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820 DENVER UNIVERSITY LAW REVIEW Vol 87 4, enemy nations particularly Germany and it did so with stunning suc. cess War posters featuring fearsome and bloody portrayals of The. Hun became staples of poster art 8 Cities and towns removed German. place names 9 Citizens anglicized German family names 10 Local laws. outlawed use of German words such as sauerkraut and forbade perform. ances of music by Beethoven and Mozart 11 Several states curtailed study. of foreign languages or in one instance of German alone 12 Of course all. belligerents engaged in war propaganda and some say greater skill in. using it was important to the war s outcome 13, American involvement in the war lasted such a short time that this. propaganda blitz quickly faded Soviet propaganda then replaced the. war s as a subject of concern 14 During the 1920s systematic study of. propaganda for war began led by Walter Lippmann and Harold. Lasswell 15 In 1927 Lasswell published his University of Chicago doc. toral thesis titled Propaganda Technique in the World War 16 In the. 1930s the Nazi regime and the Japanese Empire supplied fresh inspira. tion for study and analysis International law theorists and the League of. Nations began to discuss outlawing propaganda for war 17 In 1931 the. League commissioned a study of the use of radio broadcasts in the cause. of peace Two years later the League authorized preparation of a draft. convention on propaganda and broadcasting These initiatives generated. the Convention on the Use of Broadcasting in the Cause of Peace com. pleted in 1936 18 It required States Parties to forbid transmissions within. their territories of incitements to wars of aggression Many states ratified. or acceded to the Convention but they did not include Germany Italy. Japan the USSR or Spain 19 The United States was not a League mem. ber and did not participate in drawing up the Convention or ratify it 20. schoolnet co uk USAEgermany htm last visited Apr 21 2010. 8 See Anti German Hysteria Birth of the Hun The Propagandists http www exulanten. com hysteriaintro html last visited Apr 21 2010,9 Simkin supra note 7. 11 Anti German Hysteria Our Destroyed Heritage Continued Goodbye Sauerkraut. http www exulanten com cr7b html last visited Arp 21 2010 see also Simkin supra note 7. 12 See Meyer v Nebraska 262 U S 390 397 1923 holding one such law invalid Bartels. v Iowa 262 U S 404 409 1923 holding two other laws invalid Ohio had specifically targeted. German Bartels 262 U S at 410 n 2 Two justices thought that made a constitutional difference Id. at 412 Holmes J dissenting and concurring,13 See e g WHITTON LARSON supra note 4 at 30 34. 14 See MICHAEL G K EARNEY THE PROHIBITION OF PROPAGANDA FOR WAR IN. INTERNATIONAL LAW 21 2007 available at http 0 www oxfordscholarship com pacman law. du edu oso public content law 9780199232451 toc html. 15 See WALTER LIPPMANN PUBLIC OPINION 24 29 43 45 1922. 16 HAROLD D LASSWELL PROPAGANDA TECHNIQUE IN THE WORLD WAR 1927. 17 See KEARNEY supra note 14 at 24 28,18 Id at 28,19 Id at 30 31.
20 Id at 31,2010 PROPAGANDA FOR WAR AND TRANSPARENCY 821. World War II of course increased awareness of the question of war. propaganda During the war Professor Lasswell was Chief of the Ex. perimental Division for the Study of War Time Communications at the. Library of Congress His office studied Nazi propaganda to understand. the methods used to gain support of the German people for Hitler 21. After the war issues about war propaganda arose in the war crimes. trials in Tokyo and Nuremberg As is well known the trials were the first. efforts to punish war crimes internationally They also included the first. efforts to punish war propaganda in particular 22 The Nuremberg Charter. was drawn up by the four convening nations Britain France the. U S S R and the U S so its legal pedigree was a blend 23 Indictments of. twenty four Nazi leaders were drawn up and served They stressed the. central role of propaganda in war preparation but the Charter did not. state that propaganda or incitement alone constituted a crime 24 Count. One of the indictments alleged a common plan or conspiracy to commit. crimes against peace Count Two charged substantive crimes 25. A year later the International Military Tribunal issued its judg. ments They emphasized the importance of Nazi propaganda in the lead. up to war The Tribunal considered the conspiracy to have begun with. formation of the Nazi party in 1919 26 Findings of guilt on the conspiracy. count included references to war propaganda in several cases These in. cluded prominent defendants Rudolf Hess Wilhelm Keitel and Alfred. Rosenberg Rosenberg in particular was found to have been chief ideolo. gist of the Nazi Party However for these and others guilt was also. predicated on substantive crimes references to propaganda were contrib. uting factors 27, Charges in two other cases were based on pure speech Julius. Streicher was charged both with war propaganda and with being the. chief propagandist promoting hatred and violence against Jews He was. acquitted of the former and convicted of the latter based on his role as. publisher and editor of a virulently anti Semitic newspaper 28 Hans. Fritzsche was charged with war propaganda and anti Jewish activities for. his work in the Nazi propaganda ministry The Tribunal acquitted him of. all charges finding that he had not been involved in direct incitement to. 21 Harold Lasswell http www answers com topic harold lasswell last visited Apr 21. 22 See KEARNEY supra note 14 at 34,24 Id at 34 37,25 See id at 34. 26 Id at 36,27 See id at 38 39,28 See id at 40 42,822 DENVER UNIVERSITY LAW REVIEW Vol 87 4. war and that he had not been proved to know of extermination of Jews. but it assumed validity of the charges if proved 29. A later indictment of twenty one more Nazis was tried as what is. called the Ministries case Charges against two of these defendants Otto. Dietrich and Ernst von Weizsaeker were based directly on speech activi. ties as war propaganda The Tribunal decided that conviction required. proof beyond a reasonable doubt that each defendant knew of Hitler s. war plans Both were acquitted for lack of sufficient proof of this ele. ment But the judgments again assumed validity of the charges 30. The Tokyo Tribunal was almost a solo American effort so its legal. forms are more familiar to Anglo American lawyers The conspiracy. count in the indictments looks like the common law offense it charged. conspiracy to wage aggressive war 31 Defendants were again accused of. propaganda for war as part of the conspiracy count Five of the accused. were found guilty of conspiracy based largely on propaganda activities. Sadao Araki was found to be chief propagandist in preparing the Japa. nese people for war as early as 1928 Koichi Kido s guilt was based on. his work as education minister 32 A clearer instance of punishment for. speech alone was the case of the twelve women who made propaganda. broadcasts under the name of Tokyo Rose 33, Propaganda for war was also discussed in the newly established.
United Nations Its 1948 Universal Declaration of Human Rights en. shrined the right to freedom of expression with no specific exceptions 34. But several General Assembly resolutions condemned war propaganda. and the draft Convention on Freedom of Information and the Press first. published in 1948 added a 1960 provision that condemned incitement. to violence and crime 35 Other international treaties adopted in the post. war period made some reference to the question 36, Advocates for an international ban on war propaganda achieved. success with adoption of the International Covenant on Civil and Politi. 29 See id at 42 45,30 See id at 48 49,31 See id at 50. 32 See id at 50 52, 33 See Ann Elizabeth Pfau Miss Yourlovin GIs Gender and Domesticity During World. War II ch 5 2008 http www gutenberg e org pfau chapter5 html see also JUDITH K EENE. TREASON ON THE AIRWAVES THREE ALLIED BROADCASTERS ON AXIS RADIO DURING WORLD WAR. II pt II 2009 D Aquino v United States 192 F 2d 338 347 48 9th Cir 1951. 34 Universal Declaration of Human Rights G A Res 217A 111 art 19 U N GAOR 3d. Sess 183d plen mtg U N Doc A 810 Dec 10 1948 available at http www un org en. documents udhr However Article 2 4 of the U N Charter provides All Members shall refrain in. their international relations from the threat or use of force against the territorial integrity or political. independence of any state or in any other manner inconsistent with the Purposes of the United. Nations U N Charter art 2 para 4 available at http www un org en documents charter. chapter1 shtml,35 See KEARNEY supra note 14 at 56 65. 36 See id at 70 78,2010 PROPAGANDA FOR WAR AND TRANSPARENCY 823.
cal Rights in 1966 37 Its Article 19 is a typical modern guarantee of free. dom of expression subject only to restrictions necessary for respect of. the rights or reputations of others or for protection of national security. or of public order or of public health or morals 38 Article 20 adds. two specific exceptions the war propaganda provision quoted at the head. of this article and Article 20 2 which forbids advocacy of national. racial or religious hatred that constitutes incitement to discrimination. hostility or violence 39 In other words Article 20 forbids warmongering. and hate speech, Article 20 1 s supporters must be disappointed by the failure of. some nations to agree to the provision and the failure of others to imple. ment it The article requires that propaganda for war be forbidden by. law so it requires action by acceding states But it does not say what. form a prohibition should take Moreover most of the debate during. adoption of the Covenant related to warmongering by the press 40 There. was very little attention given to war propaganda by governments except. where governments control the press, The majority of nations that passed legislation directly responsive to. the text of Article 20 1 were the U S S R and others in its former bloc 41. This reflected national positions during the Covenant s drafting and in. prior General Assembly resolutions and other forums These nations saw. a rule against propaganda for war as a device to suppress internal dissent. and to counter western media 42 When the U S objected to the concept of. a ban on propaganda for war the Russians chided America as soft on. aggressive war 43 In agreeing to the Covenant nations can make reserva. tions and declarations and the U S refused to agree to either part of Ar. ticle 20 44 The U S also forbade domestic enforcement and did not agree. 37 ICCPR supra note 1 see also Vratislav Pechota The Development of the Covenant on. Civil and Political Rights in THE INTERNATIONAL BILL OF RIGHTS THE COVENANT ON CIVIL AND. POLITICAL RIGHTS 32 64 66 Louis Henkin ed 1981 DOMINIC MC GOLDRICK THE H UMAN. RIGHTS COMMITTEE 10 1996 National agreements to the Covenant followed according to laws. and politics of each state party For example the U S signed the covenant in 1977 and the Senate. ratified it with extensive qualifications in 1992 HUMAN RIGHTS COMMITTEE C ONSIDERATION OF. REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT I NITIAL REPORTS. OF STATES PARTIES DUE IN 1993 Annex III 1993, http www state gov documents organization 133836 pdf. 38 MANFRED N OWAK U N COVENANT ON CIVIL AND POLITICAL RIGHTS CCPR. COMMENTARY 437 2d ed 2005,39 Id at 468, 40 See KEARNEY supra note 14 at 92 101 134 142 159 167 169. 41 See id at 135 38,42 See id at 87 95 122,43 See id at 96 100.
44 See NOWAK supra note 38 at 479 HUMAN RIGHTS COMMITTEE CONSIDERATION OF. REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT I NITIAL REPORTS. OF STATES PARTIES D UE IN 1993 Annex III 1993 http www state gov documents organization. 133836 pdf,824 DENVER UNIVERSITY LAW REVIEW Vol 87 4. to review of complaints by the U N Human Rights Committee 45 A. number of other western democracies balked at Article 20 1 46 Still oth. ers made half baked attempts at compliance Forms of compliance dealt. only with private sector warmongering 47 No nation seriously addressed. the concept of adopting a restraint on the government itself A further. disappointment is the paucity of scholarship on the provision. Article 20 2 forbidding hate speech has had a more robust life It. has generated substantial scholarship 48 Many nations have passed legis. lation to curb hate speech 49 But again these actions have outlawed pri. vate sector hate speech No nation that engages in verbal persecution of. minorities has curtailed these actions because of Article 20 2 Of course. the two parts of Article 20 to some extent overlap because nations have. used hate speech in campaigns to promote aggressive war 50 Serbian. propaganda against Bosnia is a grim example 51 The problem also arises. internally as in Rwanda 52,II RELATED HUMAN RIGHTS TREATIES 53. A commission established by the Organization of American States. drafted the American Convention on Human Rights 54 The Convention s. Article 13 is its guarantee of freedom of expression 55 Article 13 5 de. rives from its U N ancestor but with important changes. 45 On domestic enforcement see Oscar Schachter The Obligation to Implement the Cove. nant in Domestic Law in THE I NTERNATIONAL BILL OF RIGHTS THE COVENANT ON CIVIL AND. POLITICAL RIGHTS 311 321 Louis Henkin ed 1981 138 CONG REC S4781 01 S4783 daily ed. Apr 2 1992 statement of Sen Moynihan On interpretation by the Human Rights Committee see. infra notes 97 106 and accompanying text,46 See NOWAK supra note 38 at 479. 47 See KEARNEY supra note 14 at 139 41, 48 See e g Stephanie Farrior Molding The Matrix The Historical and Theoretical Founda. tions of International Law Concerning Hate Speech 14 BERKELEY J INT L L 1 1996 Art 20 2. substantially overlaps Art 4 of the International Convention on the Elimination of All Forms of. Racial Discrimination International Covenant on the Elimination of All Forms of Racial Discrimi. nation art 4 660 U N T S 195 Dec 21 1965 available at http www2 ohchr org english law. cerd htm The latter is more demanding by requiring criminal penalties for hate speech. 49 See Michel Rosenfeld Hate Speech in Constitutional Jurisprudence A Comparative. Analysis 24 CARDOZO L REV 1523 1541 57 2003, 50 Nazi Germany used its campaigns against Jews and others both internally and in its war.
aims See supra text accompanying notes 21 30,51 See KEARNEY supra note 14 at 213 19. 52 See id at 219 34, 53 In addition to the treaties reviewed in this section propaganda for war is forbidden by the. preamble to the Treaty on Principles Governing the Activities of States in the Exploration and Use of. Outer Space including the Moon and Other Celestial Bodies G A Res 2222 XXI Annex Dec. 19 1966 available at http www un org ga search view doc asp symbol A RES 2222 XXI and. by the Declaration on Principles of International Law Friendly Relations and Co Operation Among. States in Accordance with the Charter of the United Nations G A Res 2625 XXV Preamble. U N Doc A 8028 Oct 24 1970 available at http daccess dds ny un org doc RESOLUTION. GEN NR0 348 90 IMG NR034890 pdf OpenElement,54 See KEARNEY supra note 14 at 175 76. 55 Id at 176,2010 PROPAGANDA FOR WAR AND TRANSPARENCY 825. 5 Any propaganda for war and any advocacy of national racial or. religious hatred that constitute incitements to lawless violence or to. any other similar action against any person or group of persons on. any grounds including those of race color religion language or na. tional origin shall be considered as offenses punishable by law. The U S opposed on free speech grounds an initial draft that. tracked ICCPR Article 20 and persuaded the commission to adopt this. incitements to lawless violence version that was deemed compatible. with the First Amendment 57 The Convention was approved and entered. into force in 1978 but the U S has yet to agree to it 58 The Convention. established an Inter American Commission on Human Rights and Court. of Human Rights 59 Both have opined extensively on Article 13 but have. said almost nothing about part 13 5 60, The international human rights treaty in most active use is the Euro.
pean Convention on Human Rights From its original ten signers it has. expanded to serve forty seven States Parties including Turkey Russia. and other former Soviet bloc nations 61 The Convention s Article 10 pro. tects freedom of expression with the general exceptions typical in mod. ern provisions but it has none for war propaganda 62 Like the American. treaty the European Convention establishes a Commission on Human. Rights and the European Court of Human Rights that sits in Strasbourg. The Court s active docket is shown by its 35 460 decisions in 2009 63. Although European Convention Article 10 lacks express exceptions. from its free expression guarantee for war propaganda a series of deci. sions from Turkey have sustained applications of a statute that forbids. 56 Organization of American States American Convention on Human Rights Nov 22 1969. O A S T S No 36 1144 U N T S 123 available at http www1 umn edu humanrts oasinstr. zoas3con htm,57 See KEARNEY supra note 14 at 178 79. 58 Id at 176 183, 59 See Inter American Court of Human Rights Information History http www corteidh. or cr historia cfm last visited Apr 21 2010 Inter American Commission on Human Rights What. is IACHR http www cidh oas org what htm last visited Apr 21 2010. 60 See KEARNEY supra note 14 at 180 83, 61 Council of Europe in Brief Who We Are http www coe int aboutCoe index asp page. quisommesnous l en last visited Apr 21 2010, 62 Council of Europe Convention for the Protection of Human Rights and Fundamental. Freedoms as amended by Protocol No 11 2003 http www echr coe int NR rdonlyres D5CC24A7. DC13 4318 B457 5C9014916D7A 0 EnglishAnglais pdf The text of Article 10 2 states. The exercise of these freedoms since it carries with it duties and responsibilities may be. subject to such formalities conditions restrictions or penalties as are prescribed by law. and are necessary in a democratic society in the interests of national security territorial. integrity or public safety for the prevention of disorder or crime for the protection of. health or morals for the protection of the reputation or rights of others for preventing the. disclosure of information received in confidence or for maintaining the authority and. impartiality of the judiciary, 63 See European Court of Human Rights Annual Report 2009 available at.
http www echr coe int NR rdonlyres C25277F5 BCAE 4401 BC9B F58D015E4D54 0 Annual. Report 2009 versionProv pdf at 137,826 DENVER UNIVERSITY LAW REVIEW Vol 87 4. propaganda aimed at undermining the territorial integrity of the Re. public of Turkey or the indivisible unity of the nation 64 Thus the Euro. pean Convention s jurisprudence seems to allow prohibitions adopted to. comply with ICCPR Article 20 65, Another discussion about banning propaganda for war arose in con. nection with drafting the Rome Statute for the International Criminal. Court The U N established its International Law Commission in 1947. and the Commission began to draft an international criminal code in. 1950 66 The process included detailed discussions aimed at forbidding. incitement to war or war propaganda 67 But no agreement was reached. for adoption of the Rome Statute in 1998 68 The statute asserts jurisdic. tion over genocide crimes against humanity war crimes and the crime. of aggression However it defines and claims present jurisdiction over. the first three but postpones jurisdiction over aggression until the crime. is defined and this has not yet occurred 69 Debate leading to this stale. mate was vigorous and complex 70,III ANALYSIS, Trying to forbid war propaganda encounters substantial obstacles. As is often the case the problems begin with basic definitions When. should advocacy of war be defined as forbidden war propaganda The. history of Article 20 1 and its antecedents make it clear that the intent is. to forbid advocacy of wars of aggression Therefore defensive wars are. not within the provision 71 Modern conditions have generated claims of. preemptive war as a justification and thus not a war of aggression That. distinction is difficult to define but international law at least provides a. procedure to try To oversimplify somewhat actions sanctioned by the. U N Security Council are lawful others are not 72 By this metric the. 64 See KEARNEY supra note 14 at 185 88, 65 The African Charter on Human and Peoples Rights is another regional human rights. treaty African Commission on Human and Peoples Rights African Charter on Human and Peoples. Rights http www achpr org english info charter en html last visited Apr 21 2010 However it. lacks any reference to war incitement or propaganda and its guarantees of free expression have not. been interpreted in relevant ways, 66 See Statute of the International Law Commission G A Res 174 II U N Doc A 519.
Nov 21 1947 available at http untreaty un org ilc texts instruments english statute statute. e pdf KEARNEY supra note 14 at 193,67 See KEARNEY supra note 14 at 193 212. 68 See William A Schabas The Unfinished Work of Defining Aggression How Many Times. Must the Cannonballs Fly Before They Are Forever Banned in THE PERMANENT INTERNATIONAL. CRIMINAL COURT LEGAL AND POLICY ISSUES 123 131 35 Dominic McGoldrick Peter Rowe. Eric Donnelly eds 2004,69 See KEARNEY supra note 14 at 234 35. 70 See Schabas supra note 68 at 123 41, 71 See U N Charter art 51 available at http www un org en documents charter. chapter7 shtml Nowak supra note 38 at 473, 72 See U N Charter preamble to ensure by the acceptance of principles and the institution. of methods that armed force shall not be used save in the common interest available at. http www un org en documents charter preamble shtml U N Charter ch VII Action with Respect. 2010 PROPAGANDA FOR WAR AND TRANSPARENCY 827, 2001 American invasion of Afghanistan was lawful while the 2003 in.
vasion of Iraq was not 73, Another basic issue is the intended scope of the word propaganda. The word itself originated in modern Latin to describe an office of the. Catholic Church 74 At times it has been used in a positive sense for ex. ample to describe William Wilberforce s campaign to outlaw the slave. trade in the British Empire 75 But its modern uses are almost entirely. negative implying deceptive advocacy of bad actions or policies 76 Yet. many uses involve issues of honest debate and free expression is a fun. damental value Political rhetoric often calls legitimate opposing argu. ments propaganda 77 So when does war propaganda depart from useful. debate and become a reasonable target for legal restrictions. Common law legal systems have always held that conspiracy or in. citement to commit a substantive crime can be punished 78 But the right. of free speech has required strict definitions of both conspiracy and in. citement to avoid excessive suppression of expression 79 Famously. American constitutional law restricts punishment of incitement to in. stances of clear and present danger of substantive harm 80 This issue. arose in the Tokyo and Nuremberg prosecutions The counts based on. speech and writings were couched as accusations of conspiracy to com. mit substantive crimes 81 As related above charges against some defen. dants were substantially based on their speech activities well beyond. conspiratorial agreement 82 But the judgments also relied on the success. to Threats to the Peace Breaches of the Peace and Acts of Aggression available at. http www un org en documents charter chapter7 shtml. 73 See Onder Bakircioglu The Right to Self Defence in National and International Law The. Role of the Imminence Requirement 19 IND INT L COMP L REV 1 40 2009 Global Policy. Forum UN Involvement in Afghanistan http www globalpolicy org security council index of. countries on the security council agenda afghanistan html last visited Apr 23 2010 Global. Policy Forum UN Role in Iraq http www globalpolicy org iraq political issues in iraq un role in. iraq html last visited Apr 23 2010 For a thorough review of the legality of the Iraq war under. international law see DOMINIC MCG OLDRICK FROM 9 11 TO THE IRAQ WAR 2003 52 86 2004. 74 See KEARNEY supra note 14 at 3, 75 See William Wilberforce William Wilberforce Encyclopedia of World Biography. http www encyclopedia com doc 1G2 3404706863 html last visited Apr 23 2010. 76 See WHITTON LARSON supra note 4 at 9, 77 See id Nowak supra note 38 at 471 73 Karl Josef Partsch Freedom of Conscience and. Expression and Political Freedoms in THE INTERNATIONAL BILL OF RIGHTS THE COVENANT ON. CIVIL AND POLITICAL RIGHTS 209 227 30 Louis Henkin ed 1981. 78 See Aaron Fichtelberg Conspiracy and International Criminal Justice 17 CRIM L F. 149 149 2006 Kent Greenawalt Speech and Crime 1980 AM B FOUND RES J 645 655 57. Incitement as a crime is essentially synonymous with solicitation The latter term is generally used in. American statutes the former in international and British sources Compare Model Penal Code. 5 02 1985 with K EARNEY supra note 14 at 195 200, 79 See Greenawalt supra note 78 at 687 728 discussing U S case law on solicitation. David B Filvaroff Conspiracy and the First Amendment 121 U PA L R EV 189 198 200 1972. 80 Brandenburg v Ohio 395 U S 444 450 1969 Douglas J concurring. 81 See supra notes 26 27 and accompanying text,82 See supra notes 28 29 and accompanying text.
828 DENVER UNIVERSITY LAW REVIEW Vol 87 4, of the conspiracies No one was punished for advocacy that did not. achieve its aim 83, In the discussions and debates leading to adoption of Article 20 of. the Covenant representatives of the U S and other western democracies. advocated limiting forbidden propaganda to incitement to wars of ag. gression but these efforts lost out to the broader term propaganda 84. Nevertheless the history is murky enough to justify wording a compli. ance using the word incitement rather than propaganda That would still. leave a gap between the very strict American definition of incitement and. broader usages elsewhere Note that section 2 of Article 20 forbids only. hate speech that constitutes incitement to discrimination although that. was nevertheless too much restriction on free speech for American. agreement to it 85, American law has at times employed the word propaganda and the. experience illustrates difficulties in defining the word In 1938 Congress. passed the Foreign Agents Registration Act which required agents of. foreign governments who wished to disseminate political propaganda. in the U S to register with the Attorney General and to identify the mate. rial with that label and to disclose the agency 86 In 1987 a divided Su. preme Court sustained the act against a First Amendment challenge 87. But in 1995 Congress replaced the quoted phrase with the term informa. tional materials 88 A 1948 statute forbids use of defense appropriations. for propaganda purposes within the United States not otherwise specifi. cally authorized by law 89, If these difficulties are mastered one reaches the daunting problem. of trying to deter government propaganda for war Private actors have. promoted aggressive war at various times in world history Religious. authorities have done it as have some modern press and broadcast. voices 90 But in modern times propaganda for war is largely about gov. ernment speech 91 It thus poses two of the most basic problems of inter. 83 See supra notes 30 36 and accompanying text, 84 See KEARNEY supra note 14 at 116 120 123 126 128.
85 See HUMAN RIGHTS COMMITTEE supra note 44, 86 Foreign Agents Registration Act ch 327 53 Stat 631 1938 codified as amended at 22. U S C 611 621 2006,87 Meese v Keene 481 U S 465 467 69 1987. 88 Act of Dec 19 1995 Pub L No 104 95 109 Stat 700 codified at 22 U S C 611. 614 616 618 621 2006, 89 Smith Mundt Act Pub L No 80 402 62 Stat 6 1948 codified as reenacted at 10. U S C 2241a 2006 However there is no record of attempts to enforce it See Allen W Palmer. Edward L Carter The Smith Mundt Act s Ban on Domestic Propaganda An Analysis of the Cold. War Statute Limiting Access to Public Diplomacy 11 COMM L POL Y 1 29 30 2006. 90 See Robert Brentano Western Civilization The Middle Ages in 1 PROPAGANDA AND. COMMUNICATION IN WORLD HISTORY supra note 4 at 552 90 WHITTON LARSON supra note 4. 91 For an extended discussion of the forms of government propaganda for war see WHITTON. LARSON supra note 4 at 62 132,2010 PROPAGANDA FOR WAR AND TRANSPARENCY 829. national law First how can a government wishing to comply with Arti. cle 20 1 do so effectively Second what can be done about violators. Consider the first issue under the U S Constitution If Congress. passed a statute that purported to limit war propaganda by the Executive. Department the statute s constitutional validity could be challenged on. separation of powers grounds 92 The issue would be related to the tor. tured history of the 1973 War Powers Resolution 93 There is a chance. that the courts would decline the issue under the political question doc. trine 94 Even if the merits were reached the Executive could well win 95. If instead the President issued an executive order forbidding incitement. to aggressive war it could be repealed or modified at the stroke of a pen. If the issue arose under a British style constitution based on parliamen. tary sovereignty a change of government would allow incoming authori. ties to disregard actions of prior parliaments 96 Like problems are prob. able under other legal systems although Finland has made a careful at. tempt to comply 97, Second of course international law lacks any general system of di.
rect enforcement Interpretation of the Covenant is made primarily by the. U N Human Rights Committee HRC which the Covenant established. for that purpose 98 On request of the Committee the Covenant requires. reports by States Parties detailing their compliance with it 99 The Com. mittee examines these reports makes its reports and comments to the. submitting States Parties and makes an annual report of its activities to. the General Assembly that in practice includes extensive commentary on. reports by States Parties 100 This process generates the most extensive. interpretive commentary on the Covenant 101 The Covenant also has pro. cedures for a State Party to submit a communication to the HRC accus. ing another State Party of failing to fulfill its obligations under the Cove. nant and for conciliation of the dispute 102 However the HRC can receive. 92 On judicial review of executive authority generally see HAROLD H BRUFF BALANCE OF. FORCES SEPARATION OF POWERS LAW IN THE ADMINISTRATIVE STATE 79 92 2006 There is in. fact a statute that forbids use of defense appropriations for propaganda purposes within the United. States not otherwise specifically authorized by law See supra note 89 and accompanying text. 93 50 U S C 1541 1548 2006 See Michael J Glennon The War Powers Resolution. Once Again 103 AM J INT L L 75 78 79 81 2009, 94 See John O McGinnis Constitutional Review by the Executive in Foreign Affairs and. War Powers A Consequence of Rational Choice in the Separation of Powers 56 LAW CONTEMP. PROBS 293 306 08 1993, 95 See Michael D Ramsey Presidential Originalism 88 B U L REV 353 372 2008. 96 See UK Parliament Parliamentary Sovereignty http www parliament uk about how. laws sovereignty cfm last visited Apr 27 2010,97 See KEARNEY supra note 14 at 166 71. 98 ICCPR art 28 supra note 1 quoted in MCGOLDRICK supra note 37 at 517. 99 ICCPR art 40 supra note 1 quoted in MCGOLDRICK supra note 37 at 519 For links to. U S reports see U S Department of State U S Treaty Reports http www state gov g drl hr. treaties index htm last visited Apr 27 2010,100 See MCGOLDRICK supra note 37 at 79 88 97 98. 101 See id at 62,102 NOWAK supra note 38 at 753 86.
830 DENVER UNIVERSITY LAW REVIEW Vol 87 4, and act on a communication only if both complaining and accused states. have consented to the procedure on the date of submission and the pro. cedure has had little use 103 There has been much more activity under the. Covenant s first Optional Protocol which allows individuals to submit. communications to the HRC for its review 104, The HRC has interpreted ICCPR Article 20 in decisions on com. munications under the first Optional Protocol but these are few in num. ber and have concerned only issues arising under Article 20 2 105 Thus. its only interpretations of Article 20 1 have been in reviews of reports. by States Parties which have often been empty generalities or eva. sions 106 The HRC has objected vigorously but its complaints have had. few concrete achievements 107, The Covenant can also be asserted before the International Court of. Justice and other forums 108 But jurisdiction of these tribunals requires a. defendant nation s consent 109 Nuremberg Tokyo style punishments are. inflicted after military defeat Thus coercive enforcement of Article 20 1. is extremely unlikely beyond special situations like the former Yugosla. via and Rwanda 110, However in both domestic and international forums the fact that. international law condemns warmongering could be a powerful influence. in argument It gives opponents of aggressive war legal as well as moral. high ground Thus in an odd way the value of Article 20 1 is mostly. based on its use in international debate and discourse an instance of. more speech One can argue that this is no value at all because condemn. ing propaganda for war would be equally effective were there no interna. tional covenant forbidding it In the shadowy world of events leading to. war this claim cannot be proved or disproved Yet at the least the Article. 103 Id at 753 757 58, 104 See MCGOLDRICK supra note 37 at 120 246 Neither the U S nor Britain has agreed to.
the Protocol and many other nations have qualified their consent to review by the HRC See UNITED. NATIONS TREATY COLLECTION http treaties un org Pages ViewDetails aspx src TREATY Mtds. g no IV 5 chapter 4 lang en last visited 8 June 8 2010 The Covenant s second Optional. Protocol concerns the death penalty See THE UN HUMAN RIGHTS TREATY SYSTEM IN THE 21ST. CENTURY 375 77 Anne F Bayefsky ed 2000,105 NOWAK supra note 38 at 476 79. 106 See KEARNEY supra note 14 at 142 73 including reports that rely on reservations and. declarations and HRC s response to them,107 See id passim. 108 See United Nations Treaty Collection Ch IV Human Rights Optional Protocol to the. International Covenant on Civil and Political Rights http treaties un org Pages ViewDetails aspx. src TREATY mtdsg no IV 5 chapter 4 lang en last visited Apr 27 2010. 109 See e g Cesare P R Romano Progress in International Adjudication Revisiting Hud. son s Assessment of the Future of International Courts in PROGRESS IN INTERNATIONAL LAW 433. 440 Russell A Miller Rebecca M Bratspies eds 2008, 110 On the latter see Dominic McGoldrick Criminal Trials Before International Tribunals. Legality and Legitimacy in THE PERMANENT INTERNATIONAL CRIMINAL COURT LEGAL AND. POLICY ISSUES 9 22 24 36 40 Dominic McGoldrick Peter Rowe Eric Donnelly eds 2004. 2010 PROPAGANDA FOR WAR AND TRANSPARENCY 831, provides a clear and formal warning to defendants in a future Nuremberg. or Tokyo trial,IV MORE SPEECH, Turning to the last subject the U S and some other western democ.
racies maintain that the proper response to propaganda promoting ag. gressive war is opposing speech and press or for short more speech 111. How effective is this response in the context of a government s war. propaganda To what extent does the answer depend on effective gov. ernment secrecy, America s recent past gives us a fresh basis to evaluate these ques. tions The Bush Administration attacked Iraq after a sales job that can. reasonably be called propaganda The invasion s theory was preemptive. war but the supporting facts turned out to be false 112 There is a debate. over whether the Administration made innocent mistakes but the more. speech question is the same either way All administrations keep se. crets but the Bush Administration kept more than most and strongly. defended the right to do so 113, How successful were the press and other voices in countering the. Administration s war propaganda Many opponents of the Iraq war ar. gue not very effective accusing the press of timid and subservient behav. ior during the run up to the invasion 114 War supporters on the other. side argue that the Administration s errors were innocent mistakes and. the invasion was supported honestly 115, A detailed study of the question makes a strong case to say that both. views are wrong 116 The Administration did engage in distortions that. deserve to be called war propaganda But the press did a good job in. countering the Administration Within a short time after the invasion its. false pretenses were unearthed and broadcast Many Administration se. crets were exposed by leaks and otherwise 117 A British observer con. cluded The arguments for and against the war in Iraq were extensively. canvassed in Security Council debates international fora international. 111 KEARNEY supra note 14 at 104 see also NOWAK supra note 38 at 479. 112 See MCGOLDRICK supra note 73 at 97 98, 113 See e g Heidi Kitrosser Secrecy and Separated Powers Executive Privilege Revisited. 92 IOWA L R EV 489 491 2007, 114 See e g SHELDON RAMPTON JOHN STAUBER WEAPONS OF MASS D ECEPTION THE.
USES OF PROPAGANDA IN BUSH S WAR ON IRAQ 134 2003 Chaim Kaufmann Threat Inflation and. the Failure of the Marketplace of Ideas The Selling of the Iraq War 29 INT L SECURITY 5 44. 115 See e g KARL ROVE COURAGE AND CONSEQUENCE MY LIFE AS A CONSERVATIVE IN. THE FIGHT 2010, 116 Brian A Patrick A Trevor Thrall Beyond Hegemony Classical Propaganda Theory. and Presidential Communication Strategy After the Invasion of Iraq 10 MASS COMM SOC Y 95. 95 96 2007,117 See id at 107 09 115,832 DENVER UNIVERSITY LAW REVIEW Vol 87 4. and national public debate and in legal challenges 118 Thus a reasonable. case can be made that events in Iraq were reported more accurately and. extensively than those for any other American war More speech seems. to have worked Moreover sunshine laws have made government more. transparent in general and technology has undermined governments. ability to keep secrets and has made dissemination of revealed govern. ment information much more effective 119,CONCLUSION. Article 20 1 of the ICCPR is an odd provision indeed It is almost. completely ineffective as a coercive approach to forbidding war propa. ganda except to punish the minions of defeated nations after the fact. For the latter purpose it does provide formal legality However it is a. platform to criticize advocacy of aggressive war and to argue against it in. the Security Council A provision that the United States refused to adopt. based on the argument that the right remedy for harmful speech is more. speech has its practical utility as a voice in the pantheon of more speech. 118 MCGOLDRICK supra note 73 at 47, 119 See e g the cautious optimism of Seth F Kreimer Rays of Sunlight in a Shadow War. FOIA the Abuses of Anti Terrorism and the Strategy of Transparency 11 LEWIS CLARK L R EV.

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