When suicide bombers attacked several Christian churches and some of the country’s best hotels on Easter Sunday, the Sri Lankan government swiftly reacted by shutting down social media.
The Sri Lankan regime was concerned about video propaganda from the attacks. It also wanted to close off the messaging functions of Facebook and Twitter, and it pulled the plug on WhatsApp. These social media features have been an important communication tool of terrorists for years. The Sri Lankan decision raised the issue of whether the Internet can be stifled.
There’s been a lot of publicity for the whack-a-mole game that social media companies play with extremists. After the mosque attack in Christchurch, YouTube and Facebook tried, with little success, to suppress video of the massacre that was shared by the killer.
Facebook and Twitter have banned many high-profile alt-right mouthpieces, but they’ve also been trying to shut down the propaganda systems of al Qaeda, al Shabbah and what’s left of ISIS. Twitter, the platform best suited for cell phones, is especially popular with extremists in Syria, Libya and Somalia, where copper line Internet has been dismantled. (Here’s a video of me discussing The Killing Game, my book on this subject.)
Canada has an Integrated Terrorism Assessment Centre created in 2004 to “centralize and facilitate the integration of intelligence into comprehensive assessments of potential threats to Canada, Canadians, and Canadian interests at home and abroad.” It brings together federal agencies to share information. Canadian security agents have always been protective of their turf, a problem that was blamed for the Air India bombing in 1985 that killed 329 people.
The Canadian government, along with its allies, has tried to counter recruitment by ISIS and other jihadi groups with anti-terrorism laws that give security agencies the ability to snoop into the personal and online lives of everyone in the country.
Bill C-51, the omnibus terrorism bill passed in 2015, contained provisions to outlaw what the law’s drafters called “terrorist propaganda.” Judges were given the power to delete such propaganda from the Internet, although it’s still not clear how police can do it. Canada’s terrorism laws also makes it a crime to advocate on behalf of terrorists, possibly extending the reach of the law to anyone who is part of ISIS’s propaganda system. Critics of the bill said the law should have anchored offences of terrorist propaganda to existing laws that ban dangerous speech, or argue the law is too broad.[i]
The same law allows customs agents to seize “terrorist propaganda” along with the usual obscene material and hate literature that they were already chasing. It also mirrors laws in France and other Western countries that make it illegal to promote or glorify terrorism. How can that be defined? What’s the difference between peacefully agreeing with what ISIS does and glorifying ISIS’s actions? Can suppressing freedom of expression that severely be justified under the Canadian Charter of Rights and Freedoms, which allows speech rights to be limited, if the law’s provisions are justifiable and proportionate to the problem that’s being addressed?
A similar law would never survive a court challenge in the United States. It would be struck down under the U.S. constitution’s First Amendment, which has no escape hatch for justifiable muzzling of speech. Instead, the American government relies on social media to police itself (with the help of U.S. security agents who monitor the Internet), and it wages its own war on ISIS propagandists, attacking them personally with live ammunition carried by drones. Throughout this decade, the Americans located several of ISIS’s top propagandists and killed them by remote control, and, in the summer of 2015, Britain used a drone to kill two of its citizens fighting for ISIS in Syria.[ii] And, in November, 2015, the Americans targeted “Jihad Johnny,” the ISIS executioner who had shocked the West by his brutal beheadings of journalists and aid workers.
Since then, almost all of ISIS’s top video stars have been killed in targeted attacks. A few managed to survive the defeat of ISIS in Syria and are stuck in Syrian jails, where they’re waging a desperate PR campaign to save their skins.
So what should be done with them? Many in Western countries argue that those who have European and North American citizenship should be tried for treason. I think there’s a better solution: jail them as war criminals under international law.
Which begs the question: Is there some kind of natural rule or international law against movements and governments attacking each other with words? There seems to be. Scholars have been tilling this field since the end of the First World War, when scientific propaganda was used by the British against Germany with devastating effect to undermine civilian morale and make U.S. support of the Kaiser’s regime unthinkable.[iii]
These laws have been enshrined in treaties, although a list of agreements that include anti-propaganda clauses would read like a bad joke.
The movement to outlaw propaganda for violence and war began nearly two centuries ago, Countries affected by the Revolutions of 1848 agreed to try to stop the flow of propaganda between countries.
Five years before the First World War broke out, the nations most responsible for starting it, Serbia and Austria, agreed to renounce the use of propaganda against each other, but Serbia broke that promise immediately. The ultimatum that the Austrians handed to the Serbs in the summer of 1914, after Serb-sponsored terrorists murdered the Austrian heir to the throne, Archduke Franz Ferdinand, demanded the end of the propaganda war the Serbs were waging. Once again, Serbia agreed, but its government, which was in the middle of its own election campaign during the crisis, had already dumped so much toxic propaganda celebrating the assassination of the Austrian heir that a peaceful solution to the Austro-Serb conflict was very unlikely. Serbia rejected other Austrian demands, and Vienna declared war.
The first treaty between the Soviet Union and the United States, signed during the Depression, promised that neither side would create or distribute propaganda aimed at the other. Both sides appear to have tried to keep their word. Nazi Germany made similar solemn vows to its neighbours in the years before it invaded them. The Nazis, however, used local fascist parties to get their message out.
Making lethal propaganda is now a war crime—or so it seems. It’s clearly illegal to wage genocide and to plan it. International law, applied by war crimes tribunals, is supposed to hold people to account for the things they say, write and broadcast that incite other people to kill. Off and on since the Second World War, that legal concept has been enforced, but only rarely. In many ways, it has been, as the Nazis argued after the war, victors’ justice, since existing regimes almost never hand over their own people to be tried for war crimes. War crimes tribunals demand solid proof that the propaganda resulted in murder, a much higher bar than prosecutors faced during the Nuremberg war crimes trials.
Julius Streicher was one of the most vicious Jew-baiters in the Third Reich. Streicher’s propaganda was an incitement of hatred and violence against the Jews. Unlike the other major war criminals in the dock at the Nuremberg war crimes trials, the prosecutors could not tie Streicher to any of the planning of the war itself. Nor was Streicher guilty of anything resembling the waging of aggressive war, the charge that proved so lethal to senior Nazis, top generals in the German armed forces and leaders of Japan’s militaristic clique. Even Hitler considered Streicher to be too crazy and stupid to be allowed near any real power. Since 1922, almost from the beginning of the Nazi movement, he had published the often pornographic tabloid Der Stürmer, which had run the very worst of the Nazis’ anti-Semitic propaganda. As Nazi influence grew, so did circulation of Streicher’s rag. What should have been, at most, a fringe publication took on a sinister importance when the Nazis became serious political contenders in the early years of the Depression, but once Joseph Goebbels got control of the mainstream German media, Streicher and his paper lost their importance—although they still had a devoted following among the most vicious Nazis.
Nor could Streicher be directly tied to the Holocaust. He had never run a concentration camp, nor was it proven that he had even visited one. The International Military Tribunal convicted him of helping create the social and political environment that generated the Holocaust. Noting Streicher’s reputation as “Jew baiter number one,” the tribunal ruled Streicher’s speeches and writings “infected the German mind with the virus of anti-Semitism and incited the German people to active persecution.”
Talk of the physical destruction of the Jews had started appearing in Der Stürmer in 1938, at a time when Jews were brutally persecuted in Nazi Germany but were not yet being murdered in large numbers. His propaganda was “poison [that] Streicher injected into the minds of thousands of Germans which caused them to follow the National Socialists’ policy of Jewish persecution and extermination.”
What sent Streicher to the gallows was Streicher’s knowledge that his “propaganda of death” was inspiring the murders that he advocated. People in the Nazi leadership let Streicher know about the Final Solution. A person with some sense of morality might have stopped the hate campaign, but Streicher was inspired by the Holocaust to ramp up his vicious writings. In doing so, he had shown the mens rea—the guilty mind—needed to support a finding of guilt on charges of incitement of crimes against humanity. Many other Nazi propagandists and press hacks who had written anti-Semitic propaganda during the war escaped serious punishment because they, unlike Streicher, had not known how well it worked.[iv]
Some scholars believe that international law crafted by the United Nations General Assembly just after the Nuremberg war crimes trials made state-sponsored propaganda part of the acts involved in the waging of wars of aggression.
In 1949, the UN General Assembly passed, by an overwhelming majority, a resolution called Essentials of Peace calling on all nations “to refrain from any acts, or threats of acts, direct or indirect, aimed at impairing the freedom, independence, or integrity of any state, or at fomenting civil strife and subverting the will of the people in any state.”[v] In British, American and Canadian common law, the “principle of incitement” to violence has been entrenched since 1801.[vi] That piece of court-made law found its way into most criminal codes in the West. Strangely, the British removed incitement when they amended their criminal law in 2008.
Prosecutors at the International Criminal Tribunal have tried to use the Streicher precedent against Serb and Rwandan leaders accused of committing crimes against humanity. It has been a tough sell. The court insists that a very clear link be shown between hate propaganda and genocide. The court ruled that, in the case of the Serb leaders who ethnically cleansed parts of their country by slaughtering or forcibly moving the Croatian and Muslim minorities, hate speech, even propaganda aimed at inciting genocide, was not a crime under customary international law.
For what it’s worth, Article 20(1) of the United Nations International Covenant on Civil and Political Rights specifically prohibits propaganda for war, while Article 20(1) forbids hate speech advocating harm to people because of their race, religion or nationality.[vii] The covenant limits the freedom of expression guaranteed in its own Article 19.
Members of the United Nations had worked since the Second World War to develop some sort of framework outlawing propaganda aimed at inciting violence.
“Propaganda for war” international law (which forms part of the law in Canada and most other countries) has been very narrowly interpreted to mean “incitement to war.” Propaganda aimed at undermining the values of other nations and peoples or challenging their right to even exist does not seem to be covered by international law, especially if that propaganda is created by individuals, rather than by governments.
But international terrorist groups don’t just kill, they use their murders to inspire others. They target their victims based on their nationality and religion. When an alt-right hater shoots up a mosque or a group of Islamist suicide bombers attack churches and hotels, they’re not just engaged in homicide. They are performing a type of theatre. They are communicating.
Individual governments can’t solve that problem, even though countries like Sri Lanka have tried. International law very likely makes terrorism propaganda anathema. The world needs to shut it down.
[i] Craig Forcese, Bill C-51: Backgrounder #4: The Terrorism Propaganda Provisions, craigforcese.squarespace.com, February 27, 2015.
[ii] Ewen McAskill, “Drone Killing of British Citizens Marks Major Departure for UK,” The Guardian, September 7, 2015.
[iii] Britain not only undermined Germany and its allies, but it also was able to maintain British morale and recruitment in the face of horrendous losses. British propaganda was directed at the United States to sway public opinion against Germany and toward the Allies. After the war, psychologists and political scientists wrote extensively about Britain’s huge leap in propaganda science. I discuss this in my 2012 book The Fog of War: Censorship of Canada’s Media in World War II (Douglas & McIntyre).
[iv] Richard Overy, Interrogations: The Nazi Elite in Allied Hands, 1945 (New York: Viking, 2001); International Military Tribunal (Nuremberg), Judgment and Sentences, October 1, 1946.
[v] . 1950 UN Yearbook 344, Res. 290 (IV) (UN Pub. Sales No. 1951.I.24).
[vi] Rex v Higgins, 2 East 5, 102 Eng. Rep 269 (K.B. 1801).
[vii] The provisions are quite blunt: “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.” The full text can be found at www.ohchr.org.