War, Incendiary Media, and International Law (Part I)

War Protesters in Iraq

In numerous major military conflicts of the past twenty years, of which the Iraqi war was/is the most recent, there has been an increased focus for observers in international law on the abuse of the media to engender violence, ethnic hatred, and even genocide. The media, particularly radio and the internet, have been identified as significant political tools for mass manipulation by dictatorial governments to drive deep seated animosity between social and ethnic groups, resulting in an intense atmosphere of mistrust, misinformation, and devastating killings. Nationalistic and propagandistic constructions of ethnophobia in the media helped shape wars and justify mass violence, through pitching Serbs against Croats, Hutus against Tutsis, Muslims against Roman Catholics, the Iraqis against the Kurds. What these media-influenced atrocities have made clear is that critical media studies must be reconfigured to respond to these and other crisis conditions.

The pre-conflict abuse of the media to inflame inter-ethnic differences is seen as the catalyst for war. Once warfare breaks out, the media can become a centerpiece of the struggle between factions that want to utilize the media to escalate hatred and spread fear against one another. In post-conflict times, with the media infrastructures possibly destroyed, journalists killed or fled, and the entire media space quickly becoming a site of renewed struggle between the interim authority and remaining factions, there are critical questions that urgently concern critical media studies from the perspective of international human rights law: To what extent should foreign agencies such as the EU, UN, USAID, etc. intervene in the post-conflict reconstruction of the media space in order to prevent it from being abused again as well as to help produce and maintain public order? What is the legal basis in human rights law for such an intervention? How do different forms of intervention stand the legal scrutiny for managing’ and even restricting the freedom of the press in the post-conflict state? How is the line drawn between a “media intervention” aimed at achieving urgent military goals of stabilization and peace-keeping, and a media intervention aimed at longer-term development of a civil and human-rights respecting society? In what ways are the perspectives different among inter-governmental agencies, donor nations, and non-government organizations (e.g. journalist associations) regarding the legality of, and the actual protocol for, media intervention? What perspectives do they share, especially as benchmarked against international legal norms? This is the first of a three-part analysis that attempts to open up these questions and introduce to critical media studies practitioners a legal mode of analyzing media and warfare from a human rights perspective. This first piece outlines what media/information intervention is.

The most pressing legal and humanitarian consideration about the mass media, to which the whole question of media intervention is directed, is the profound problem of “hate speech.” The discussion of hate speech in human rights law has indeed moved beyond the confines of racial discrimination in community settings. It has moved into the contexts of inter-ethnic violence, armed conflict, and genocide. Indeed, underpinning a part of the mandate of the International Criminal Tribunal for Rwanda (ICTR) is the explicit association of the media and genocidal violence as well as the prosecution of media-generated hate speech. The legal definition of hate speech has been most clearly articulated in the International Covenant on Civil and Political Rights and the International Convention on the Elimination of Racial Discrimination (ICERD). Article 20(2) of the ICCPR prohibits “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Article 4 of the ICERD defines racist speech as “ideas based on racial superiority or hatred, incitement to racial discrimination” and “propaganda activities, which promote and incite racial discrimination.” In addition, “direct and public incitement to commit genocide” is punishable pursuant to Article 3 of Genocide Convention.

“We need to explore what can be done between the impossible everything and the unacceptable nothing. The political cost of doing everything is usually prohibitive. The moral cost of doing nothing is astronomical. If we accept that we are not going to do everything possible to stem a given conflict, what can we do to have as much impact as we are willing to have?” (Thompson, 2002a, 41-42). Jamie Metzl, a key proponent of information intervention, describes in the above the need for intervention as a moral obligation exercised in the context of limited influence. Media/information intervention refers to the means of getting involved in a humanitarian crisis where there is evidence that the mass media have been manipulated for inciting hatred and violence. Where there is humanitarian intervention taken to avert mass suffering, media intervention campaigns are designed to supplement such an action. But where there is weak or even no political will to take action in crisis situations, media intervention campaigns are to compel an ideological force in the international community to confront the crises. Such campaigns are supposed to adhere to human rights norms.

Regarding methods, information intervention can take place in pre-conflict, mid-conflict, and post-conflict times. Strategies such as broadcasting counter-information, dropping leaflets, and the most controversial of all, jamming broadcasting signals from the target state, are best applied in pre-conflict and mid-conflict times. As for after the conflict, reconstruction work typically calls for a robust “media development” program, which can include

• human rights training and education of journalists
• enhancement of independent local media outlets
• setting up interim media commissions
• establishing licensing mechanisms linked to hate speech laws and other codes of conduct to ensure quality balanced programming
• creating programmes that promote inter-ethnic conversation
• protecting safety of journalists from intimidation and other violent threats
• forging a monitoring role for the media during the transition to a stable government through election
• other democratizing activities of the media sphere.

However, while the ultimate legality of such intervention methods created in the name of reconstruction will continue to be debated, the legal ground for more aggressive measures taken in times of imminent or present conflict appears to be tenuous, such as in jamming broadcasting signals, techniques of information manipulation (such as cyberwar), seizure of transmitters, or even bombing broadcasting towers. These aggressive actions resemble the “use of force,” which is prohibited by the UN Charter and other long-standing international norms. Peter Krug and Monroe Price (2002) warn: “[T]he human rights rationale for what might be called ‘aggressive peacemaking’ and the intrusiveness into the zone of freedom of expression is a precarious one. [Moreover][w]hen an international governmental organization engages in regulation of the press, its actions may affect the nature of the political system that follows. How a regulatory rule is shaped, how it is presented in the society, how those who will be subject to a seemingly censorial rule react and accept that rule–all these are part of the difficult process of democracy development in a conflict zone” (164). Certainly, it is one thing to prevent violence, it is another for the information intervention program to intrude upon the target state’s autonomous public sphere and even to exert influence and authority in the target state.

Not surprisingly, Jamie Metzl has been criticized for promoting “a more adroit spinning of United States foreign policy represent[ing] a fashionable means of enhancing United States predominance within the international system, using information technology”(Thompson, 2002, 56). It has been argued that the entire effort smacks of hegemonic intention under the guise of humanitarian intervention. In Part II, I will examine in closer detail the legal framework for scrutinizing media intervention according to international human rights norms.

Note
This list is compiled from several media development experiences in post-conflict Bosnia and Kosovo. See, among others, Pech (1999/2000) and Price (2000).

Sources

Krug, Peter, and Monroe Price. “A Module for Media Intervention.” Monroe E. Price and Mark Thompson, eds. Forging Peace: Intervention, Human Rights and the Management of Media Space. Edinburgh: Edinburgh UP, 2002. 148-74.

Pech, Laurent. “Is Dayton Falling? Reforming Media in Bosnia and Herzegovina.” International Journal of Communication Law and Policy 4 (1999/2000): 1-28.

Price, Monroe. “Intervention: Bosnia, the Dayton Accords, and the Seizure of Broadcasting Transmitters.” Cornell International Law Journal 33 (2000): 67-112.

Thompson, Mark. “Defining Information Intervention: An Interview with Jamie Metzl.” Forging Peace. 2002. 41-68.

Image Credits:

1. War Protesters in Iraq

Links:
Ferdinand Nahimana page on Trial Watch website
International Crime Tribunal for Rwanda
Media Development in Post-war Iraq

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