A.  Notion

1  The prohibition of propaganda for war ranks amongst the least developed or discussed provisions of international human rights law. Despite Art. 20 (1) of the International Covenant on Civil and Political Rights (1966) (‘ICCPR’) requirement that ‘any Propaganda for war shall be prohibited by law’, there is little jurisprudence on the subject, and the prohibition tends to be accorded little more than a footnote in the academic literature.

2  The rationale for including a prohibition of propaganda for war in the ICCPR stemmed from the experiences of World War II, where such propaganda was widely acknowledged as having played a fundamental role in the consolidation of Nazi power in Germany, the subsequent wars of aggression, and the execution of the Holocaust. Furthermore, the provision gives expression to the principle set forth in Art. 29 (3) Universal Declaration of Human Rights that ‘rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations’ (UNGA Res 217 A (III) ‘Universal Declaration of Human Rights’). Despite stern opposition from Western liberal democracies who feared that the Soviet Bloc countries would exploit Art. 20 (1) ICCPR in order to undermine the right to freedom of expression, its inclusion in the Covenant was ensured by the views of newly independent countries associated with the Non-Aligned Movement (NAM) that such a provision was necessary to ensure their protection from the superior military, economic, and cultural capabilities of the Cold War superpowers.

3  The essence of the concept is best understood by reference to the role of propaganda in Nazi Germany prior to World War II. The judgment of the International Military Tribunal at Nuremberg stressed the role propaganda had played in ensuring that ‘[t]he German people … with all their resources were to be organized as a great political-military army, schooled to obey without question any policy decreed by the State’ (IMT [Nuremberg] at 187). Nikitchenko, the Soviet judge described Nazi preparations for wars of aggression as having been served by ‘a huge and well centralized propaganda machinery’ since the ‘dissemination of provocative lies and the systematic deception of public opinion were as necessary to the Hitlerites for the realization of their plans as were the production of armaments and the drafting of military plans’ (Office of the United States Chief of Counsel for Prosecution of Axis Criminality Nazi Conspiracy and Aggression 175).

4  One of the earliest examples of the punishment of an individual for incitement to war, a specific form of propaganda, is recorded as the Ambrister-Arbuthnot Affair of 1818 (Trial of Ambrister and Arbuthnot (1932) 1 American State Papers 721). During the United States war against the Seminoles in Florida, General Andrew Jackson convened a court-martial which found Arbuthnot guilty of the charge of having ‘excited the Creek Indians to war against the United States’, and ordered his execution (SD Thompson ‘Andrew Jackson and his Collisions with Judges and Lawyers’ (1897) 31 American Law Review 801–26, at 810). Whereas offences of incitement have long been proscribed by criminal law, the prohibition of propaganda for war encompasses not just incitement but also an additional element. Although less tangible, propaganda came to be considered more insidious insofar as it created the atmosphere in which direct incitement could more effectively bring about desired results. A comparison may be drawn here with the relationship between hate speech, which is targeted against a minority group generally in order to create a hostile and fearful atmosphere, and incitement to acts of violence against specific representatives of the group. The latter’s impact will invariably be dependant on the atmosphere created by the prior dissemination of hate speech falling short of incitement, thus the commonly held position that it is as necessary to prohibit hate speech as it is to prohibit incitement to violence on grounds of race etc. Similarly with propaganda for war, though the extent of, and distinction between, these two elements was to be at the heart of the rift between the liberal West and the majority at the United Nations when voting upon Art. 20 (1) ICCPR.

5  In the aftermath of World War I, the necessity to governments of ensuring public opinion under democracy was kept firmly behind the descent into ‘total war’ prompted the age of modern propaganda. Hersch Lauterpacht was of the opinion that whereas there was nothing in the principles of international law justifying the contention that States were bound to prevent international propagandizing by private individuals, the principle of non-intervention in the internal affairs of a State meant that an act of subversive propaganda, that is, the fomenting of unrest or revolution in a second State, ‘when emanating from the State as such, from its agents, or from bodies assisted by it, will constitute a clear violation of international law’ (Lauterpacht 143).

6  Bilateral treaties with clauses prohibiting acts of propaganda and incitement were not uncommon from the mid 19th century, and during the inter-war years several inter-governmental organizations advocated for an international law against propaganda for war. In 1931 the International Bureau for the Unification of Criminal Law adopted a resolution urging the Secretary-General of the League of Nations to convene an international conference with the goal of establishing ‘une répression universelle de la propagande de guerre’ (UN ILC ‘Documents of the second session including the report of the Commission to the General Assembly’ [1950] vol II UNYBIL 342, para. 125), and it was the 1936 International Convention Concerning the Use of Broadcasting in the Cause of Peace (‘Broadcasting Convention’) which ensured that propaganda for war would henceforth be subject to norms of international law.

7  The Broadcasting Convention marked a significant initiative insofar as Art. 2 placed an obligation on State parties ‘to undertake to ensure that transmissions from stations within their respective territories shall not constitute an incitement to war against another high contracting party or to acts likely to lead thereto’. That the Broadcasting Convention was aimed at prohibiting incitement to war, whether engaged in by the State or by private individuals, and irrespective of whether it was targeted at either domestic or foreign audiences, is reaffirmed in Art. 6. Although ratified by just 13 States before the outbreak of World War II, and of little practical effect, it nonetheless represents ‘a model, a kind of authoritative code of good conduct […] Hence its historical significance and moral influence should not be underestimated’ (JB Whitton, ‘Aggressive Propaganda’ in MC Bassiouni and NP Nanda (eds) A Treatise on International Criminal Law vol 1 (Thomas Springfield 1974) 238–72, at 262).

8  Propaganda for war was analysed in some detail by World War II military tribunals, yet while several prominent Nazis including Hess, Keitel, and Rosenberg were convicted on charges of crimes against peace at least in part due to their involvement with propaganda activities, no clear statement was made that propaganda for war should in itself be considered an international crime. This is in contrast to the Nuremberg Tribunal’s conviction of Julius Streicher for crimes against humanity due to his anti-Semitic propaganda, a finding which led directly to the formulation of the international crime of incitement to genocide as set forth in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Such a finding can be compared with the case of Hans Fritzsche, who, although held to have been responsible for a ‘vigorous propaganda campaign … carried out before each major act of aggression’ (Office of the United States Chief of Counsel for Prosecution of Axis Criminality Nazi Conspiracy and Aggression 162), was acquitted on charges of crimes against peace on the basis that he not been of a sufficient position within the Nazi hierarchy to be properly considered party to the conspiracy to wage aggressive war. The Soviet judge, Nikitchenko, vigorously dissented arguing that given the importance which Hitler had accorded to propaganda in general and radio propaganda specifically, it was inconceivable that Fritzsche would have been a secondary figure (at 175).

B.  Development of the Notion on the UN Level

9  UN General Assembly resolutions prompted primarily by Soviet proposals condemned propaganda for war throughout the Cold War (1947–91). At the second session of the General Assembly in 1947, Resolution 110 (II) ‘Measures to be taken against propaganda and the inciters of a new war’ was unanimously adopted, condemning ‘all forms of propaganda, in whatsoever country conducted, which is either designed or likely to provoke or encourage any threat to the peace or act of aggression’. Resolution 381 (V) of 1950 condemned ‘propaganda against peace’ which was held to include ‘incitement to conflict or acts of aggression’ as well as measures taken to isolate people and restrict freedom of the press ‘thus hindering mutual comprehension and understanding between peoples’, or measures ‘tending to silence or distort the activities of the United Nations in favour of peace’. Resolution 819 (IX) of 1954 drew on both to affirm that there was no contradiction between the prohibition of propaganda for war and respect for the individual’s right to freedom of expression.

10  Following the adoption of the draft Covenant by the Third Committee in 1961, Resolution 110 (II) was reaffirmed in the 1965 Declaration on the Promotion Among Youth of the Ideals of Peace, Mutual Respect, and Understandings between Peoples (UNGA Res 2037 [XX]). The Friendly Relations Declaration (1970) asserts the duty of States ‘to refrain from propaganda for wars of aggression’ (UNGA Res 2625 [XXV]), as does the preamble to the 1978 Declaration on Preparation for Societies for Life in Peace (UNGA Res 33/73)—the US and Israel abstained, claiming this threatened freedom of expression—the 1979 Declaration on International Co-operation on Disarmament (UNGA Res 34/88 at II (f)), the 1981 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States (UNGA Res 36/103 at II (j)), and the 1987 Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations (UNGA Res 42/22). There has been no reference to the duty to refrain from propaganda for war in any resolution or declaration of the UN General Assembly since the end of the Cold War, and neither has it ever been cited in a resolution of the UN Security Council.

11  The concept of ‘war propaganda’ had been introduced to the debates on the drafting of the ICCPR in 1947 by the Soviet Union as a proposed ground for permissible restriction on the right to freedom of expression. Similar proposals on propaganda were reintroduced by the Non-Aligned Movement in 1961, drawing on the text of the 1960 draft Convention on Freedom of Information (UNGA ‘Draft Convention on Freedom of Information’ [10 December 1959] GAOR 14th Session Supp 16, 24). Western opposition had been constant, yet at this point the US and others signalled their willingness to accept a prohibition of ‘incitement to war’. This failed to secure sufficient support from the majority of States who were of the view that it was inadequate to restrict the prohibition to incitement only. The concept of ‘propaganda for war’ was considered by its proponents to consist not only of direct incitement to war, but also the antecedent form of speech which enabled such incitement to be effective. Mr Mello of Brazil, in submitting the final proposal on the matter, stated that the prohibition of propaganda for war would encompass not only incitement to war, but also ‘the repeated and insistent expression of an opinion for the purpose of creating a climate of hatred and lack of understanding between the peoples of two or more countries, in order to bring them eventually to armed conflict’ (UNGA [20 October 1961] GAOR 16th Session 3^rd Committee 1079th Meeting, at para. 2).

12  The Human Rights Committee issued General Comment 11 on Art. 20 ICCPR in 1983, 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’ (at para.2). The Committee further asserted that ‘[t]he provisions of Article 20, paragraph 1, do not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations’ (at para. 2), a view which is in keeping with the drafters’ intentions.

C.  National Legislation

13  Few States outside the former Soviet Bloc, which have tended to retain communist era penal provisions against public incitement to wars of aggression, have enacted any legislation giving effect to the prohibition. While many States continue to outline measures ostensibly taken to give effect to Art. 20 (1) ICCPR in periodic State reports to the Committee, the lack of any critical response has contributed to an environment where action taken under the guise of Art. 20 (1) ICCPR is unlikely to be queried or challenged, thereby allowing States to interpret and apply the provision in a manner which frequently appears inconsistent with either the aims of the drafters or other principles of human rights law, in particular the right to freedom of expression.

14  Of special concern in this respect is the tendency of States such as Israel to restrict the scope of Art. 20 (1) ICCPR to propaganda likely to expose the State to an act of aggression, while overlooking propaganda advocating aggression by that State against others. India has expanded the meaning of the prohibition to justify restrictions on freedom of expression ‘in the interests of friendly relations with foreign States’, an interpretation far beyond the drafters’ intentions. Legislative measures restricting propaganda inciting to manifestations of violence other than wars of aggression such as civil wars, insurrection, terrorism, or violence against the person, are frequently cited by States as having given effect to Art. 20 (1) ICCPR. In such a manner States are shifting the purpose of the prohibition from one which has as its aim the protection of individuals from State propaganda for war, to the protection of the State from perceived threats to its security, whether internal or external. These measures rightfully belong under either Art. 19 (3) or Art. 20 (2) ICCPR, and by tolerating their inclusion without comment or rebuttal under the head of Art. 20 (1) ICCPR, the Committee risks overlooking governmental abuse of the prohibition.

15  The current situation concerning the prohibition of propaganda for war is characterized by the thirteen reservations by Australia, Denmark, Iceland, Ireland, Liechtenstein, Malta, the Netherlands, New Zealand, Norway, Sweden, Switzerland, United Kingdom, and the US, as well as five declarations by Belgium, Finland, France, Luxemburg, and Thailand submitted with regard to Art. 20 (1) ICCPR, a geo-political imbalance rooted in the divisive Cold War environment in which the text was drafted. The common thread to these reservations is that the provision is either unnecessary given pre-existing legislation on public order offences, or that it presents an unacceptable threat to the right of freedom of expression given difficulties in determining the meanings of both ‘propaganda’ and ‘war’.

16  Such claims appear tenuous in light of assertions by the Committee, and the UN General Assembly itself, that the prohibition and the right to freedom of expression actually complement each other. Furthermore the same States recognize that the right to freedom of expression cannot be absolute, having accepted the obligation in Art. 20 (2) ICCPR to prohibit incitement to hatred and violence, as well as the obligation in Art. 4 International Convention on the Elimination of Racial Discrimination to prohibit the dissemination of hate propaganda (Racial and Religious Discrimination). Finland is notable among these States in that it has engaged at length with the Committee on the issue and recently enacted penal legislation concerning incitement to aggression providing for offences including ‘public dissemination of statements designed to influence public opinion to turn in favour of acts of aggression’ whilst nonetheless retaining its reservation to Art. 20 (1) ICCPR.

17  Claims by the UK and others that public order legislation is adequate to tackle any propaganda for war within their jurisdictions fail to satisfy the principle set forth by the drafters. Propaganda for war is at its most effective and dangerous when a populace in fear of an alien threat can be convinced by State representatives that war is necessary in defence of national security. On such occasions public order legislation is unlikely to be adequate in holding to account government officials who are claiming to act in defence of public order and national security, hence the need for specific legislation prohibiting propaganda for war as public policy.

D.  International Jurisprudence

18  International criminal tribunals have addressed this very issue in addition to providing the clearest analysis of the methods and techniques of propaganda and incitement to international crimes. The Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) acknowledging in its Nahimana and Others Case of 2003 that the international jurisprudence on the right to freedom of expression, and particularly its development ‘in the American tradition of free speech’ (Prosecutor v Nahimana [Judgment] para. 1008), had to be realigned. Condemning the role which propaganda had played in the preparation and execution of the Rwandan genocide of 1994, the Chamber held that

Althoughthe ICTR here was focused on crimes of incitement, application of Art. 20 (1) ICCPR has a significant role to play in order to give effect to this sentiment by reducing the State’s ability to engage in propaganda which can set the stage for incitement to crimes of an international dimension, namely wars of aggression.

E.  Conclusion

19  The primary obstacle to the effective implementation of the prohibition of propaganda for war remains the number and scope of the reservations entered against it by States which are otherwise considered to be at the forefront of advocating respect for human rights and the international legal framework. Assertions that the prohibition is either incompatible with the right to freedom of expression, that it is indefinable, or that it is rendered unnecessary by public order legislation, demand reappraisal. Debate on the matter needs to occur not only in the light of the Nahimana judgment, but also in recognition of the fact that propaganda for war is not a historical issue, but one which remains an acute and potent threat to international peace.