MEDIA CULPA

The prohibition of propaganda for war in international law



This paper was presented by Michael Kearney at the Halifax International Symposium on Media and Disinformation held June 30-July 4, 2004 co-sponsored by Shunpiking Magazine. It analyzes the role of the international human rights legal framework in combating the dissemination of false news and the spread of disinformation and propaganda for war. Drawing on various international human rights instruments such as Article 20(1) of the International Covenant on Civil and Political Rights which requires that "[a]ny propaganda for war shall be prohibited by law," as well as the jurisprudence of the various international criminal tribunals, the paper examines the potential space which international law can provide in the quest to end propaganda for war and in holding its propagandists accountable for their actions.


WHEREAS the international community considered the legality of propaganda for war for many years at forums such as the General Assembly of the United Nations, the legal provisions that were finally accepted in the International Covenant of Civil and Political Rights (ICCPR) have been inadequately implemented and until recently remained dead-letter law. Several recent proceedings of the International Criminal Tribunals for Rwanda and the Former Yugoslavia (ICTR & ICTY) have penalised propagandists however and there is an emerging trend which seeks to draw on international human rights law in order to hold various media accountable for actions which constitute incitement to genocide and propaganda for war.

Introduction to the Modern Laws of Propaganda

The modern laws of propaganda may be understood as having had their genesis in the repercussions of the French Revolution. The legality of propaganda was questioned at the time of the French Revolution and grew out of a period of crisis in Europe that was underpinned by the Revolution and the subsequent crystallisation in the eighteenth century of the doctrine of non-intervention in the internal affairs of a state as a prescription of international law.[1] Following the French revolution the French National Convention in 1792 had offered to come "to the aid of all peoples who wish to recover their liberty." In a similar fashion to the later protagonists of the Soviet Revolution of 1917, the success of the national revolution was believed to be conditional on the spreading of their revolutionary ideology to other countries. The offer of the French National Council was regarded by Great Britain however, as being the "formal declaration of a design to extend universally the new principles of government adopted in France, and to encourage disorder and revolt in all countries, even those which are neutral." The ensuing "guerre de propaganda" resulted in the offer being repealed by the French National Convention in April 1793 in the face of hostilities from Britain and the other European powers. [2] L. John Martin has described this incident as representing "the beginning of world consciousness of international propaganda."[3]

Until recently propaganda was not regarded as being a human rights issue, but rather it was considered to be an "international delinquency" -- an affront to the principle of non-intervention in the internal affairs of a sovereign state. Writing in the eighteenth century, Vattel relied on the then fledgling principle of non-intervention to claim that "it is in violation of the law of nations to call on subjects to revolt when they are actually obeying their sovereign, although complaining of his rule."[4] Lauterpacht states that "[t]he State's right to determine, free from external interference, its own constitution, is the gist of independence."[5] In his view international law did not protect the constitution of a state or its actual government per se but rather "it's right to determine both by its own free will."[6] He concludes that in resorting to revolutionary propaganda abroad, a state "inevitably tends to obliterate the border-line between the state of peace and the state of war, and as such is incompatible with the maintenance of orderly intercourse between nations."[7] Wright states that the international legal obligation on states to refrain from propaganda "unfavourable to foreign states, rulers, or governments and favourable to seditious, revolutionary, or insurgent groups"[8] is founded on the principle of non-intervention and is thus differentiated from propaganda for war which is considered to be a crime "not in itself, but because of its relationship to the international delinquency or crime which it incites."[9]

While the press is perhaps the most virile form of propaganda in a domestic setting, until the advent of globalisation its initial impact remained local though the repercussions could be felt at every point of the globe. However the advent of international broadcasting at the beginning of the twentieth century, first in the form of radio and later television, resulted in the various elites of opposing nations seeking to undermine and threaten each other through these new mediums. Initial hostility to international broadcasts stemmed from fears of a direct threat to internal political stability as well as commercial considerations such as the protection of internal monopolies, while underdeveloped countries feared being overwhelmed by generalised foreign influences.

Scholars have identified five types of propaganda or dissemination that states have argued should be prohibited under international law. These include;

(1) war propaganda;

(2) propaganda which might tend to develop hatred against a foreign state;

(3) dissemination of false and distorted reports which might lead to the disturbance of friendly relations between states;

(4) disseminations which give offence to peoples of a foreign state;

(5) Subversive propaganda i.e. propaganda which incites the people of a foreign state to internal violence.[10]

Today however the term propaganda has being retained in only a single case, that of propaganda for war. The past century's emphasis on the importance of freedom of expression has resulted in the clarification of restrictions on freedom of speech, and so, the other categories (save that of false and distorted reports which will subsequently be demonstrated to constitute propaganda for war in and of itself) have been shifted to other categories of the international human rights law framework. For example under the ICCPR, Article 19 provides that certain speech can be restricted in order to ensure "respect of the rights or reputations of others,"[11] and "the protection of national security or of public order (ordre public), or of public health or morals,"[12] while Article 20 requires that states shall prohibit by law "any propaganda for war" and "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence." Perhaps the most salient feature in the modern understanding of those "types of propaganda that should be prohibited under international law" has been the recognition of an increasing interdependence between states and a sudden shift away from the once sacred altar of state sovereignty.

League of Nations

Prior to the establishment of the League of Nations in 1920 the issue of propaganda for war and false news was being addressed by a variety of international organisations and networks. In 1914 the Inter-Parliamentary Union (IPU), a group representing members of many national parliaments published a draft resolution concerning false or sophisticated news capable of compromising peaceful relations between states. At its twenty-third conference in 1925, propaganda was discussed and a resolution condemning the dissemination of false news was adopted. In 1932 the IPU urged its members to introduce legislation within twelve months for the punishment of "persons inciting the country to war by writing, speech or any other form of publicity, or who, either by disseminating false news or false documents, or by fraudulent machinations, have disturbed international relations or increased the tension between certain countries."[13]

In August 1927, a group of press experts met under League of Nations auspices in Geneva and adopted a resolution stating that news agencies should take stringent measures to avoid publication or distribution of news that was biased, exaggerated, deliberately distorted, or obviously inaccurate and which was "calculated to cause undesirable misunderstanding among nations and suspicions detrimental to international peace." During the twenty-eight World Peace Conference in Brussels in 1931, the hope was expressed that legislation would be passed by its members' nations outlawing incitement to war by word, pen or other and similar means and at the 1932 Conference in Vienna, a resolution was adopted against war propaganda and the dissemination of inaccurate news likely to harm international understanding.

A Polish memorandum to the League of Nations concerning the issue of moral disarmament argued that the dissemination of false news should be prohibited under international law and suggested four possible remedies to the phenomenon. These included the amendment of municipal penal legislation to punish people guilty of publishing such statements, making the "right of reply" available in all countries and to foreign governments, the establishment of an interdisciplinary international tribunal for journalists as well as the establishment of an international information bureau which would publish objective versions of international events. As a result of Soviet Russia's propagandising activities, the Swedish government called on the Secretary General of the League to respond to the need for curbing false information in 1931. The General Convention to Improve the Means of Preventing War, adopted in May 1931, urged the League of Nations Assembly to take up the problem of War Propaganda "recognising that aggressive propaganda against a foreign power may, in certain circumstances, constitute a veritable threat to the peace of the world...."[14]

The Legal Committee of the Committee on Moral Disarmament proposed punitive measures to prevent the publications of false news during the 1932 Geneva Disarmament Conference. The Polish government presented a draft convention which required inter alia that states would be obliged to punish "any person guilty of public incitement to war."[15] The legal committee of the Conference for the Reduction and Limitation of Armaments of the League of Nations proposed that a clause be included in its draft convention which would outlaw:

Direct public propaganda urging the State to be the first to commit, contrary to its international understandings, any one of the following acts:

1. declaration of war upon another state

2. invasion by its armed forces, even without declaration of war, of the territory of another state

3. attack even without declaration of war, upon the territory, vessels or aircraft of another state

4. naval blockade of the coasts or parts of another state

5. assistance given to armed bands, organised in its territory

It further suggested that states ban "the dissemination of false news, reports or of documents forged, falsified or inaccurately attributed to third parties, whenever such dissemination has a disturbing effect upon international relations and is carried out in bad faith," as well as speech "causing prejudice to a foreign state by maliciously attributing to it acts which are manifestly untrue and thus exposing it to public resentment or contempt."[16]

The proposal drew widespread opposition, led by Britain and the United States, who argued that it amounted to the regulation of propaganda by methods amounting to censorship.[17] Subsequently, the General Assembly of the League adopted a report from the Sixth Committee of the Assembly which stated that there was a greater danger inherent in the encouragement of governments to interfere with the freedom of the press than could be expected from the publication of falsehoods. 'Despite the efforts of the League, nothing that directly mentioned propaganda was ever passed in the form of a resolution either by the League Assembly or the League Council. According to Martin, the League's virtue lay in "the encouragement it gave to private international and national organisations and to the conventions concluded under its auspices." [18]

The primary Convention of interest is the Broadcasting in the Cause of Peace Convention of 1936. In 1931 the Sixth Committee of the League Assembly approved a study to be made by the Committee on Intellectual Cooperation (an agency of the League) regarding use of international broadcasting in the cause of peace. In September 1933, the League authorised the Committee on Intellectual Cooperation to prepare a draft convention and a preliminary draft agreement for the use of broadcasting in the cause of peace. This resulted in the ratification of the International Convention Concerning the Use of Broadcasting in the Cause of Peace. The intergovernmental conference on broadcasting in the cause of peace was attended by twenty-eight states including Great Britain, France and the Soviet Union but not the USA. It resulted in the Broadcasting Convention of 1936[19] which was acceded to by 26 states including France, Great Britain and the British Dominions. The USSR and the USA refused however to ratify it, but on opposing grounds. States parties undertook to prohibit the broadcasting within their territories of any transmission calculated by reason of its inaccuracy or otherwise to disturb international understanding or to incite the population of any territory to acts incompatible with the internal order or the security of a territory of a contracting party. Article II of the Convention bound the parties "to ensure that their transmissions do not constitute an incitement to war, or to acts likely to lead to war." The Convention, sought to prevent radio propaganda "incompatible with the internal order or the security of another party" as well as propaganda inciting people to war or likely to lead thereto. [20]

The Conference did not prove significant in its practical effects and in 1954 the UN General Assembly requested states which were party to the Convention to state whether or not they wished to transfer to the UN the functions which had been performed under the auspices of that Convention by the League of Nations without any significant success.[21]

United Nations

At the genesis of the United Nations the General Assembly adopted Resolution 59(1) of 14 December 1946 which contained a proposal to promote measures relating to freedom of information. Concurrently, proposals were made concerning the regulation of propaganda. At the second session of the General Assembly in 1947 the USSR and Yugoslavia submitted draft resolutions on measures to be taken against war propaganda and on the prevention of propaganda harmful to foreign states and to international understanding respectively.[22] The Yugoslav draft required that member states should adopt measures to prevent the dissemination of "false and tendentious reports calculated to aggravate relations between the States, and provoke conflicts and incite to new war."[23 ] The United Kingdom was opposed to the Russian proposal as it omitted all reference to "such important questions as censorship, freedom to travel, arbitrary expulsion and the withholding of news from the people of a country."[24] Several governments submitted alternative resolutions on warmongering[25] and the General Assembly unanimously adopted a resolution condemning war propaganda that had been placed before it by the Political and Security Committee on November 3, 1947.[26] This resolution did not differentiate between subversive propaganda and propaganda for war, rather it condemned, "all forms of propaganda, in whatsoever country conducted, which is either designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression."[27] The Resolution left up to each member state the definition of "propaganda designed or likely to provoke a threat to the peace" and "propaganda designed to promote friendly relations among nations." No action by the UN was envisaged except the last resort of Article 37 of the UN Charter.

While various draft resolutions were discussed by the General Assembly a final decision on the USSR and Yugoslavia drafts was deferred to the Conference on Freedom of Information which was held in Geneva in 1948.The Conference addressed issues pertinent to both freedom of information and the control of propaganda. Its principle purpose was to "formulate views concerning the rights, obligations and practices which should be included in the concept of freedom of information." Attended by fifty-four states, the negative aspect of the conference centred on attempts "to curb the use by nations in their mutual relations of various types of harmful propaganda," and to remove "bellicose influences from media of information."[28]

Whilst the liberal democracies sought unbridled freedom of information, stating their belief that the best remedy against propaganda is full and free discussion, the Soviet Union tried to obtain agreement on the part of the democracies to suppress certain types of utterances, especially war propaganda and warmongering. The non-aligned, newly independent states sought to obtain acceptance of certain limited propaganda controls in the hope that it would equalise their position, fearing American domination in a propaganda contest with the still "imperialistic, liberal democracies."[29] Many of the decisions at the Conference were not unanimous and there were serious differences to the approaches favoured by the Soviet bloc on the one side, and the Western states on the other. Contrary to the arguments of the Soviet Bloc which favoured the Conference stating those rights and responsibilities of the press which would subsequently be enforced by the state, the responsibility for exercising the freedoms which the Conference espoused was left primarily in the hands of those professionally engaged in the information field, rather than be enforced by law or governmental action. This was in keeping with the approach of the western states that focused on the freedom of the press and the freedom of expression.

The nearest attempt at resolving the contrasting approaches of the Soviet Bloc and the Liberal West was made in connection with the resolution against warmongering and false and distorted reports, which the Conference passed unanimously.[30] Resolution Number II condemned:

all propaganda either designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression, and all distortion or falsification of news through whatever channels, private or governmental, since such activities can only promote misunderstanding and mistrust between the peoples of the world and thereby endanger the lasting peace which the United Nations is consecrated to maintain.

The final text expressed the view that these objectives were sound guidance for information media (the United States abstained from the vote on the issue of false news). Resolution Number 39 included a paragraph, suggested by Russia, directing the sub-commission to make studies and propose recommendations on "[t]he promotion of the dissemination of true information to counteract Nazi, Fascist or other propaganda of aggression or of racial, national and religious discrimination."

A further General Assembly Resolution of December 1, 1949 called on nations "to remove the barriers which deny to peoples the free exchange of information and ideas essential to international understanding and peace."[ 31] At a plenary meeting on November 17, 1950, the GA reaffirmed its Resolutions condemning propaganda against peace,[32] while on December 14 of the same year it called upon members to refrain from interfering "with the right of their peoples to freedom of information."

In 1958 the UN Rapporteur on Freedom of Information for the Economic and Social Council suggested that "an annual survey [be] made of the general situation with regard to the dissemination of false or distorted information on international affairs," which he hoped would allow for investigations to be made in the necessary circumstances with the view to "recommending corrective or disciplinary action." He proposed that cases requiring governmental attention could be brought to the attention of the Economic and Social Council which could "furnish information to the Security Council" should it consider a report "likely to provoke or encourage a breach of the peace or an act of aggression."[33] None of these suggestions have ever been implemented however.

A draft Convention on Freedom of Information which was published after the Conference on Freedom of Information was considered by the General Assembly in 1959 but not adopted. In 1960 the Third Committee of the UN General Assembly, whilst considering the draft convention on Freedom of Information, adopted a draft of Article 2 of the convention (Legal Committee of the Committee on Moral Disarmament in the League of Nations) which permits the contracting states to prohibit within their territories "incitement to war." The negotiations and debates concerning all these draft Conventions and resolutions contributed to negotiations leading to the drafting of the International Covenant of Civil and Political Rights (ICCPR) and the Third Committee of the General Assembly adopted Articles 19-26 of the ICCPR, which include the Prohibition of Propaganda for War in October 1961. [34]

The International Covenant of Civil and Political Rights (ICCPR)

Introduction

The debate as to whether to include the prohibition of propaganda for war in the ICCPR was not immune from the ideological differences relating to freedom of expression between the opposing cold war powers and although the prohibition of propaganda for war was included in no uncertain terms in the covenant (indeed article 20(1) is notable as being the only provision of the covenant that specifically requires certain conduct, i.e. propaganda for war "shall be prohibited by law") substantial opposition remained even after Article 20 was adopted by the third committee of the General Assembly in 1961. The provision did receive support however from the unaligned, mostly developing group of nations, who were wary of those still "imperialistic, liberal democracies" which controlled much of the global flow of information through advanced communication satellites and powerful press agencies.

While this paper will focus on the provisions of the ICCPR several other international conventions also include clauses concerning the use of propaganda. Article 13 of the American Convention on Human Rights states that "[a]ny propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law." Under Article 19 of the UN Convention on the Laws of the Sea, the passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if it "engages in any act of propaganda aimed at affecting the defence or security of the coastal State." The preamble of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1967) contains a provision in which the states parties agreed to take account of UN General Assembly resolution 110 (II) of 3 November 1947, which condemned propaganda designed or likely to provoke or encourage any threat to the peace, breach of the peace or act of aggression, stating that the aforementioned resolution is applicable to outer space.

The Human Rights Committee (HRC)

The Human Rights Committee was established to monitor the implementation of the ICCPR and the Protocols to the Covenant in the territory of States parties. States parties are required to submit reports every five years to the HRC on the measures they have adopted which give effect to the rights recognised in the Covenant. Although only members of the HRC and representatives of the relevant State party may take part in the dialogue, non-governmental organisations are encouraged to submit written information or reports to the HRC.

Declarations and Reservations

There are eleven reservations and five declarations to Article 20(1). Several states parties have entered reservations to Article 20(1) stating that they had voted against its inclusion in the ICCPR at the General Assembly as they felt it was an unnecessary restriction on freedom of expression (e.g. Denmark, Finland). Other states such as the Netherlands have refused to accept any obligation under article 20(1). Further State reports simply claim that a particular country has no urgent need of such legislation given that theirs is a peaceful country devoid of any such propaganda (e.g. Japan).

The lack of a generally accepted definition of "propaganda for war" is a recurring motif in the declarations and reservations and while several states have entered declarations stating that "war" as proscribed in the Covenant is to be understood as war in contravention of international law, (e.g. France, Thailand) none have attempted to define propaganda. Other states have entered reservations stating that the domestic legislation which is required to be introduced under the terms of the ICCPR shall not be introduced until the definition of propaganda for war has been clarified ( e.g. Ireland).

General Comments of the Human Rights Committee

The Human Rights Committee first discussed article 20(1) in General Comment 6 concerning the Right to Life (Art. 6) (1982). Therein the HRC stated that war as a scourge of humanity, was one of the main threats to everyone's enjoyment of the right to life. In this regard they stressed the connection between Articles 6 and Article 20(1). The HRC specifically considered Article 20 in General Comment 11 (1994). There the HRC was critical of States parties who had not passed legislation prohibiting such propaganda despite their obligation under the Covenant to do so. The HRC sought to clarify the meaning of war in the provision and stated that "[t]he provisions of Article 20, paragraph 1, do not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations."

In reply to those who had dismissed Article 20(1) as being an affront to the freedom of expression guarantees of Article19, the HRC stated that the required prohibitions of Article 20 "are fully compatible with the right of freedom of expression as contained in Article 19, the exercise of which carries with it special duties and responsibilities." The committee then stated that the prohibition under paragraph 1 extends to all forms of propaganda -- thus including not only written or verbal propaganda but also shows of force such as military parades or other events. In a further testament to the importance of Article 20(1), the HRC in General Comment 29 (Art 4; states of emergencies: 2001) declared that "[n]o declaration of a state of emergency made pursuant to article 4, paragraph 1, may be invoked as justification for a State party to engage itself, contrary to article 20, in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence." Thus Article 20(1), in the opinion of the HRC, must be considered as being a non-derogable right.

International Criminal Law and the Prohibition of Propaganda for War

As noted above the international legal prohibition on propaganda for war remained dead letter law for the most part of the twentieth century. The sole international law forum at which it was occasionally considered was in the General Comments and Concluding Observations of the Human Rights Committee. This is in stark contrast to the groundbreaking work of the International Military Tribunal at Nuremberg (IMT) concerning propaganda in the aftermath of the Second World War. At Nuremberg, various aspects of propaganda were considered to be crimes against the peace and several high ranking Nazis were charged for offences relating to aggressive and racist propaganda. It was not until the mid-nineties and the establishment of the International Criminal Tribunals for Rwanda and the Former Yugoslavia however that a space arose for the indictment of persons involved with contemporary propaganda.

Both the Rwanda Genocide of 1994 and the series of conflicts which plagued the Former Yugoslavia throughout the nineties were incited and shaped to a large degree both by the actions (and inactions) of mass media as well as the aggressive and hate filled speech of individuals, both in a public and private capacity. The reliance on the media to encourage violence and the widespread use of propaganda in both these conflicts forced the international community to rethink their approach to freedom of expression provisions of international law and to reconsider the international legal provisions relating to hate speech, incitement to genocide and propaganda for war. It is clear from the violence in both of these locations that the concept of the free press as envisaged by the western liberal states during the cold war was not sufficient to prevent war and that the "free market place of ideas" was not sufficiently mature nor able to prevent aggressive war or genocide. The International Criminal Tribunals therefore have had recourse to various instruments of international law in order to hold the perpetrators of the violence in Yugoslavia and the genocide in Rwanda accountable, and indeed they have had reason to draw on the jurisprudence of the IMT in the wake of a genocide which the international community had sworn "would never happen again." This section therefore will analyse some of the more pertinent decisions of the international criminal tribunals in order to demonstrate how contemporary international criminal law has approached charges of propaganda for war and incitement to genocide.

Radio and the popular press were relied upon by the perpetrators of the Rwandan genocide to create an unstoppable wave of fear and hatred. Following on from the Akayesu decision in which the accused was found guilty of inter alia direct and public incitement to genocide,[35] the willingness of the ICTR in the Nahimana Case, whose decision was delivered on December 3, 2003, to strive to hold the proponents of such propaganda accountable for their actions is a positive and encouraging step. In Nahimana the ICTR recognised the failure of the international community to halt abuse of the media for violent ends, acknowledging that the case raised important principles concerning the role of the media, "which have not been addressed at the level of international criminal justice since Nuremberg." The ICTR stressed that "the power of the media to create and destroy fundamental human values comes with great responsibility. Those who control such media are accountable for its consequences."[36]

The Trial Chamber of the ICTR addressed the actions of the radio station RTLM, the periodical Kangura and the political movement CDR. The Chamber found that RTLM broadcasts engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population and called on listeners to seek out and take up arms against the enemy. The enemy was defined to be the Tutsi ethnic group. These broadcasts called explicitly for the extermination of the Tutsi ethnic group. The Chamber also found that through fear-mongering and hate propaganda, the periodical Kangura paved the way for genocide in Rwanda, whipping the Hutu population into a killing frenzy. The CDR was found by the Chamber as having orchestrating particular acts of killing, as well as promoting a Hutu mindset in which ethnic hatred was normalized as a political ideology.

While the Nahimana decision does not directly address the prohibition of propaganda for war, the jurisprudence of the Chamber concerning other forms of prohibited speech such as incitement to genocide is indicative of an emerging trend within international law, towards holding such propagandists accountable for their actions. Indeed, the Chamber's reasoning in Nahimana can be equally applied to situations where an accused is charged with engaging in propaganda for war. The Chamber, drawing on the jurisprudence of the IMT and the European Court of Human Rights (ECHR) focused on the purpose, context and causation of the speech in question. It is necessary to consider the purpose of the speech in question in order to distinguish propaganda from bona fide expression, for example distinguishing between language that explains the motivation for terrorist activities and language that promotes terrorist activities. The jurisprudence on incitement highlights the importance of taking context into account when considering the potential impact of expression. The Chamber noted with approval a warning of the ECHR that a text may "conceal objectives and intentions different from the ones it proclaims".[37] In a determination as to whether a particular expression is prohibited, taking the context into account it is a question of evidence and judicial determination of the actual intent of the expression. Finally the Chamber stated that international jurisprudence does not include any specific causation requirement linking the expression at issue with the demonstration of a direct effect. Citing from the Streicher case before the IMT at Nuremberg, the Chamber noted that there was no allegation that the publication Der St?rmer was tied to any particular violence. Much more generally, it was found to have "injected in to the minds of thousands of Germans" a "poison" that caused them to support the National Socialist policy of Jewish persecution and extermination. Thus no specific acts of violence are necessary for speech to constitute expression prohibited under provisions relating to incitement or propaganda, rather, the question considered is what the likely impact might be, recognising that causation in this context might be relatively indirect.

'The Chamber also stated in relation to the issue of causation that "there is justification for adaptation of the application of international standards, which have evolved to protect the right of the government to defend itself from incitement to violence by others against it, rather than incitement to violence on its behalf against others, particularly as in this case when the others are members of a minority group."[38] This statement is significant insofar as the Chamber recognises that governments or elites may seek to abuse existing human rights provisions in order to engage in prohibited expression for their ends without being held accountable. The role of the ad hoc international criminal tribunals for the Former Yugoslavia and Rwanda, as well as the International Criminal Court is critical in the attempt to hold propagandists for war accountable.

In Nahimana the Chamber linked the actions of the accused which constituted incitement to genocide to propaganda for war, stating that the Accused understood their media initiative in the context of war propaganda, and the truth was subservient to their objective of protecting the population from the Rwandan Patriotic Front through the destruction of the Tutsi ethnic group. The incorporation of the language of propaganda into judgments of international criminal tribunals is long overdue yet may still prove advantageous. A positive development has occurred at the ICTY where in February 2003, Vojislav Seselj was indicted on the charges of crimes against humanity and violations of the laws or customs of war including that he "espoused and encouraged the creation of a homogeneous 'Greater Serbia,' encompassing the territories specified in this indictment, by violence, and thereby participated in war propaganda and incitement of hatred towards non-Serb people." This is the first charge of engaging in propaganda for war to be brought before an international criminal tribunal since the IMT at Nuremberg and the trial will be of much significance.

Conclusion

The question of the regulation of expression has been one of the more controversial and divisive aspects of international human rights law. In the aftermath of the Cold War, when Soviet censorship was pitted against the liberal marketplace of ideas, the world was shocked by the manipulation of the media in Europe and Africa which resulted in massive bloodshed in the Former Yugoslavia and Rwanda. Today, international law is being applied to the perpetrators of these conflicts and the ad hoc international criminal tribunals are discovering that international human rights law must be applied more vigorously to expression which constitutes incitement to genocide or propaganda for war. The prohibition of propaganda for war under the ICCPR remains a little known and even less understood provision of international law, however given the efforts of the international tribunals it is necessary for legal scholars and activists to consider how international human rights law framework can be made to work to develop a means whereby disinformation, false news, incitement to hatred and propaganda for war can be confronted and stopped. Given the widespread public unease and cynicism in relation to much contemporary media as well as many official government statements, the international human rights framework provides another space for activists to hold both government and private persons accountable for propaganda for war.

Notes

1. cf: Holtman, Robert B. Napoleonic Propaganda (Baton Rouge, Louisiana State University Press, 1950).
2. Preuss, Lawrence. "International Responsibility for Hostile Propaganda against Foreign States", 28 AJIL (1934) p.649, 654.
3. Martin, L. John. International Propaganda: Its Legal and Diplomatic Control. (University of Minnesota Press, Minneapolis, 1958) p.6.
4. Cited in Preuss, Lawrence. "International Responsibility for Hostile Propaganda against Foreign States", 28 AJIL (1934) p.649, 654.
5. Lauterpacht, H. "Revolutionary Propaganda by Governments" 13 Trans. Grot. Soc. (1928), pp.143-164, 146.
6. Lauterpacht, H. "Revolutionary Propaganda by Governments" 13 Trans. Grot. Soc. (1928), pp.143-164, 146.
7. Lauterpacht, H. "Revolutionary Propaganda by Governments" 13 Trans. Grot. Soc. (1928), pp.143-164, 155. Similarly Lauterpacht notes conversely how "In the formative period of International Law, the characteristic feature of which is the frequent absence of a clear line of demarcation between the state of war and the state of peace between nations, recourse by Governments to revolutionary propaganda abroad was not an uncommon occurrence." Ibid p.148.
8. Wright, Quincy "The Crime of War-Mongering" 42 AJIL (1948) pp. 128-136, 131.
9. Wright, Quincy "The Crime of War-Mongering" 42 AJIL (1948) pp. 128-136, 131.
10. Murty, B.S. Propaganda and world Public Order: The Legal regulation of the Ideological Instrument of Coercion. (Yale University press, New Haven & London, 1968) p. 233.
11. Article 19.3.a ICCPR.
12. Article 19.3.b ICCPR.
13. (Section 2 (B) 2 of the resolution: Martin, 1958, 67)
14. League of Nations, VII Political (1931) Doc. A.14.1931.VII.8, pp.2-3, (1932).
15. Memorandum submitted by the Polish Government to the League of Nations Concerning the Attainment of Moral Disarmament, L.O.N. Doc., C.602.M.240.1931.IX.
16. League of Nations, IX Disarmament (1935), 1935.IX.4 p.702.
17. Murty, B.S. Propaganda and world Public Order: The Legal regulation of the Ideological Instrument of Coercion. (Yale University press, New Haven & London, 1968) p. 234.
18. Martin, L. John. International Propaganda: Its Legal and Diplomatic Control. (University of Minnesota Press, Minneapolis, 1958) p.71.
19. Drafted by the International Committee on Intellectual cooperation. Signed by 28 states on 23 September, 1936 and came into force on 2 April, 1938.
20. Wright, Quincy "The Crime of War-Mongering" 42 AJIL (1948) pp. 128-136, 131.
21. Schwelb,Egon. "International Conventions on Human Rights" 9 ICLQ 654 (1960) 662-667 .
22. United Nations, Yearbook of the United Nations, 1947-1948 (Lake Success, NY, 1949), pp. 91-93.
23. UN Doc. A/C.3/162 (1947).
24. United Nations, Yearbook of the United Nations, 1947-48 (Lake Success, N.Y., 1949), pp.91-93. Martin p. 71.
25. Australia, Canada, France and Venezuela.
26. There it was adopted by a vote of 56 to 0, Haiti being absent: Oct 27 1947.
27. UN Doc. GA Res. 110(II), 8 Nov. 1947.
28. UN Doc. E/Conf. 6/C.1/19. Whitton, John B. and Larson, Arthur. Propaganda: Towards Disarmament in the War of Words. (Duke University, Oceana Publications, N.Y., 1964) p.70.
29. Murty, B.S. Propaganda and world Public Order: The Legal regulation of the Ideological Instrument of Coercion. (Yale University press, New Haven & London, 1968) pp. 3-4.
30. United Nations Bulletin Vol. IV No. 9, 1 May 1948.
31. GA Res. 290(IV).
32. UN GA Fifth Sess. Doc. A/1532, Nov 21, 1950 - adopted 49-0, 7 abstentions.
33. 7-10 UN GAOR. Plenary Meetings and Annexes (Emer. Sess. 3) (1958). Whitton, John B. "Aggressive Propaganda" in International Criminal Law: Vol I Bassiouni & Nanda (eds) (Charles C. Thomas, Springfield, Illinois, USA, 1974) pp.238-272, 266.
34. 16 UN GAOR, 3rd comm. (1961).
35. The Prosecutor v. Jean-Paul Akayesu Case No. ICTR-96-4-T.
36. Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze Case No. ICTR-99-52-T para. 945.
37. Ibid. para 1005.
38. Ibid. para. 1009.
* At the time of presentation, Michael Kearney was a doctoral student at the Irish Centre for Human Rights at the National University of Ireland, Galway.
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