Freedom of Expression in Armed Conflict Situations

Goebbels was in favour of free speech for views he liked. So was Stalin. If you’re really in favour of free speech, then you’re in favour of speech for precisely views you despise. Otherwise, you’re not in favour of free speech – Noam Chomsky

1        Introduction

Freedom of expression is a fundamental principle in international human rights law.[1] However, international law also permits restrictions on hate speech or incitement.[2] Although the Universal Declaration of Human Rights does not expressly prohibit advocacy of racial or religious hatred, the right to freedom of expression is subject to the restrictions found in the general clause: Article 29,[3] as well as in article 7.[4] These provisions prohibit incitement to discrimination.

Article 19 of the Covenant on Civil and Political Rights (CCPR) protects, and simultaneously limits, freedom of expression. In addition to declaring that ‘everyone shall have the right to freedom of expression’, Article 19 states that the exercise of that right ‘carries with it special duties and responsibilities’.[5] The rights guaranteed in Article 19 are subject to certain restrictions, including restrictions ‘necessary … for respect of the rights or the reputations of others’, and those necessary ‘for the protection of national security or of public order (ordre public)’.[6]

While Article 19 includes general standards relating to restrictions on freedom of expression, Article 20 contains a specific prohibition on two types of expressions. First, it proscribes war propaganda, and second, it proscribes the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.[7]

Legal restrictions of hate speech are best understood in the context of the concept of liberty. Liberty consists of the power to do whatever does not injure another. Accordingly, the exercise of the natural rights of every human being has no other limits than those which are necessary to secure to every other person the free exercise of the same rights; and these limits are determinable only by law.[8]

Journalists, war correspondents, government and military officials often disseminate war propaganda during, or in preparation for, armed conflict or political internal disturbances. Such tactic or strategy is as old as war itself.[9] However, with advances in print media, television, videophone and internet, belligerents and their allies have learnt to disseminate their propaganda effectively through this technology in presenting their case while simultaneously ridiculing that of their enemies. From before World War I, through World War II, the Gulf War, the war in the Federal Republic of Former Yugoslavia, and later the ‘Kosovo War’ and the Iraq War, parties to armed conflict used the services of journalists (including embedded ‘war correspondents’), government and military officials, and ‘security experts or analysts’ and academics to disseminate war propaganda.

Before and during the 1994 Rwanda crisis, the media was used to indoctrinate the local population and to prepare them to fight and kill their real or perceived enemies. This indoctrination of the population was through the propaganda of accredited and uncredited journalists, political agents operating under the cover of journalism, government officials, party functionaries, army spokespersons, businessmen and the intelligentsia. Recipients of these propaganda messages eventually, out of fear, confusion or both, killed persons who were identified by the propagandists as the ‘enemy’.

This paper examines whether journalists, war correspondents, ‘expert security or analysts’ government and military officials, party functionaries, army spokespersons and other persons who disseminate hate speech and incite members of the public to commit acts or omissions that lead to serious violations of international humanitarian law may be held responsible for committing war crimes, crimes against humanity and/or genocide.

First, the paper argues that the use of propaganda in armed conflict per se, by any person, including journalists, war correspondents, officials in the Ministry of Information, President’s office or military High Command, is not unlawful. However, where such propaganda rises to the level of incitement, complicity or hate speech, it is submitted that such propaganda may constitute an indictable criminal offence.

Second, it is submitted that journalists whether embedded with the military or not, war correspondents, the intelligentsia, government officials and party functionaries who incite persons to commit war crimes, crimes against humanity or genocide, before or during armed conflicts, bear individual criminal responsibility for their acts or omissions, either as superiors, co-perpetrators or accomplices.

Third, it is submitted that any person who, at the planning or preparatory stages of genocide, incite civilians or combatants to commit genocide, bears individual criminal responsibility as a co-perpetrator, an accomplice or as a party to conspiracy to commit genocide. The journalists or other propagandists who abuse the right of freedom of expression may not use that right as a defence or a mitigating factor.

The paper commences by examining the nature of war as regulated by international humanitarian law.

2        Freedom of Expression During Armed Conflict in Rwanda (1990-1994)

Within a few months after the invasion of Rwanda by the Rwanda Patriotic Front (RPF) in October of 1990, President Habyarimana and his senior advisors knew that the RPF had been reduced by losses during the first months to a number less than half that of the Rwandan army. The Rwandan government and military leaders also knew that their own army was backed by several hundred highly trained and well armed French troops[10]. However, President Habyarimana and his advisors, with the support of the media, exaggerated the risk in the hope of increasing political support for themselves.[11] Historical conflicts between the two major ethnic groups, the Hutu and Tutsi, formed the basis of Habyrimana’s anti-Tutsi propaganda campaign.[12]

Propagandists echoed and magnified the anti-Tutsi hatred and suspicion perpetrated by Habyarimana and officials around him, the so-called Akazu.[13] Under the cover of the freedom of expression, journalists and propagandists blared forth messages disseminated, at first more discreetly by government officials and party functionaries, and later openly, such as many of the conclusions about the ‘enemy’ presented in the military memorandum of 21 September 1992.[14]

Propagandists developed the same themes over and over, both before and during the genocide between April and June of 1994. One of the most virulent voices of hate was the Kangura newspaper. This particular newspaper began spewing forth attacks on the RPF and on all Tutsi civilians immediately after the October 1990 invasion.[15] Other newspapers and journals that received support from government officials, party functionaries and businessmen linked to the Habyarimana regime, soon joined in the propaganda.[16] The newspapers were published and sold in the capital, Kigali, but urban workers who went home for weekends carried copies of the better-known newspapers to the hills for dissemination.[17]

Since many Rwandans cannot read or write, the radio became even more effective than the newspapers in delivering the message of hate directly and simultaneously to a wide audience. In some areas, the government distributed radios free to local authorities before the genocide. The number of radios available to the local population increased considerably and consequently assisted the radio journalists in efficiently disseminating the anti-Tutsi propaganda. Radio broadcasts were used to incite Hutus to kill Tutsi. For example, in March 1992, Radio Rwanda warned that Hutu leaders in Bugesera were going to be murdered by Tutsi, false information meant to spur the Hutu massacres of Tutsi.[18]

At the start of the armed conflict in October 1990, Rwanda had only one radio station. However, soon after the start of the war, and after realising the importance of disseminating propaganda through the radio, the RPF established its own station, Radio Muhabura, but its signal did not reach the entire country. At first, many Rwandans were afraid to listen to it, but its audience grew steadily during 1992 and 1993.[19] By December 1993, as a result of the Arusha Accord between the Rwanda government and the RPF, Radio Rwanda had an obligation: to include the RPF among political parties participating in its broadcasts, although the decision to broadcast RPF propaganda had not been implemented by the time the genocide began.[20]

With the political changes taking place inside Rwanda, including the imminent changes in the policy of Radio Rwanda, the Hutu hard-liners decided to create their own radio – Radio Television Libre des Mille Collines (RTLM) – and began broadcasting in August 1993.[21]

Although nominally private and opposed to Radio Rwanda, RTLM was in fact linked in a number of ways with the national radio, with other state agencies and with Habyarimana’s party, the National Revolutionary Movement for Development (MRND). RTLM was allowed to broadcast on the same frequencies as the national radio between 08:00 am and 11:00, when Radio Rwanda was not transmitting, an arrangement that encouraged listeners to see the two as linked, if not as identical.[22] RTLM also drew personnel from Radio Rwanda. The ostensibly private station used equipment from Radio Rwanda; a government owned radio station. It had access to an emergency source of electricity of the presidential residence, across the street from its studio.[23]

Journalists and other media personnel actively and effectively participated in disseminating false information that was meant to incite Hutus to kill Tutsis and other Hutus who were considered opponents of the Habyarimana regime.[24] Specifically, journalists who worked at Radio Rwanda and RTLM cannot, and should not, argue that they had no knowledge, or could not have known, of a link between Habyriamana’s government and Hutu hard-liners to Radio Rwanda and RTLM.

Again, journalists and other media personnel cannot seriously argue that they did not know, or could not have known that the hate messages they disseminated would influence listeners to the broadcasts adversely, and result in the killing of thousands of civilians and other non-combatants.

On the other hand, should criminal responsibility be imposed on these individuals because of their acts or omissions, as journalists or propagandists? Or should they be indicted as ordinary civilians, who participated in committing crimes stipulated in articles 2, 3 and 4 of the ICTR Statute either as co-perpetrators, conspirators or accomplices who aided and abetted the commission of war crimes, crimes against humanity and genocide?

3        Armed conflicts:  Is it a continuation of politics by any means necessary?

‘War is not a mere act of policy, but a true political instrument, a continuation of political activity by other means.’[25] Clausewitz’s famous dictum is still as pertinent as many years ago, particularly in developing states, considering how often leaders seek to solve political and economic problems through armed conflict. Nearly all issues relating to border disputes in Africa, for example, have been resolved through armed conflict, regardless of the now defunct Organisation of African Unity’s (OAU)’s specific Charter provision, in Article 3, that colonial borders be accepted and respected by all member states. The African Union (AU), adopted Article 3 and it is the operational law of the organization.

At another level, what Clausewitz meant is that war cannot be reduced to any abstract, or metaphysical, structure. In other words, war is not an autonomous game produced by fixed external or internal constraints. Instead, war is a matter of political choice, reflecting all the variety of political purposes that transform the conduct of war into, among other things, extermination of the ‘enemy’, real or imagined.

War is never an isolated act. On the contrary, war takes place in a known environment; it spreads over time, leaving time for consideration and changes in resources, allies and morale. The parties to armed conflicts mobilise their resources. These resources include men and equipment. Political leaders rely on the press, radio, television, videophone and internet to mobilise resources and disseminate its propaganda. Consequently, propaganda becomes an integral part of the war strategy.

Propaganda used as weapon of war is, by definition, hostile propaganda. Mostly, hostile propaganda tends to incite others to commit atrocities, to shield military targets from attack by placing or moving them to densely populated areas or to move civilians near military targets to protect such targets from attack. In some instances, innocent civilians are presented, wrongly, as enemy agents, spies or collaborators. Some of these propaganda activities may or may not constitute perfidy or ruses.[26]

The main objective of propaganda is to deceive or mislead the enemy by misrepresenting the truth or telling outright lies. Such propaganda in time of war is normally dispersed by an enemy government and may contain misinformation and misleading facts. To the extent that individuals broadcast propaganda, it may be noted that states are rarely under any obligation to suppress propaganda directed against another state, even if such propaganda incites rebellion against the internal order of the targeted state.[27] It may therefore be questioned whether hostile propaganda is permissible as a ruse of war or whether it amounts to perfidy, and therefore are criminal acts under the laws of war.

Generally, hostile propaganda per se is not unlawful under customary international law,[28] because there is no duty imposed on states to prevent subversive propaganda,[29] although some scholars have asserted that there is a duty to suppress revolutionary activities against another state.[30]  However, use of hostile propaganda in times of war raises a possible conflict between criminalisation of propaganda per se, on the one hand, and freedom of free speech, on the other hand.[31]  The issue of press freedom becomes a moot point when members of the press effectively participate in inciting civilians and combatants to violate the laws of war. The law of the press may not be used to justify criminal activities and such use subsequently defended on the ground of press freedom. Besides libel and sedition laws, journalists may commit crimes if they incite or conspire with others to violate the law, whether under national or international law, or specifically the violation of the laws of war. It is against this background that use of propaganda in armed conflict is examined.

4        Propaganda as an instrument of psychological warfare

As a general rule, it is not unlawful for parties to armed conflict to engage in political, economic or military propaganda by spreading false information to undermine the adversary’s will to resist and to influence the military discipline of the adversary, such as, for example, instigating enemy soldiers to defect.

In the conduct of armed conflict, propaganda intending to influence the adversary’s civilian population and to work on members of the opposing armed forces is generally accepted.[32] In war, propagandists routinely target civilians through the use of misinformation and lies as a means of mobilising political, financial and military support. In the process, civilians are drawn into the conflict by being encouraged, forced or intimidated to take sides by belligerents. This practice is referred to as psychological warfare.

The issue of the legality of psychological warfare arose for the first time during World War I.[33] Its legality or otherwise generated a lot of intense debate. However, while the issue remained unresolved, the military practice of the 1920s generally considered the use of propaganda permissible.[34] In the 1930s, in the course of World War II, all sides to armed conflict made active use of hostile propaganda.[35] Hitler did have a ministry of propaganda headed by a cabinet minister, while the Allies (United States, United Kingdom, France and the Soviet Union) used the various intelligence services to disseminate hostile propaganda. In the 1950s and 1960s, the media played an important role in propagating hostile propaganda, for example in the Korean and Vietnam wars. In these two ideologically based wars, the United States and its allies disseminated their propaganda emphasising the justness of their cause. On the one hand, the Soviet Union and its communist allies responded in kind and tried to outmanoeuvre their opponents in the propaganda war.

In the 1990s, the media perfected the use of hostile propaganda by journalists and intellectuals as misinformation, and sometimes outright lies, were disseminated during the Gulf and Kosovo wars.[36] Pseudo ‘experts’ regularly appeared on television pretending to provide expert opinions while in effect peddling propaganda in support of one or the other side.

The dissemination of misinformation, misrepresentation and/or false statements by means of hostile propaganda is not per se unlawful under the laws of war. Classic forms of propaganda, often listed under the heading of permissible ruses of war, include a number of acts, conduct and omissions. These include, for instance, the spreading of false rumours; the erosion of belligerents’ armed forces’ fighting morale by the dissemination of misleading information; the incitement of enemy combatants to rebel, mutiny or desert, and the incitement of the entire enemy population to revolt against its government. These are some of the accepted practices before and during armed conflicts.[37]

On the other hand, there are many forms of hostile propaganda that are considered to constitute criminal acts. For instance, incitement to commit crimes according to the national laws of the belligerent states is a crime. Further, incitement to desert the army is a crime, sanctioned with severe penalties according to all national legal systems, as are all acts of mutiny and treason. Also, the common incitement to overthrow a ‘war-mongering’ regime or a government whose policy does not meet the standard the international community expects from a member of the United Nations, the so-called ‘rouge state’, constitutes, from the perspective of the affected nation, a crime of incitement to commit treason.

Yet, all these subversive activities, under the laws of war, may undoubtedly be lawfully encouraged and assisted by the opposing belligerent, through use of the media. Encouragement of Iraqi opposition groups by the United States of America to overthrow the Saddam Hussein government, for example, is not unlawful under the laws of war. However, members of the Iraqi opposition, if captured by agents of Saddam Hussein’s regime, prior to Saddam’s defeat, would have been prosecuted for treason under Iraq’s domestic law.

What is generally recognised by the laws of war as unlawful and therefore prohibited is incitement to commit common crimes against civilian population. Such common crimes include murder, robbery or rape. Incitement to commit war crimes or crimes against humanity is considered under the laws of war as particularly disgraceful and constitutes an illegal act that results in state responsibility, in addition to individual criminal responsibility.[38]  Genocide is an international crime, and any person who incites or conspires to commit genocide, or is an accomplice to committing genocide, incurs individual criminal responsibility.

5        The generality of the laws of war

The laws of war are very vague in its definition of the status, roles and functions of journalists, war correspondents or propagandists, whether embedded with a belligerent force or not, before or during armed conflict. The Law of The Hague, the primary legal instrument that regulates military operation, is silent on the point. The Law of Geneva mentions journalists in passing in their capacity either as prisoners of war, if captured, or as civilians. Common Article 3 and Additional Protocol II to the four 1949 Geneva Conventions are also silent on the point. However, Additional Protocol I to the four 1949 Geneva Conventions does provide some rudimentary rules on the treatment of journalists, particularly war correspondents. The issue addressed here may be summarised as follows: Do journalists or war correspondents incur individual criminal responsibility for acts committed within the scope of their employment and in the course of their duties under the laws of war?

5.1     The Law of The Hague

The objective of the Law of The Hague is to regulate the means and methods of conducting actual military operations in armed conflict. The origin of the Law of The Hague is traced to the conference of 15 European states called to Brussels in 1874 at the invitation of Czar Nicholas II of Russia.[39] The purpose of regulating the means and methods of conducting military operations in armed conflict was to reduce suffering of civilians and combatants as a result of unforeseen events, and the passions created by war. While not all states that signed the Brussels Protocol were willing to endorse the views propounded, the discussion nonetheless formed the basis of the Manual of the Laws of War on Land, drawn up by the Institute of International Law[40] at the Oxford Conference in 1880.[41]

The promulgation of the Brussels Declaration and the adoption and publication by the Institute of its Manual helped to move governments towards the adoption of an international treaty concerning the conduct of armed conflict. Again, at the initiative of Czar Nicholas II of Russia, 26 countries met at The Hague in 1899 and adopted conventions and declarations, which underline that part of the laws of war still known as the Law of Armed Conflict. Although not all the major states ratified or formally accepted these declarations,[42] the general view is that the conventions and declarations are expressive of rules of customary international law, peremptory norms or jus cogens.

More important than the declarations adopted at the 1899 Hague Conference was Convention IV with respect to the Laws and Customs of War on Land,[43] to which was annexed a set of regulations seeking to spell out the rules of law concerning the conduct of warfare on land. While The Hague Regulations of 1899 clearly constituted the first codification of the laws and customs of war accepted by major states in a binding multilateral document, the draftsmen were aware that their code did not cover all the circumstances which occur in practice. With this in mind, the draftsmen emphasised that the regulations were not exhaustive and that, to the extent that they were silent, customary international law would continue to govern the means and methods of conduct of war. This understanding was expressed by way of the Martens Clause,[44] specifying the ‘principles of the law of nations, as they result from the usages established between civilised nations, from the laws of humanity, and the dictates of public conscience’.[45]

Another conference was held at The Hague in 1907, again at the initiative of Czar Nicholas II of Russia. Apart from amending the Hague Convention II of 1899 and reiterating the Declaration concerning the discharge of projectiles from balloons, the Conference adopted ten other conventions concerning warfare.[46] Each of the ten conventions contains an ‘all-participation clause’, rendering its application null should any of the belligerents in a conflict not be a party to the relevant convention. The nullity of an all-participation clause makes the concept underlying the Martens Clause of greater significance than might otherwise have been the case, for it provides for the continued relevance of customary international law when treaty law is not applicable.

A second important factor is the fact that the provisions in the Hague Regulations or any of the conventions that are now considered to be declaratory of customary international law, or jus cogens, shall apply to armed conflict.[47] And, finally, provisions that are regarded as having developed into customary international law will also be applicable and the wording found in the particular convention will be treated as expressing what is considered to be the rule of customary international law.[48]

However, it is important to note that neither the conventions nor the annexed regulations made any provision for the prosecution of individuals who disregarded or breached the regulations, be they combatants, journalists or civilians. Prior to the establishment of the International Military Tribunals (IMT) in 1945, national tribunals[49] applying customary international law,[50] and the Regulations, [51]conducted trials of such persons for war crimes. The only difference Nuremberg and subsequent tribunals (for example, the ICTY and the ICTR) have is that war crimes trials held since have referred to and applied, and continue to refer to and apply, the principles stemming from the judgment of those tribunals. What is significant is that, with the exception of the ICTR, no international tribunal since Nuremberg has indicted or prosecuted journalists because of their reporting, before or during armed conflict. The non-prosecution of journalists may be understood when examined from the context of the narrow definition of the term ‘combatants’, as stipulated in the Laws of The Hague.

The 1899 and 1907 Hague Conventions regulate the conduct of combatants who are parties to armed conflict. Journalists or war correspondents are not combatants, and are therefore not covered by the 1899 and 1907 Hague Conventions. Significantly, there are no direct or indirect references to journalists, war correspondents or their responsibility for propaganda in armed conflict where they disseminate false information or mobilise the civilian population and encourage them to commit war crimes in breach of the 1899 and 1907 Hague Conventions. On the contrary, journalists are deemed civilians under customary international law and they continue to be treated as such until they lose their status as civilians.[52]

5.2     The Law of Geneva

The four 1949 Geneva Conventions replaced the two Geneva Conventions of 1929. This act was perhaps one of the most significant developments in the law of armed conflict since the 1899 and 1907 Hague Conventions. All four Geneva Conventions apply to any international armed conflict, whether a declared war or not, and even if one of the parties does not recognise the existence of a state of war.[53] The four Conventions also apply if there is a partial or total occupation of another’s territory, even if the occupation has met with no armed resistance.[54]

Unlike the 1899 and 1907 Hague Conventions, the 1949 Geneva Conventions expressly reject the ‘all-participation clause’ and provide for their application as between the parties, even though one of the belligerents is not a party to the particular Convention. If the latter abides by the Convention, belligerents, which are parties, are obliged to observe the provisions of the Convention with regard to such belligerent.

The four 1949 Conventions rejected the use of the technical term ‘war’ in favour of ‘armed conflict’. The rationale for the rejection of the term ‘war’ was to provide for the application of the Geneva Conventions to any international armed conflict regardless of whether the belligerents recognise the existence of a state of war.

Each of the four Geneva Conventions protects a specific category of person during armed conflict. For example, Geneva Convention I protects wounded or sick members of the armed forces in the field only. In other words, it covers only persons who take part in combat on land.  Geneva Convention II protects wounded, sick and shipwrecked members of the armed forces at sea. Convention III protects prisoners of war and Convention IV protects civilians in times of war. Civilians, whether on land or at sea, are protected at all times but only as long as they do not directly take part in armed conflict.

Journalists or war correspondents by inference may be protected only as prisoners of war under Convention III or as civilians under Convention IV. There is no specific or express provision for the protection of journalists or war correspondents under The Hague or Geneva Conventions.

5.3     Grave breaches provisions and Additional Protocol I of 1977 of the Geneva Conventions

The four 1949 Geneva Conventions in clear terms place an obligation upon states to punish what the Conventions describe as ‘grave breaches’.[55] Offenders are still punished under the four 1949 Geneva Conventions, even if those states to which the offenders belong are not parties to the conflict, or the offenders and their victims are not nationals of the same state and even when the offences were committed outside the territorial jurisdiction of the state concerned.[56]

The Geneva Conventions, in effect, introduced the concept of universal jurisdiction in so far as grave breaches are concerned. Thus, the Geneva Conventions may be resorted to if the state in question is unwilling to search for, arrest and prosecute an offender within its territory. The state in question is obliged to hand the offender over for trial to any party to the Conventions making a prima facie case.

On the other hand, Additional Protocol I of 1977 to the four 1949 Geneva Conventions clarifies the extent of application of the grave breaches provision. It also removes any doubt that may exist as to whether any breaches of the law of war not amounting to grave breaches are still to be treated as punishable war crimes. Additional Protocol I provide, in part, that ‘without prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes’.[57]

Additional Protocol I, unlike earlier documents, makes specific reference to the role and protection of journalists in situations of armed conflict. However, the 1889 and 1907 Hague Conventions and the Regulations made thereunder, and the 1949 Geneva Conventions and Additional Protocol I of 1977, apply only to international armed conflicts and not to non-international armed conflict, and are thus not applicable in the Rwandan context, or many of the armed conflicts in Africa, Asia and Latin America.

5.4     Common article 3 and Additional Protocol II of 1977 to the 1949 Geneva Conventions

Customary international law and international conventions regulating the conduct of international armed conflicts, including The Hague and Geneva laws, traditionally have had no relevance to internal armed conflicts. However, in 1949 the drafters of the four Geneva Conventions, after extensive and protracted debates, made a decision to extend a minimum of humanitarian protection to parties involved in a non-international armed conflict. Consequently, each of the four 1949 Geneva Conventions contains a common article that provides minimum protection to civilians and the civilian population during non-international armed conflicts.[58]

This Article, common to all the four 1949 Conventions, is Article 3, and provides in part that ‘the application of the preceding provisions shall not affect the legal status of the parties’.  Consequently, the application of common Article 3 does not change the nature of the conflict. Nor does it remove the possibility that any member of the armed forces of the parties involved may be tried for treason and treated as any convicted traitor,[59] even though such treatment is not in accord with Convention III on the treatment of prisoners of war.[60]

In an international armed conflict, a belligerent is entitled to treat as traitors, after trial, any member of the adverse party’s forces which may in fact be nationals of that belligerent, or personnel originally belonging to its armed forces who, after capture, have joined the forces of the captor.[61]

Additional Protocol II to the four 1949 Geneva Conventions, which supplements common article 3, seeks for the main part to extend the humanitarian protection afforded by common Article 3 to those participating in a non-international armed conflict.[62] However, the threshold in Protocol II is defined so high as to be virtually confined to a situation of civil war in which both the government and the rebel forces are in control of a part of the national territory,[63] the type of conflict witnessed in Rwanda in 1994.

Common Article 3 and Additional Protocol II of 1977 to the 1949 Geneva Convention neither refer to, nor criminalise use of propaganda in non-international armed conflict. Consequently, common Article 3 does not expressly address the use of propaganda by journalists, war correspondents, government and/or military officials, party functionaries and other government agents.

6        The status of journalists, war correspondents and other propagandists under the laws of war

Under the laws of war, journalists, war correspondents and other media personnel are not accorded combatant status. Instead, the laws of war treat them as ordinary civilians and are protected under Geneva Convention IV. Further, Geneva Convention III extends protection to journalists in the form of prisoner of war status, if captured. This right is extended to all journalists until they lose that status by either joining the war on the side of one of the belligerents, resulting in change of their status to either combatants or unlawful combatants. Once journalists are deemed combatants or unlawful combatants, they automatically lose their status as civilians.

The term ‘journalists’ encompasses all occupations associated with the media, including reporters, cameramen, sound technicians and photographers. The laws of war differentiate between ‘war correspondents’ on the one hand, and ‘journalists engaged in dangerous professional missions’ on the other hand.[64] Both categories of journalists are treated as civilians by the laws of war.

As a general rule, journalists engaged in dangerous professional missions in areas of armed conflict are protected as civilians, provided that they take no action adversely affecting their status as civilians.[65] The protection extended to journalists by law is without prejudice to the right of war correspondents accredited to the armed forces to the status of persons accompanying the armed forces without being members thereof. Under the laws of war, it is important that journalists obtain an identity card which attests to their status as journalists, and therefore as civilians and not combatants.[66]

As indicated earlier, war correspondents received some protection under the 1949 Geneva Conventions, insofar as they were to be given prisoner of war status if captured.[67] War correspondents are representatives of the media who, in the case of an armed conflict, are accredited to and accompany the armed forces of a party to the conflict, without being members thereof.[68] They accompany armed forces in the area of operations, or work in those locations to which the armed forces permit them to go. The armed forces shall provide journalists with a special identity card, which confirms their status.[69]

Once accredited by being issued with a special identity card, the journalists have a free hand and enjoy a wide discretion in determining what they may or may not report. However, the issue whether or not war correspondents are subject to censorship is not a question for the laws of war. What they report and how they report their stories are not subject to the laws of war. War correspondents are and remain civilians at all times. They work on their own responsibility or the responsibility of their respective editors or agencies. Journalists, including war correspondents, must therefore not be confused with persons working in the information services of the armed forces, who as such are members of the armed forces and have combatant status.[70]

However, as civilians, war correspondents must not under any circumstances take part in hostilities. If they do so, they run the risk of being treated as unlawful combatants, and thereby lose their civilian status. Similarly, journalists who opt to work for the information services of the armed forces become combatants.

Article 79 of Additional Protocol I clearly provides that journalists shall be regarded as normal civilians. A special legal category for journalists deliberately was not adopted in Additional Protocol 1. It was, however, proposed, considered and rejected.[71] Thus, under the laws of war, journalists enjoy the same rights and must abide by the same rules of conduct as all civilians.[72] Consequently, in the unlikely event that they are indicted for war crimes, journalists are prosecuted as civilians who happen to be journalists and not because of their profession as journalists. A journalist does not go on trial because of his professional work as journalist; rather, he is indicted because as an ordinary civilian, he committed a crime or crimes under the laws of war.

It is necessary to note that Article 79 of Additional Protocol I to the Geneva Conventions does not apply to non-international armed conflict. There is no consensus among legal scholars whether Article 79 has attained the status of customary international law or jus cogens, and can therefore apply to journalists covering non-international armed conflicts.

7        Criminal responsibility of journalists and other propagandists during the 1994 Rwanda crisis

It is necessary to determine whether journalists and other media personnel committed a crime or crimes under the ICTR Statute. Second, it is useful to establish whether the journalists who worked for Radio Rwanda, RTLM, Kangura and other newspapers that assisted the government in disseminating hostile propaganda, before or during the armed conflict in Rwanda, committed crimes in their professional capacity as journalists. Third, to consider whether the journalists were merely overzealous civilians who abused their official position during the armed conflict but may have committed crimes not in their professional capacity as journalists.

It is submitted that evidence available, as indicated above, suggests that journalists and other media personnel who disseminated hate messages through Radio Rwanda; RTLM and Kangura newspaper may be charged, not as journalists or media personnel per se, but as individuals who are either civilians or non-combatants who committed criminal acts. Consequently, they may be charged as persons who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime or crimes referred to in Articles 2 to 4 of the ICTR Statute.[73] In other words, the journalists may be charged for their direct participation. Again, these journalists and media personnel may be charged as individuals who committed the crimes but in their respective capacity as superiors or direct perpetrators, depending on the supporting material in the case. Some of the journalists and other media personnel were persons in a position of authority and members of the public believed, and acted upon, the propaganda they disseminated in support of government efforts during armed conflict.

On the other hand, some journalists and media personnel may be charged as accomplices or co-conspirators and individually be held criminally responsible under Article 6(1) of the ICTR Statute. They may also be held responsible under Article 6(3) of the ICTR Statute if the Prosecution can establish, beyond reasonable doubt that the journalists or the propagandists exercised effective control over the actual perpetrators who committed acts or omissions based on the propaganda disseminated. In other words, the prosecution must prove that the journalists or the propagandists knew, or in the alternative, had reason to know that the civilians over whom they exercised effective control could and did act based on the hostile propaganda, incitement or hate speech disseminated. Each journalist and propagandist is charged in his capacity as an individual perpetrator and incurs individual criminal responsibility in that capacity, and not necessarily because he was a journalist at the time the offence was committed.[74]

To the extent that the accused civilians are also journalists or media personnel, their professional status may be used in the process of establishing a link or nexus between their acts, armed conflict and the consequences of such acts. Thus, the emphasis is on the individual accused persons, as perpetrators and as defined under the laws of war and not indicted because of their professional status as journalists or media personnel.

8        Conclusion

International human rights law imposes restrictions on the exercise of freedom of expression. Specific restrictions include a prohibition on the dissemination of hate speech or incitement. Article 19 of CCPR proscribes war propaganda, including advocacy based on national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. It is submitted that international human rights law that provides for and regulates the exercise of freedom of expression by journalists or propagandists may not be used as a defence against criminal acts proscribed in Articles 2, 3 and 4 of the ICTR Statute. Nor can the exercise of freedom of expression be used as a mitigating factor, or to avoid individual criminal responsibility under Article 6 of the ICTR Statute.

Common Article 3 and Additional Protocol II to the four 1949 Geneva Conventions are silent on the legal responsibility of journalists and media personnel. However, Article 4 of the ICTR Statute incorporates common Article 3 and Additional Protocol II to the four 1949 Geneva Conventions. Consequently, the general thrust of Article 6(1) of the ICTR Statute, including aiding and abetting, covers criminal acts or omissions of journalists or propagandists who disseminate hate speech or incite others to commit crimes stipulated in Articles 2, 3 and 4 of the ICTR Statute.

Journalists, war correspondents and other propagandists may therefore be indicted and successfully prosecuted for their violation of any of the crimes stipulated in articles 2, 3 and 4 of the ICTR Statute. Similarly, they can be liable before other tribunals or courts such as the ICTR, SCSL or the ICC.

*       Obote Odora, LLB (Hons) (Makerere); DiLP (LDC); LLM, LLD (Stockholm); A revised version of this article, under the title “Criminal Responsibility of Journalists” was published in Nordic Journal of International Law, Vol.73, No.3 (2004)

[1]        Freedom of expression is declared a fundamental human right in all the major human rights instruments: Art 19 of the Universal Declaration of Human Rights of 1948, GA Res 217 A(III), UN Doc A/810 71(1948); art 19 of the International Covenant on Civil and Political Rights, UNGA Res 200A (XXI), 16 December 1966, 21 UN GAOR Supp (No16) 52, UN Doc A/6316 (1966), 999 UNTS 171, entered into force 12 March 1976; art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222, entered into force 3 September 1953; art 13 of the American Convention on Human Rights, 11 November 1969, OAS Treaty Series No 36, at OEA/Ser L/V/II 23 Doc Rev 2, entered into force 18 July 1978; and art 9 of the African Charter on Human and Peoples’ Rights, 26 June 1981, OAU Doc CAB/LEG/67/3/Rev 5.

[2]        See e.g. Articles 10 & 17 of the European Convention (as above). These articles permit governments to prohibit hate speech. Article 20(2) of the Covenant on Civil and Political Rights; Article 4 of the International Covenant on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, entered into force 4 January 1969, requires governments to outlaw ‘all discrimination of ideas based on racial superiority or hatred’ as well as ‘organisations … which promote and incite racial discrimination’; Article 13(5) of the American Convention.

[3]        Article 29 provides, inter alia, that the exercise of the rights and freedoms in the Declaration may be subject to ‘such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’.

[4]        Article 7 provides that ‘[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and against any incitement to such discrimination.’

[5]        Ibid.

[6]        Ibid

[7]        Article 20 CCPR: ‘1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’

[8]        See e.g. Article 11 of the French Declaration on Human and Fundamental Rights. It states: ‘The unrestrained communication of thought or opinions being one of the most precious rights of man, every citizen may speak, write and publish freely provided he be responsible for the abuse of his liberty in the cases determined by law.’

[9]        See generally, Nelson K, L & Olin, and S.C, Why war? Ideology, theory and history (1979)

[10]      See De Forges, A, Leave none to tell the story Human Rights Watch (New York) & International Federation of Human Rights (Paris), (March 1999) 65.

[11]      Ibid.

[12]      See Omar, R Rwanda: Death, despair and defiance Africa Rights, (Revised 1995 edition) 1-96. See also Prunier G The Rwanda crisis 1959-1994: History of a genocide (1995).

[13]      Akazu is a group of persons linked to President Habyarimana through marriage, family, politics and business, but all dedicated to the preservation of Hutu power.

[14]      Supra, note 12, at p. 65.

[15]      Ibid, at p, 66.

[16]      According to Chretien et al Rwanda, Les Medias 45 (unofficial translation), at least 11 of the 42 new journals founded in 1991 were linked to the Akazu.

[17]      Some 66% of Rwandans are literate and those who knew how to read were accustomed to reading for others. In many cases, most of the cartoons used in the papers were graphic in a manner that they could not be misinterpreted and the cartoons underscored the written word.

[18]      Supra, note 12, at p. 68.

[19]      Ibid.

[20]      Ibid.

[21]      Ibid.

[22]      Ibid, at p. 69.

[23]      Ibid.

[24]      Africa Rights, supra, note 12 at p. 69-84; Human Rights Watch & International Federation of Human Rights, supra note 10, at p. 65-91.

[25]      von Clausewitz, C, On war, ed and transl Howard M, & Paret, P (1976), at p. 87.

[26]      Article 37(1) of Additional Protocol I to the four 1949 Geneva Conventions defines and prohibits perfidy. Article 37(2) defines ruses and declares, in part, that ‘[r]uses of war are not prohibited’.

[27]      See the Convention Concerning the Use of Broadcasting in the Cause of Peace, 1936, 5 Hudson 409; and the South American Convention on Radio Communications, 1935, 7 Hudson 47.

[28]      De Lupis, I  The law of war (Stockholm University, 1987) at p. 262.

[29]      See Preuss, L ‘International responsibility for hostile propaganda against foreign states’ (1934) American Journal of International Law 649.

[30]      See Kuhn, A.K, ‘The complaint of Yugoslavia against Hungary with reference to the assassination of King Alexander’ (1935) American Journal of International Law 87.

[31]      See e.g. the notification of the United States Secretary of State to the Mexican Ambassador on 7 June 1911 to the effect that the United States could not interfere with hostile propaganda against Mexico because of the constitutional right of freedom of speech in the United States, 2 Hackworth 142. On the defamation of the Mexican government by the Hearst newspaper group, see Dickinson, E.D, ‘Defamation of foreign government’ (1928) American Journal of International Law 840.

[32]      Madders, K.J ‘War, use of propaganda’ in Bernhardt, R, (ed) Encyclopaedia of public international law, 334-6.

[33]      Ibid, at p. 334.

[34]      See Article 21 of the Hague Rules of Air Warfare of 19 February 1923.

[35]      Madders, supra, note 32, at p.335 (n 17

[36]       Chomsky, N, The new military humanism: Lessons from Kosovo (1999).

[37]      See Article 37 of Additional Protocol I. See also Castren, E, The present law of war and neutrality (1954) 208-210; Greenspan, M, The modern law of land warfare (1959) 323.

[38]      Madders, supra, note 32, at p.17 335; Greenspan, supra, note 32, at p. 324

[39]      Czar Nicholas II of Russia, the formal initiator of the conference, convened the meeting, not because he wanted peace or the reduction of suffering in warfare because of his concern for humanity. Rather he convened the meeting because he was very weak. According to Tuchman, Nicholas II was ‘weak as water … had no character; he was neither pacific nor idealistic’. The Czar organised the conference from a position of weakness and cultivated merely to buy time until such time that Russia became strong again and could wage war effectively. See Tuchman, B.W, The proud tower: A portrait of the world before 1890-1914 War (1967) 289. For the text, see Declaration of St Petersburg in Schindler, D & Toman, J, The laws of armed conflicts: A collection of conventions, resolutions and other documents (1988) 25.

[40]      The Institute is an unofficial but highly respected body of leading scholars, whose eminence leads to their resolutions and proposals receiving the highest respect and often forms the basis for draft agreements submitted to governments.

[41]      Schindler & Toman, supra, note 39, at p. 35.

[42]      See Cambon, P.I, The Hague Peace Conference 1870-1914 (1946) 438. Note also that, for example, the United States of America acceded to none of the declarations. The United Kingdom declined to accede to the 1899 Balloons Declaration, but accepted that of 1907.

[43]      Schindler & Toman, supra, note 39, at p. 63. The Hague Convention IV of 1907 replaced this.

[44]      The Martens Clause, developed by Friedrick von Martens (1845-1909), delegate of Czar Nicholas II to the Hague Peace Conference, included in the Preamble to the 1907 Hague Convention IV and reaffirmed in the 1977 Additional Protocol I. According to Greenwood, the Martens Clause ‘…was originally devised to cope with disagreement between the parties to The Hague Peace Conference regarding the status of resistance movements in occupied territory’. Those states which had argued that inhabitants of occupied territory who took up arms against the occupying forces should be treated as lawful combatants, had been unable to obtain a majority for their proposal and the provisions on combatant status in art 1 and 2 of the Hague Regulations did not include resistance fighters in the list of those entitled to combatant status. The Martens Clause was seen by many states as a reminder that arts 1 and 2 should not be seen as the last word on the subject of combatant status and that the question of whether resistance fighters were entitled to that status should not be decided simply by pointing to their omission from arts 1 and 2 See C Greenwood ‘Historical development and legal basis’ in Fleck, D, (ed) The handbook of humanitarian law in armed conflicts 29.

[45]      Ibid.

[46]      Scott, J.B, The Hague Conventions and Declarations of 1899 and 1907 (1915); Choate, J.H, The two Hague Conferences (1913); See also Conventions III-XIII in Schindler & Toman, supra , note 39, at p 57 791 et seq, 941, 951.

[47]      For example, Article 4 affirming that prisoners of war are in the power of the enemy government and not the soldier capturing them; Article 7 – the holding government is obliged to maintain prisoners; Article 12 – prisoners breaking parole may be punished if recaptured; Article 22 – the ban on the use of poison and of denying quarter; Article 32 – protection of one carrying a flag of truce, etc.

[48]      See, e.g., Nuremberg Judgment 1946: ‘Several of the belligerents in the recent war were not parties to this Convention … [B]y 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war.’ His Majesty Stationary Office (HMSO), Command Papers (UK) 6964(1946), 65; (1947) 41 American Journal of International Law 172 248-9.

[49]      In the case of the German trials held at Leipzig after World War I against German accused, these were in accordance with Article 228 of the Treaty of Versailles. At the Nuremberg trials, Control Council Law No 10 was the legal basis for national trials;

[50]      See, e.g., Nurse Cavell, who, in breach of her protected status as a medical person, assisted in the escape of allied forces, was tried for war crime, but for a breach of the German Military Penal Code to which she was not strictly liable; The Llandovery Castle case, in which officers of a U-boat were sentenced by a German tribunal for acting ‘contrary to international law’ by firing upon and killing survivors of an unlawful torpedoed hospital ship (Cameron, The Peleus Trial, App IX); trial of Eck – The Peleus Trial, 1945; Klein, 1945, for killing allied civilian nationals contrary to international law (I United Nations War Crimes Commission, Law Reports of Trials of War Criminals 46).

[51]      See, Drierwalde Case 1946, for killing captured RAF personnel contrary to art 23(c), Ibid, (I United Nations War Crimes Commission, Law Reports of Trials of War Criminals 46).

[52]      For a discussion on customary international law and its role on international law-making, see Danileko, G, ‘International jus cogens: Issues of law-making’ (1991) 2 European Journal of International Law 42.

[53]      Meron, T ‘The Geneva Conventions as customary law’ (1987) 81 American Journal of International Law 1.

[54]      See Guthridge ‘The Geneva Conventions of 1949’ (1949) 26 British Yearbook of International Law 304. See also Yingling & Ginnane ‘The Geneva Conventions of 1949’ (1952) 46 American Journal of International Law 393.

[55]      Grave breaches are provided for in all the four 1949 Geneva Conventions and almost in identical wordings. See Article50 of Convention I, Article 51 of Convention II, Article130 of Convention II, and Article 147 of Convention IV.

[56]      See Article 49 of Convention I; Article 50 of Convention II; Article 129 of Convention III; and Article 146 of Convention IV.

[57]      See Article 86(5) of Additional Protocol I to the four 1949 Geneva Conventions.

[58]      For discussions on the historical background to the making of the Geneva Conventions and its common art 3, in particular, see Picet, J Commentaries on the Geneva Conventions of August 12, 1949 (1952-1960); Coursier, H,  Course of five lessons on Geneva Conventions (1962) &  Best, G, War & law since 1945 (1994) 80-168.

[59]      See, e.g., S v Sagarius & Others 1983 1 SA (SWA), English translation by Green, ‘Terrorism and armed conflict: The plea and verdict’ (1980) 19 Israel Yearbook of Human Rights 55. For a decision re the armed wing of the African National Congress (ANC) in South Africa, see S v Mogoerane (1982) South Africa Lawyers for Human Rights Bulletin No 1 (February 1983) 118. In such cases, combatants captured by the government armed forces tend to be treated as prisoners of war until the political organs have decided whether to proceed with criminal charges against them or not.

[60]      Problems arise when, as in Vietnam or the Democratic Republic of the Congo, one or more of the parties to a conflict is a state foreign to the territory involved and hands captives to the authority it recognises as a government of the entire territory, even though part of that territory may in fact be governed by an authority opposed to the intervening state’s local ally.

[61]      This occurred in World War II with large numbers of Indian Army personnel captured by Japanese. See Green, L.C, ‘The Indian National Army Trials’ (1947) 11 Military Law Reports 290. See also R v Casement [1917] 1 KB 98; Obote-Odora, A, The judging of war criminals: Individual criminal responsibility under international law (1997) 199-208.

[62]      For background to the drafting of Protocol II, see Sylive-Stoyanka, J, ‘Additional Protocol II: History and scope’ (1983) 33 American University Law Review 29. For legal commentary, see Sandoz, Y, Swinarski, C, & Zimmerman, B, Commentary on the Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II) (1987) 1354; Bothe, M, Partsch, K.J & Solf, W.A, New rules for victims of armed conflict: Commentary on the two Protocols to the Geneva Conventions of 1949 (1982).

[63]      See art 1 of Additional Protocol II to the four 1949 Geneva Conventions.

[64]       Gasser, H-P, ‘Protection of civilian population’ in F Dieter (ed) The handbook of humanitarian law in armed conflicts (1995)  228-229.

[65]      See Article 79 of Additional Protocol I to the four 1949 Geneva Conventions.

[66]      Ibid, Article 79(3) & Annex II of Additional Protocol I.

[67]      Article 4A, (4) of Convention III.

[68]      Ibid.

[69]      Annex IV A to Convention III.

[70]      Gasser, supra, note64, at p. 229.

[71]      Ibid.

[72]      Ibid.

[73]      Pursuant to Article 6(1) of the ICTR Statute.

[74]      Article 6(3) of the ICTR Statute.

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