest three days later, he was already fleeing the country with his family; unfortunately, his message stayed behind. In the space of one hundred days starting in April 1994, between eight hundred thousand and a million people were hacked, shot and burned to death. The majority of the victims were unarmed men, women and children of the Tutsi ethnic group. They were killed because they were Tutsi, in a cataclysmic spasm of violence of unimaginable cruelty.

When news of the massacres began to seep out, the international community dithered, demurred and, finally, did nothing to prevent what has been called the fastest genocide of the twentieth century. On the heels of the disastrous Somalian debacle in 1993, Americans and other members of the UN Security Council actively opposed the use of the term “genocide” for fear of invoking the moral if not legal obligation to intervene. Samantha Power, in her book on US responses to genocide, A Problem from Hell, paints a picture of an American administration trying to find Rwanda on the map and famously wondering whether the fight was between “Hutsi and Tutu” or “Hutu and Tutsi.” Canada’s official response was less bumbling, but produced no response of any consequence. When the truth emerged, the world community declared itself horrified.

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Mr. Mugesera became a permanent resident of Canada on August 12, 1993. Survivors of the genocide have sought his deportation on the grounds that his 1992 speech incited murder and hatred and was a crime against humanity. In Canada, individuals can be deported if they commit criminal offences before or after obtaining permanent residence—but hate speech in another country and in another language is a grey area. Context is paramount.

This past September, after seven years of hearings before administrative bodies and the Federal Court’s Trial Division, the Federal Court of Appeal unanimously threw out the case against Mugesera, who continues to live freely in Canada. The role his words played is now at issue, as are the legal implications of the Court’s decision, the rewriting of history and the meaning of hate speech itself.

Human rights lawyer Bill Schabas was in Rwanda two months after Mr. Mugesera’s speech as part of a commission of international experts brought in to observe the situation. “The Commission was not a court,” cautions Schabas, “[but] what I witnessed was that Rwanda in 1993 was in a frenzied state, largely because of the Mugesera speech.” A Hutu who knew Mugesera and lived near him, speaking on condition of anonymity, corroborates this view: “That speech fomented divisions along ethnic lines.”

Jean-Paul Nyilinkwaya is spokesperson for PAGE-Rwanda, a Montreal-based support and activist group for relatives and friends of genocide victims. Nyilinkwaya was studying at Eastern Michigan University in 1994 when the genocide began. After frantic calls home, he learned that his family’s house had been burned to the ground and the Rwandan military had shot everyone inside. About thirty family members had been slaughtered. His father died in his sister’s arms. “My mother was left for dead,” Jean-Paul says quietly. “She survived, but is partially paralyzed.” Jean-Paul abandoned his studies soon after and moved to Montreal. A father of two, he is struggling to rebuild his life. “We see Canada as a place of peace and justice.”

He and his community have found neither. Mugesera’s lawyer, Guy Bertrand, successfully argued the case against the Minister for Citizenship and Immigration in the recent decision. The case hinged on four central issues: first, whether the extreme and violent words used in the speech were justified as self-defence; second, whether there is such a crime as hate speech; third, whether the speech should be assessed in light of the subsequent genocide in 1994; and fourth, whether free speech rights protected Mugesera’s words. The Minister lost on each point.

The Court of Appeal gave short shrift to evidence of racist labels and threats of violence. Extensive documentation of the lead-up to 1994 shows a carefully orchestrated plan to demonize, dehumanize and destroy an entire population. Tutsi were regularly labelled as “cockroaches” and targeted as “vermin”—the Court of Appeal, however, suggested that Mugesera’s speech is not hate speech because it refers mainly to “cockroaches” rather than “Tutsi.”

Tom Ndahiro is a Rwandan journalist and commissioner of Rwanda’s National Human Rights Commission. He is a big man, soft-spoken, with a gentle smile. But his bitterness is unmistakable. “The term ‘inyenzi’ means Tutsi,” he says flatly. “All Tutsi—this is well known.” Hutu and Tutsi interviewed for this article confirm this. Ndahiro is just as shocked by the self-defence argument: “War is a political conflict, [but] genocide is a political crime.” Confusing the two has created a legal loophole of self-defence that others can exploit.

Historical divisions between Hutu and Tutsi that led to the genocide may have had their genesis0in the pre-colonial period, but they were significantly worsened by the Belgians’ colonial practices. The two groups had evolved over at least five centuries in fluid, intermingled social structures. Under Belgian colonization in the first half of the twentieth century, however, it was a popular Western conceit to say that Tutsi looked Caucasian, and therefore were part of the Biblical lost tribe of Ham. The Belgians ruled indirectly through the aristocratic Tutsi, conferring on them privileges denied to the Hutu majority—a division further compounded by the issuance of identity cards labelling every person either Tutsi or Hutu. The seeds of ethnic division were sown in this, Africa’s first apartheid.

Contrary to Western press reports, Hutu and Tutsi are not “tribes.” They speak the same language, inhabit the same territory and share the same culture. According to many Hutu, the divisions between Hutu in the north and south of the country were almost as important as the Hutu-Tutsi divide was to be later on—a reason why Mugesera’s speech also targets Hutu “traitors.” The Court of Appeal, in contrast, thought Mr. Mugesera’s verbal attack on some Hutu was a sign of balance. In fact, it is symbolic of a second, less well-known, social fault line also exploited by the extremists that would result in thousands of Hutu deaths.

As Hutu became more politically aware in the late fifties and early sixties, they seized on the Hamitic myth as a way to turn all Tutsi into foreigners from Ethiopia. Forced repatriation to a country no Tutsi had ever known was a recurring theme. In 1959, there were reports of Tutsi massacre-victims thrown in the Nyabarongo River, said to flow to Ethiopia. Mr. Mugesera reminded his audience of this:

Recently, I told [a Tutsi] . . . , “The mistake we made in 1959, when I was still a child, is to let you leave.” I asked him if he had not heard of the story of the Falashas, who returned home to Israel from Ethiopia? He replied that he knew nothing about it! I told him, “So don’t you know how to listen or read? I am telling you that your home is in Ethiopia, that we will send you by the Nyabarongo so you can get there quickly.”

According to David Matas, a leading expert on international law, the Court of Appeal essentially characterized this passage as a benign reference to an organized riverboat-excursion emigration scheme up the Nyabarongo River.

Ndahiro is incredulous. “This is an insult to me. An insult to all survivors of the genocide . . . You can cross the river from one side to the other, but the river is not used for transport.” Tens of thousands of corpses were dumped in its waters during the massacre. When they floated into Lake Victoria, the Ugandan government had to ban fishing in the huge lake because of the pollution caused by the bodies.

The Court’s decision has outraged the Tutsi community. “I could not sleep or eat for three days,” says Nyilinkwaya, deliberately downplaying the issue of Mr. Mugesera himself. “There is a court process going on, but the main issue for us is the Court’s rewriting of history.”

The decision has also provoked sharp criticism from several Canadian organizations. Irving Abella, a noted Canadian historian, has written to Citizenship and Immigration Minister Denis Coderre on behalf of the Canadian Jewish Congress, asking that he appeal because of what Abella calls a “hate-filled” speech. The Canadian Centre for International Justice, whose members include the International Legal Resources Centre and Amnesty International Canada (English Speaking Division), are watching the case, says Montreal human rights lawyer Catherine Duhamel, head of ILRC. The Jewish anti-discrimination organization B’nai Brith Canada has also requested that the Minister seek leave to appeal the case to the Supreme Court of Canada.

“This kind of case is why Canada is seen as an international haven for terrorists and mass murderers,” says Matas, author of the B’nai Brith letter. He sees the self-defence argument and the refusal to consider incitement to hatred in light of the genocide as particularly dangerous for future cases. The Court, he believes, has turned Mugesera’s speech into “anodyne babble.”

Schabas asserts that the Court has unjustly separated the incitement from its alleged consequences, saying that the effects were clear even in 1993: “The Commission detected a climate of violence and hatred that suggested that genocide might be in the wind.” Rwandan sources living in the country at the time have confirmed this.

The real problem, though, is that the Court seems unable to bring itself to believe what it was hearing. “This is the flip side of Canadian niceness,” Matas says ruefully. “Canadians are nice people. It is beyond comprehension that people could incite or intend to commit the kind of crimes that we are dealing with here.”

The Federal Court of Appeal’s decision is significant not just because of the pileup of legal and factual errors. Matas also sees this as a broader issue. “This is not just about Rwanda,” he says. “[The case] makes a mockery of Canada’s leadership in the creation of the International Criminal Court.”

For Nyilinkwaya, despair over the case is not only for his people and those who died, but also for the loss of truth. Bill Schabas shares these fears. “This case shows the problems of prosecuting a case far from where the crime took place . . . Canada’s experience . . . shows how hard it really is to render justice in a foreign land.”