Chapter 2: War propaganda in international law

"Any man's death diminishes me,
because I am involved in mankind;
and therefore never send to know
for whom the bell tolls; it tolls for thee."
John Donne 1572-1631[1]

The maintenance of global stability is one of the founding missions of the United Nations, which states in its Charter of 1945 that it determines to "save succeeding generations from the scourge of war . (and ) unite our strength to maintain international peace and security"[2].

As the world tends towards globalisation and as 'terrorism' (it is worth noting here that 'terrorism' has no agreed international definition[3]) and war increasingly crosses continental and regional boundaries in the same way as trade and ideas, so the humanitarian and political implications of conflict reach further than ever before.

The human rights implications may also be larger. The 'war on terror', which has been waged internationally by the example set by the United States since the attacks of 11 September 2001, has encompassed wars in Afghanistan and Iraq and inflamed conflict and repression in countless other countries.

Commenting on this trend, Irene Khan, Amnesty International's Secretary General (2003) says "Exploiting the international climate favouring "counter-terrorism", many governments reinforced and renewed their crack-down on political opponents and others whose loyalty they doubt. .Our country reports illustrate numerous examples where, citing national security, government forces acted with impunity to kill, rape, torture and abduct.[4]

Citizens on whose territory war is conducted are affected by civilian deaths and injuries, the destruction of homes, civil infrastructure, healthcare, judicial and policing systems, and erosion of the social and familial fabric of life. The welfare of citizens elsewhere is also jeopardised as they become caught in a 'them and us' 'good vs evil' battle of the civilized versus the animal. As seen above in the response to the war on terror, this can involve the imposition of a state of emergency as a precursor to increased national security and the subsequent erosion of civil liberties and human rights. All of these results can be detrimentally affected by war propaganda, which can be used to promote the perceived threat and the need for government counter-action.

2.1 Illegal status of war propaganda

In addition to its 'prohibition and condemnation' in legally binding treaties, discussed below, war propaganda is specifically condemned in many international resolutions and declarations including:

• 1947: The condemnation of all forms of propaganda which are designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression - United Nations General Assembly (GA) resolution 110 (II)

• 1947: An invitation to UN member states to take measures to combat the diffusion of false or distorted reports likely to injure friendly relations between States - GA resolution 127 (II)

• 1970: Assertion by the GA that "States have the duty to refrain from propaganda for wars of aggression" - GA Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States

• 1970: Resolution to counter propaganda on behalf of war, racialism, apartheid and hatred among nations - United Nations Educational Scientific and Cultural Organisation (UNESCO) resolution 4.301

• 1978: UN Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War

• 1984: A call by the GA for "all States that have not yet done so to take effective measures with a view to prohibiting any propaganda for war, in particular the formulation, propounding and dissemination of propaganda for doctrines and concepts aimed at unleashing nuclear war" - GA Resolution 134, Human rights and use of scientific and technological developments

The GA, responsible for some of the documents above, is the main committee of the United Nations, composed of representatives of all member states, each of which has one vote. The work of the UN is largely generated from the decisions, or resolutions, of the GA so that it carries out ".the will of the majority of the Members as expressed in resolutions adopted by the Assembly."[5]

GA resolutions have no legally binding force for UN member states and their ability to express principles and rules of law via opinio juris communis is controversial, because some resolutions are passed by a majority and not by a consensus vote.

However, GA resolutions are seen to carry the weight of world opinion and the moral authority of the world community. In that sense, the GA declarations and resolutions listed above provide weight to the prohibition of war propaganda in international treaty law.

2.2 Legally Binding Treaties

With regard to legally binding treaties, the International Convention concerning the Use of Broadcasting in the Cause of Peace, sponsored by the League of Nations in 1936, contains reference to 'incitement to war'. Article 2 states "The High Contracting Parties mutually undertake to ensure that transmissions from stations within their respective territories shall not constitute an incitement either to war against another High Contracting Party or to acts likely to lead thereto". Article 3 requires States parties to prohibit and, if occasion arises, to stop without delay within their respective territories any transmission likely to harm good international understanding by statements the incorrectness of which is or ought to be known to the persons responsible for the broadcast."

This convention is relatively limiting because it refers only to broadcast media. However, two international treaties refer specifically to "war propaganda" and have a broader scope which is not conditional on the type of media used. The first is the 1952 Convention on the International Right of Correction (CIRC) which states in its preamble: "Desiring . to combat all propaganda which is either designed or likely to provoke or encourage any threat to peace, breach of the peace, or act of aggression".

This treaty is concerned with "securing commensurate publicity" to correct a media report which directly affects a State but which is considered by that State to be false or distorted. Prohibition of war propaganda is acknowledged in the preamble of the treaty as being "desired" by States parties to the treaty.

The legal status of the CIRC in relation to war propaganda is again relatively weak, serving simply to affirm that the state parties to the treaty oppose war propaganda. This unanimous opposition to war propaganda among the treaty's signatories (albeit only 15 of them) does however add weight to the prohibition of war propaganda via the principle of Opinio Juris, which affirms a state's positive sense of legal obligation and helps create principles of customary law.

The CIRC was followed in 1966 by the ICCPR, which explicitly prohibits war propaganda through article 20, paragraph 1 which states that "any propaganda for war shall be prohibited by law". This is by far the strongest treaty in terms of both its explicit prohibition of war propaganda and the number of state parties.

Interestingly, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which pre-dates the ICCPR by 16 years, does not have an article on war propaganda.

This is not necessarily surprising, as Steiner and Alston (1996) explain in 'International Human Rights in Context': "When the Convention was adopted in 1950, there were several outstanding proposals on which final agreement could not be reached. It was therefore agreed to adopt Protocols containing additional provisions."[6] The ECHR has since been amended in line with the additional protocols, of which there are a total of 13. However, none have to-date been drafted on war propaganda.

The ECHR has articles, which could be applied to the prohibition of war propaganda such as the right to freedom of expression (article 10) and prohibition of discrimination (article 14). The European Court of Human Rights based in Strasbourg was the first international court to be established to determine human rights matters, in this case arising out of the ECHR. A search of the court's case law[7] shows that almost all cases which refer to propaganda are in relation to article 10. However these cases are concerned with protecting the individual's right of freedom of expression against the State and do not deal with the violation of an individual's rights which result from State propaganda.

2.3 International Covenant on Civil and Political Rights

Like article 10 of the ECHR, legal discourse around Article 20 of the ICCPR and the prohibition of war propaganda tends to connect war propaganda directly with incitement to racial hatred and in both cases to focus on a State's obligation to "restrict the freedom of expression in these circumstances". As this quote from Rhona Smith's Textbook on International Human Rights Law (2003) illustrates.

However, as it is often the State promoting the propaganda this is problematic as it is asking a State to restrict the freedom of expression which carries its own propaganda - such a restriction therefore being counter to its own interests. With this in mind, a climate of war propaganda can also mean that the voices of opposition to war have their right to freedom of expression limited by the State in inappropriate ways, as will be discussed in Chapter 4.

Referring to article 20 of the ICCPR, Dr Arthur Clark of the University of Calgary claims that George W Bush directly ordered war propaganda to be developed around the Iraq war 2003 and should therefore be held accountable under international law.

Clark cites as his evidence an article in the National Post from January 8 2003 in which "David Frum talks about his work as an advisor to US President George W Bush. The headline says, 'I was told to provide a justification for war.'. This was an explicit instruction to the advisor to the President in a country that has ratified the ICCPR. The President is instructing his advisor to develop propaganda for war." claims Clark.[8]

However, there is a long road to be travelled from alleging evidence of an instruction or act of war propaganda, to culpability under international law. This is because war propaganda's illegal status is diluted by a variety of factors, including:

1. Article 20's applicability only to wars which are contrary to the Charter of the United Nations. However it is difficult to prove that a war has such a status - just take the recent debate in the UK around the legality or illegality of the Iraq War 2003.

2. A state needs to have ratified the ICCPR in order to be bound by Article 20.

3. Even if a state has ratified the ICCPR, the quality and quantity of its reporting to the Human Rights Committee about article 20 may not be satisfactory.

4. There is an absence of domestic legislation to enforce the prohibition of war propaganda.

5. A state may have made reservations which diminish the effect of the provisions of the ICCPR, including to article 20 or rights affected by war propaganda.

6. A state may not have ratified the first optional protocol to the ICCPR which gives the right to individual petition, allowing a complaint to be brought where an individual alleges their rights have been violated as a result of a breach of article 20.

7. Many rights which could be violated as a result of war propaganda, such as freedom of information and freedom of expression, are derogable in a state of emergency. A state of emergency will almost always be declared when a country is facing war and therefore conducting a campaign of war propaganda, thus making the erosion of these rights almost inevitable in a situation of war propaganda.

8. There is no definition, legal or otherwise, of 'war propaganda' in the ICCPR or by the HRC or other intergovernmental organisation.

2.4 A just war

In its General Comment 11 of 1983 "Prohibition of propaganda for war and inciting national, racial or religious hatred, Article 20", the HRC clarifies the scope of Article 20 by stating that:

"The prohibition under paragraph 1 extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations (authors italics) . The 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."

The prohibition of war propaganda therefore applies to wars which are waged outside the rules of the UN Charter. The UN Charter, to avoid conflict by all possible means, invests the Security Council with powers for the pacific settlement of disputes (Chapter VI) and for action with respect to threats to the peace, breaches of the peace and acts of aggression (Chapter VII).[9]

The Charter specifically states in Article 2 that:

 "All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered . All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations."

Furthermore, article 39 states: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."

The Jus Ad Bellem Convention of international law also embodies the principles of the justice of war. These are commonly held to be: having just cause, being declared by a proper authority, possessing right intention, having a reasonable chance of success, and the end being proportional to the means used.[10]

In submitting a legal argument, which claims the use of war propaganda, one therefore has to prove that the war concerned is outside of the limits imposed by the UN Charter. As the 2003 Iraq war and previous wars have shown, the issues involved in proving or disproving a war's legality are extremely complex.

In the case of the United States and Britain in early 2003, these allied States argued that the impending invasion of Iraq was consistent with the UN Charter and Security Council resolution 1441. This centred on the interpretation of the statement in resolution 1441 that Iraq will face "serious consequences as a result of its continued violations of its obligations"[11].

Although there was disagreement on this issue within the Security Council, international community and media, such debate did not impede the eventual declaration of war - the US and UK bypassing further UN debate when they learned that France would veto a new resolution. The focus soon shifted away from discussions over the war's legality onto issues such as humanitarian assistance and mobilisation of the war effort. It could be argued that this shift in attention was itself a function of successful war propaganda.

Similarly in the 1991 Gulf war, there was controversy over the war's legality. As Edward Herman explains in his 1992 book on propaganda:

"The UN resolution finally extracted by the United States giving it the right to go to war did not require war - that was an option to be used if needed to get Iraq out of Kuwait. The UN Charter . assigns responsibility for the use of force to the Council, not to the US president. An excellent case can therefore be made that the US attack on Iraq violated both the UN Charter and the UN implementing resolution."[12]

2.5 State parties to the ICCPR

Despite the fact that there are over 150 State Parties to the ICCPR, there appears to be absolutely no evidence that any measures have been taken to impose self-restraint or enter into a legal debate about the use of war propaganda.

The word propaganda is used to dismiss statements by an enemy State as untrue, but is never analysed, discussed or referred to in a legal context. States do not even publicly acknowledge article 20 of the ICCPR in the war propaganda process, whether this be to their own actions or criticize those of opposing states.

The reporting procedure for State Parties to the ICCPR, which includes reporting on implementation of article 20, is laid out in article 40 of the covenant.

Although a legally binding instrument, the system has basic limitations in terms of effectively enforcing implementation of the ICCPR. As discussed by Ineke Boerefijn (1995) in Human Rights Quarterly[13], the initial stage of implementation is at the behest of the state, which must first ratify the ICCPR. Then, once a party to the covenant, the system requires a minimum level of voluntary cooperation by the state.

The only steps the HRC can take in the case of a state party failing to submit its report, is to mention this failure in the Committee's Annual Report to the General Assembly. The sheer number of state parties that have failed to report on time, with this and other human rights treaties, shows that states do not regard this to be of major significance.

A major problem with reporting on article 20 specifically, is that in order for a State to provide information on the status of propaganda surrounding a war effort and the measures taken to limit this, a State would have to admit that the war referred to is contrary to the UN Charter - otherwise, as indicated above, there would be no need to limit the propaganda.

So, for example, in a report by a State to the HRC about the positive measures taken to limit war propaganda or in recommendations by the HRC about the need to exercise the restraint required by article 20, the illegality of the war would have to be explicitly discussed. This is something a State would almost certainly refuse to do. Meanwhile the function of the HRC is not to judicially determine the legality of war.

Reporting on article 20, rather than talking about the approach taken in real life situations, will therefore almost always be theoretical in nature, focussing for example on domestic legislation.

However, States do not necessarily even mention article 20, paragraph 1 in their States Reports. For example the most recent periodic report to the HRC by the United Kingdom, submitted in 1999, does not mention war propaganda in the section on the implementation of article 20.[14]

Amid rising concern over poor implementation and reporting on article 20, the HRC's General Comment 11 1983, notes:

"Not all reports submitted by States parties have provided sufficient information as to the implementation of article 20 of the Covenant. In view of the nature of article 20, States parties are obliged to adopt the necessary legislative measures prohibiting the actions referred to therein.

"However, the reports have shown that in some States such actions are neither prohibited by law nor are appropriate efforts intended or made to prohibit them. Furthermore, many reports failed to give sufficient information concerning the relevant national legislation and practice."

Where war propaganda is mentioned in a State report, it may even be protected as in the case of the United States and its most recent report to the HRC in 1994 (reports due in 1998 and 2003 are still awaiting submission by the US). The USA's "Initial report of States parties to the ICCPR" states that "Under the First Amendment, opinions and speech are protected categorically, without regard to content. Thus, the right to engage in propaganda of war is as protected as the right to advocate pacifism, and the advocacy of hatred as protected as the advocacy of fellowship."[15]

In addition to this, the United States has made a declaration to nullify the effect of article 2[16] of the covenant so that the ICCPR is not immediately applicable in the United States. The declaration states ". the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing."

This means that for the USA, the legal requirement to codify the provisions of the Covenant into domestic law may not be realised. The failure to prohibit war propaganda in domestic law is a wide problem. General Comment 11 notes the importance of domestic legislation limiting or prohibiting war propaganda, as required by the terms of the ICCPR:

"Comprehensive implementation measures, which themselves contain legal obligations, are contained in the second article which includes the adoption of "legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant".

 "For article 20 to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation. The Committee, therefore, believes that States parties which have not yet done so should take the measures necessary to fulfil the obligations contained in article 20, and should themselves refrain from any such propaganda or advocacy."

However 20 years after this General Comment was issued, a random sampling of States reports on the Office of the UN High Commission for Human Rights (UNHCHR) Treaty Body Database[17] reveals no evidence of cooperation or progress in this area. In some cases, domestic legislation under Article 20 could even be used to punish those who oppose the government. For example, the Fourth periodic report of Chile 1998 outlines domestic measures under article 20 saying:

"The State Security Act punishes anyone who in any manner or by any means rises up against the established Government . especially anyone who by means of the spoken or written word or any other medium spreads or foments doctrines aimed at the . alteration of the social order or the republican and democratic form of government . and anyone who promotes doctrines advocating crime or violence in any form as a means of bringing about political, economic or social change."[18]

This reflects concerns raised above about Article 20 being used to address violations only of individual citizens rather than of representatives of the State. Curiously, the HRC's Concluding observations issued in response to Chile's report, did not raise any concerns with Chile's provisions under Article 20.[19]

2.6 Reservations

The authority of the ICCPR is further undermined by reservations made by States parties to the covenant. This is a broad problem for many treaties.

In 1994, the Human Rights Committee issued general comment 24 on 'issues relating to reservations' outlining its concern over the number and content of reservations to the ICCPR. The HRC stated: "The number of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States parties."

Seventeen states have made reservations or declarations against Article 20[20]. Eleven of these, Australia, Belgium, Denmark, Finland, Iceland, Ireland, Luxembourg, Netherlands, New Zealand, United Kingdom and the United States find it to contradict the guarantee of free speech set forth in Article 19, paragraph 2.

Article 19(2) states: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice".

Reflecting comments in its state report to the HRC, the reservation by the United States says "Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States."[21]

Commenting on the US reservation to article 20, the American Society of International Law notes that "A reservation or understanding is appropriate in this instance, in order to clarify internationally the fact that US obligations under this article are subject to the mandate of the First Amendment."[22]

However, it is not clear that such reservations are acceptable to the ICCPR. The International Court of Justice issued advisory opinion 15 in 1951 which established the necessity for reservations to be compatible with the 'object and purpose' of a treaty. The opinion related specifically to the Genocide Convention but has since been quoted with respect to other treaties.[23]

Reservations to rights which are non-derogable are inadmissible because seeking to dilute essential articles or rights within a treaty is in contravention of the treaty's purpose. As Jaime Oraá (1992) comments: "Due to the extraordinary importance of the principle of non-derogability of some rights, it would be prima facie against the spirit of the treaties to make reservations to such fundamental rights."[24]

This sentiment is reinforced by General Comment 24 which states: "reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant . Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations."[25]

This is relevant because very recent history has seen the prohibition of war propaganda proposed as a non-derogable right by the HRC.

2.7 War propaganda as non-derogable

Non-derogable rights are considered to be universally mandatory. These rights, from which no deviation is allowed, have the status of Jus Cogens or a peremptory norm - an elevated status of right above that of a customary law[26].

Article 53 of the Vienna Conventions on the Law of treaties explains the nature of a peremptory norm: "a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."[27] The International Court of Justice has the responsibility of judicially determining peremptory norms.

Article 4 of the ICCPR contains a list of non-derogable rights:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.[28]

The prohibition of war propaganda was recognised by the HRC as being non-derogable in 2001 through General Comment 29 on States of Emergency. In it, the Committee elaborates on non-derogable rights, adding to the list found in Article 4 paragraph 2, quoted above. 

General Comment 29 provides a further five examples of non-derogable rights, introducing these by saying: "In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4.  Some illustrative examples are presented below."

The five examples given are article 10 the inherent dignity of the human person, the prohibition of the taking of hostages, elements of the rights of persons belonging to minorities, the prohibition of the forced displacement of populations, and the prohibition of war propaganda.

On the non-derogability of the prohibition of war propaganda, General Comments 29 notes: "No declaration of a state of emergency . 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."[29]

This declaration by the HRC is not as strong a statement as making the prohibition of all war propaganda non-derogable. This is because it specifies only 'propaganda for war' on the condition that it is justified by the 'declaration of a state of emergency'.

However, as noted above, a state of emergency will almost always be declared when a country is facing war and hence is conducting a war propaganda programme. In almost all cases this non-derogability will therefore apply.

"In spite of the non-derogability of the prohibition of war propaganda and therefore the implied inadmissibility of reservations to Article 20 paragraph 1, no State Party has objected to any of the 11 reservations to war propaganda noted above, as is their entitlement under Article 20 "Acceptance of and objection to reservations" of the Vienna Convention on the Law of Treaties.

General Comments by the HRC do carry legal weight. Thomas Buergenthal[30], a former member of the HRC, notes, "General comments . have gradually become important instruments in the lawmaking process of the Committee". Therefore State Parties should take its recommendation as to the non-derogability of the prohibition of war propaganda seriously.

It is worth noting however, that the status of non-derogable rights is problematic. The three main human rights treaties - the ICCPR, the ECHR and the American Convention on Human Rights ACHR - establish different lists of non-derogable rights. So, as Jaime Oraá (1992) explains, although each "is a useful indicator of non-derogable rights, it is not immediately clear that all those rights are in fact non-derogable in general international law."[31]

It therefore appears that although the HRC wishes to strengthen the status of the prohibition of war propaganda, it is reliant on the combination of state practise and opinio juris to enact this into legal reality as a customary international law (see footnote 26). This seems somewhat at odds with war propaganda having the supposedly higher legal status of a non-derogable right.

2.8 Right of individual petition

The first Optional Protocol to the ICCPR gives a right of individual petition so that citizens can submit a complaint to the HRC for investigation, if the individual alleges a breach of an article in the ICCPR. The protocol enables "the Human Rights Committee . to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant".[32]

It is therefore conceivable that an individual whose rights have been violated as a result of war propaganda seek redress through the UN system, subject to the State having ratified the Optional Protocol. Two thirds of States parties to the ICCPR are party to the Optional Protocol[33]. The UK and the United States have not ratified the Optional Protocol.

Although war propaganda is prohibited under article 20 of the ICCPR, the effect of a breach of the prohibition of war propaganda is in the denial of other rights. For this reason, it is unlikely that individual petitions will arise under article 20 but that the individual would instead seek redress for the denial of a specific right which has resulted, for example freedom of expression (article 19, ICCPR).

A barrier to seeking redress in this way, is the fact that many of the rights compromised by war propaganda, such as freedom of information and freedom of expression, are derogable in a state of emergency.

2.9 Problems with derogations

The status of these rights is further weakened because the right to derogation is often misused and the legal processes required for lawful derogation are not respected by States.

The HRC has noted a range of problems with States parties derogating from the ICCPR and has issued two general comments on the derogation article, article 4. The first, General Comment 5 "Derogation of Rights", issued in 1981, states:

"Article 4 of the Covenant has posed a number of problems for the Committee when considering reports from some States parties . in the case of a few States which had apparently derogated from Covenant rights, it was unclear not only whether a state of emergency had been officially declared but also whether rights from which the Covenant allows no derogation had in fact not been derogated from and further whether the other States parties had been informed of the derogations and of the reasons for the derogations."[34]

Some States were therefore suspected of:

• Derogating from the allowable rights but not necessarily within the official framework of the declaration of a state of emergency.
  
• Derogating from non-derogable protected rights.

The failure to respect state of emergency guidelines has significant implications for rights affected by war propaganda because a State of Emergency is likely to be a precondition of an environment in which war propaganda is implemented.

Rights are put at risk where their derogation is not limited to the strict boundaries of a State of Emergency situation. However, the declaration of a State of Emergency is a fundamental obligation of States wishing to benefit from the reduction of rights allowed by Article 4 of the ICCPR.

Paragraph 3 of the ICCPR, explains the declaration procedure:

"Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation."

Jaime Oraá (1992) comments on the frequency of non-compliance of the declaration of a State of Emergency, saying: "This widespread failure happens in spite of the clearly stated terms found in article 4(3), the great importance given to this requirement by the drafters of the Covenant, and the occasional insistence of the HR Committee on the need to comply."[35]

Twenty years after General Comment 5, the HRC issued General Comment 29 in 2001 on States of Emergency, which has already been discussed above in the context of the expansion of the list of non-derogable rights. General Comment 29 shows that two decades after raising concerns in General Comment 5, State practise regarding the declaration of a state of emergency is still far from compliant.

The significance of the principle of notification is reinforced again by the HRC in this extract from General comment 29: "Two fundamental conditions must be met: the situation must amount to a public emergency that threatens the life of the nation, and the state party must have officially proclaimed a state of emergency, noting that the latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed."[36]

It is not enough for this proclamation to amount to a mere press statement or government announcement, but requires substantial documentation. As General Comment 29 further explains: "The notification of the imposition of a state of emergency should include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding their law . the requirement of immediate notification applies equally in relation to the termination of derogation".[37]

This failure to notify raises complex legal questions. Jaime Oraá (1992) asks does the failure to comply with this requirement "affect the validity of the right (of derogation) itself"[38]. So, without such a declaration could it be that States are not entitled to derogate from any rights at all.

General Comment 29 goes further than General Comment 5 by questioning the practise of derogating from derogable rights in a legally declared State of

Emergency, stating: "The fact that some of the provisions of the Covenant have been listed in article 4(2) as not being subject to derogation does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists."[39]

In General Comment 19, the HRC also requires States to provide justification beyond the fact that mere presence of a conflict assumes the right to declare a State of Emergency and derogate from rights, saying: "The Covenant requires that even during an armed conflict measures of derogation are allowed only if and to the extent that the situation constitutes a threat to the life of the nation."[40]

The HRC is therefore increasing its demands on states by asking them to:

• Carefully the declaration of a State of Emergency even in time of conflict;
  
• Follow the requirements for how that declaration should be carried out;
  
• Avoid derogating from non-derogable rights;
  
• Finally, not to assume that in a State of Emergency even derogable rights can be automatically waived or their thresholds decreased.  

However, in spite of such strong and repeated guidance from the HRC, States are given significant flexibility with regard to the declaration of a State of Emergency.

2.10 Margin of appreciation

The concept of proportionality, which is well established in international law, requires the means employed to be proportional to the end to be realised. In the case of derogations this means that the derogatory measures must be proportional to the threat.

In reality however the question of whether measures taken are proportional to the threat to the nation rests with the State, which can be given generous leeway in this regard.

Like Article 4 of the ICCPR, Article 15 of the ECHR[41] allows States parties to derogate from certain rights during a state of emergency. Judgements by the European Court of Human Rights regarding this article are significant because the court's jurisprudence has been influential in developing international human rights norms. For example, both the Inter-American Court and the HRC have frequently referred to judgements of the European Court of Human Rights.

In such judgements, the European Court of Human Rights gives States a 'margin of appreciation', which allows the State to assess and their own situation without recourse to the Court.

For example, in Brannigan and McBride versus the UK (1993), the European Court of Human Rights held that:

"By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it.  Accordingly, in this matter a wide margin of appreciation should be left to the national authorities".[42]

2.11 The war on terror

This margin of appreciation in favour of the State has had a huge impact on states of emergency and emergency legislation declared as a result of the global terrorist threat.  This is directly relevant to the issue of war propaganda because of the rhetoric surrounding the 'war on terror' and the rights affected.

As Human Rights Watch says in its report Opportunism in the Face of Tragedy, Repression in the name of Anti-Terrorism[43]:

"States are using emergency measures to serve political ends by defining undesirable groups or individuals as part of the global terrorist threat. During the months following September 11 . many countries around the globe cynically attempted to take advantage of this struggle to intensify their own crackdowns on political opponents, separatists and religious groups, or to suggest they should be immune from criticism of their human rights practices."

Because the perceived terrorist threat is so ill-defined and seemingly omnipresent, the state of emergency has become a permanent feature for many countries. These States increased national security measures on the basis of a constant threat from a multitude of countries and terrorist sources. Propaganda - in this case on the war against terror - plays a large part in convincing a population that such measures are reasonable and proportional.

As Edward Herman (1992) notes: "Terrorism is a fuzzy notion that can be employed with great indignation against selected enemies . this can be accomplished only if a cooperative media will not look closely, ask questions, and challenge double standards and propagandistic usage."[44]

In response to restrictions imposed on the right to freedom of expression and to freedom of information in the aftermath of the attacks of September 11, the May 2002 UNESCO Conference on Media and Terrorism in Manila adopted a Resolution on Terrorism and Media.

The resolution, adopted by media professionals and press freedom groups, resolved that "any strategy to address the threat of terrorism must promote greater respect for freedom of expression and of the media, rather than imposing restrictions on these fundamental rights" and that "the threat of terrorism should not be used as an excuse to impose restrictions on the right to freedom of expression and of the media, or on freedom of information".[45]

The war against terror therefore presents a very specific problem for the limits of a State of Emergency and for the use of war propaganda. In this case, 'war propaganda' is that of an abstract umbrella war. However it contains very real country-specific wars such as in Afghanistan 2002 and Iraq 2003. So the yardstick, presented by the HRC in General Comment 11, that Article 20 "extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations" applies as much to wars fought in the name of anti-terrorism as any other.

2.12 Incitement to genocide and hate speech

War propaganda can condemn a country's regime as a justification for an act of aggression, which seeks to undermine that regime and its power. However, it is also possible for war propaganda to vilify supporters of that regime, and by generalisation and stereotyping, to condemn a whole race or nation.

As Phillip Knightly (2000) explains: "All governments realise that to wage war successfully their troops must learn to dehumanise the enemy. The simplest way to achieve this is to inflame nationalistic or racist feelings, or both."[46]

Or, in the case of the war against terrorism, propaganda condemns the 'uncivilised' which by implication and by virtue of the ethnicity of a small number of terrorist suspects has been taken to include specific cultures or races such as Muslims or Arabs. The Arab American Institute for example talks of "the tide of hate and backlash against ethnic Americans" [47] in the aftermath of September 11, which has resulted from such condemnation.

In its extreme form therefore, war propaganda can involve incitement to acts of violence against a specific race or group of people. It is therefore worth noting the legal definitions of such propaganda and significant legal precedents in this area.

The concept of propaganda in the ICCPR is extended by General Comment 29 to include not only propaganda for war but also "propaganda . in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence."

This therefore broadens the wording of Article 20 paragraph 2 which states: "Any advocacy of national, racial or religious hatred .". This new use of the word propaganda therefore brings the scope of the ICCPR into line with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)[48].

Article 4 of ICERD reads:

"States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to or promote racial hatred and discrimination in any form .

"States Parties . shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin."

The prohibition of rascist propaganda is also found in a range of other treaties and declarations.

Article 3 of the Convention on the Prevention and Punishment of the Crime of Genocide also prohibits propaganda which discriminates according to race or population by acting as an incitement to genocide: "The following acts shall be punishable . Direct and public incitement to commit genocide."

The UNESCO Declaration on Race and Racial Prejudice adopted in 1978 instructs States to "take all appropriate steps . to prevent, prohibit and eradicate racism, racist propaganda, racial segregation and apartheid."

The most recent treaty concerning racist propaganda is the Council of Europe's Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems of 2003 which aims to confront the "risk of misuse or abuse of such computer systems to disseminate racist and xenophobic propaganda."

2.13 Freedom of expression versus the prevention of hate speech

The balance between upholding freedom of expression and preventing racist propaganda can be problematic and is an area of poor consensus in the international community as illustrated by the number of reservations to article 20.

Indeed, reflecting the theme of reservations to other treaties, the USA has made a reservation to article 4 of ICERD on the grounds it inhibits the constitutional right to speak freely regardless of content.[49]

The third paragraph of article 19 of the ICCPR allows restrictions to be placed on freedom of information and expression, stating:

"The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

a) For respect of the rights or reputations of others;

b) For the protection of national security or of public order (ordre public), or of public health or morals."

This paragraph can therefore be applied to limit hate speech. The ECHR and ICCPR emphasise measures 'necessary in a democratic society' in implementing the various rights. This can be an important principle in legal judgments regarding hate speech, because it connects the right to freedom of expression to the right to freedom from discrimination.

For example, in 1984 the Canadian Supreme Court convicted James Keegstra for the promotion of hatred against 'identifiable groups' when as a school teacher he gave anti-Semitic teachings. The Court noted that the Canadian Charter of Rights and Freedoms stipulates that the rights are subject to reasonable limits that can be justified in a democratic society. Explains Josef Szwarc in his book Faces of Racism (2001), "Accordingly, the government might be justified in banning the propagation of ideas that are hostile to democratic values, such as advocating racial and religious discrimination."

There is however the potential for paragraph 3 of Article 19 to be misused by States to limitations on freedom of speech and access to information outside of the state of emergency concept discussed in Chapter 2, therefore giving States even more flexibility with regards to limits on these rights.

2.14 Incitement to Genocide and Hate Speech Precedents

The International Criminal Tribunal for Rwanda (ICTR) has provided important precedents for incitement to genocide. The tribunal was established by the UN Security Council to contribute to the process of national reconciliation in Rwanda by prosecuting those responsible for the 1994 genocide.

The Akayesu case was the first international genocide trial in history[50] The trail chamber ruled that by "speeches made in public and in a public place", Jean Paul Akayesu, a local official, had "the intent to directly create a particular state of mind in his audience necessary to lead to the destruction of the Tutsi group, as such. Accordingly, the Chamber finds that the said acts constitute the crime of direct and public incitement to commit genocide."[51]

Furthermore, the Trial Chamber held that direct and public incitement to commit genocide is punishable even if the accused is not successful in achieving the result desired.[52] Akayesu was sentenced to life imprisonment for direct and public incitement to commit genocide.

In the case of Georges Ruggiu, a journalist and broadcaster with Radio Television Libre des Milles Collines (RTLM), the judgement found Ruggiu  "played a crucial role in the incitement of ethnic hatred and violence, which RTLM vigorously pursued."[53] In his broadcasts at the RTLM, Ruggiu encouraged setting up roadblocks and congratulated perpetrators of massacres of the Tutsis at these roadblocks. Ruggiu was sentenced to 12 years imprisonment for direct and public incitement to commit Genocide.

Meanwhile as at May 2005, appeals are ongoing for three other members of the media, Professor Ferdinand Nahimana and Jean-Bosco Barayagwiza, both of RTLM and Hassan Ngeze, editor of a newspaper Kangura. All were charged with incitement to commit genocide[54].

There have been no international, and at least no widely publicised domestic, prosecutions based on a violation of the prohibition of war propaganda contained in Article 20 of the ICCPR. However, should such cases be brought in the future, the significance of these ICTR prosecutions is in the culpability of the media. Four out of five of the above mentioned cases concerned the prosecution of media professionals.

According to the ICHRP (2002) "The central questions in (the ICTR) are these: Can journalism kill? And at what point does political propaganda become criminal?"[55]. This question applies equally to the role of media in war propaganda.

 

References

[1] Indiana State University http://isu.indstate.edu/ilnprof/ENG451/ISLAND/