Propaganda, War Crimes Trials and International Law: From Speakers' Corner to War Crimes [1 ed.] 0415579597, 9780415579599

Table of contents :
Dedication
Contents
List of figures
Contributors
Acknowledgements
Abbreviations
Introduction • Predrag Dojčinović
Part 1: Analysis, investigations, prosecutions
1 The indictable propaganda: a bottom-up perspective • Nenad Fišer
2 Word scene investigations: toward a cognitive linguistic approach to the criminal analysis of open source evidence in war crimes cases • Predrag Dojčinović
3 Propaganda as a crime under international humanitarian law: theories and strategies for prosecutors • Dan Saxon
Part 2: Expert evidence
4 The challenges of understanding Kinyarwanda key terms used to instigate the 1994 genocide in Rwanda • Mathias Ruzindana
5 Propaganda, hate speech and mass killings • Anthony Oberschall
Part 3: Trials and jurisprudence: a scrutiny
6 Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher • Margaret Eastwood
7 Propaganda in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia • Michael G. Kearney
8 The ghost of causation in international speech crime cases • Susan Benesch
9 Crimes of atrocity, the problem of punishment and the situ of law • Lawrence Douglas
Index

Citation preview

Propaganda, War Crimes Trials and International Law

Propaganda, War Crimes Trials and International Law addresses the emerging jurisprudence and international law concerning propaganda in war crimes investigations and trials. The role of propaganda in the perpetration of atrocities has emerged as a central theme in the war crimes trials in the past century. The Nuremberg trials, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda have all substantially contributed to the development of international law in this respect. Investigating and exploring the areas between lawful and unlawful propaganda, they have dealt with specific mechanisms and consequences of the phenomenon within the perspective and framework of their international legal mandates. But the cultural codes and argots through which propaganda operates have vexed international courts struggling to assign responsibility to the instigators of mass crimes; as subtle, but potentially fatal, communications often remain undetected, misinterpreted or even dismissed as entirely irrelevant. With contributions from leading international scholars and legal practitioners, Propaganda, War Crimes Trials and International Law pursues a comparative approach to this problem: providing an overview of the current state of the theory of propaganda in the social sciences; exploring this theory in the legal analysis of war crimes and related proceedings; and, finally, offering a study of the prosecution of propaganda-related crimes in international law, and the newly emerging jurisprudence of war crimes propaganda cases. Predrag Dojcˇinovic´ has worked as an editor of academic and non-academic journals, professional reviewer and lecturer. He has authored numerous articles and has edited several volumes on the cultural and political aspects of the 1991–99 series of armed conflicts in the former Yugoslavia. Since 1998, Dojcˇinovi´c has been working in the linguistic, analytical and research section of the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the Former Yugoslavia (ICTY).

Propaganda, War Crimes Trials and International Law From Speakers’ Corner to War Crimes

Edited by Predrag Dojcˇinovic´

First published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 A GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 editorial matter and selection: Predrag Dojcˇinovic´; individual chapters: the contributors. The right of Predrag Dojcˇinovic´ to be identified as editor of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Dojcinovic, Predrag. Propaganda, war crimes trials, and international law from speakers’ corner to war crimes / Predrag Dojcinovic. p. cm. Includes bibliographical references and index. 1. War crime trials. 2. International criminal courts. 3. Yugoslav War Crime Trials, Hague, Netherlands, 1994– 4. International Criminal Tribunal for Rwanda. 5. Nuremberg Trial of Major German War Criminals, Nuremberg, Germany, 1945–1946. I. Title. KZ1168.5.D65 2012 341.6′9—dc23 2011020374 ISBN 978–0–415–57959–9 (hbk) ISBN 978–0–203–18092–1 (ebk) Typeset in Times New Roman by Keystroke, Station Road, Codsall, Wolverhampton

To Daniël, my Word

Contents

List of figures Contributors Acknowledgements Abbreviations Introduction

ix xi xiii xv 1

P R E D R A G D O J Cˇ I N O V I C´

PART 1

Analysis, investigations, prosecutions

31

1

33

The indictable propaganda: a bottom-up perspective N E N A D F I Sˇ E R

2

Word scene investigations: toward a cognitive linguistic approach to the criminal analysis of open source evidence in war crimes cases

71

P R E D R A G D O J Cˇ I N O V I C´

3

Propaganda as a crime under international humanitarian law: theories and strategies for prosecutors

118

DAN SAXON

PART 2

Expert evidence 4

The challenges of understanding Kinyarwanda key terms used to instigate the 1994 genocide in Rwanda MATHIAS RUZINDANA

143

145

viii Propaganda, War Crimes Trials and International Law

5

Propaganda, hate speech and mass killings

171

ANTHONY OBERSCHALL

PART 3

Trials and jurisprudence: a scrutiny

201

6

203

Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher MARGARET EASTWOOD

7

Propaganda in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

231

MICHAEL KEARNEY

8

The ghost of causation in international speech crime cases

254

SUSAN BENESCH

9

Crimes of atrocity, the problem of punishment and the situ of law

269

LAWRENCE DOUGLAS

Index

295

List of figures

2.1 3.1 4.1 4.2 5.1 6.1 6.2 8.1 8.2

Map of Velika Srbija (Greater Serbia) “The Ten Commandments”, Kangura, No. 6, December 1990 Title page of Kangura, No. 26, November 1991 Title page of Kangura, No. 6, December 1990 Testimony of witness A. Oberschall, ICTY, December 2007 Photo of Julius Streicher Brundage memo: Interrogation of Streicher Radio Television Libre des Milles Collines (RTLM), Statute, p. 1 Cartoon from Kanguka, No. 58, May 1992

97 134 152 160 179 206 207 258 263

Contributors

Susan Benesch is a Senior Fellow at the World Policy Institute in New York and teaches at American University’s School of International Service. A human rights lawyer trained at Yale, she also directs a MacArthur Foundation project on defining inflammatory speech and related methods of preventing mass violence and has published widely in the field. Predrag Dojcˇinovic´ has worked as an editor of academic and non-academic journals, professional reviewer and lecturer. He has authored numerous articles and has edited several volumes on the cultural and political aspects of the 1991–99 series of armed conflicts in the former Yugoslavia. Since 1998, Dojcˇinovic´ has been working in the linguistic, analytical and research section of the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Lawrence Douglas is the James J. Grosfeld Professor of Law, Jurisprudence & Social Thought at Amherst College, USA. He is the author of five books, including The Memory of Judgment: Making Law and History in the Trials of the Holocaust (2001) and The Vices, a novel (2011). He is currently working on a book about the trials of John Demjanjuk. Margaret Eastwood is a senior lecturer in the Department of Law and Criminology at Edge Hill University. She has published numerous articles on aspects of anti-Semitic propaganda during the Nazi regime, including Julius Streicher on trial at Nuremberg: the birth of incitement to genocide (forthcoming monograph, Edwin Mellen Press, 2011). Nenad Fisˇer taught at the Faculty of Philosophy in Sarajevo (1985–91), and was a guest lecturer at the University for Humanities in Utrecht (1993–94). He has authored numerous papers on philosophy, cultural studies, social psychology and information systems. He has been working as a research officer specializing in open source analysis for the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the Former Yugoslavia (ICTY) since 1995. Michael G. Kearney is a Fellow in Law at the London School of Economics and was previously an RCUK Fellow in Law and Human Rights at the University

xii Propaganda, War Crimes Trials and International Law

of York. His book, The Prohibition of Propaganda for War in International Law (Oxford University Press, 2007) was awarded the 2008 Lieber Certificate of Merit for a work in the area of the law of armed conflict by the American Society of International Law. Anthony Oberschall is professor emeritus of sociology at the University of North Carolina in Chapel Hill. He has written books on social movements and collective action and has many other scholarly publications, including some on the Balkan conflicts. His latest book is titled Conflict and Peace Building in Divided Societies: Responses to ethnic violence (Routledge, 2007). Mathias Ruzindana is a Rwandan national currently working as a KinyarwandaFrench translator and reviser at the International Criminal Tribunal for Rwanda (ICTR). He was a linguistics expert witness in the Akayesu and Nahimana et al. cases. Prior to joining the ICTR, Ruzindana was a lecturer at the National University of Rwanda where he taught English, linguistics and translation courses. Dan Saxon is the Leverhulme Visiting Professor of International Humanitarian Law at the University of Cambridge. For 12 years, Saxon was a prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY), the last five years of which he was a Senior Prosecutor. Saxon is the author of To Save Her Life: Disappearance, Deliverance and the United States in Guatemala (University of California Press, 2007), as well as various articles and book chapters about international justice.

Acknowledgements

I am grateful to numerous people who have helped me develop and define some of the most important ideas behind this book. Together, from both inside and outside the International Criminal Tribunal for the Former Yugoslavia and the realm of international justice as a whole, these people have offered a strong gravitational field of forces composed of exceptional intellectual integrity and generosity, critical comments, thought-provoking interpretations and constant encouragement. I cannot possibly thank all the people who have, directly or indirectly, knowingly or unknowingly, supported this pioneer project, but I can at least mention some of those whose contributions have been absolutely essential in the past 15 years of my professional and personal life. I remain indebted to Katie Beael, Susie Bearne, Susan Benesch, Julija Bogoeva, Jasmina Bosˇnjakovic´, Professor Renaud de la Brosse, Kim Burton, Jim Costello, Cheryl La Croix, Christine Dahl, Professor Lawrence Douglas, Dr Ivana Djordjevic´, Dr Margaret Eastwood, Norman Farrell, Petar Finci, Nenad Fisˇer, Jesenko Galijasˇevic´, Yvonne and Pierre Galinier, Dermot Groome, Dorothea Hanson, Mark Harmon, Nobuo Hayashi, Carin and Marti Hazelhoff, Philip Hepburn, Dr Michael G. Kearney, Mirko Klarin, Aleksandar Kontic´, Miljan Kontic´, Natalja Kyaw, Clare Lawson, Zoran Lesˇic´, Neda Loncˇaric´, Rytas Lotcheris, Hans Lubbers, Mathias Marcussen, Danijel Mihajlovic´, Natasˇa Milasˇinovic´, Daryl Mundis, Lina Nefaite, Sir Geoffrey Nice, Professor Anthony Oberschall, Bernard O’Donnell, Mirjana Oklobdzˇija, Jeannine Plamondon, Christina Pribic´evic´-Zoric´, Bob Reid, Hildegard Uertz Retzlaff, Amara Riley, Yves Roy, Dr Mathias Ruzindana, Hazel Santino, Aleksandra Savic´, Dan Saxon, Ken Scott, Aleksandar Stanojevic´, Ana Stefanovski-Vujic´, Damir Sˇodan, Ewa Tabeau, Sanja Taslaman, Yves Tomic, Bill Tomljanovich, Patrick Treanor, Nena Tromp, Ljiljana Vodenski-Pitesˇa, Bojana Vuleta, Alex Whiting and Professor Richard A. Wilson. I owe my deepest gratitude to Professor Miodrag Mitrasˇinovic´, whose friendship, knowledge and guidance throughout the project has, yet again, been the warmest and most profound existential experience. Stretching across the distance that only the purest of emotions can overcome, the invisible presence of my family has, like always, provided support during key moments of this book’s development. The two persons who have lived with me day and night through the entire process are Daniël and Janneke. In any constellation, they will always be my brightest stars.

Abbreviations

ANC ARK BCS CCL CDR CDT CIA ECHR FBIS fMRI FRY HDZ ICC ICRC ICTR ICTY IHL IMT IMTFE IRA JCE JNA KLA LRT MDR MRND NATO NGO

African National Congress Autonomous Region of Krajina Bosnian-Serbian-Croatian Control Council Law Coalition pour la Défense de la République (Coalition for the Defense of the Republic) Cognitive Dissonance Theory Central Intelligence Agency European Court of Human Rights Foreign Broadcast Information Service, an open source intelligence unit of the Central Intelligence Agency (CIA) Functional Magnetic Resonance Imagining Federal Republic of Yugoslavia Croatian Democratic Union International Criminal Court International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Humanitarian Law International Military Tribunal International Military Tribunal for the Far East Irish Republican Army Joint Criminal Enterprise Yugoslav People’s Army Kosovo Liberation Army Leadership Research Team Mouvement Démocratique Républicain (Democratic Republican Movement) Mouvement Révolutionnaire National pour le Développement (National Revolutionary Movement for Development) North Atlantic Treaty Organization Non-Governmental Organization

xvi Propaganda, War Crimes Trials and International Law

NMT NSDAP OSINT OTP PNR POW PRO PSD PTB PTSS RPF RSK RTB RTLM RTS SANU SAO SCˇP SCSL SDS SJT SPS SRS TC TMWC UDHR UN UNPROFOR VRS

Nuremberg Military Tribunal National Socialist German Workers’ Party Open Source Intelligence Office of the Prosecutor Paradigm of Narrative Rationality Prisoner of War Public Records Office Parti Social Démocrate (Social Democratic Party) Pre-Trial Brief Posttraumatic Stress Syndrome Rwandan Patriotic Front, also “RPF-Inkotanyi” Republic of Serbian Krajina Belgrade Radio–Television Radio-Télévision Libre des Milles Collines Radio Television Serbia Serbian Academy of Sciences and Arts Serbian Autonomous Region Serbian Chetnik Movement Special Court for Sierra Leone Serbian Democratic Party Social Judgment Theory Socialist Party of Serbia Serbian Radical Party Trial Chamber International Military Tribunal Trial of the Major War Criminals Universal Declaration of Human Rights United Nations United Nations Protection Force Army of Republika Srpska

Introduction Predrag Dojcˇinovic´

Today the Stürmer carries the headline: “Synagogues are dens of thieves.” Underneath: “The shame of Nürnberg” and a picture of the synagogue there. July 27, Wednesday A couple of weeks ago the Nürnberg synagogue, on which I reported on July 27, was “solemnly” demolished under Streicher’s supervision. August 24, Wednesday Victor Klemperer, 19381

A preliminary sketch: What is in a word? This introduction may as well start from the beginning. The etymology of the first word from the title of this volume, propaganda, stems from the Latin root meaning “to sow” or “spread out.” Over time, however, the initial connotation has considerably evolved in all domains of its semantic radius. The implications of the word have been richly supplemented with meanings cutting deep through many layers of every social habitat. From its utterly plain beginnings, the concept of propaganda has grown into a cognitive phenomenon active in virtually all spheres of our lives, public and personal. The litany of examples may sometimes seem endless. We regularly expose our offspring to stories about forms of life residing beyond the known laws of physics. Whether this impulse is caused by a relentless metaphysical anxiety, as a current in philosophy would prefer to have it explained (away), or simply because we are neurobiologically and cognitively hardwired myth-makers, is unknown. However, once such ideas have been inserted into accessible and receptive minds, they can transform them into lifelong carriers and transmitters of these remarkably contagious narratives. The story of Santa Claus is an illustrative example of the functioning of this aspect of our propagandistic fantasy worlds. Propaganda also constitutes the core of all commercially oriented advertising campaigns. Following thoroughly researched and carefully designed market-based scripts, advertising agencies frequently offer no more than counterfactual and counterintuitive ideas for consumption. Small grains of truth planted in these information packages make them even more successful. The miraculous shampoos

2 Propaganda, War Crimes Trials and International Law

in television commercials, for instance, belong to some of the most successful brainwashers. And again, for some specific reason, we all respond to the direction proposed by this universal open market of cleverly and attractively wrapped up concepts, illusions and dreams. All of us are buyers and owners of price-tagged ideas. The words printed on them are never hollow. In their seminal study Age of Propaganda, Anthony Pratkanis and Elliot Aronson write: “The history of advertising and political movements attests to the fact that people tend to act on the names and labels that are used to describe an event or situation.”2 This clearly implies that the same techniques of propaganda can be used in different spheres of social life. The most fundamental difference between marketing and politics, however, is that the latter offers beliefs and ideas free of charge. The techniques of political propaganda, as part of a public struggle for distribution and preservation of power, constitute the strongest building blocks of public discourse in every society. All political programs and campaigns are strategic, that is to say: intentional, tactical, well thought out and planned, all based on anticipated responses by the targeted audience. This is, for instance, how Hitler addressed the method of propaganda in Mein Kampf: “With the help of a skilful and continuous application of propaganda it is possible to make the people conceive even of heaven as hell and also make them consider heavenly the most miserly existence.”3 As one-dimensional as they may sound, Hitler’s psychological insights did produce results in the end. In 1933, looking ahead, Hitler appointed Joseph Goebbels the head of the Ministry for Enlightenment and Propaganda. The Führer then developed sophisticated institutional networks and discursive models of political and military propaganda. The word “Jew” was placed in the epicenter of this mechanism. A much used argument by Hitler and his followers, such as Julius Streicher with his publication Der Stürmer, was a plot emerging from the notorious document called The Protocols of the Learned Elders of Zion. Originating from the 1864 French satire Conversation in Hell Between Machiavelli and Montesquieu by Maurice Joly, it was subsequently recycled into a new document by the Russian Czarist secret police and widely distributed by the Russian Orthodox priest Sergei Nilus in the first years of the twentieth century.4 This most fatal example of a conspiracy theory claimed that Jewish leaders held a secret meeting with the purpose of gaining total ideological and economic domination in the world. In adopting this narrative, the Nazis were in fact using the same storyline that had already been deployed by Czarist Russia to discredit the Bolsheviks. According to Randall Bytwerk, an expert in Nazi propaganda, “Julius Streicher, not gifted with a critical mind, was one who accepted the Protocols in their entirety.”5 The propagandist in that case believed in his own propaganda. At about the same time, believing in their cultural and ideological supremacy, and as part of their attempts to influence the perception of Japan’s role in Asia in the 1930s, the Japanese had developed a unique propagandistic concept of shiso¯sen, or “thought war.”6 In other words, they knew that they were playing a mind-game. The Japanese principal theoretician of propaganda and one of the leading scholars and intellectuals of the late 1930s, Koyama Eizo¯ , wrote explicitly

Introduction 3

about planting beliefs into the masses in order to incite hatred and disgust of the enemy.7 All politically motivated collective and individual enterprises, regardless of their ultimate intentions, try to do the same thing: to methodically exploit the plasticity of the human mind in order to direct, influence or control its future actions. This touches upon the very essence of cognitive conditioning as part of a wider propagandistic framework. Another traditionally fertile ground for propagandistic exercises is the realm of faith. Religious propaganda has always been, and still is, one of the most successful formulas applied to the human mind. Its power to communicate to people in all corners of the world messages of comfort, hope and salvation, or, equally, calls for conversion, conquest and combat, seems unlimited. In 1622, as part of the Catholic missionary work, Pope Gregory XV established the institution called Sacra Congregatio de Propaganda Fide (Sacred Congregation for the Propagation of the Faith), a secret council in charge of Catholic propaganda. It seems that the Pope at the time decided to replace the sword with the word. This body still plays an active role within the Catholic Church, only under a different name: Congregatio pro Gentium Evangelisatione (Congregation for the Evangelization of Peoples). The modification in the name speaks for itself. To modern audiences familiar with all its connotations, propaganda requires a different robe. “In the beginning was the word,” St. John is quoted in the Bible, and then “the Word was made flesh, and dwelt among us [. . .] full of grace and truth.” The missionaries and messengers continue to propagate following the footsteps of the disciples of “the Word.” Across all spheres, propaganda is at its most effective when artistically packaged. This embellishment appeals to the human brain, which is an engine naturally designed for the processing and exchange of symbolic operations on a rather complex and personal level. Whether cerebral or more emotional, our responsive interaction with the environment is highly interpretative. Moreover, as “the symbolic species,”8 we have the language faculty and the capacity to develop various forms of conceptual thinking. By introducing new symbols, or, simply, by reinterpreting the old ones, propagandists can exercise substantial influence on human behavior. The best propagandists sometimes operate like the most sophisticated computer programs. They give us an illusion that we are engaged in a generous and genuine form of human communication. So, it is not what the communication really is, but what the human mind can be made to believe that it is. As the historical records clearly indicate, various forms of virtual reality based on false premises may have the most unfortunate consequences in any social reality. Any game between real and virtual, of course, is built on pieces of reality. Yet again, Hitler’s propaganda provides us with some of the most meaningful historical paradigms in this regard. One of the best-known examples, Triumph des Willens (Triumph of the Will), Leni Riefenstahl’s documentary film which used the images from the Nuremberg rallies and the rising National-Socialist ideology in the 1930s in Germany, is a masterfully composed patchwork of verbal and nonverbal symbols. The speeches in the film seem to be deliberately overshadowed by the power of the images and sounds. The countless swastikas placed against

4 Propaganda, War Crimes Trials and International Law

a Fascist backdrop—uniforms, flags, buildings, brute force of male and female bodies—and Hitler’s well-known mustache replicated under the noses of many German men, are some of the most repetitive, explicitly propagandistic and, to some extent, possibly even subliminally effective,9 frames in the film. This is what Goebbels had to say about those who saw “the face of the Führer” in Riefenstahl’s film: “It will haunt him through days and dreams and will, like a quiet flame, burn itself into his soul.”10 The symbols implanted into art propaganda are not merely transient forms of artistic expression, they are designed to be memorized, transmitted and, if possible, acted upon. That is certainly one of the reasons Hitler recognized the need to control and influence multiple art forms, including classical music and theater, and high culture as a whole.11 All major propagandists begin with the premise that the symbolic elements within an environment will inevitably condition its inhabitants and ultimately prompt their actions as well. The outcome of these initial actions is likely to generate further action, in a process somewhat resembling a self-propelling mechanism applied to human cognition. A form of repetitive automaticity is thus set in motion. Hitler demonstrated his awareness of this process, when, in 1936, he employed a graphic artist to transform the symbols of the Nazi ideology into the imagery subsequently displayed on posters, flags and uniforms.12 The message had to be dominant and memorable. It had to appeal to some of the deepest collective sentiments of the German nation. Placing the symbols from the past in the context of a wider political and economic crisis in Germany, Hitler knew how to ‘sow’ and ‘spread out’ the Nazi ideas throughout German society. Aaron Lynch, a cognitive scientist who studies the programming and transmission of thoughts from an evolutionary point of view, writes that “the belief’s contagiousness depends heavily on the other ideas and cognitive traits of the population.”13 Any population, anytime and anywhere. So, even if disregarding a possible lingering influence from Wagnerian metaphysical heights and Wagner’s anti-Semitic writings on the Nazi ideology,14 many will at least always be able to recall the tune – Vor der Kaserne / Vor dem grossen Tor . . . – as the opening lines of Lili Marlene, the German Second World War song broadcast every evening by Radio Belgrade. Ironically enough, it is the words “Lili Marlene,” and not the Teutonic mythology woven into the Wagnerian notes and librettos, which left a lasting imprint on the minds of the listeners and, consequently, quite literally, on many artifacts of the war: uniforms, weapons and aircrafts. As a result, this overly simple piece of music eventually transcended the boundaries of ideology and had an equally motivating effect on the morale of soldiers from each side of the frontlines.15 The simple tune found its power in marrying the minds of soldiers with their combat equipment. Looking back at its initial etymological connotations, the multiple meanings and applications of propaganda and its techniques have all retained the resonance of its origin. The new meanings still “sow” the seeds of beliefs and ideas over the fertile grounds of our mental landscapes. The verb in propaganda has become multifunctional. In one of the most complete definitions to date offered by Garth S. Jowett and Victoria O’Donnell: “Propaganda is the deliberate, systematic

Introduction 5

attempt to shape perceptions, manipulate cognitions, and direct behavior to achieve a response that furthers the desired intent of the propagandist.”16 The concepts employed by this definition offer an implicit insight into the nature of propaganda as a cognitive instrument in pursuit of its goals. Words such as desire and intent, for instance, reveal an internally operating mental process relating typically, although not inevitably, to an external subject or object. The potential for it to fit into specific legal conceptual frameworks also seems more than evident. The concepts of deliberate, systematic attempt and, again, intent, have their place firmly established in the domain of legal terminology, while the concept of manipulation resides comfortably in both conceptual domains, cognitive and legal. At the same time, around the central point of propaganda’s gravity, there is a strong revolving constellation of words and concepts that make this phenomenon as powerful as it is today. Some of the most frequently mentioned components and building blocks of propaganda are the concepts of persuasion, manipulation, mind-control, brainwashing, misinformation, distortion, rumors, half-truths, lies, name-calling, labeling, insincerity, innuendo, deception, psychological operations, etc.17 Alone, or as part of corresponding combinations, these concepts consistently reinforce the more formal definitions of propaganda. Yet, many definitions partly fail to recognize what propaganda is. They neglect the inner cognitive functioning of the mechanism itself which makes the phenomenon what it has always been in social and psychological domains: dynamic, adaptable and effective. The key binding elements connecting different components and fields of activity of propaganda remain within a cognitive process initiated by intent, followed by action, if and only if it is, directly or indirectly, mentally caused by the state of intent, and, finally, the consequences or results of the course of action which was planned, prepared, organized (i.e. intended, and, possibly, implemented or executed). It is precisely at this point that we can make out the basic outline of a vital point of convergence between the cognitive scientific and the legal conceptual frameworks. The inner semantic complexity of the key words allows these two domains to blend, albeit unnoticeably, in both theory and practice.

Propaganda and war crimes, a world in a phrase The concept of war crimes, as used in the title and throughout this volume, is offered in two parallel meanings. The first can be understood in a wider sense of the phrase, as it is commonly used by the general public. It includes virtually all categories of crimes committed during a war. The outline of the second meaning can initially, and in historical terms, be recognized in the part of the Charter of the International Military Tribunal (IMT) dealing with jurisdiction and general principles or, more precisely, Article 6 thereof which defined individual responsibility through: (a) crimes against peace; (b) war crimes; and (c) crimes against humanity.18 Similarly phrased provisions were contained in Article 5 of the charter of the International Military Tribunal for the Far East (IMTFE). The ICTY and ICTR statutes do not use explicitly the “war crimes” label in categorizing the

6 Propaganda, War Crimes Trials and International Law

crimes falling under the jurisdiction of those tribunals, but rather encompass the concept within, for instance, in the case of the ICTY Statute, Articles 2 to 5 which enumerate grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, and crimes against humanity. The International Criminal Court (ICC), on the other hand, building mainly on the experience of the aforementioned tribunals, attempts to provide an exhaustive definition of the concept in Article 8 of its Statute. The first category, crimes against peace, as stated in the IMT Charter, included, inter alia, the elements of planning, preparation and initiation, all three of which are also recognized components of political and military propaganda in both internal and international armed conflicts. The third category, crimes against humanity, included the elements of persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal. For present-day analysts this may readily bring to mind concepts such as hate speech or hate crimes, or else hate propaganda in general. Apart from being employed in international legal jurisprudence (the Nahimana et al. case19 is one of many examples in that regard), each of these concepts have also been explored and explained by the social and cognitive sciences. The second category in the IMT Charter, war crimes, dealt with the subsets of acts committed against the civilian population and military targets, including the specific forms of destruction or devastation of property belonging to either of these two mentioned groups. However, the definition incorporated the open-ended formulation of such violations shall include, but not be limited to . . . This formulation can be seen as an umbilical cord linking, inter alia, the crimes against peace and the crimes against humanity, acknowledging that such categories are not necessarily mutually exclusive from the perspective of the underlying acts. It can be inferred that the definition of war crimes would possibly be a relatively different type of crime without the other two categories. In other words, some components of propaganda are inextricably linked to the concept of war crimes through the contributing factors such as planning, preparation or persecution. Thus, some of the conceptual building blocks were already there, they only had to be reconnected and reframed. The second meaning of the phrase war crimes is and ought to be, strictly speaking, legal. An entry in Antonio Cassese’s Oxford Companion to International Criminal Justice, half a century after the IMT, introduces the definition of the concept as follows: “A war crime in international armed conflict is a breach of a rule of IHL that is applicable in such conflicts and that entails individual criminal responsibility under customary or conventional international law.”20 The IMT and IMTFE Charters, as well as the ICTY and ICTR Statutes indirectly, and the ICC Statute very specifically, all seek to define war crimes. As evolving as the scope and definition of war crimes may be, when properly contextualized, it can be meaningfully used by both the general public and the legal community. Propaganda is an integral part of the vocabulary of many war crimes trials. Yet it is apparent in both theory and practice that there is a conceptual vacuum in the

Introduction 7

interaction of propaganda and international law. Propaganda is used in a manner which leaves the impression of an intellectual embellishment, a prosthesis of deliberative thinking, rather than a concept which is first clearly understood and only then situated in law. This tendency can in most cases initially be identified in the analytical and prosecutorial approach to the evidence. One of the intentions of this volume is to point out that, as a result of that process, the existing jurisprudence and trial records have so far been somewhat unfair to the conceptual and evidentiary relationships between propaganda, war crimes trials and international law. In most judgments the concept of propaganda is used to describe behavioral patterns and forms of intent in individual or coordinated propagandistic efforts, primarily political and military. The ICTR judgments, for instance, use expressions such as “propaganda agent,” “anti-Tutsi propaganda,” “propaganda inciting genocide,” “propaganda designed to make one part of the population hate the other,”21 or “unscrupulous propaganda to contaminate the minds of people,” “false propaganda,” “propaganda effort to incite people to violence,” “hate propaganda,” “organized propaganda activities,” “war propaganda,” “ethnically biased propaganda,”22 “specific intention to disseminate pro-Hutu ideology and anti-Tutsi propaganda,”23 or “effective propaganda instrument.”24 These examples constitute just a few from a wide range of usages. A similar pattern can be identified in the ICTY jurisprudential records: “propaganda offensives,”25 “Serbian propaganda,”26 “propaganda and misinformation that left [inmates of Manjacˇa camp] confused and fearing imminent death,”27 are among multiple examples. After reading such judgments, we are often left with an intuition that propaganda plays an important role in the text, although it is rarely explained why. The interpretation of the concept of propaganda seems to be taken for granted. However, a closer insight into the mind of the mechanism would contribute much required precision and logical coherence to the analysis of all propaganda-related evidence in the international legal arena. The preferred phrase of Trial Chambers seems to be “propaganda campaign,” or only “campaign” in its detached form, a noun which, just like propaganda, when placed within the same or a similar semantic-contextual field in jurisprudence, also offers itself as a verb. Both have been repeatedly used in virtually all cases involving aspects of propaganda. Some ICTR and ICTY examples include the Akayesu,28 Nahimana et al.,29 Bikindi,30 Brđanin,31 Stakic´,32 and Babic´33 cases. The word “campaign” carries an implicit reference to an organized action with a specific plan, purpose and, most importantly, intent. As such, the frequent use of this phrase in a propagandistic context can be regarded as a noteworthy step forward in the logic applied in the analysis in such cases. It is apparently assumed that, without additional explanation, the implications of the word “campaign” ought to be inferred automatically in a given context. However, the analysis of Anthony Oberschall, a distinguished social scientist in his field of research, who studied propaganda and its effects in different societies, including the Yugoslav context, is correct: “Yugoslavs experienced ethnic relations through two frames:

8 Propaganda, War Crimes Trials and International Law

a peacetime frame and a crisis frame. People possessed both frames in their minds. [. . .] Both frames were anchored in personal and family experiences, in culture, and in public life.”34 Contrary to the common assumption that most campaigns and rallies were planned and executed only within the “crisis frame,” the former Yugoslav society had in the early 1990s experienced the birth of a large number of non-governmental organizations (NGOs) functioning within a “peacetime frame.” Both sectors propagated their own cause in public discourse. The fact that the concept of campaign was applied in a variety of ways and not exclusively within a crisis frame, has thus far not been appropriately explored and explained. Moreover, parallel to this process, propaganda campaigns are not necessarily only public, they can also be private. Insistence on family traditions, particularly ethnic and cultural in a narrow sense of the word, for instance, emerging within dominant nationalistic or patriotic narratives, can be a form of continuous campaigning. “The crisis frame was grounded in the family and community memories of the Balkan wars, and the two world wars, and repeated in collective myths and in history books and literature. In these crises, civilians were not distinguished from combatants,” Oberschall noted in his analysis.35 Due to a pronounced emphasis placed on its emotional aspect, this style of propaganda campaigning can play a decisive role in times of crisis. From the perspective of a patriarchal environment, as some witnesses testified before the international courts, the stories they would have heard from their fathers or grandfathers had formed the foundations of their historical and political awareness and opinions about the unfolding events. The time between distant historical events thus ceases to exist and the identity of the old heroes is assumed by the new warriors. This sometimes brings crisis-frame-seeking propagandists into a comfortable and advantaged position. As a result, another method strategically used by power holders and influential propagandists is inaction, or silence, as part of a wider public propagandistic pattern. A good example in this regard is Slobodan Milosˇevic´, who rarely appeared in public. If the course of events is just as desired and intended, the mechanism of propaganda can continue to function in a semi-automatic operating mode. In legal terms, such conduct can be accurately translated as intentional “failure to act.” The evidentiary variables of the term “propaganda campaign” can be significantly more complicated than their representation in the judgments. It should be emphasized again, however, that the analytical and prosecutorial approach to such material in case presentation is the main determining factor for how the case is subsequently reflected in jurisprudence and trial records as a whole.

Propaganda and international law: toward a joint conceptual enterprise The question whether some of the tentacles of propaganda as a social and cognitive instrument may neatly fit into the gloves tailored by some of the concepts in international law has so far not been considered in theory or practice. A number

Introduction 9

of approaches can be outlined and new combinations can be proposed along these lines. Let us, for example, look into a set of possible relations between propaganda and some of the concepts firmly established in international criminal law such as internal and international armed conflict, the notion of control, protection of civilian population and military personnel, methods and means of warfare, and terror. For a start, referring to the judgment in the ICTY Tadic´ case,36 Antonio Cassese underlines the fact that “war crimes could be committed not only in international armed conflicts but also in internal armed conflicts.”37 The phenomenon of spillover from one to another type of conflict is an interesting example. The dynamics of certain internal armed conflicts clearly indicate that propagandistic mechanisms are among the key components prompting such spillovers. The Nazi case, seen through the lenses of the available historical research and jurisprudence available today, would certainly qualify as a clear case of incitement to genocide. The element of intent is, of course, overwhelmingly present in these records. The resonance of anti-Semitic discourse in Germany from the 1930s can be regarded as a strong contributing factor in the subsequent creation of the Second World War Nazi alliance. What initially started as an internal German political campaign of persecution on political, racial and religious grounds soon crossed the borders of a number of European countries. The societies with a mindset historically molded by similar events quickly and easily adopted the anti-Semitic narrative redesigned and reintroduced by the Nazi propagandists. This resulted in the fact that Hitler’s Endlösung, the “Final Solution,” was in some cases implemented in these other societies with a diligence that exceeded even the well-known German efficiency.38 The crimes committed by the Nazi allies against the Jewish, Slavic and Roma populations, as well as political prisoners and other non-ethnic and non-political groups, such as homosexuals, falling within Hitler’s project of the “Final Solution,” were basically all tried by the IMT and other subsequent war crimes trials. The resistance movements in many countries during the Second World War, where some of the most gruesome crimes were recorded, could be seen as parties in initially internal armed conflicts. Based on voluminous research in social sciences, more recent history clearly shows that the political, historical and cultural forms of propaganda also played a key role in the break-up of Yugoslavia.39 There again, what soon escalated into an international armed conflict had begun with a series of internal propagandistic clashes in the Yugoslavia of the 1980s. The Nazi and Yugoslav examples, however different they may be in their distinctive historical contexts, clearly demonstrate that specific effects of propaganda could, and perhaps should, be considered as major contributing elements in originally internal and then international armed conflicts, but also as part of an amalgamated, or transitional, form of these two basic components of war crimes. Another legally relevant aspect of propaganda and its techniques is the element of regional or state control over the most influential media outlets. Every enterprise of that kind requires a complex organizational structure and implies the participation of more than one person. Hitler had Goebbels and the Ministry of Propaganda,

10 Propaganda, War Crimes Trials and International Law

including countless media satellites within the system, such as Julius Streicher and his newspaper Der Stürmer, as well as thousands of other Nazi outlets active in Germany before and during the Second World War.40 In his pseudo-democratic state, Slobodan Milosˇevic´, the former president of Serbia and Yugoslavia who died in 2006 just before his trial at the ICTY could conclude,41 had his media mouthpieces, both in electronic and printed form. These were directed and edited by his political party and state apparatchiks appointed through his network of associates. In the expert report of Renaud de la Brosse, who testified as a prosecution witness on propaganda in the Milosˇevic´ trial, “Slobodan Milosˇevic´ knowingly used and controlled the media in Serbia to impose the themes of nationalist propaganda to justify to the citizens the creation of a State—which would be home to all Serbian people—and also to strengthen his authority.”42 A very similar pattern exists with respect to the main vehicles of genocidal propaganda in Rwanda. In both her book Leave None to Tell the Story: Genocide in Rwanda and her testimony before the ICTR, Alison des Forges also discussed the complex internal links between the institutionalized participants in the Rwandan genocidal enterprise: “Although nominally private and opposed to Radio Rwanda, RTLM in fact was linked in a number of ways with the national radio, with other state agencies and with the MRND.”43 Moreover, according to Alison des Forges, “The ostensibly private station used equipment belonging to various government ministries.”44 The messages released by different media began to correspond quite literally. Relying also on the opinion of Jean-Pierre Chrétien,45 des Forges testified that “RTLM took up many of the same themes, sometimes in the same words, that were being popularized in the written press. Hassan Ngeze, the editor of Kangura, welcomed the arrival of the new ally in the ‘fight to defend the republic.’”46 As is discussed in more detail later in this volume, from the analytical and prosecutorial point of view similar so-called “linkage evidence,” consisting of a content analysis of the propagandistic utterances, including images and music, and their media platforms, may ultimately demonstrate the intent of the system and the authority personified in an individual, a suspect or an accused, to put into operation a specific criminal policy. Such forms of organizational structures are important evidentiary indicators of conspiracy to commit a crime. In ICTY and ICTR cases, the “equivalent” doctrine is that of joint criminal enterprise (JCE). As a matter of fact and evidence, any effective propagandistic campaign at the leadership level in modern times must be an enterprise and not merely a personal attempt at instigating groups and individuals to commit a crime. Thus, apart from the clear concept of individual intent, there is a collective intent as well, a cognitive concept based on common and collective beliefs and desires, and most of all interests, all ultimately reflected through the concepts known as “shared goals” or “common objectives.” Propaganda can therefore form an integral part of a joint criminal enterprise. The most evident examples in the ICTY trial records are the concepts of “Greater Serbia”47 and “Greater Croatia.”48 The implementation of these two political objectives, according to the ICTY trial records in the relevant cases, was carried out by criminal means, both military and political. It is worth noting that, long

Introduction 11

before the JCE doctrine was to be shaped, both these ideas, or aspirations, as advocated by the political leaders and intellectual elites in Serbia and Croatia, were identified by analysts outside the legal arena as the final objectives of the Serbian and Croatian political and military elites. Ultimately, only a future comparative analysis of the complete ICTY trial records and jurisprudence, and of the contextual analysis produced by social scientists prior to the outbreak of the Yugoslav war, can reveal the extent of insight particular legal approaches may have had into the key propagandistic devices identified as “Greater Serbia” and “Greater Croatia.” However, the importance of these ideas is comparable to some of the conceptual frames developed by Hitler and the Nazis, such as the concept of Lebensraum, or the so-called “Jewish Question,” directly related to the “Final Solution.” A deeper insight into the propagandistic conceptual background of evidentiary proceedings is necessary for the enlightenment of future approaches to propaganda-related war crimes trials. In traditional criminal terminology, this kind of insight captured as evidence would provide, in part or in whole, an explanation of the motive for the crimes committed on the scale discussed in this volume. All political and military leaders enjoy a particular status in their society. As part of a public registry, the status of political parties and armed forces is based on an institutional authority established by law. It can therefore be argued that, due to their exposure and increased access to the media, as well as their comparable and intention-driven influence on public life, the responsibility of the “authorized leaders” is comparably greater than the responsibility of an average and institutionally unauthorized citizen. As the subtitle of this volume indirectly suggests— from speakers’ corner to war crimes—all public speakers have a launch speech. A form of self-inauguration, followed by a response from the audience, perhaps a related continuation of their discourse, and ultimately an end. Some beginnings end at the start line on a box in a park or a public square, whereas some may follow a Hitlerian path and pattern of events. Every speaker at every corner in every park is a persuader, a propagandist of a kind, and is given the opportunity by the merits of freedom of expression to grow into a recognized, possibly even institutionalized, speaker or leader. 49 It is worth noting that the Bikindi trial before the ICTR showed that the mere popularity of a singer and performer could be considered as a significant contributing factor to the power of his messages, often indirect and metaphorical.50 Following the same reasoning, the ICTR Rukundo judgment emphasized that the education of the accused, a priest turned military chaplain and captain, was an aggravating factor and that Emmanuel Rukundo had abused his moral authority in order to influence and promote the abduction of Tutsi refugees.51 Similarly, the ICTY indictment against Vojislav Sˇesˇelj,52 an influential political leader and law professor from Serbia, clearly shows that formal authority, such as an official position of command and control over an organized group of people, whether (para)military or political, is not necessarily an essential requirement for the prosecution of individuals charged with dissemination of specific messages in a particular context. Even the sections of the judgment by the Tokyo War Crimes Tribunal (IMTFE) dealing with Sadao Araki53 and Kingoro

12 Propaganda, War Crimes Trials and International Law

Hashimoto,54 both influential army officers who, according to Count I of the Indictment, participated in the formulation or execution of a common plan or conspiracy, included charges relating to incitement and inflammatory speeches and publications. The content of the messages along with the conditions and circumstances of their utterance in the aforementioned cases play a key role in determining whether the message is actionable. The mind game between the speaker and the audience, thus, creates the most interesting field of interpretation, cognitive and legal at the same time. Based on their status and authority, it can be reasonably suggested that public speakers, leaders and the intellectual elite, have the knowledge and awareness of the possible consequences of their utterances. While the leaders institutionally authorized by law have both legal authority and status, the position of public intellectuals, or other individual citizens for that matter, is commonly based on a status attributed to them by a general social consensus. Conditioned by the sensitivity of social and political context, the rights to freedom of expression exercised by individual members of these groups may, under the particular circumstances, be subjected to a serious test. When responses to the modes of expression are considered, the exercise of freedom of expression as an absolute and unlimited right could be viewed as amounting to “culpable negligence” (culpa gravis) or even “recklessness,” depending on the mens rea of the relevant actor. Patriotic, nationalistic or xenophobic speeches, initially intended to win supporters or the sympathies of voters, may lead to a series of incidents or eventually armed conflicts potentially directly resulting in the commission of war crimes. As a matter of fact, all propagandists act with the assumption of “foreseeable consequences.” That is the very reason why they act. Under international law, within the framework of international armed conflict, both the civilian population and military personnel enjoy particular forms of protection. As it is hard to imagine an international armed conflict without influence and impact of propaganda before and during the conflict, a legitimate question can be asked whether the population, both civilian and military, should be protected by specific provisions against, for instance, recurring lies, false information, half-truths or strategically designed warmongering slogans. All of them are, as a rule, part of a detectable blueprint based on an intention to induce from the targeted audience the states of mind such as fear, contempt or hatred. As part of their triangular theory of the structure of hate, Robert and Karin Sternberg relate the component of “negation of intimacy” to repulsion and disgust, the component of “passion in hate” to anger or fear, and, ultimately, the component of “decision or commitment in hate” to devaluation or diminution through contempt.55 Drawing on the examples from Second World War Germany, Bosnia and Herzegovina, and Rwanda, Robert and Karin Sternberg write: “Propaganda may depict the targeted individuals as an imminent threat to approved society, and one that should be feared because of this threat.”56 The purpose and objective of this process is to mobilize, or sometimes, paradoxically, even paralyze, people for, or against, a specific course of action. The effects can be felt through the capacity to mobilize the population within the “crisis frame,” or alternately to paralyze, or

Introduction 13

minimize and reduce, the ability of people to seek reasonable solutions within the “peacetime frame.” War propaganda, for instance, frequently attains the most absurd forms of communication. “This often occurs with war propaganda demanding ‘national unity,’” as Jacques Ellul pointed out half a century ago in his still valid study of propaganda.57 Various forms of in-group cohesion, based on collective intentionality (that is common desires, beliefs and intentions), can exceed all limits of individual rationalization of acts and actions. A number of cases were identified by open source analysts, particularly in the series of conflicts in former Yugoslavia, when ethnically biased media would release the most distressing images of atrocities committed against civilians or combatants. Each warring side would claim the ethnicity of the victims as its own. For example, the same footage would be used by both Serbian and Croatian television in order to utilize the casualties within their own framework of war propaganda. This is how a market of propaganda turned dead bodies into a symbolic exchange value and could not subsequently allow for most of these reports to ever be retracted. Can a civilian population be protected against such forms of propaganda? Can the reporters, apart from their ethical and professional code of conduct, be legally bound to verify their “stories” within the particularly sensitive context of an internal or international armed conflict? Scholarly and journalistic studies, as well as the currently available jurisprudence, clearly show that the role of the media, and often the influence of particular reporters, may have been crucial for the preparation, instigation and actions resulting in some of the most violent acts committed in the course of international armed conflicts. Instead of being called as fact or insider witnesses by the international, or national, legal institutions, when their reports are analyzed by various academic or non-governmental organizations as examples of war propaganda, their actions could potentially be defined within the framework of individual criminal responsibility. The intentional dissemination of false information, or distortion and misuse of true information, and the fatal consequences thereof within a “crisis frame” have thus far been repeatedly recorded in the international war crimes trial records. The evidence of individual participation of journalists in all phases of this process is certainly not negligible any more. This is how Ferdinand Nahimana, the main accused in the so-called “Media Trial” processed by the ICTR, summed up an aspect of his defense: “When there is war, there is war, and propaganda is part of it.”58 Similarly, an ICTY accused, Vojislav Sˇesˇelj, testifying for the defense of Slobodan Milosˇevic´, stated the following: “That is what you do in politics. You say something for propaganda purposes, and that causes an effect.”59 While the three accused in the ICTR case, Nahimana, Barayagwiza and Ngeze, were sentenced for their participation in the genocide, and the finale of the trial of Vojislav Sˇesˇelj, a scholar, political and paramilitary leader, can hardly be anticipated, scores of leading reporters and intellectuals in the areas of the past and ongoing armed conflicts are most likely to slip through the net of international justice without even being noticed. It seems as if, paradoxically or not, societies sometimes need to be protected against the most exposed, and particularly those institutionalized, practitioners of free speech.

14 Propaganda, War Crimes Trials and International Law

War propaganda, or propaganda for war,60 including all other forms of influence on the civilian or military population with an intention to prompt violent response, is not just a mechanism, it is a method of warfare. According to Ellul’s initial definition: “Propaganda is a set of methods employed by an organized group that wants to bring about the active or passive participation in its actions of a mass of individuals, psychologically unified through psychological manipulations and incorporated in an organization.”61 Political parties, military and paramilitary movements are, for instance, all organized groups. The aspect of “psychological manipulation” of their activities relates to the methods (intentionally) employed with the purpose of bringing people individually, or as groups, to agree on a stipulated action. The reference to “passive participation” might, on the other hand, fall under the categories of uncritical service within an ethically unacceptable system or, similarly, a silent co-existence with an inhumane regime, both subsequently explained along the lines of Wir haben es nicht gewusst (“We did not know”), a much repeated post-Second World War type of self-justification in Germany. Based on the economical, social, cultural and political narratives, as mentioned earlier, the Nazi propaganda re-created a complex discourse to warn the Germans against an alleged Jewish international conspiracy. Equally, much like the Hutu in Rwanda, the Serbs and Croats applied a very similar pattern in former Yugoslavia. Hitler, Milosˇevic´, the Hutu leaders in 1994, their regimes and actions, all fit into a comparable methodological framework. In addition to being a method and mechanism, propaganda is also a means of achieving a goal and, in the context of armed conflict, internal or international, can also be treated as a means of warfare. In this sense, it is interesting to note that virtually all so-called propaganda-related judgments refer to some of the elements of propaganda as “viruses” or “poisons.” This is, for example, how the judges phrased their arguments in the Streicher judgment: “In his speeches and articles, week after week, month after month, he infected the German mind with the virus of anti-Semitism, and incited the German people to active persecution.”62 Steven Pinker, one of the leading psycholinguists and cognitive scientists today, writes that “causality is deeply entrenched in our language and thought, including our moral sense.”63 The main problem within this set of problems is how to produce a reasonably logical account of the relationship between our thoughts and the rest of the physical world. The underlying causal intuitions of our minds cannot provide acceptable or conclusive evidence in most propaganda-related criminal cases, and one of the most deceptive shortcuts to follow in that respect is metaphorical thinking. The use of metaphorical language with the purpose of proving a causal nexus between propaganda and actions, the utterances and the crimes, often indicates serious gaps and errors in logical thinking. Here is the opening line of Donald Davidson’s magisterial essay on the meaning of metaphors: “Metaphor is the dreamwork of language and, like all dreamwork, its interpretation reflects as much on the interpreter as on the originator.”64 If metaphors do not have a special meaning, or “a specific cognitive content” as Davidson put it, the use of metaphors shows that specific instruments of language can be

Introduction 15

employed in an inappropriate manner as part of the process of deliberative reasoning. Metaphors used in judgments do not usually clarify or explain the causal relations between the evidence and the criminal acts, they are a mere substitute for a lack of coherently explained evidentiary links. As a persuasive linguistic tool, figures of speech can certainly be used as ornamentation upon a well-elaborated body of evidence, but not as a useful analytical tool. Or, at least, not in the way that the use of linguistic and conceptual material as evidence is reflected in the available judgments and jurisprudence within international law. In their seminal cognitive study of metaphor, George Lakoff and Mark Johnson noted that “what is at issue is not the truth or falsity of a metaphor but the perception and inferences that follow from it and the actions that are sanctioned by it.”65 In a nonarbitrary manner, referring to the specific words of a witness, the ICTR Nahimana et al. judgment seems to represent a step forward in this regard: “The ethnic hatred that permeates Kangura had the effect of poison, as evidenced by the testimony of the witness.”66 The difference between the Streicher and the Nahimana et al. judgments, however minor it may be, is located in the simple reference to the evidence coming from a witness in the ICTR’s “Media Trial.” Furthermore, along the same lines, the Nahimana et al. judgment refers to a passage in the Streicher case stating, correctly, that “the judgment does not explicitly note a direct causal link between Streicher’s publication and any specific acts of murder. Rather it characterizes its work as a poison ‘injected into the minds of thousands of Germans which caused them to follow the National Socialists’ policy of Jewish persecution and extermination.’”67 Again, the use of metaphor or metonymy, in most cases, points out that the figures of speech only indicate an evidentiary and logical vacuum in legal analysis and deliberations. The available jurisprudence does not refer to the evidence, expert or fact-based, which demonstrates that some words, and figures of speech belonging to such words and phrases, are merely symbolic containers of physical properties whose impact on the human mind and on behavior has been successfully established. Apart from certain cognitive scientific models that have not yet been tested in the international legal arena, such as the evolving discipline of memetic research,68 speech act theory, usually included in law school curricula, treats utterances as physical events and may be utilized as a less controversial tool of interpretation for the evidence. One should certainly, albeit somewhat daringly, hypothesize on these themes and variations. One of the common elements of international law states clearly that the use of biochemical weapons belongs to the strictly prohibited means of warfare in any, international or non-international, armed conflict. If the use of words as “poisons” or “viruses” is interpreted as a direct or indirect transmission of physical content, an attack on the human brain so to speak, the utilization of propagandistic messages, such as the intentional spreading of lies or misinformation “as” poisons and viruses, would in a novel interpretation of evidence certainly meet the requirements necessary for them to qualify as war crimes. The jurisprudence has, in fact, already approached this level of deliberative reasoning by establishing that there can be a nexus between the “poisons” and “viruses,” or incitement and instigation,

16 Propaganda, War Crimes Trials and International Law

and the physical perpetration of war crimes. The judges and their analytical teams should, at this point, simply be reminded that all their deliberations, and thinking in its totality, are made of conceptual and linguistic material in the first place. Thus, if the doors of courtrooms are left open for some of the new, but well-founded, analytical models, the physical links between the contagious impact of metaphorical speech on human actions and war crimes may ultimately be established. Last but not least, the existence of a conceptual relationship between propaganda and terror may be another reasonable proposition to follow. Some of the core components of propaganda, as earlier established, are manipulation, mindcontrol, brainwashing, misinformation, half-truths, lies, deception and psychological operations. All of them are intent-driven, i.e. willful, and, as part of civil or military campaigns, strategically and explicitly repetitive. The propagandistic concept of repetition may, in addition, perfectly fit into the legal definition of widespread and systematic practice or attack. Any long-term exposure to repetitive messages and communications—words, sounds or images—may cause various degrees of anxiety, fear, panic and pain, all close conceptual relatives or consequences of terror. In fact, language as a whole, and the language of propaganda in particular, is just a mediator between our feelings as responses to various external sensations, including the internal cognitive loops and self-reflection within the same process. Nicholas Humphrey, one of the leading cognitive psychologists today, noted in relation to pain: “We do not have pains, we get to be pained.”69 In other words: words, as verbs, can pain. Terror is paining others intentionally. When in full swing, such a course of action can constitute a direct attack on the minds and mental health of the civilian population or military personnel. The integrity of individuals and groups can thus be invaded through aggressive forms of propaganda, often under the pretense of a free flow of information. The fact that the Descartian dichotomy dividing mind and body has been proven flawed should finally be accepted. The mind is flesh and consciousness is its emergent phenomenon. In agreement with the vast body of research in cognitive science, Humphrey emphasized that “consciousness is strictly tied to bodies”70 and it is “tied to self-interested bodies,”71 meaning, also, that “consciousness should be regarded as a ‘surface feature’ of the brain, an emergent property that arises out of the combined action of its parts.”72 An attack on human psyche and cognition, its freedom and integrity, should, for that reason, not be excluded from the elements which fall under the ambit of war crimes. Defining the multiple meanings of war crimes, Article 8(2)(a)(iii) of the ICC Statute refers, inter alia, to the category of willfully causing great suffering, or serious injury to body or health. These are precisely the effects some of the components of propaganda may produce under the specific set of conditions. After all, the right and privilege of every individual should be to receive truthful and impartial information. As an emergent property of propaganda, terror may cause direct or indirect harm to the ability to reason. It can prompt extreme and violent actions on the one hand or, conversely, it can cause fear and paralysis of action on the other hand. The point at which propaganda may become a redundant component in this relationship is the very point

Introduction 17

from which terror, as an instrument and offshoot of propaganda, continues to operate. When the process of propagandistic mind contamination fades into stupor, terror can produce some of the purest forms of violence. Fanaticism and zealotry based on false beliefs belong to some of the most obvious examples. This is also the moment at which it may be difficult to recall what the crime was about, how it all started, and what the mechanism that produced it was made of. The answers to these questions can often be found in specific aspects of propaganda. In the many pages she dedicated to the relationship between propaganda and terror, Hannah Arendt made the following observation: “Propaganda is indeed part and parcel of ‘psychological warfare;’ but terror is more.”73 Arendt’s claim was that after psychological aims are achieved, terror would still remain active. If the proposition that specific components of propaganda related to terror can finally get expert and fact witness evidentiary support in a courtroom, that is a forensic explanation of the mental pain of others, various forms of propagandistic actions directed at civilian population and military personnel may eventually be interpreted as a subcategory of the prohibited methods and means of warfare.

The key to the book, the chapters of the book The academic literature on propaganda in social sciences can be described as relatively voluminous. Numerous academic and journalistic studies have been published on various aspects of propaganda as an integral part of any and every social reality. However, the phenomenon of propaganda in legal publications, and particularly in international law, has until recently been treated mainly as a matter of freedom of expression. A clear-cut line between the aspects of propaganda discussed earlier and, for instance, the criminal acts of incitement or instigation, as the two closest legal conceptual relatives of propaganda cannot be easily drawn in most cases. The theory and practice of freedom of expression may often serve as a playground and a minefield at the same time. Paradoxically or not, it can be argued that the noble authority of Article 19 of the Universal Declaration of Human Rights (UDHR) lies precisely in its de-contextualized naiveté: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Would the category of “everyone” from Article 19 include, again, Hitler, Goebbels, Streicher, Nahimana, Barayagwiza, Ngeze, Sˇesˇelj and many others? In reality, its overarching nature and tone may, for instance, as is often the case with new propaganda techniques provide an open license for the exchange of coded messages. An indirect form of expression in retrospect would typically be characterized as “hate speech” or “hate crime.” From the new symbols and “languages” born within the North and South American street gangs to the democratically elected political leaders and statesmen, from any neighborhood to any presidential lounge, individuals and groups are entitled to exercise their rights guaranteed by freedom of expression. But, the path from speakers’ corner to war crimes can sometimes be short and smooth. The

18 Propaganda, War Crimes Trials and International Law

key to this chamber of the human mind and of social action can, however, virtually always be found in the contextual domain of its design. Addressing the importance of context, J.S. Mill, undoubtedly one of the greatest advocates of freedom of expression, noted that “even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.”74 Be that as it may, the prosecution of propaganda remains a controversial topic for lawyers, one very much in its formative period. A general awareness of the key role played by propaganda in interethnic or inter-national armed conflicts has in the past decade triggered new research into its meaning and status in international law. It does not appear that any publication to date has studied the forensic value of propaganda, particularly in a war crimes context. This collection constitutes the first attempt at bringing together the three crucial areas of study in a single volume: it provides an overview of the current state of the theory of propaganda in the social sciences; it explores the applications of this theory to the legal analysis of war crimes proceedings; and, finally, it offers a study of the prosecution of propaganda-related crimes in international law, with an eye toward complete trial records and jurisprudence of war crimes propaganda cases as a whole. A particularly distinct approach to the topic of this book should, however, be found in the symbiotic relationship between the analysis of potential evidence, as part of the war crimes investigations, and the legal interpretation of the evidence on the one side, and the newly emerging jurisprudence and international law in the given context on the other side of the same process. The analytical and investigative aspects of the volume demonstrate that, except to a limited group of professionals, very little is known outside the confines of the ICTY and ICTR about the underlying logic, techniques and models applied in the process of identification of potential evidence, and about the criminal and legal analysis of propaganda-related material by the investigations and trial teams in international war crimes trials. This book opens the window into the laboratory of two war crimes analysts, Nenad Fisˇer and Predrag Dojcˇinovic´, and a senior prosecuting trial attorney, Dan Saxon. Nenad Fisˇer approaches the phenomenon of propaganda from the point of view of an analyst concerned primarily with the identification and retrieval of potential evidence from, initially, an unlimited pool of open source information. The global development of information networks and media strongly suggests that the traditional approach to the analysis of indictable propaganda may have become unfit to cope with the new challenges. After decades-long experience in studying information systems and media as a whole, Fisˇer’s key paradigm emerges from his analysis of the series of armed conflicts in the former Yugoslavia. For a start, he introduces a basic distinction between the bottom-up and top-down approach in the analysis of propaganda for legal purposes. The bottom-up model, as Fisˇer claims, starts with the most basic, component parts, building larger and larger modules until the overall structure is completed. The top-down model starts from specification of larger units, breaking them down into their constituent parts and

Introduction 19

proceeding in the same way with each of them until reaching some predetermined bottom level of reduction. This description, in fact, illustrates a traditional disagreement between the two analytical perspectives. Fisˇer argues that the instances involved in the propaganda process take place in different media and forms and constitute a “field of influence” that cannot be reduced to a single paradigmatic case. In other words, in an environment with an increased degree of information traffic through numerous formats and channels, one encounters a rising probability that the search for a “smoking gun” propagandistic instance is bound to fail. Fisˇer believes that the growing complexity of propaganda mechanisms and their implementation will make a range of sciences indispensable for the analysis of propagandistic campaigns with a substantial influence upon the choice of the analytic strategy and its most effective tools. Finally, Fisˇer discusses some of them and outlines domains of their expected input, particularly from social psychology and specialized linguistic disciplines. Drawing on his more than decade-long professional experience within the Office of the Prosecutor (OTP) at the ICTY, Predrag Dojcˇinovic´ shows how a cognitive linguistic approach to the criminal analysis of open source information can effectively be used to define and utilize propaganda-related evidence in pretrial and trial phases. This chapter explains the paths, logic and criteria for identifying and categorizing open source evidence in the given context (historical, political and cultural). Dojcˇinovic´ also lays out the conceptual instruments needed for a cognitive linguistic analysis and interpretation of specific types of textual material potentially useful for the investigative and prosecutorial purposes within the frameworks of the existing war crimes trial records, jurisprudence and international law. Part of this instrumentarium includes concepts such as intentions and intentionality, causality (physical and mental), intentional causation, semantic analysis, speech acts, conceptual framing and priming, institutional facts, free will. Finally, a novel analytical model, evidentiary feedback loop, is offered for prosecutorial purposes. The main objective of this methodological framework is to explore and explain, or hack and crack, the multiple meanings and links emerging between words and actions or words as actions, that is, ultimately, the criminal acts that may have occurred as a direct or indirect consequence of widespread and systematic propagandistic actions and communications of semantically sensitive or specifically designed units of linguistic information in the sphere of public life. Dan Saxon explains the role legal and forensic analysis of propaganda-related material can play in the process of formulating investigation plans and criminal charges. In addition, Saxon discusses and recommends the categories of evidence that international prosecutors may use to prosecute persons accused of using propaganda to commit serious violations of international humanitarian law and points out the complexities of obtaining such evidence. This chapter may, in fact, serve as the first manual produced for prosecutors facing propaganda material as evidence within the frameworks of international humanitarian law and international criminal law.

20 Propaganda, War Crimes Trials and International Law

A socio-linguist from Rwanda, and expert witness in the Akayesu and Nahimana et al. cases tried by the ICTR, Mathias Ruzindana explains how a number of ICTR judgments, including the so-called “Media Trial,” have brought into the limelight the powerful role which language can play in the commission of crime. It is often argued that the dividing line between freedom of speech and punishable hate media is too thin and not always evident. In a number of ICTR genocide cases, the debate around some recurrent polysemic Kinyarwanda key words which were used during or even before the 1994 Rwandan genocide is not only to determine whether these words belong in the hate media, but also what they actually mean. Since the use of these key words relates directly to the offence of incitement to commit genocide, the Trial Chamber has to determine their meaning. How does it do that, since none of the ICTR judges understand Kinyarwanda? Can a translation bridge the gap? Ruzindana provides some of the most authoritative answers to these and a number of other related questions. For instance, it is shown that interpreting from Kinyarwanda to French and English is not without challenges, much more so owing to linguistic and cultural disparity and the language used during the 1994 Rwanda genocide, which was far from straightforward. It is also shown that various ICTR Trial Chambers have not approached this problem of understanding Kinyarwanda key words in the same manner. It is argued that some of the Trial Chambers adopted a simplistic approach, failing to grasp the complexity of understanding the language used and the cultural overtones which underlie the use of the relevant terms. Relying on his expert report entitled Vojislav Sˇesˇelj’s Nationalist Propaganda: Contents, Techniques, Aims and Impacts, 1990–1994,75 Anthony Oberschall develops his ideas and expertise on the methodology required in social sciences to analyze, understand and demonstrate the mechanisms of propaganda in various political, social and cultural contexts. In addition, Oberschall gives a detailed analytical overview of the scholarly literature in his field dealing with propaganda relating particularly to ethnic conflict, nationalism, collective violence, mass communications, the break-up of Yugoslavia, including a comparison with the ICTR propaganda-related documentary material and related studies in social sciences. Finally, he reflects on his personal experiences as an expert witness in the ICTY’s most complex propaganda trial, the Sˇesˇelj case. Margaret Eastwood, a lecturer in law and criminology, researched and studied in great detail the Nuremberg trial records in the case against Julius Streicher, the big bang of propaganda-related jurisprudence in international law. At Nuremberg, Streicher was accused of using propaganda to incite anti-Jewish hatred that endorsed the Nazi Party’s persecutory policies against the Jews. The Streicher case showed for the first time that the action of inciting mass murder through words alone was successfully prosecuted in 1945 by the IMT. Ultimately, the prosecution reclassified Streicher’s anti-Semitic propaganda as “words used as persecution” and, by October 1, 1946, the IMT found him guilty of “incitement to murder and extermination.” By placing its focus on the investigative aspect of the case, the evidence produced during the trial and the course of the trial itself, Eastwood’s chapter explores how hateful words used in speeches and published in Streicher’s

Introduction 21

private newspaper Der Stürmer eventually shaped the prosecution’s case, notwithstanding that such actions were not criminalized under the Nuremberg Charter. In his award winning book The Prohibition of Propaganda for War in International Law, Michael G. Kearney provides a comprehensive analytical study of the history of correlations between international law and propaganda for war. Apart from an overview of the topic, including the deficiencies in the literature and historical records dealing with it, at the end of his book Kearney initiates a research into, and an examination of, both the finished and the ongoing propaganda cases before the ICTY and ICTR. In his contribution to this volume, Kearney extends the scope of his research into the old as well as newly emerging trial records and jurisprudence of the ICTY propaganda cases in particular. As one of the leading scholars in the areas of international law related to propaganda, Kearney evaluates the set of trial records offered so far by the ICTY, narrowing down his case for the prohibition of propaganda for war through a key proposal of propaganda as a means of liability rather than as an underlying criminal act. If adopted in practice, this particular proposal may in the future represent the most significant leap in the interpretation of propaganda within the framework of war crimes and international law as a whole. One of the central topics of Susan Benesch’s studies, teaching and public engagement is the prevention of incitement to genocide. Within the scope of this grand theme, the positions of speech, and hate speech in particular, as well as the element of causation, are central. There are several reasons for her choice of this theme: because it is the speech crime that has quickly given rise to the largest body of international criminal law, because of the pressing need to interpret it more clearly (as the jurisprudential confusion over causation demonstrates), and because of the unique opportunity that incitement to genocide represents for genocide prevention. It seems to be a precursor, if not a prerequisite, for genocide. As one of the main threads of this volume, Benesch’s perspective further accentuates the convergent and divergent points in the analysis of the element of causation by the legal scholars and practitioners of law, and the social and cognitive science, as treated by Oberschall and Dojcˇinovic´, for instance. Finally, the great merit of this chapter is a set of indicators defined by Susan Benesch as part of her studies of the prevention of genocide. As the historical records and jurisprudence clearly show, they are indeed the markers of speech-related crimes: the speaker, the audience, the content of speech act, the socio-historical context and the mode of transmission. In the closing chapter of the book, Lawrence Douglas addresses one of the key issues of the volume, the conceptual problems facing international criminal law, as he formulates it. Following the trail of his authoritative book on the response of the legal discourse to the Holocaust, The Memory of Judgment,76 in this volume, again, Douglas emphasizes the importance of the didactic aspect of war crimes trials. The theme of propaganda is only one of the threads fitting into Douglas’s main line of argumentation. Occasional conceptual shifts in a somewhat conservative domain of international criminal law are slow and cautious. The introduction

22 Propaganda, War Crimes Trials and International Law

of propaganda as a possible mode of liability into that conceptual framework, for instance, would certainly mark a tectonic conceptual shift in that regard. Avoiding specific references to propaganda, Douglas offers a deeper insight into the pace and complications of the process of conceptual evolution as reflected in a number of examples from the IMT to the ICTY and ICTR, including the ICC as the most challenging prospective test case for international law. For Douglas, the didactic value of the atrocity trial has a special place in this process: it can deliver a tool of political-legal legitimation by making visible the sober operation of the rule of law; it can promote a reckoning with the past by clarifying a history of horror often obscured in rumor, denial and silence; it can establish a baseline account of traumatic history that may serve the interests of democratic transition; and it can confer public recognition upon the memories of survivors and honor upon the memory of victims. In relation to the volume as a whole, it will soon become clear why propaganda with its historical, political and cultural components, in a fashion similar but much more fundamental than, for instance, the set up and the outcome of the Eichmann trial, may fall under the category of legal didactics, as Douglas termed this essential aspect of all war crimes trials and international justice as a whole.

A final word ahead Some introductions begin with long quotations, this introduction concludes with a long quotation. In the opening lines of his essay What Shall We Tell the Children?, Nicholas Humphrey, a scientist and a humanist, writes: ‘Sticks and stones may break my bones, but words will never hurt me,’ the proverb goes. [. . .] Still, the proverb, like most proverbs, is also in part obviously false. The fact is that words can hurt. For a start, they can hurt people indirectly by inciting others to hurt them: a crusade preached by a pope, racist propaganda from the Nazis, malevolent gossip from a rival . . . They can hurt people not so indirectly, by inciting them to take actions that harm themselves: the lies of a false prophet, the blackmail of a bully, the flattery of a seducer . . . And words can hurt directly, too: the lash of a malicious tongue, the dreaded message carried by a telegram, the spiteful onslaught that makes the hearer beg his tormentor say no more. Sometimes, indeed, mere words can kill outright.77

Notes 1 V. Klemperer, I Will Bear Witness, 1933–1941: A Diary of the Nazi Years, New York, NY: The Modern Library, 1999. 2 A. Pratkanis and E. Aronson, Age of Propaganda: The Everyday Use and Abuse of Persuasion, New York, NY: W.H. Freeman and Company, Revised Edition, 2001.

Introduction 23 3 As quoted in ‘The Unfounded Acquittal of defendant Fritsche’, from “Dissenting Opinion of the Soviet Member of the International Military Tribunal, Major General Jurisprudence I.T. Nikitchenko on the Judgment concerning defendants Schaht, von Papen, Fritzsche and Hess and the accused organisations Reichscabinet, General, and OKW’, in Trial of the Major War Criminals by The International Military Tribunal, Sitting at Nuremberg, Germany, Buffalo, New York, NY: William S. Hein & Co., Inc., 2001, pp. 138–140. 4 S.L. Jacobs and M. Weitzman, Dismantling the Big Lie: The Protocols of the Elders of Zion, Jersey City, NJ: KTAV Publishing House, 2003. 5 R.L. Bytwerk, ‘Fraud, Conspiracy, and Murder’, Julius Streicher: Nazi Editor of the Notorious Anti-Semitic Newspaper Der Stürmer, New York, NY: Cooper Square Press, 2001, p. 132. 6 B. Kushner, The Thought War: Japanese Imperial Propaganda, Honolulu, HI: University of Hawai’i Press, 2006. 7 Kushner, The Thought War, p. 34. 8 T.W. Deacon, The Symbolic Species: The co-evolution of language and the brain, New York, NY and London: W.W. Norton & Company, 1997. 9 The question whether subliminal messaging and priming is possible remains a somewhat controversial issue among cognitive scientists. In his book dealing with the concept of free will, the Dutch cognitive neuroscientist Victor Lamme offers a useful overview of the experiments and research done on subliminal stimulation. Some of the best examples Lamme quotes come from the political and commercial advertising campaigns. V. Lamme, De vrije will bestaat niet (The free will does not exist), Amsterdam: Prometheus, 2010. 10 As quoted in the biography of Leni Riefenstahl by S. Bach, Leni: The Life and Work of Leni Riefenstahl, London: Abacus, 2008, p. 145. 11 See, for example, a useful introduction to this key aspect of Hitler’s reign in the volume by J. Huener and F.R. Nicosia (eds), The Arts in Nazi Germany: Continuity, Conformity, Change, New York, NY and Oxford: Berghahn Books, 2006. Another publication which provides unique insight into the theatrical aspect of Fascism is a volume by G. Berghaus (ed.), Fascism and Theatre: Comparative Studies on the Aesthetics and Politics of Performance in Europe, 1925–1945, Providence, RI and Oxford: Berghahn Books, 1996. 12 J. Herf, The Jewish Enemy: Nazi Propaganda During World War II and the Holocaust, Cambridge, MA: The Belknap Press of Harvard University Press, 2008, p. 29. 13 A. Lynch, ‘Self-Sent Messages and Mass Belief’, Thought Contagion: How Belief Spreads Through Society, New York, NY: Basic Books, 2006, p. 8. 14 Of all articles and books dedicated to the cultural, political or ideological impact Wagner’s musical oeuvre and ideas may have had on anti-Semitism and Nazi Germany, a useful summary discussion of the arguments can be found in M. Tanner, ‘Wagner, the Jews, and the Nazis’, Wagner, London: Faber and Faber, 2010. 15 On the most fascinating influence this song and its title had on the minds of the soldiers, see the account by L. Leibowitz and M. Miller (eds), Lili Marlene: The Soldier’s Song of World War II, New York, NY and London: W.W. Norton & Company, 2009. 16 G.S. Jowett and V. O’Donnell, Propaganda and Persuasion, Fourth Edition, London: Sage, 2006, p. 7. 17 For a broader list of concepts which determine multiple meanings and applicability of propaganda, see S.B. Cunningham, The Idea of Propaganda: A Reconstruction, Westport, CT: Praeger Publishers, 2002. 18 See Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November–1 October 1946, Buffalo, NY: William S. Hein & Co., Inc., 1995, p. 11.

24 Propaganda, War Crimes Trials and International Law 19 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003. 20 A. Cassese (ed.), The Oxford Companion to International Criminal Justice, New York, NY: Oxford University Press, 2009, pp. 566–568. In his seminal work International Criminal Law, Cassese dedicated a substantial chapter to the notion of war crimes. A. Cassese, International Criminal Law, Second Edition, Oxford and New York, NY: Oxford University Press, 2008, pp. 81–97. 21 All the phrases appear in The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, paras 99, 100, 105, 127 and 353. 22 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003, paras 239, 619, 678, 923, 950, 985, 1027, 1074, and 5.17. 23 The Prosecutor v. Simon Bikindi, The Appeals Chamber, Judgment, Case No. ICTR01-72-T, 18 March 2010, para. 166. 24 The Prosecutor v. Georges Ruggiu, Judgment and Sentence, Case No. ICTR-97-32-I, 1 June 2000, para. 50. 25 Prosecutor v. Dario Kordic´ and Mario Cˇerkez, Appeals Chamber Judgment, Case No. IT-95-14/2-A, 17 December 2004, fn. 179. 26 Prosecutor v. Milan Babic´, Judgment on Sentencing Appeal, Case No. IT-03-2-A, 18 July 2005, paras 15, 20 and 21. 27 Prosecutor v. Biljana Plavsˇic´, Sentencing Judgment, Case No. IT-00-39 and 40/1-S, 27 February 2003, para. 46. 28 The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, paras 99, 123, and 732. 29 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003, para. 935. 30 The Prosecutor v. Simon Bikindi, The Appeals Chamber, Judgment, Case No. ICTR01-72-T, 18 March 2010, fn. 420. 31 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-A, 3 April 2007, fn. 537, paras 270 and 309, fn. 731, paras 454 and 496. 32 Prosecutor v. Milomir Stakic´, Case No. IT-97-24-A, Judgment, 22 March 2006, paras 49, 51, 52 and 53. 33 Prosecutor v. Milan Babic´, Judgment on Sentencing Appeal, Case No. IT-03-2-A, 18 July 2005, para. 21. 34 A. Oberschall, Conflict and Peace Building in Divided Societies: Responses to ethnic violence, London and New York, NY: Routledge, 2007, p. 100. 35 Ibid., p. 101. 36 Prosecutor v. Dusˇan Tadic´, The Appeals Chamber, Judgment, Case No. IT-94-1-A, 15 July 1999. 37 A. Cassese, International Criminal Law, Second Edition, Oxford: Oxford University Press, 2008, p. 88. 38 In her report on the Eichmann trial, Hannah Arendt wrote about an extraordinary aspect of the Nazi policy: “For their help in solving the Jewish question in any country, the Germans had demanded no part of the Jews’ property, only the costs of their deportation and extermination, and these costs had varied widely from country to country – the Slovaks had been supposed to pay between three hundred and five hundred Reichmarks, and the Croats only thirty, the French seven hundred, and the Belgians two hundred and fifty. (It seems that no one ever paid except the Croats.)” H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Harmondsworth: Penguin Books, 1994, p. 142. 39 One of the best examples in this regard is a joint research and analytical project of a group of academic researchers from Croatia and Serbia in N. Skopljanac Brunner, S. Gredelj, A. Hodzˇ ic´ and B. Kristofic´ (eds), Media and War, Zagreb: Centre for

Introduction 25

40 41

42

43 44 45 46 47

48

49

50 51 52 53

transition and civil society research, and Belgrade: Agency Argument, 2000. Another much quoted and used publication is M. Thompson’s report Forging War: The Media in Serbia, Croatia and Bosnia-Hercegovina, London: Article 19 – International Center Against Censorship, May 1994. Herf, The Jewish Enemy, p. 19. Slobodan Milosˇevic´ died on March 11, 2006, not long before the projected end of his trial. In spite of the fact that the international legal community is left deprived of the judgment in this case, an impressive public trial record remains for future research. The relevance of the trial records in the historical war crimes cases may, on balance, be of a far greater importance than the actual jurisprudence emerging from them. R. de la Brosse, Political Propaganda and a Plan to Create a “State for All Serbs”: Consequences of Using the Media for Ultra-Nationalist Ends, a report compiled at the request of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Milosˇevic´, Slobodan, Case No. IT-02-54, “Kosovo, Croatia and Bosnia.” Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). MRND: Mouvement Révolutionnaire National pour le Développement (National Revolutionary Movement for Development). A. des Forges, ‘Propaganda and Practice’, Leave None to Tell the Story: Genocide in Rwanda, New York, NY: Human Rights Watch, March 1999, p. 69. J.P. Chrétien (ed.), Rwanda, Les Médias, Paris: Karthala, 1995. des Forges, Leave None to Tell the Story, p. 70. Most of the so-called “Serb leadership cases” tried before the ICTY had this component incorporated into their indictments. Although the phrasing varied from case to case—” all Serbs in one state,” or “single Serbia,” “unified Serbia,” “Serbian lands,” “Greater Serbia,” or “Karlobag–Ogulin–Karlovac–Virovitica line”—they all referred to the same concept. Some of these cases include Momcˇilo Krajisˇnik, Biljana Plavsˇic´, Slobodan Milosˇevic´, Vojislav Sˇesˇelj and Radovan Karadzˇic´. The Prosecutor of the Tribunal Against Jadranko Prlic´, Bruno Stojic´, Slobodan Praljak, Milivoj Petkovic´, Valentin C´oric´ and Berislav Pusic´, Second Amended Indictment, Case No. IT-04-74-T. Defining the scope of the joint criminal enterprise, the prosecution refers to the idea of “Greater Croatia” as an objective which was to be achieved by joining the so-called “Croatian Community of Herzeg-Bosna” as part of the Republic of Croatia “[. . .] by force, fear or threat of force, imprisonment and detention, forcible transfer and deportation, appropriation and destruction of property and other means [. . .],” para. 15. In his essay ‘Propaganda and Demotic Speech’, published in Persuasion, Summer Quarter, 1944, 2, No. 2, George Orwell wrote: “Speeches, broadcasts, lectures and even sermons are normally written down beforehand. The most effective orators, like Hitler or Lloyd George, usually speak extempore, but they are very great rarities. As a rule – you can test this by listening at Hyde Park corner – the so-called extempore speaker only keeps going by endlessly tacking one cliché on to another. In any case, he is probably delivering a speech which he has delivered dozens of times before.” G. Orwell, All Art Is Propaganda: Critical Essays, New York, NY: Mariner Books Edition, 2009, p. 228. The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-T, 2 December 2008, paras 107 and 196. The Prosecutor v. Emmanuel Rukundo, Judgment, Case No. ICTR-2001-70-T, 27 February 2009, paras 176, 214 and 599. The Prosecutor v. Vojislav Sˇesˇelj, Case No. IT-03-67. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). IMTFE Judgment, Part C, Chapter X, Verdict, pp. 49774–49775.

26 Propaganda, War Crimes Trials and International Law 54 IMTFE Judgment, Part C, Chapter X, Verdict, pp. 49780–49782. 55 R.J. Sternberg and K. Sternberg, The Nature of Hate, New York, NY: Cambridge University Press, 2008. 56 Ibid., p. 62. 57 J. Ellul, Propaganda – The Formation of Men’s Attitudes, New York, NY: Vintage, 1973, p. 190. 58 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003, para. 1027. 59 Case No. IT-02-54, Wednesday, 31 August 2005, witness: Vojislav Sˇesˇelj, open session, cross examination by Geoffrey Nice. 60 Michael G. Kearney discusses the history of confusions in international debates relating to different interpretations of the concepts of “war propaganda” and “propaganda for war,” arriving at the conclusion that, given the critical importance of this distinction for international criminal law, the former “relates to propaganda inciting war crimes against humanity during a conflict, whereas the latter concerns propaganda inciting to wars of aggression.” M. G. Kearney, The Prohibition of Propaganda for War in International Law, New York, NY: Oxford University Press, 2007, p. 217. 61 Ellul, Propaganda, p. 61. 62 Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the dissenting opinion of the Soviet member), Miscellaneous No. 12 (1946), Nuremberg, 30th September and 1st October, 1946, Buffalo, NY: William S. Hein & Co. Inc, p. 101. 63 S. Pinker, The Stuff of Thought: Language as a Window into Human Nature, London: Allen Lane, Penguin Books, 2007, p. 209. 64 D. Davidson, ‘What Metaphors Mean’, Inquiries into Truth and Interpretation, Second Edition, Oxford: Oxford University Press, 2001, p. 245. 65 G. Lakoff and M. Johnson, ‘Metaphor, Truth, and Action’, Metaphors We Live By, Chicago, IL and London: The University of Chicago Press, 1980, p. 158. 66 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003, para. 243. 67 Ibid., para. 981. 68 The term meme was originally coined and introduced by the biologist Richard Dawkins in his book The Selfish Gene, Oxford and New York, NY: Oxford University Press, 1976. Dawkins’ idea was that there is a strong parallel between the patterns of genetic evolutionary paths and forms of cultural evolution. Both genes and memes are replicators and, according to Dawkins, their existence is based on identically and closely related functioning mechanisms. Various intriguing scientific models have been developed along these lines. A new vocabulary has emerged too and today we speak of memetics, memespheres, memeplexes, etc. The Oxford Dictionary contains the following entry: meme – (1) an element of a culture or system of behaviour passed from one individual to another by imitation or other non-genetic means; (2) an image, video, etc. that is passed electronically from one Internet user to another. Cognitive science has especially been receptive to this new approach to the interpretation of culture based on the theory of evolution by natural selection. The works that deserve to be listed as seminal, after Dawkins’ Selfish Gene, include D.C. Dennett, Consciousness Explained, London: Penguin Books, 1993; D.C. Dennett, Darwin’s Dangerous Idea, New York, NY: Simon & Schuster, 1995; R. Brodie, Virus of the Mind: The New Science of the Meme, New York, NY: Hay House, 1996; A. Lynch, Thought Contagion: How Belief Spreads Through Society, New York, NY: Basic Books, 1996; S. Blackmore, The Meme Machine, Oxford and New York, NY: Oxford University Press 1999; R. Aunger, The Electric Meme: A New Theory of How We Think, New York, NY: The Free Press, Simon & Schuster, Inc., 2002. All of the listed works, as

Introduction 27

69 70 71 72 73 74 75

76 77

well as numerous other studies, approach language as a physical property of our minds and cultures. This scientific and evidentiary potential has, however, not been used in any legal proceedings to date. N. Humphrey, The Mind Made Flesh: Frontiers of Psychology and Evolution, Oxford: Oxford University Press, 2002, p. 103. N. Humphrey, A History of the Mind, London: Vintage, 1993, p. 193. Ibid., p. 194. Humphrey, The Mind Made Flesh, p. 67. H. Arendt, The Origins of Totalitarianism, New Edition with Added Prefaces, San Diego, CA, New York, NY and London: A Harvest Book, Harcourt, Inc., 1985, p. 344. J.S. Mill, On Liberty, London: Penguin Classics (first published 1859), reprinted in 1985, p. 119. The full title of Anthony Oberschall’s report is Vojislav Sˇesˇelj’s Nationalist Propaganda: Contents, Techniques, Aims and Impacts, 1990–1994 – How media propaganda impacts on ordinary people’s acceptance and participation in collective violence, and how Sˇesˇelj’s nationalist propaganda promoted and justified coercion and violence by Serbs against non-Serbs, introduced in November 2007 at the ICTY and subsequently admitted into evidence by the relevant Trial Chamber. L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust, New Haven, CT and London: Yale University Press, 2001. Humphrey, The Mind Made Flesh, p. 289.

Bibliography Arendt, H., Eichmann in Jerusalem: A Report on the Banality of Evil, Harmondsworth: Penguin Books, 1994. Arendt, H., The Origins of Totalitarianism, New Edition with Added Prefaces, San Diego, CA, New York, NY and London: A Harvest Book, Harcourt, Inc., 1985. Aunger, R., The Electric Meme: A New Theory of How We Think, New York, NY: The Free Press, Simon & Schuster, Inc., 2002. Bach, S., Leni: The Life and Work of Leni Riefenstahl, London: Abacus, 2008. Berghaus, G. (ed.), Fascism and Theatre: Comparative Studies on the Aesthetics and Politics of Performance in Europe, 1925–1945, Providence, RI and Oxford: Berghahn Books, 1996. Blackmore, S., The Meme Machine, Oxford and New York, NY: Oxford University Press, 1999. Brodie, R., Virus of the Mind: The New Science of the Meme, New York, NY: Hay House, 1996. Bytwerk, R.L., Julius Streicher: Nazi Editor of the Notorious Anti-Semitic Newspaper Der Stürmer, New York, NY: Cooper Square Press, 2001. Cassese, A., International Criminal Law, Second Edition, Oxford and New York, NY: Oxford University Press, 2008. Cassese, A. (ed.), The Oxford Companion of International Criminal Justice, New York, NY: Oxford University Press, 2009. Chrétien, J.P. (ed), Rwanda, Les Médias, Paris: Karthala, 1995. Cunningham, S.B., The Idea of Propaganda: A Reconstruction, Westport, CT: Praeger Publishers, 2002. Davidson, D., Inquiries into Truth and Interpretation, New York, NY: Oxford University Press, 2001.

28 Propaganda, War Crimes Trials and International Law Dawkins, R., The Selfish Gene, Oxford and New York, NY: Oxford University Press, 1976. Deacon, T.W., The Symbolic Species: The co-evolution of language and the brain, New York, NY and London: W.W. Norton & Company, 1997. Dennett, D.C., Consciousness Explained, London: Penguin Books, 1993. Dennett, D.C., Darwin’s Dangerous Idea, New York, NY: Simon & Schuster, 1995. Douglas, L., The Memory of Judgment: Making Law and History in the Trials of the Holocaust, New Haven, CT and London: Yale University Press, 2001. Ellul, J., Propaganda – The Formation of Men’s Attitudes, New York, NY: Vintage, 1973. Forges, des, A., Leave None to Tell the Story: Genocide in Rwanda, New York, NY: Human Rights Watch, March 1999. Herf, J., The Jewish Enemy: Nazi Propaganda During World War II and the Holocaust, Cambridge, MA: The Belknap Press of Harvard University Press, 2008. Huener, J. and Nicosia, F.R. (eds), The Arts in Nazi Germany: Continuity, Conformity, Change, New York, NY and Oxford: Berghahn Books, 2006. Humphrey, N., A History of the Mind, London: Vintage, 1993. Humphrey, N., The Mind Made Flesh: Frontiers of Psychology and Evolution, Oxford: Oxford University Press, 2002. Jacobs, S.L. and Weitzman, M., Dismantling the Big Lie: The Protocols of the Elders of Zion, Jersey City, NJ: KTAV Publishing House, 2003. Jowett, G.S. and O’Donnell, V., Propaganda and Persuasion, Fourth Edition, London: Sage, 2006. Kearney, M.G., The Prohibition of Propaganda for War in International Law, New York, NY: Oxford University Press, 2007. Klemperer, V., I Will Bear Witness, 1933–1941: A Diary of the Nazi Years, New York, NY: The Modern Library, 1999. Kushner, B., The Thought War: Japanese Imperial Propaganda, Honolulu, HI: University of Hawai’i Press, 2006. Lakoff, G. and Johnson, M., Metaphors We Live By, Chicago, IL and London: The University of Chicago Press, 1980. Lamme, V., De vrije will bestaat niet, Amsterdam: Prometheus, 2010. Leibowitz, L. and Miller, M. (eds), Lili Marlene: The Soldier’s Song of World War II, New York, NY and London: W.W. Norton & Company, 2009. Lynch, A., Thought Contagion: How Belief Spreads Through Society, New York, NY: Basic Books, 2006. Mill, J.S., On Liberty, London: Penguin Classics (first published 1859), reprinted in 1985. Oberschall, A., Conflict and Peace Building in Divided Societies: Responses to ethnic violence, London and New York, NY: Routledge, 2007. Orwell, G., All Art Is Propaganda: Critical Essays, New York, NY: Mariner Books Edition, 2009. Pinker, S., The Stuff of Thought: Language as a Window into Human Nature, London: Allen Lane, Penguin Books, 2007. Pratkanis, A. and Aronson, E., Age of Propaganda: The Everyday Use and Abuse of Persuasion, New York, NY: W.H. Freeman and Company, Revised Edition, 2001. Skopljanac Brunner, N., Gredelj, S., Hodzˇ ic´, A. and Kristofic´, B. (eds), Media and War, Zagreb: Centre for transition and civil society research, and Belgrade: Agency Argument, 2000. Sternberg, R.J. and Sternberg, K., The Nature of Hate, New York, NY: Cambridge University Press, 2008.

Introduction 29 Tanner, M., Wagner, London: Faber and Faber, 2010. Thompson, M., Forging War: The Media in Serbia, Croatia and Bosnia-Hercegovina, London: Article 19 – International Center Against Censorship, May 1994. Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November–1 October 1946, Buffalo, NY: William S. Hein & Co., Inc., 1995. Trial of the Major War Criminals by The International Military Tribunal, Sitting at Nuremberg, Germany, Buffalo, NY: William S. Hein & Co., Inc., 2001.

Table of cases ICTY Prosecutor v. Milan Babic´, Case No. IT-03-2-A. Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A. Prosecutor v. Dario Kordic´ and Mario Cˇerkez, Case No. IT-95-14/2-A. The Prosecutor of the Tribunal Against Slobodan Milosˇevic´, Case No. IT-02-54. Prosecutor v. Biljana Plavsˇic´, Case No. IT-00-39 and 40/1-S. The Prosecutor of the Tribunal Against Jadranko Prlic´, Bruno Stojic´, Slobodan Praljak, Milivoj Petkovic´, Valentin C´oric´ and Berislav Pusic´, Case No. IT-04-74-T. The Prosecutor v. Vojislav Sˇesˇelj, Case No. IT-03-67. Prosecutor v. Milomir Stakic´, Case No. IT-97-24-A. Prosecutor v. Dusˇan Tadic´, Case No. IT-94-1-A

ICTR The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T. The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T. The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I. The Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T

Part 1

Analysis, investigations, prosecutions

Chapter 1

The indictable propaganda: a bottom-up perspective Nenad Fisˇer *

Those who can make you believe absurdities can make you commit atrocities. Voltaire, Questions sur les miracles, 1765

Introduction A short analysis of keywords featuring in abstracts of scholarly papers relevant to the topic of this book will reveal a number of terms, each focusing upon a certain aspect of the issue, most notably “propaganda for war,” “incitement to genocide,” or “hate speech” (an expression of choice when the idea of freedom of speech needs to be maintained in a proper perspective). The particular expression preferred by authors is often determined by the nature of the legal acts and documents that are the focal point of their study. Of course, one could easily imagine a systematic process of escalating bellicosity, eventually taking a genocidal turn, boosted by an intensive campaign of hate speech. This mélange of dispositions, intentions, and their catalysts cannot be easily broken down to its “pure ingredients.” In a very similar manner, the understanding of a propagandistic action requires an analysis of the communicational situation in its entirety, instead of individual instances along the source-message-target link. With very good reasons, the term “propaganda,” in its unqualified form, is generally avoided for being too broad and ambiguous, or overloaded with meanings and values imposed by its colloquial use. Its proximity to concepts such as “manipulation” or “deceit” overshadowed its original, technical meaning as used by the “father of public relations,” Edward L. Bernays. In his seminal works in the field of propaganda studies Crystallizing Public Opinion in 1923, and Propaganda in 1928, he distinguished “propaganda” from what he called “impropaganda”: using propaganda techniques not in accordance with good sense, good faith, or good morals.1 The term, sadly, did not catch on and “propaganda” ceased to denote persuasive action and acquired its notorious negative meaning. The researchers *

The views expressed in this chapter are those of the author alone and do not necessarily reflect the views of the International Criminal Tribunal for the Former Yugoslavia or the United Nations in general.

34 Propaganda, War Crimes Trials and International Law

that studied the mechanics of propagandistic action, techniques and tools applied in order to change or modify (mass) behavior, often had to emphasize the need to devoid the definition of propaganda from possible value judgments. As Roger Brown put it, half a century ago: Persuasive efforts are labeled propagandistic when someone judges that the action which is the goal of the persuasive effort will be advantageous to the persuader but not in the best interests of the persuadee. There are no objective techniques for determining the best interests of the persons involved in a persuasive effort. Consequently the social psychologist does not decide whether or not a given effort is propagandistic. Propaganda comes into psychology as a judgment made by others. We can study propaganda as we can study good and evil. We don’t make the judgments but we can study the phenomena so judged.2 However we specifically name our point of interest, all these keywords share a certain common ground in the nature of the criminal act which they denote. In the case of propaganda, this issue is arguably one of the most complex challenges encountered by contemporary legal philosophy and its codification. Therefore, I will conveniently bypass this domain of my incompetence and use the broadest formal qualification, the one of indictable propaganda, whatever its specific legal formulation is. The term would exclude a majority of garden-variety instances of propaganda that impregnate modern, consumer society, yet it preserves an important indicator—that it is a variety of criminal action recognized by law. As such, it should be analyzed in order to gain a better understanding of its dynamics and effects that are decisive for potential legislation. Hereafter, I will use the term “propaganda” in this specific sense of its “indictable” strain. That brings us to the “bottom-up approach.” The term is widely applied in contrast to “top-down approach,” designating a direction in the process of constructing a complex system. The former approach would start with the most basic, component parts, building larger and larger modules until the overall structure is completed. The latter starts from specification of larger units, breaking them down into their constituent parts and proceeding in the same way with each of them until reaching some predetermined bottom level of reduction.3 Instead of the term “approach,” I opt for a more modest and accurate term “perspective.” “Bottom-up perspective,” therefore, suggests a particular view of a large and complex structure as it appears from its most elementary level. Here, the structure refers to a structure of a legal case, an entity that integrates all components required in legal proceedings for a hypothetical case of indictable propaganda: from collection and acquisition of the evidence to final legal adjudication. In this sense the division to “upper” and “lower” region also reflects the process of development of a legal case.4 The upper region is epitomized by courtroom events, a legal battle involving claims and facts of different probative value and their interpretation, elucidation

The indictable propaganda: a bottom-up perspective 35

of existing body of laws and legal guidelines, etc. This is the place where precedents are examined, qualified, or redefined within the accepted philosophy of law. The realm of the “upper level” is based on a conceptual network of legal propositions—it is a perspective of attorneys and legal experts. From the standpoint of this conceptual realm, the very phenomenon of propaganda, as it appears in reality, is observed from the “top down” perspective. On the opposite side is the region where the building blocks for the legal structure of a propaganda case are to be recognized and collected and this perspective presents “the analyst’s view.” It is a “bottom-up” view, one less vocal and entirely absent from many studies dealing with propaganda. It is the region predominantly populated by investigators and researchers who are, in the case of propaganda, more appropriately named as analysts. This is where we encounter an interesting and not so obvious loop. It is useful to summarize how the probative instances of propaganda, which are to be presented in legal proceedings, “came to be” in the first place. In other words: all those famous speeches, articles, or broadcasts quoted in indictments and discussed in scholarly papers—how did they enter the arena of litigation? The obvious (and very simplified) answer would be that in the process of investigation various pertinent open sources are examined and analyzed, instances of contentious nature are selected and these are subsequently passed to legal experts who would include them in material for further legal processing. In other words, analysts focus upon instances that fit the requirements of legal experts who would incorporate them in the corpus of “upper level” argumentation. The very selection process, however, is significantly determined by a more or less explicit “shopping list” suggested or compiled by legal experts. What particular items will be included in the list directly depends upon the working theory of propaganda that they intend to utilize in the process. In an ideal case, features of propagandistic actions should be studied by analysts who would provide that knowledge to legal experts. This knowledge would be reflected in the approach subsequently adopted by the prosecution. In return, the adopted approach will determine the analysts’ “shopping list” for that particular case. The difficulty is that the realm of legal acts and realm of propagandistic actions have very different dynamics of development. The bottom-up perspective offers a specific insight into the increasing gap between the two. The position of the analyst offers an opportunity to see the changes introduced in modern propaganda, and the limitations of the existing, “traditional” approach to it, based on decades old propaganda practices. The study of those changes should help in creating a better framework for legislation of indictable propaganda.

Challenges imposed at the upper stratum of the propaganda case structure Several elements have a significant impact upon the outcome of potential propaganda-related indictments. Some of them are a consequence of the changes

36 Propaganda, War Crimes Trials and International Law

taking place in the reality in which both propagandistic action and its legal sanctioning are taking place. Some, on the other hand, are based on what Gaston Bachelard calls “epistemological obstacles,”5 amplified by their legal codification. In the most general sense, propaganda cases have to deal with the issue of epistemological credibility of the science(s) providing relevant expertise, since this is the critical point of the overall legal enterprise and the one most likely to be challenged. Several sciences are among the major weapons in a forensic toolbox, almost all of them descendants or close relatives of “hard sciences” (such as physics or chemistry). In short, these are sciences that can stand rigorous scrutiny of their findings based on the established principles of scientific research. They are all perceived as “hard” because of the widespread notion of science “discovering natural laws.” In other words, their findings are almost indisputably true, at least to the measure of certainty expected in a courtroom. In that sense, the hard sciences would be determined by the proximity of the domain of their analysis to layman’s experience. The colloquial distinction between “hard” and “soft” is based upon the principle that the softer the science, the larger the margin of its errors and uncertainty. Starting at the “hard end” with the deterministic, predictable, inanimate world of mechanics governed by Newtonian laws, we would move “softwards,” reaching the world of biology, and then the even more elusive world of psychology and behavioral sciences. Although psychology is generally perceived as the “softest” among sciences, even this domain has regions of varying “tangibility.” On the harder side is individual psychology, and experts from this domain frequently feature in very complex cases. Individual psychology is properly recognized among hundreds of specialized forensic sciences. However fluid and, in the ultimate sense, “intractable” an individual’s psychological world is, it is still intuited that a personality can be defined through a finite number of features and interactions. Given proper expertise, it should be possible to accurately render a person’s mental workings. Our experience in “folk psychology” encourages our judgment about the readability of another person’s mind, and that is why individual psychology is perceived as resting on (relatively) firm ground. Certainly much firmer than the place allotted to the science that should be, by definition, invoked in propaganda cases—social psychology. Social psychology is the science that deals with the intangible mind of an intangible entity producing tangible effects. Although social psychology is (still) conspicuously absent from the lists of forensic sciences, the fact that more and more legal attention is paid to gravest crimes committed by groups against other groups indicates that potential future trials will address the instances of a particular mass behavior that require an explanation of a forensic expert in social psychology. The fact that softer sciences deal with more complex realities than those studied by their harder counterparts explains the comparatively diminished certainty of their findings. The language for expressing the measure of that (un)certainty is the language of statistics, which brings us to the problem of the language in which certain scientific findings are articulated.

The indictable propaganda: a bottom-up perspective 37

Having said that, it should be stressed that this issue is not so much about “disciplinary jargon.” Let us consider the case of “innumeracy,” the term popularized by John Allen Paulos6 as a numerical analogue to “illiteracy.” It denotes an inability to comprehend quantities and their relations beyond a certain magnitude (determined by both our experience and our mathematical imagination). The issue has received proper attention with the appearance of DNA matching technology. In a simplified form, it revolves around the question of whether the odds of some event taking place (or not) can be translated into “beyond reasonable doubt,” i.e. what is a quantitative measure of legal certitude. The history of the introduction of various sciences in their forensic function teaches that the process is not as smooth as one would expect given the basis of the newcomer’s merits and already existing credibility among the peers within the scientific community. In that sense it is incomparably easier to accept the ballistic expert’s testimony that a shot was fired from a certain place, than the testimony of an expert microbiologist that an evidentiary sample of blood does or does not belong to a certain person. We have considerably less experience with anything that could serve as a model for understanding the DNA matching procedure. Some of the important claims involved turned out to be seriously misguiding.7 It took several years before the admissibility of DNA sample matching was seriously challenged in the courtroom, contributing to numerous improvements by defining a framework for evaluating the probity of evidence, which helped to re-establish the procedure’s forensic credibility.8 Yet, the laudable effort to advance standards for admissibility of expert evidence in the process of establishing the truth reached the point when the idea of truth itself is questioned and conventional realism collided with postmodern phenomenalism—an issue that will as anticipated haunt prosecutors for some time to come.9 It is hard to think of any psychological finding that could produce a probative effect comparable to the “hard evidence of a hard science.” Moreover, the reasonable estimate of the chance that a certain psychological finding or conclusion is wrong cannot compete with analogous odds encountered in findings of physical sciences.10 This does not imply that the results of “soft sciences” should be taken with a pronounced degree of skepticism, rather that our measure of credibility should be adjusted to the nature of phenomena explored by a particular science. The abstraction of its objects (attitudes, beliefs, values, motivation, groups, individuals within a social context, their communications and different forms of collective behavior, etc.), and the statistic language in which its findings are articulated, are among reasons for the absence of social psychology from the set of favored scientific instruments applied in litigations.11 In order to compensate for a lack of reliability of “soft sciences” that could match the probative power of findings typical of the “hard sciences,” prosecutors might be tempted to search for the most convincing instances, or assume a particular set of tenets that characterize a causationist and correlationist approach. The first presumes that the behavioral reaction is directly induced by a propagandistic action, having a rapid transition between expressive state and behavioral

38 Propaganda, War Crimes Trials and International Law

response, while the latter view sees the effects of propaganda as gradually evolving through a series of interceding steps.12 While the scope of casuistic examination is typically microscopic and the performative component of propagandistic action is self-evident, the correlationist view is predominantly macroscopic and the performative content “derived” from the context.13 In a very instructive essay, Jean Francois Gaudreault-DesBiens recognizes that the rational framework (heuristics) of the causationist approach is the curative logic of imputation, while the correlationist perspective is inspired by a preventive logic of risk management.14 The causationist perspective promises a more convincing argument, taking a step further from the qualification of the propagandistic action in the sense of an inchoate crime. Yet, it has to accept that the very concept of causation is a construct, not a given, “brute fact,” introducing a significant degree of elusiveness in the argumentation that invokes it. The correlationist approach is more cautious (or less ambitious), but by all means more promising in light of the nature of propagandistic actions characteristic of the information age. In times of media infancy, each particular type of media that entered social reality prompted some sort of regulative, legal response. As Howard H. Frederick has pointed out, the Gutenberg printing press led John Milton to call for a “right to freedom of expression,” Morse’s invention of the telegraph prompted the creation of the International Telegraph Convention, and the development of wireless radio led to the International Radio Telegraph Convention.15 The “radio wars” of the 1930s clearly demonstrated the power of public broadcasts and led to the famous “International Convention Concerning the Use of Broadcasting in the Cause of Peace.” A feeble attempt to establish an Act that would prohibit propaganda programs inciting either to war against another signatory party or to “acts likely to lead thereto,” the Convention was formulated within the framework of the League of Nations in September 1936, and came into effect in 1938. The appearance of television and its potential did not escape attention of propagandists. As early as 1934, Joseph Goebbels, the notorious master of propaganda and its devoted champion, held his famous speech at the Nuremberg Rally,16 a speech that even today captures, in an impressive and exhaustive manner, all substantial features of propaganda within the media environment, as well as its political purpose and methods of implementation.17 By the time the name of Marshall McLuhan became a buzzword of the day, the phenomenon of engineering mass behavior through media had already gained unprecedented complexity and had inconspicuously fused with the reality of the modern world. With the rise of the “information age,” propaganda has gained a prominent place in matters of warfare. Frequently, it appears dressed up as counter-propaganda, usually meaning “our, and therefore good and honest” propaganda. The diffusion of the border between domains of “internal” and “external,” typical of the information age, is well understood among propaganda creators and analysts:

The indictable propaganda: a bottom-up perspective 39

The anticipated wars of the future will require Public Affairs to actively launch counter-propaganda operations. Such initiative will be critical to gaining and maintaining public support in the global information environment of the future. The Information Age is merging both internal and external audiences. Therefore, we should accept that counter-propaganda messages borne in the modern media atmosphere would impact both the enemy and friendly public.18 In an environment impregnated by messages,19 we are facing new types of propagandistic actions. Now, the main message can be modularized and “distributed” into different channels of the communication network. These “submessages” complement and reinforce each other but none of them, taken separately, reflects the entirety of the main message. The main message is assembled in the recipient’s mind in an oblique way—as a center of “narrative gravity” of individual submessages.20 This has serious ramifications for the process of investigation and effective legal approach to indictable propaganda. It is reasonable to assume that, as in any human endeavor, the cost/benefit calculation plays an important role in deciding which approach should be taken in a particular propaganda case and what kind of evidence would have desired probative value. Some desiderata frequently feature in the process of this strategic choice, notably: “The simpler, the better” and “Beware of Occam’s razor.” The first strives for a paradigmatic instance, a “smoking gun” that would effectively portray all other, unspecified instances. The latter serves as an epistemological umbrella against involvement of theories whose complexity resists a simplification or could be easily challenged on Popperian grounds.21 Before addressing those issues in more detail, let us clearly state the theoretical presuppositions that we take for granted in propaganda analysis. The epistemological soundness of the entire analytical enterprise critically depends on these working assumptions. Those that I believe to be pertinent can be listed in a very simplified form as: 1 Ideas have a decisive role in human behavior, and there is a connection between ideas and concepts, i.e. their linguistic expression. 2 Ideas tend to form associative clusters reflected in conceptual clusters. 3 Media present the most powerful vehicle for the dissemination of ideas and the formation of their clusters, and therefore are a critical part in cultural ecology. 4 Disseminated ideas can influence public opinion in a statistically significant measure. 5 A change in public opinion indicates that a similar process took place in a statistically significant number of individuals—the process of a specific restructuring in the network of ideas and associated values and beliefs. 6 Propaganda, in its broadest meaning, assumes activities in engineering human behavior and steering it in a desired direction. In a value-loaded and narrower

40 Propaganda, War Crimes Trials and International Law

7 8

9

10

sense, it is assumed that the induced behavior is not to the individual’s own benefit but to the benefit of the propagandist. This is a view that emphasizes a manipulative aspect of propaganda, i.e. its viral impact upon an assumed “free will.” Media are the predominant source of information, directly shaping the subject’s “personal ontology.” The subject’s behavior is consistent only within his “personal ontology.” That domain can be invaded and inhabited by entities that the subject rarely or ever had any direct experience with and is unable to scrutinize in an empirical sense. This heteronomic input creates space for diverse beliefs, unverifiable claims, even for concepts with loosely or arbitrarily attached meanings. In a statistical sense, commonly shared clusters of ideas (i.e. concepts that determine one’s discursive profile) constitute a “collective mind.” The expression is used only as a conceptual tool signifying an emergent property that appears in rescaling our analytical perspective from individual to collective level. The collective mind determines collective behavior and media constitute a “neural network” of their relation.22

Propagandistic campaign of national mobilization The Balkan wars are a valuable source for understanding the workings of propaganda and its dynamics within a modern society, as the former Yugoslavia was. Under the circumstances of increasing social anomie, the scope of propagandistic actions that took place before and during the wars had reached the level of national mobilization, propagating through a well developed media network. The study of mechanisms involved in this process are vitally important for the monitoring services that analyze open sources and serve as a tool in early warning systems. It is reasonable to expect that crisis alerts in the future will be predominantly situated in environments more similar to the Balkans than to Rwanda in the 1990s. Their substantial difference lies in the features of their respective communication and media networks. These features significantly determine the shape of propagandistic action. Developed information environments can utilize a variety of media outlets and ensure their mutual reinforcement. In an underdeveloped environment, the possibilities for implementation of a propagandistic action are significantly reduced. In addition, the stages of induction, propagation and saturation in a life cycle of any particular message in those two types of environment by necessity have very different parametric values, just as communicated messages have different half-lives in their breakdown. The Rwanda propaganda cases belong to a dying sort of propaganda, the kind that one could very broadly label as traditional or “poster-type” propaganda. Its dominant feature is a brutally direct approach and transparency, i.e. the subject is fully aware that he is addressed with propagandist’s intent to influence his attitudes

The indictable propaganda: a bottom-up perspective 41

and persuade him of something. Of course, this type of propaganda will continue to persist, finding its proper place within the overall network of propagandistic activities, i.e. among those available for a rapid mass engineering of social behavior when time required for more thorough influence is lacking. However, its place will not be a dominant one anymore, and it is to be expected that the “postertype” propaganda will appear less frequently, and mostly in regions characterized by underdeveloped communicational infrastructure, insufficient for more demanding propagandistic actions. In the old model, the new message crashes head on with the subject’s inner network of ideas. The new content has to adjust its environment to be integrated into it. In order to resolve potential dissonance, a number of questions have to be answered, and these are formulated on the basis of premises provided by already existing dispositions. In the new model, before the topical issue is introduced, a decisive preparatory phase has to be initiated and developed. Its purpose is to supply answers for questions not yet asked, and premises for conjectures not yet made. The approach is multilayered and introduction of each topical issue is preceded by actions designed to increase the “conductivity” of the recipient’s mental frame for a particular set of ideas.23 The indictable kinds of propaganda assume the form of large propagandistic operations—a concentrated, multimedial and extensive state propaganda conducted in the environment of an informational enclosure, with rapidly growing anomie in its background. With increased incidence of propagandistic actions spreading through diverse types and channels of media, a campaign of isolated events starts to manifest particular patterns in their mutual links and overall dynamics. The largest framework for specifying that particular type of campaign would fall under the concept of “national mobilization.”24 From the standpoint of propaganda analysis, the difference between “national” and “group” mobilization lies in the extent of control that the propagandist has over two fundamental parameters: level of coverage of targeted audience and volume of communication traffic across all available channels/media. In the case of national mobilization, we assume that the propagandist has an unquestionable control over resources pertinent for these two parameters. Otherwise, we are talking about “group mobilization.” The mind of the targeted subject of propaganda is not the mind of an individual whom one encounters “under normal circumstances.” For those lacking firsthand experience of intense and prolonged propaganda’s workings, it requires a considerable effort to be able to comprehend the state of mind of a propaganda victim and understand or empathize with his affections and motivational drives. The growing social entropy, captured in the concept of anomie, triggers the most fundamental survival strategy when faced with an unknown threat; consolidation in a cohesive social group. From that moment on, we are dealing with group dynamics, which is by no means a mere extension of individual psychology. In other words, an individual becomes attached to the Gaussian curve of normal

42 Propaganda, War Crimes Trials and International Law

distribution, occupying a particular place and providing a substance for probabilities that govern the world of group behavior. National mobilization primarily exploits a particular interpretation of what the common identity is and what the consequences of its corrosion would be. That process develops a structure of criteria that plays the decisive role in an “us/them” dichotomy. Its intensity increases with the level of social entropy (anomie). Studies in group dynamics provide a significant conceptual framework25 for analysis of propaganda implemented in the process of national mobilization. A number of researchers, ranging from experienced scientific veterans to their young and talented followers, have studied various aspects of national mobilization, focusing mostly on Serbia in the time of Slobodan Milosˇevic´.26 That by no means implies that very similar propagandistic mechanisms were absent from other regions controlled by other decision-makers; they were simply filled by a different semantic content. What makes national mobilization in Serbia (and the role that propaganda played in it) an exceptionally instructive source of knowledge is the fact that the process was initiated and advanced unhindered by the state of war. In other words, it followed its own agenda, with no constraining deadlines imposed by the rapidly developing reality of war that other propagandists in the theatre had to face. In order to influence changes in beliefs, attitudes, and ultimately, behavior, the propagandist had to utilize the full power of the existing media network, securing and maintaining control over the most critical channels. We can represent the most typical channels and media types ranked according to the level of their influence and accessibility, i.e. as a hierarchy of preferred channels of communication from the standpoint of a propagandist (see Table 1.1). In his valuable study,27 Srbobran Brankovic´, expert in public opinion research, reports about empirical surveys conducted by the Center for the Research of Public Opinion, Program and Auditorium of Serbian Radio-Television. The findings from the surveys of 1990 and 1994, on the population aged over 10, reveal a significant shift in the public preference for information sources (see Table 1.2). These findings graphically illustrate the changes induced by a process of rapid escalation of social and economic crisis as well as the state’s involvement in the war. On the one side, the media consumers could no longer afford newspapers. Even more importantly, the rapid developments in the region were changing from hour to hour and, by the time printed media reached the hands of their readership, the news would already be obsolete. Subsequently, even free distribution of state controlled newspapers could not influence the pronounced shift of the public towards electronic media (controlled by the state as well).28 The research also proved another important point known in social psychology that, lacking relevant knowledge, people tend to fabricate or reconstruct missing facts, so that these support their already existing convictions. A survey conducted in 1992 included the question: “Who shelled Sarajevo from the surrounding hills during months of May and June?” The majority of respondents (38.4 per cent) stated that the city was shelled by the Muslim-Croatian forces. The second most

The indictable propaganda: a bottom-up perspective 43 Table 1.1 Characteristic media exploited in propaganda activities Channel/Medium

Varieties

Characteristics

Basic oral

Rumors Preaching Music/lyrics Rally speeches

Typical for underdeveloped environment having high illiteracy level. Limited reach and initial degree of penetration, compensated by high replication level.

Advanced oral

Round tables Public debates Lectures Conferences

Characteristic for developed environment. Limited reach, having particular importance as an intermediary phase in induction of topics into public discourse.

Printed

Periodicals Posters Leaflets Banners Books

Conductive for multilayered communication, selective (narrow readership profile) due to dissemination constraints.

Film

Having limited reach and a number of technical prerequisites, it is presently useful only for maintaining a background tenor in propagandistic action and reinforcing established stereotypes. Rapidly moving from movie theaters and “projection screens” to television broadcasts.

Radio

Widely accessible, traditionally perceived as the most reliable source, optimal for a sustained high traffic of messages in diverse formats.

Television

Very accessible. Optimal for an intense, pulse flow of messages in the widest range of overlapping formats.

www

Topical sites and user-generated content (forums, blogs, social networks, etc.)

Narrow accessibility, creates a loop with the oral channel. Presently, highly selective re: consumer’s profile. Still vulnerable. Yet, it serves as an important outlet in feeding other channels. Its virtual nature and “de-territoriality” makes the cyberspace the major battleground in propagandistic wars to come.

Table 1.2 Media preferences of the Serbian public in 1990 and 1994 Regularly follow

1990

1994

Television Radio Newspapers

57.6% 40.8% 47.5%

76% 62% 13.7%

44 Propaganda, War Crimes Trials and International Law

frequent answer (22.5 per cent) was that it is not exactly known, while the (correct) answer that it was done by the Serb forces was only in third place (20.5 per cent). The results also demonstrated that the level of (in)accuracy depends on the respondent’s primary source of information (see Table 1.3). The ensuing shift of the public from printed media towards radio and television is of vital importance for the propaganda analyst. It strongly suggests that the domain of electronic broadcasts will be the major theater of propagandistic action. In order to analyze messages one has to have them recorded, which brings us to the issue of information retrieval. The most important change that took place since the 1990s, from the perspective of the propaganda analyst, is related to the unprecedented rate of expansion of electronic open sources on the internet. Major media established their regular sites and maintain their archives, commercial information brokers (such as Lexis/Nexis, Factiva, etc.) offer their huge databases, thousands of topical sites appear (and disappear) on a daily basis. This has enabled analysts to apply massive and more systematic research by utilizing modern information technology and tailored software tools. The internet itself offers powerful services and resources for such an endeavor: from general and specialized search engines, topical directories, to different portals leading to huge information repositories of the “invisible web.” Equally important, the internet provides means and services for establishing an accurate profile of each source (internet site), helping the analyst to gauge its credibility and possible bias. This cornucopia of printed information accessible in electronic format obscures some characteristics that are detrimental to the analyst. Available resources contain only the entries from major media. It is true that their messages often give a “key note,” but in order to assess their impact, the analyst has to follow their spread and reverberation in the lower strata of the overall media network, in smaller (but numerous) media outlets. These are, however, absent in the abovementioned resources (for being too local, judged as insufficiently relevant, having too modest public exposure, etc). The messages contained in electronic broadcasts are even more out of reach to the analyst. Even the most modest printed media is, in principle, retrievable in hard Table 1.3 Public opinion as a function of the preferred source of information “Who was shelling Sarajevo from surrounding hills during months of May and June 1992?”

Muslim-Croatian forces Serb forces It is not exactly known I am not informed

Primary source of information Serbian National TV

Independent Media

45 14 24 17

20 49 20 11

The indictable propaganda: a bottom-up perspective 45

copy. Not so with electronic broadcasts. Recording live broadcasts, and their subsequent transcription and translation, requires enormous resources. With the exception of some specialized services with restricted access (such as FBIS29), there are no services comparable to those providing the electronic version of printed information, and broadcasts effectively remain undocumented for the present needs of a propaganda analyst.30 Consequently, the analysis of propaganda has to make do with content originating from printed media, i.e. with a pale reflection of key actions taking place in the realm of broadcasts. As anticipated, the tendency of effective propaganda is to conceal itself under nonobvious disguises, i.e. to operate through forms that are substantially different from explicit, textbook cases. As an example, it would be a trivial task to compose a text that would be unambiguously qualified as, for instance, a genocide incitement— containing all the elements of a direct invitation to a “final solution,” calling for the obliteration of the targeted “outsiders” to the last living soul—be it man, woman, child, or elderly—invoking graves of “our victimized ancestors,” unsettled historical accounts, memories of suffering and martyrdom, calls for a justified revenge, and spiced up with all the motivational ornaments and adrenaline boosters.31 Yet, such textbook cases, containing unadulterated and transparent forms of indictable propaganda having indisputable interpretation with no linguistic ambiguities and working as a remote-controlled trigger for explicitly ordered gravest crimes, are very unlikely to appear in reality nowadays, particularly not within a single text or piece of evidence.32 The discursive universe in which propagandistic action takes place is not the world of clean-cut assertions and propositions. It is the world of associations, metaphors, connotations and hidden meanings. Instead, it is much more likely to encounter a number of texts where each contains only some elements of such a prototype, but pointing in the same direction when taken together, reinforcing each other through their synergic interference. Whether something is recognized as a proper element of this prototype is a matter for the analyst’s understanding of its connotations and the way it links with other, similar elements in a coherent body of communications. What we encounter in courtrooms are texts that are, in a certain sense, paradigmatic by being the closest to the imaginary “incitement prototype,” most explicit and unequivocal. These are expected to be the least problematic from the standpoint of legal argumentation, but the analyst instructed to look only for them easily might end up empty-handed. The more successful propagandistic action is, the less obvious its “bottom line” appears. Attorneys prefer the simplicity of clear-cut cases but the present reality is seldom willing to provide them. When and if that happens, it would take place at the very late stage of development, when the groundwork of induction was already laid and the process had gained momentum. The edifice of legal treatment of propaganda is still haunted by the ghost of the probative “smoking gun.” However, the kind of large-scale propaganda characteristic of national mobilization cannot be scaled down for analytic purposes. The propaganda process consists of timed instances. They all take place in different media and forms, and constitute a “field of influence” that cannot be reduced to a

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single paradigmatic case. In other words, there is no “smoking gun” instance that would be anything more than an arbitrarily selected illustration for an assumed working model. The alternative approach requires a holistic viewpoint of the analyst, where the shape of overall forest is what matters and its particular trees can only contribute to that shape, but do not individually reflect its features. The analytic shift in scale, from individual instances to the larger unit of their interconnected totality, results in the appearance of emergent properties. Connections between various topics that reinforce each other within the given field of influence reveal topical modules, each having specific semantic repertoire. This modularity of a propagandistic campaign strongly suggests a morphological approach. Recognition of basic modules and their corresponding semantic clusters enables the analyst to tune his queries and steer the research in a productive direction.

Generic scenario of national mobilization Two notable components of the propaganda front-wave in its preparatory stage are linked to topics of history and genetics. We will outline their common framework in order to emphasize the process in which additional elements, by necessity, have to be attached to the initially very simple structure. For Srbobran Brankovic´,33 in national mobilization propaganda has the ultimate goal of securing the “uncontestable endorsement” of the public for the actions taken by the regime. He distinguishes three stages in that process: initiation and attraction; “burning of bridges” (eliminating the possibility of withdrawal once the endorsement is expressed); and, finally, the application of the endorsement (when the full scope of the endorsed ideology reveals its practical consequences, with no possibility for retraction). The project of national mobilization is, in principle, articulated as a reaction to trends or current events seen as leading to disaster. It has to be justified on preventive grounds and therefore its anticipatory capability is the first component that requires an endorsement. For that purpose it does not suffice to anticipate some developments as a mere theoretical possibility (no matter how probable it is); it is crucial to demonstrate that it is grounded in empirical reality. Therefore, the idea of prevention assumes the capability to recognize a pattern of events and processes analogous to those that have already taken place in the past and resulted in dramatic consequences. Not only that it happened once before (which could be just a result of historical circumstances at the time), but the pattern, purportedly, has a historical recurrence. Therefore, the first significant step requires appropriate reconfiguration of history. Being a resource of the “collective mind,” history is a powerful tool for reshaping that collective identity, since it feeds the collective mind with the alleged empirical content. The elementary unit in that historical experience is the nation/ethnos, both in its legal and metaphysical sense. There is much more in the process of recycling historical topics than a mere accumulation of new “historical facts.” The process reinforces a particular form

The indictable propaganda: a bottom-up perspective 47

of reasoning. The more frequent the historical recurrences of the same pattern, the more credible the anticipated events become. Yet, only so many historical events can be placed in objective time. In other words, to be convincing, the “historical events” require more “historical time.” As a consequence, a new kind of “virtual history” is built, and it is sometimes named “romantical history.”34 The idea of ethnos becomes stretched through history to some arbitrary postglacial point in time, assuming the form of a “yet unrealized nation.” An individual acquires national attribution, attained by the historical record of his ancestors being a part of a particular community. In a simplified form, an ethnic community consolidates in the form of a state, within which it develops into a nation. In the process, the concepts of “ethnic” and “national” become almost interchangeable. As a consequence, there are no more constraints in tracing back the collective’s past in history, but this time along the ethnic line, which is taken as strictly biological. The model can be recognized in different cultures and for the sake of generality we will name this hypothetic ethnic group as “Zymians.”35 In order to fully appreciate the impact produced by the connotational shift, us = ethnos = nation, let us note two important dates that are invoked in the process. The first is the date (D1) of the earliest recorded mention of the ethnos by its present name or by its plausible variant, provided by linguistics or anthropology. This date of the earliest reference serves as a timestamp when the ethnos was already recognized as a distinct and specific community by its contemporaries. The second is the date (D2) of the first historically documented state of the given ethnos, acquired from historical records. It indicates the time instance that establishes legitimacy in ascribing the concept of a nation to the community. Before D1 there was a process of conglomeration of individuals of specific (compatible) predispositions. Those proto-Zymians developed into a distinct, coherent social community. Their cultural recognizability, by extension, is assumed to imply a specific “mind set” behind the culture, i.e. a distinct and specific biological substance—a “Zymian gene.” Once it is accepted that cultural features are inheritable, i.e. passed by genes, and genetics becomes invoked in explanation of cultural traits, the overall model of understanding history of the human society becomes entirely organicistic.36 After the idea of genetic distinctness of Zymians is established, it is associated with the idea of the archetypal Zymian, with the ideal configuration of genetic material, paradigmatic for the Zymiankind and their understanding of the Zymiandome. In other words, there is a tacit set of features, an etalon against which each particular instance of Zymianity will be measured. This arbitrariness of measuring makes possible for some (historical) Zymians to be more Zymian (genetically, and therefore behaviorally) than the others. And that includes the possibility that some Zymians are not Zymians at all. They are, at best, non-Zymians pretending to be, for some sinister purpose, proper Zymians. Zymian understanding of human evolution is strictly Lamarckian; acquired characteristics are genetically stored and passed to descendants, and at a certain point in this process of mutation, they cease to have in their genetic makeup anything distinctly Zymian anymore.

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The history of a society is understood in terms of cycles, or repetition of certain patterns in the spirit of the Nietszchean “eternal recurrence of the same” (Die Ewige Wiederkunft des Gleichen). The major shortage in times of crisis is the shortage of a “rationale,” of the know-how for understanding chaotic and apparently unpredictable and uncontrollable events that shape one’s social reality. Finding sense in the overwhelming disorder37 would enable one to act in the most beneficial way for his own purposes. Failure to reach such a comprehension results in the desire for competent and reliable guidance, as well as in the willingness to surrender to that lead. This psychological state is the background on which the engineering of “uncontestable endorsement” works. It is a time of increased proliferation of “factuality.” Facts are offered in abundance and their novelty is attached to narratives of the unknown: neglected, hidden or suppressed historical documents and testimonies, scientific theories, natural facts . . . Their previous obscurity is explained in terms of various intentional or non-intentional causes. The former easily binds with conspiracy theories, while the latter emphasizes the limitations of human knowledge and what it takes for certainty. Therefore, it is possible that “true reality” turns out to be quite the opposite of what was previously believed to be the case. Anomie assumes a dissipating ontology. In its developed stage not only the performative rules and relations between entities crumble, but even the very understanding of entities’ features becomes unreliable and incoherent. As a consequence, the usefulness and applicability of both individual and collective experience become considerably diminished. In terms of evolutionary theory, a large pool of new opportunities arises from the remains of a collapsed social structure. New networks are formed, new entities come to be, and actions are defined (and expressed) in a limbic form of a very narrow cost/benefit calculation. It is not farfetched to compare the social environment in which these new phenomena arise and flourish to the Burgess Shale, a paleontologist’s cornucopia of nature’s most bizarre experiments, where a radical change in the previously stable environment opened numerous empty niches for evolutionary development. One species’ Apocalypse becomes another species’ Eden. This comparison suggests that one of early stages of a developing anomie is characterized by a plethora of ideo-constructs, theories and speculations spanning from matters political, cultural or ideological to the cosmological and metaphysical. In the context of national mobilization conducted under circumstances of escalating anomie, what makes a successful statesman is his ability to recognize the presence of those patterns in time and to counteract them in an optimal manner. The position of an authoritarian leader is simple: he must prove the depth of his understanding of reality by the effects of his (infallible) actions. The ultimate verification therefore lies in reality. However, the description of that reality that is provided by media is controlled and it reaches the citizen in a mediated (i.e. adjusted) form only.38 Therefore, reality’s approval of the leader’s actions is secured as long as its presentation and interpretation are controlled. That “reality

The indictable propaganda: a bottom-up perspective 49

check” ultimately qualifies the leader to exert a causative force in shaping the local social reality under his control. The model requires that repeating historical patterns be situated in an “us/them” perspective, they necessarily involve “others” who feature as the historical doom of the community, even if unspecified. One of the most famous expressions of that “identified pattern” in Serbia was condensed in a dictum that “Serbs have always gained in war what they are to lose in peace,” a slogan repeated countless number of times in the late 1980s and 1990s.39 The recursive historical determinism that rules over the destiny of Zymianhood cannot be presented as an irrevocable damnation (for that would make mobilization futile if not utterly senseless) but as a challenge to be met and, eventually, conquered once and for all. It becomes a matter of a struggle between genes (vehicles of inheritable spiritual determinants) and history (an objective stage featuring the carriers of genes), which transposes into conflict between spirit and matter. What would be a specific genetic determinant that shapes the collective’s identity, i.e. what feature makes this collectivity generically different from other ethnical collectivities? In Serbia, the answer was given in the claim that Serbs are quintessentially “heavenly people,” i.e. those who (genetically) strive for a spiritual, heavenly realm instead of a material, earthly one.40 In consequence, a heavenly-oriented being has impeccable judgment in matters of honor and morality, and by understanding the nature of virtues and vices he is an embodiment of the Kantian ideal of “the starry heavens above and a moral law within.” Yet, the very concept of “heavenly people” also evokes another concept of self-appraisal that emphasizes a group’s superiority—the idea of Übermensch so extensively exploited in German national-socialism. Let it be noted that the oversized selfesteem is particularly vulnerable to manipulation. Placing the in-group point of reference that high will inevitably position an out-group at an inferior level, even if no direct derogatory qualifications of the out-group are given. How does an individual, highly sensitized in all matters ethical, deal with events that critically challenge some of his basic ethical tenets, assumed by his belonging to “heavenly people”? Or, to put it in a more general perspective, how would God-fearing Zymians perceive and explain away their violence over, say, innocent Groomians? We are talking, of course, about civilian victims, noncombatants. The most frequently encountered rationales suggest several key elements. Civilian Groomian victims are, in ultimo sensu, victims of their own leadership, whose refusal to comply exposes its citizens (civilians) to the perils of an armed conflict. If the Groomian government is not dictatorial, but elected by the free will of the populace, then their choice is an expression of support for the actions of their leadership. Thus Groomian civilians become, by default, supporters of the “Groomian cause.” The idea of a supporter is furthermore associated with the idea of paradigmatic gatherings of ardent followers—their public rallies. The supporters become superimposed by a militant and violent crowd, a mob wearing

50 Propaganda, War Crimes Trials and International Law

meaningful insignia and shouting out threatening cries. A supporter becomes an unrealized combatant, a potentiality waiting to realize itself. This view, of course, does not resolve the ethical problem of majority of victimized civilians: women, children and elderly. Therefore, the elderly are guilty for bringing up their children the way they are (as active combatants or “combatants in spe”), the women are a special kind of the rear, “resident paracombatants” and a core of the machinery for demographic dominance. Finally, parents are responsible for their children and subsequently it is their opting for violence that puts their own children in harm’s way. The distinction between combatants and civilians thus becomes effectively erased through inflation of the construct “supporter/follower” (of a particular ideology or a notorious person).

Language in propagandistic action Linguistic debates marked, in a significant manner, national mobilizations conducted in the Balkans of the 1990s, arguing whether people speaking what is presently recognized as Bosnian, Croatian or Serbian41 language actually speak the same language or not (despite the fact that they have no problems in understanding each other). Those fierce disputes took Heidegger’s famous saying that language is the “house of being” (Die Sprache ist das Haus des Seins)42 to its extreme, where language ceased to be a communication tool and became a property that can be endangered by an unauthorized use by “the other,” or even stolen. This aspect of language is beyond our interest. The analyst will encounter the issue of language by observing how it adapts to the changing reality. Certain terms become value-loaded, infused by additional meanings provided by the overall context of the current discourse and skillfully used by various spin-doctors and perception managers. Some expressions gain the power to identify the political profile of their user, some acquire almost a mantric status of desirable and obligatory discursive formulas. In an ideal case, this would be the research domain of critical linguistics43—the linguistic theory of action that analyzes applied rhetoric in light of the extratextual, social dimension of language. Critical linguistics holds that all texts are influenced by both linguistic and socially determined factors. Therefore, their exhaustive understanding, which would expose the ideological processes involved in their production and reception, can be achieved only by means of an intertextual analysis.44 Regrettably, this is a domain of research requiring a time-frame much better suited for an academic environment than for the preparation of a particular legal case. In addition, this kind of analysis provides qualitative findings, which leaves the question of their credibility open. A number of other, promising research methods (notably content analysis45) also share similar time constraints, although their results do have quantitative, statistical expression.

The indictable propaganda: a bottom-up perspective 51

Still, some methods used for monitoring purposes that utilize rapid computer processing of the raw textual material can offer results useful for legal argumentation. Keeping track of specific word occurrences, of their clustering and semantic affiliations is certainly one of them. It should be noted that every automated procedure is always only an aid to the analyst, by presenting raw data in a format that can be subjected to analysis. The process assumes a number of analysts having knowledge required for resolving philological, semiotic and hermeneutic issues. This prerequisite implies that their linguistic capabilities are not limited only to the knowledge of a standard, literary form of a particular language, but includes the knowledge of its non-standard variants, colloquialisms, and relevant lingo. In short—the analyst should also be knowledgeable about social and cultural factors that impregnate and modify a living language, enabling him to deconstruct metaphoric content, euphemisms and intentionally disguised meanings.46 Commenting on Bachelard’s characterization of metaphors as epitomizing “verbal” epistemological obstacles, Gaudreault-DesBiens notes that metaphors used for explanatory purposes often pretend to explain complex phenomena while actually obscuring their complexity. “These metaphors therefore act as intellectual ‘sponges,’ sucking complexity from the analysis and pre-packaging the phenomena they are supposed to describe in such a way as to give the impression that they describe them accurately and completely.” They cease to function as simple figures of speech and acquire a status of “ideal reality”—factualization of some representations in the realm of social relations. “Once believed, [these metaphors] cease to be representations, strictly speaking, and enter the content of social relations.”47 A simple illustration can show the importance of properly assessing the connotational import effected by the substitution of terms or their semantic shift. The Bosnian-Serbian-Croatian (BCS) term “Shiptar” was until 1980s used as a pejorative name for members of the ethnic group officially called “Albanians” or, to avoid confusion with nationals of Albania, “Kosovo Albanians.” At that time the public use of the term “Shiptar” could (and would) be interpreted as a direct nationalistic insult. Yet, with the escalation of unrest in Kosovo and Milosˇevic´’s takeover of power in Serbia, the term “Shiptar” penetrated the media, often in the context of elaboration of “us being victimized by them,” where “they” (the villains) would be depicted by this loaded term. The political rationale behind the tacit approval of this practice was that the perpetrators of crimes against “us” are not Kosovo Albanians as an ethnic group, but only “some among them,” an extremist minority with subversive and malevolent intentions. Presumably, denoting them as “Shiptars,” the innocence and loyalty of other ethnic Albanians would remain untarnished. Yet, by the 1990s the term effectively became an official name for those who used to be “Kosovo Albanians.” It entered media reporting and official documents as a generic term for a particular ethnic group—a term still heavily loaded by inherited negative values and racist stereotypes about Albanians. Now, the justification for such a use of a traditionally pejorative term (and its official use

52 Propaganda, War Crimes Trials and International Law

effectively legitimized its pejorative content) was found in the fact that the same term is used by the Albanians themselves as the term for their own ethnicity. The fact remains, however, that the semantic content of a term depends on its semantic environment, i.e. one and the same term could have two very different connotations when used within or outside a particular social/cultural community. Consider specific terms used in contemporary Afro-American subcultures. Within a group a particular way of naming another member of the group might be not only acceptable but even value-loaded as a sign of the communicator’s recognition of the addressee’s merits and virtues, whatever they may be. Used by an outsider, the same term could trigger unpredictable reactions. In a comparable way, the term “Shiptar” for the Albanian speaker signifies a member of the Albanian ethnic group. When used by a non-Albanian speaker, the term’s meaning is determined by the semantic features of the term within the speaker’s own language. Therefore, when used within the Serbian language, the term “Shiptar” is perceived by Albanians as offensive and insulting because it was traditionally used in that language in its derogatory sense, regardless of its meaning within its original linguistic environment of the Albanian language. In some cases, the propagandist’s desire to charge limited textual material with as much of a value load as possible causes a sort of grammatical collapse, betraying the communicator’s major intention—not to inform but to influence the values and attitudes of the recipient. In order to demonstrate a radical position regarding some issue, propagandists tend to populate public discourse with highly charged terms, and there is always a point of saturation when discourse cannot coherently absorb any more new terms. In order to increase its capacity and to maximize its value charge with a minimum of linguistic means, propagandists resort to adverbial pile-up. The logic is simple: if the attribute A1 is fitting for the purpose, and so is A2, then both of them taken together must be even better. The language itself tolerates compound adverbs, where different terms are conjoined in a hyphen-separated format as in “Judeo-Christian,” “Greco-Roman,” etc. In hands of a propagandist, not only the number of conjoined terms tends to get larger, but frequently their connection is incoherent, if not utterly ludicrous. Thus, the “Vatican-Freemason-Commintern’s conspiracy” would be a conspiracy of Roman Catholic Church, Freemasonry and Stalinists. What particular common ground they could share in order to jointly conspire remains unknown (and, for the purpose, irrelevant). What remains is the implication that they joined their efforts because their sole individual purpose is to hurt one and the same particular community: the one of the communicator. Tracking down the history and frequency of terms that enter the public discourse endows the analyst with valuable insight in the social “background processes” that take place in the environment of the given language.

The indictable propaganda: a bottom-up perspective 53

Choice of the working propaganda theory Which theoretical basis will be used in a given propaganda case depends on whether the choice is to be made for the needs of the upper stratum (legal preparation) or lower stratum of the case (scrutiny of propagandistic actions). The first perspective is mainly concerned with crossing the gap between words and deeds, i.e. linking speech and action. John Austin, with his theory of perlocutionary acts, John Searle, with his theory of speech acts, and Juergen Habermas, with his theory of communicative action, are only some of scholars whose names might be invoked at this level. At the more basic level, attention is paid to the theories that help us in understanding how a given propagandistic action works, what makes it effective and which elements it requires in order to produce desired results. In order to understand the subject’s receptivity to a particular message, one has to understand the “mental landscape” that is subjected to modifications brought about in the course of the subject’s personal history. There are no tabula rasa individuals; each of them is shaped by various and simultaneous processes that take place in empirical reality as much as in the less transparent realm of inner cognition. We are permanently building “reality drafts”48 that strive to be consistent, coherent and reliable. These contain the “rationale” of the world and provide deductive scaffolds for its interpretation. In order to maintain its coherence, we are engaged in a negotiating process of trading facts for rationale or vice versa. We will either intervene on facts in order to fit them into the rationale, or adjust the rationale so that it can absorb and accommodate presumably unadulterated facts. This process is at the center of Cognitive Dissonance Theory (CDT).49 The central tenet of the theory is that every individual strives to feel consistency between actions and beliefs, i.e. the state of consonance. The theory holds that influence is an intrapersonal event occurring when incongruence between our attitudes and behavior creates a state of tension. That tension is resolved by altering either our beliefs or our behaviors, therefore effecting a change. The theory uses the concept of schemata, cognitive constructs utilized for organizing and integrating new information in an already existing structure of previously understood and elaborated experiences. If the new information is inconsistent with the schemata at hand, the subject experiences a dissonance, the state of inner imbalance. The states of dissonance differ by their magnitude, i.e. some forms of incongruence produce greater discomfort than others. The level of dissonance depends on several variables: perceived importance of the issue, proportion of incongruent beliefs in relation to consonant beliefs (dissonance ratio), and the ability to rationalize (or justify) the dissonance. The subject can avoid, or at least minimize, dissonance by enforcing selective exposure (avoiding information that can cause dissonance), selective attention (attending only to the information that reaffirms existing beliefs), selective interpretation (potentially ambiguous information is

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subjected to an interpretation that brings about results consistent with already established beliefs), or selective retention (only information upholding existing views tends to be retained, while information that creates dissonance is dismissed or forgotten). Another important and powerful theory relevant for the research of propaganda is the Social Judgment Theory (SJT). The theory50 recognizes the fact that the individual’s stated position about some issue does not fully reflect his attitude about the issue. Formulation of that attitude cannot be exhausted by a single statement, providing that the issue is complex enough to allow a wide range of different views (judgments). In other words, there are also other views (even discrepant ones) that are endorsed or at least found acceptable by the individual, besides the one that was stated as his position. In the terminology of the theory, the range of these acceptable judgments constitutes the latitude of acceptance, and the individual’s favored choice among them is designated as the standard stance or anchor. The same selection is applied for those views that the subject rejects, forming the latitude of rejection. Those judgments that are not included in either of these two selections constitute the latitude of noncommitment. The three latitudes correspond to attitudes of preference, rejection and indifference. As a theory of influence, SJT explores how a particular persuasive argument (message) affects the recipient if it falls within his latitude of acceptance, or latitude of rejection, or latitude of non-commitment. For each of these cases it explores whether the message will influence the existing attitude and in which direction. The results show that we evaluate persuasive messages on the basis of our existing categories of judgment, in particular relative to our anchor position. The degree of our ego-involvement in the topic that the message addresses determines the size of our latitudes. Individuals that are more ego-involved, i.e. personally concerned for the given issue, will be notably more opinionated (smaller latitude of non-commitment), and reject more positions (larger latitude of rejection) than others unconcerned for the issue at stake. Researchers examined two characteristic distortions in the subject’s assessment of the message. The first one is described as the result of contrast effect, when a message that falls within the individual’s latitude of rejection is perceived as further away from the individual’s anchor than it really is. The assimilation effect addresses the opposite distortion—the message that falls within the individual’s latitude of acceptance is perceived as closer to the individual’s anchor than it is. The two effects amplify the subject’s rejection or acceptance, depending on which of the two latitudes the message falls. These distortions indicate that the message (incoming information) is adjusted in order to fit better within our existing categories of judgment. Persuasion is absent if the message falls within the person’s latitude of acceptance. In that case, the message only reinforces the subject’s already existing attitude. Only smaller differences between the position of the subject’s anchor and the position proposed by the message will cause change. Persuasion occurs only

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if the message falls within the subject’s latitude of non-commitment or at the extreme points of the latitude of acceptance (borders of acceptance). Social judgment theory presents a significant tool in propaganda analysis. In the first place, the theory shows that successful propaganda does not target those that support the position proposed by the propagandist’s message, nor does it target those that are actively opposed to it. The former will only reinforce their attitude, while the latter (due to boomerang effect of the contrast) will distance themselves even more from the proposed position. Propaganda targets noncommittal individuals, or those that barely accept the proposed position. What propaganda is attempting to do is nothing more than to shift the subject’s “anchor belief” to its neighboring position, in a desired direction. Subsequently, this newly acquired position will be itself “driven” to the next, slightly more pronounced attitude. It is important to note the auto-catalytic effect of the process. Shifting the individual’s anchor position in a desired direction opens space for a more favorable status for the proposals to come than they would otherwise have received. With sufficient time, after a number of graded proposals were received, evaluated according to the subject’s revised anchor position, and accepted by the subject, these incremental steps substantially transform the subject’s attitude about a given issue. In order to put it in the perspective of mass propaganda campaigns, one should note that our judgments (evaluation) are frequently mutually conditioned and linked. The shift of the anchor position regarding one complex issue (no matter how small that shift is) will also cause some other anchors, linked to other issues, to adjust to the newly acquired configuration. In addition, a propagandistic campaign advances through a deluge of messages (proposals) that mutually reinforce one another, introducing new ideas as entities in the recipient’s personal ontology, as well as the rationale that binds them in the common nexus. Under those circumstances, once the propagandistic action gains momentum by completing the priming and induction stage, its effects develop in a rapid manner. Once the shift is made in the level of acceptance, the subject has to account for the difference between the actual, newly acquired view and the previous one, and interiorize it, i.e. rationalize and justify the induced change. Cognitive dissonance theory addresses this process of transformation or “mental tuning” to the newly adopted attitudes. Instead of outlining other theories that can be productively applied in analysis of different aspects of propagandistic action,51 we will shortly illustrate the importance of selecting a suitable theoretical perspective by considering an element from the Milosˇevic´ trial, where the indictment also included his famous speech held in Kosovo, at Gazimestan on 28 June 1989. There, among other things, he said: “Six centuries later [after the battle against Ottoman invaders, held at that place in 1389], again, we are in battles and quarrels. They are not armed battles, although such things cannot be excluded.” This particular fragment was interpreted by many as an indirect threat and became paraphrased by media time after time with a varying degree of (in)accuracy. On the basis of this segment, the entire speech was

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qualified as a war-mongering sermon. One researcher, Francisco Gil-White, who was teaching the psychology of ethnic conflict at the University of Pennsylvania, decided to analyze it in more detail but faced the problem in finding a reliable integral translation. After he finally succeeded (eliminating a number of purported “translations” in the process) he concluded that the main purpose of the speech, in his view, was “. . . to promote understanding and tolerance between peoples.”52 The argumentation of this conclusion, standing in stark contrast to the general public opinion, was based on the content of the rest of the speech (addressing the need for unity, dialogue, common prosperity, solidarity and cooperation among people, etc.), that ended by the speaker shouting “Long live peace and brotherhood among peoples.” This is a good example of the way that an applied theory can influence the analyst’s perspective. Read in its entirety, the speech is by no means an instance of war-mongering, hateful oration. Although it does hint at the possibility of armed conflict among different parties within Yugoslavia, it is certainly not “smoking gun” evidence for Serbian preparations for the armed operations that began in 1991, as it was frequently alleged to be. Still, this short passage cannot be disregarded from the standpoint of its effects, and the priming paradigm helps us to understand that. The overall context of the speech was centered on the key topic of the decadesold political vernacular, prominently featuring the idea of “brotherhood and unity” among the peoples of Yugoslavia. The speech copiously exploited stock phrases worn out by endless repetitions, drained of meaning and reduced to the white noise of political correctness. For the local public these perfunctory utterances had little more than a decorative function. Not so with the contentious segment. That was the first time that a prominent political figure mentioned in public the possibility (no matter how remote or realistic) of armed clashes within the country, and by that legitimized the topic in the public discourse. In the words of Steve BoothButterfield, “Priming is essentially a setup activity where you do something that gets a person fired up or poised to think about something.”53 The priming introduces a topic for an attitude. Once the attitude is available and activated, propaganda can take over the task of shaping it in a desired form. It is instructive to note the effects of the embedded contexts in this case. The totality of the speech provides a context for the interpretation of any of its segments, but at the same time the speech itself is a part of the larger context created by other political speeches. Against the backdrop of the rest of the speech, swamped by the information-poor rhetoric clichés, the two quoted sentences spoke volumes. They introduced the idea to be digested by the populace, and the results of ensuing attitudes followed soon after.

Baseline and referential points Most of the issues that we have touched upon in the previous paragraphs predominantly relate to induction and the early stages of mass mobilization. In a

The indictable propaganda: a bottom-up perspective 57

sense, we are interested in the development of the process up to the point when a particular set of messages appear in an environment prepared to absorb them into an action. These are the kinds of messages that the traditional approach to propaganda likes to present in courtrooms, the “smoking gun” evidence. Our working hypothesis is that in the environment of a sufficiently developed information society, the “smoking gun” variety of propaganda will become a rarity. The trouble with “smoking gun” instances is that the entire process that led to their appearance is considerably overlooked. Without exposing that process, it is not possible to explain either the effectiveness of propagandistic action, or the scope of its propagation (both in the demographic and psychological sense). The principal obstacle in that direction is the absence of exact time parameters, of events so distinct that their timestamp can be taken as a reference point within the process. The lack of time parameters results in vague timeframes, a serious shortcoming in an attempt to present a relationship between propagandistic action and the resulting group behavior. What is the starting point of a propagandistic action? What timeframe can we suggest, saying that “an action took place immediately after a particular speech”? The elusiveness of time determinants is reflected even in the conceptual domain, as in the distinction between “incitement” and “instigation.” A process-oriented approach to propaganda can somewhat improve the situation by looking at its linguistic traces—the history of their appearance and the rate of their proliferation. It is not only the time dimension that needs a baseline. If propaganda influences attitudes of people resulting in a change in their behavior, then the achieved state must be different from the state preceding propagandistic action. What kind of change was induced? Consider the views of scholars belonging to the so-called primordial school, which explains ethnic conflicts in terms of ancient ethnic hatreds. The wars in the Balkans certainly had their share of primordialist interpretations.54 Did propaganda just “trigger” already existing tensions, or did it create them as well? Answers to these questions lie in the domain of social psychology and require analysis of the results of empirical research conducted over a given population in a relevant time period. Frequently, a number of psychometric instruments are applied in such surveys, and they can offer an abundance of valuable indicators to the propaganda analyst. Some of them are created in order to measure ethnic distance between different groups. The first increase in ethnic distancing, after decades of persistent proximity, was reported in the all-Yugoslav research of Ljiljana Bacˇevic´ in 1989, and subsequent surveys demonstrated the continuation of that trend.55 Other instruments are developed to capture value orientations and allow multidimensional comparative analysis. The last large research of that kind in prewar Yugoslavia was conducted in 1986. An extensive survey, entitled “The situation, consciousness and behavior of the young generation in Yugoslavia,”56 covered the age group that would become the physical power of the wars to come,

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spread in fiercely antagonized groups. As anticipated, the results of the survey revealed nothing in the attitudes and beliefs of this generation that would be indicative of the drastic changes that took place five years later.57 Another study, based on free associations to the word “war,” was conducted as late as the summer of 1991 and early 1992 among the students from Belgrade, Ljubljana, Sarajevo and Skopje. In the words of Vid Pecˇjak, “Though the responses share some similarity, they also differ. The groups from the regions which were more included in the war show more similar and more war-participating responses. Yet most subjects did not express high level of aggressiveness. It means that by that time the induction was not yet complete.”58 These words seem to be confirmed by the survey made in 1989–90 by Dragomir Pantic´, showing that even on the eve of the armed ethnic conflict no significant ethnic distance was found among the Serbs, Croats and Bosniaks. The research showed the absence of national tension and common belief in the possibility of coexistence. The majority of respondents of all ethnic backgrounds considered that inter-ethnic relations were good in the place of their residence.59 Empirical studies of social psychology are an essential component in analysis of the propagandistic action and its dynamic, offering the baseline for analysis of the scope and direction of the propaganda-induced changes.60 Propaganda analysis will rely, increasingly, upon knowledge from a number of other sciences to elucidate various factors playing an important role in the workings of propaganda. Hopefully, this knowledge should contribute to the legislation of propagandistic actions that eventually assume an indictable form. The rapid development of media and information technology has already changed the phenomenological profile of propaganda. How the body of laws will adapt to these changes remains to be seen.

Notes 1 See Chip Berlet, Propaganda, Deception & Demagoguery, Political Research Associates. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). 2 R. Brown, Words and Things, Glencoe: The Free Press, 1958. 3 Needless to say, these divisions serve only as conceptual tools—in reality the construction strategy is most frequently “middle-up-middle-down.” 4 In a culinary metaphor, the upper stratum is a kitchen where masters of the art (attorneys and jurists) prepare a final dish (the case) according to their cherished recipe (working theory of propaganda). Their success, however, predominantly depends on those who supply the necessary ingredients (analysts and researchers), the lower stratum of the entire process. Yet, even if both parties did their best, the final dish has to be appealing to the particular taste (current set of legal standards) of the knowledgeable clientele (judges) in order to be accepted and appreciated. 5 G. Bachelard, La formation de l’esprit scientifique: contribution a une psychanalyse de la connaissance objective, Twelfth Edition, Paris: Vrin, 1960, p. 14. 6 The term innumeracy was popularized by influential books written by John Allen Paulos, Innumeracy – Mathematical Illiteracy and Its Consequences and Beyond Numeracy – Ruminations of a Numbers Man.

The indictable propaganda: a bottom-up perspective 59 7 Including the very term “DNA fingerprinting,” coined by Sir Alec Jeffries, who developed the first DNA profiling test in 1984. 8 See S. Strutt, ‘DNA and Criminal Justice’, Originally prepared by Justice Action as a paper for a NSW Parliamentary Crossbencher Briefing, now included in the Book of Readings for Griffith University law students, 2000. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011), and ‘Review of the Crimes (Forensic Procedures)’, Act 2000/Standing Committee on Law and Justice, Sydney, NSW: Parliament. Legislative Council (Parliamentary paper; no. 1118, Report 18), 2002. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). See also Angela Hart, ‘New FBI Policy Revolutionizes DNA Court Testimony’, in Silent Witness (American Prosecutors Research Institute), vol. 4, No. 1. Three pivotal cases in the 1990s substantially influenced the courtroom status of diverse specialized sciences in the American jurisprudence: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993); General Electric Co. v. Joiner, 522 US 136 (1997); Kumho Tire Co. v. Carmichael, 526 US 137 (1999). Cf. M.S. Brodin, ‘Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic’ (2005), Boston College Law School, Faculty Papers, Paper 24. Publishing on the Internet. Online. Available HTTP: or (accessed 1 February 2011); and R. Epstein, ‘Fingerprints Meet Daubert: The Myth Of Fingerprint “Science” Is Revealed,’ Southern California Law Review, vol. 75, 2002, pp. 605–658. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). 9 See instructive papers “Postmodernism and Truth” and “Faith in the Truth” of the philosopher Daniel C. Dennett presented in 1997 Amnesty Lecture in Oxford, and at 1998 World Congress of Philosophy. Publishing on the Internet. Online. Available HTTP: and (accessed 1 February 2011). 10 In some cases even the expectations of reliability indicate some sort of innumeracy at work. To take an example—“If the probability (the odds of a chance DNA matching) exceeds one in 260 billion, an identification can be declared with a reasonable degree of scientific certainty and can be testified to in court” (Hart, ‘New FBI Policy Revolutionizes DNA Court Testimony’). This policy was applied for the first time in October 1997, in a Wisconsin double rape trial. At the same time California Association Of Crime Laboratory Directors conducted DNA proficiency test upon the Lifecodes, Cellmark and FBI laboratories and found 1 per cent error rate, most of them (70 per cent) being false positives. Such an error rate makes 1:260 billion threshold ludicrous (see Strutt, ‘DNA and Criminal Justice’). See Alaska Judicial Council’s DNA Report. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). 11 One should probably add other, psychological reasons of that reluctance as well. The idea of statistical predictability of individual’s behavior within the social context somehow infringe our intuitions (and cherished beliefs!) about our free will and our full and continuous personal integrity. Either way, the issue of social psychology’s epistemological status will have to be tackled in order to successfully address emerging forms of indictable propaganda. 12 Apparently, the elements of correlationist approach can be found in propaganda cases prosecuted at the ICTR. The Harvard Law Review summarized the position of the Tribunal in the following words: the Tribunal allowed for the fact that “the nature of media is such that causation of killing and other acts of genocide will necessarily be

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13

14 15 16 17 18

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effected by an immediately proximate cause in addition to the communication itself.” Yet, this fact “does not diminish the causation to be attributed to the media, or the criminal accountability of those responsible for the communication.” Harvard Law Review, 2771–2772, Recent Cases, June 2004. It was William McGuire, reputable influence researcher, who has studied the persuasion tactics that utilizes the so-called “Socratic Effect.” McGuire demonstrated that by merely directing thoughts to certain attitudes and beliefs linked by logical implications, those attitudes and beliefs become more consistent and anchored in the subject’s mind. Jean Francois Gaudreault-DesBiens, ‘From Sisyphus’s Dilemma to Sisyphus’s Duty? A Meditation on the Regulation of Hate Propaganda in Relation to Hate Crimes and Genocide,’ McGill Law Journal, vol. 46, 2001, pp. 1117–1137. Howard H. Frederick, ‘Media Performance and International Law’, in Communication in Peace and War, Brooks-Cole, 1992. Der Kongress zur Nürnberg 1934, Munich: Zentralverlag der NSDAP, Franz Eher Nachf., 1934, pp. 130–141. See integral translation of the speech. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Col. W.C. Garrison, Information Operations And Counter-Propaganda: Making a Weapon of Public Affairs, US Army War College, Carlisle Barracks, 1999, p. 23. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). A report entitled How Much Information? 2009 Report on American consumers (released by the University of California, San Diego, 9 December 2009) indicates that an average US citizen “consumes” 34 GB of data daily. Roger Bohn, one of the authors of the report, warns that as a consequence of this information overload “. . . our attention is being chopped into shorter intervals and that is probably not good for thinking deeper thoughts.” Publishing on the Internet. Online. Available HTTP: ; and (accessed 1 February 2011). In terms of Shelly Chaiken’s theory of persuasion (one of Dual Processing theories), the trend encourages the heuristic or peripheral mode of thinking in place of the systematic mode. The first is predominantly guided by cues, the latter by arguments. The distinction is similar to one of the Elaboration likelihood model of Petty and Cacioppo that uses concepts of peripheral route to persuasion and central (or “elaborated”) route. S. Chaiken, W. Wood and A.H. Eagly, ‘Principles of persuasion’, in E.T. Higgins and A. Kruglanski (eds), Social psychology: Handbook of basic mechanisms and processes, New York, NY: Guilford Press, 1996. S. Chaiken and D. Maheswaran, ‘Heuristic processing can bias systematic processing: Effects of source credibility, argument ambiguity, and task importance on attitude judgment’, Journal of Personality and Social Psychology, vol. 66, 1994, pp. 460–473. Of course, there will be instances where a submessage very accurately articulates an important part of the main message, but these cases are rare and in that respect their relevancy can be challenged. The theory of knowledge of Karl Popper, that deservingly enjoys respect in the scientific world, highlights the importance of refutation of a theory, in place of its verification. In the courtroom, however, with its emphasis upon the doubt, the Popperian approach is by default opposed to the ambition of reaching certitude “beyond reasonable doubt.”

The indictable propaganda: a bottom-up perspective 61 22 It was political scientist Karl W. Deutsch who introduced the idea of seeing communication as “the nerves of government” (K.W. Deutsch, The Nerves Of Government: Models of Political Communication and Control, New York, NY: Free Press, 1963). Deutsch was a vocal proponent of the development of early warning systems. He was inspired by mathematician Norbert Wiener to apply methods of cybernetics in order to model functioning of large and complex domains of reality—an approach founding the modern general systems theory. What Deutsch had actually feared was the effect of releasing a dragon from the box—i.e. that after the public opinion is shaped by media in a particular direction the government will find it hard to make a decision contrary to that public opinion, facing a significantly reduced maneuvering space. Under “normal conditions,” where the rational decision-making scrutinizes various alternatives, possibilities and their consequences, having the number of options reduced due to “predominant public opinion” on some issues, becomes a serious threat to government’s ability to make the best choices. As much as the state can have a significant degree of control over the media and their content, no government is capable of controlling the entire network of subsequent effects. Yet, in the process of national mobilization and escalating bellicosity witnessed in the Balkans of the nineties, releasing the dragon is the ultimate goal of government, and once released no refined steering of the beast is ever needed. The process is focused on creating a single, canonic presentation of reality, and that requires a systematic reduction and eventual obliteration of alternatives, until the entire world can be captured in the form of exclusive “either–or” disjunctions. 23 The study of short-term priming effects of media (E. Jo and L. Berkowitz, ‘A Priming Effect Analysis of Media Influences: An Update’, in J. Bryant and D. Zillmann (eds), Media Effects: Advances in Theory and Research, Hillsdale, NJ: Lawrence Erlbaum Associates, 1994) revealed the chain reaction of associative thinking: a short time after a priming event took place (as a personal or mediated experience) ideas having a similar meaning are activated and these thoughts, in turn, can activate other semantically related ideas and tendencies for action. That is what I label mental conductivity. 24 In an inspired turn, Valere Philip Gagnon speaks of the national demobilization (V.P. Gagnon, The Myth of Ethnic War: Serbia and Croatia in the 1990s, Ithaca, NY: Cornell University Press, 2004) referring to “a process by which people who had previously been politically mobilized, or who were in the process of being mobilized, become silenced, marginalized, and excluded from the public realm.” For that purpose the regimes in power, both in Serbia and Croatia, used the strategy of violence and “portrayed them and their concerns as outside the realm of legitimate political discourse.” 25 In-group–Out-group Bias (“the ultimate attribution error” of unquestionable adoration of “ours” and ultimate rejection of “theirs”), Out-group Homogeneity Bias (out-group members being “all alike”), In-group Differentiation Bias (in-group members having unique and distinctive qualities), Extremity Bias (tendency to commit partem pro toto error in supporting extreme judgments of the out-group members), and Group Attribution Error (projecting stereotypes of the out-group on each of its members, ultimately holding the “nature of the out-group” responsible for individual acts of its members). 26 To name only a few: I. Cˇolovic´ (2002), M. Hajdinjak (2004), D. Marjanovic´ (2001), M. Lenkova (1998), M. Pecˇujlic´ et al. (1992), V. Pesˇic´ (1996), D. Abazovic´ et al. (2007), D. Mandic´ (2007), S. Biserko (ed.) (2006), S. Biserko (2006), S.T. Szayna (2000). 27 S. Brankovic´, ‘Srbija u ratu sa sobom’ (Serbia in War With Itself), Sociolosˇki pregled, Beograd, 1995, Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011).

62 Propaganda, War Crimes Trials and International Law 28 The former Chairman of the Yugoslav Presidency and Milosˇevic´’s closest collaborator Borisav Jovic´ recalls in his book Poslednji dani SFRJ (Last Days of the SFRY): ‘For years he [Milosˇevic´] paid the biggest attention to the media, especially television. He personally appointed editors-in-chief of the newspapers and news programs, especially directors-general of the radio and television. Perhaps in no other area but this was he in direct communication with all editors who “fed” the public with the news, comments and generally with information. He was deeply convinced that citizens formed their view of the political situation on the basis of what they were presented and not on the basis of their real material and political position. What is not published has not happened at all—that was Milosˇevic´’s motto’. After Milosˇevic´, at the beginning of his political ascent, took control over the most influential national daily Politika (installing as its head his man of choice Zˇivorad Minovic´), more than 70 editors were removed from their posts, as documented in “Purges in Belgrade radio and television” published in April 1993 by the independent radio and television syndicate. In coming years the journalists were demoted or promoted according to their loyalty and administrative measures taken against uncontrolled media. These include heavy taxes and fines being imposed, broadcasting licenses withdrawn, permits for more powerful transmitters refused, supplies of equipment necessary for newspapers and radio stations stopped, commercial advertising in targeted media discouraged, printing houses threatened, distribution network disrupted or blocked, etc. Even illegal “direct violent actions” were undertaken ranging from signal jamming, sabotages of broadcast transmitters, to repression against independent journalists that increased with more and more tangible threats to disobedient journalists and staff. All these actions converged towards a single goal: to have insubordinated branches of the media network drained, censored, or banned. Let it be noted that this list of measures available to the ruling powers in securing their control over media and information space in general, can be transposed to other regions as well, which subsequently became engulfed in the armed conflict. The case of the media purges in Croatia and in particular of the years long battle between the weekly Feral Tribune and the national authorities stand as the most notable Croatian counterpart in that sense. 29 Foreign Broadcast Information Service, an open source monitoring unit of the Central Intelligence Agency (CIA). 30 In order to have a glimpse on the relevant content of broadcasts, see the documentary produced by Lazar Lalic´, Images and Words of Hate: TV News at 19:30, B92 video and film production and “Right to Pictures and Words Foundation,” Beograd: Arhitel, 1998. 31 See the application of theories about collective psychosis in Sabrina P. Ramet (S.P. Ramet, ‘Under The Holy Lime Tree: The Inculcation of Neurotic & Psychotic Syndromes as a Serbian Wartime Strategy’, Polemos, vol. V, no. 9–10, December 2002), where the author applies concepts of dysphoric rumination, exaggerated perceptions of conspiracy, sinister attribution error and hyper vigilant social information processing in analyzing development of collective paranoia in Serbia “manifested in social alienation, heightened antagonism toward others, and an attitude of hostility toward the outside world.” 32 Those engaged in propaganda monitoring or systematic collection of information documenting a campaign development, are painfully aware of the elusive nature of propagandistic action and limits imposed upon any ambition to place it within a firm framework of temporal or causal determinants. 33 Brankovic´, ‘Srbija u ratu sa sobom’. 34 See the spirited book of R. Radic´, Srbi pre Adama a i posle njega (Serbs Before Adam and Also After Him), Second Edition, Beograd: Stubovi Kulture, 2005), where this Belgrade-based history professor denounced the blatant interference of ideological

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38

39

agenda with the science of history, through unrestrained fabrication of, often ridiculous, factoids. As an illustration of their self-perception, articulated through an “inventory of injustices” committed to them in history, here is an authentic speech used by a political leader in addressing military units. In order to generalize its content and focus on its elements unhindered by national specifics, we will “Zymianise” its content: “It is our duty to stop centuries long regression of the Zymian national issue. In this generation of tragedy and martyrdom, but also of the Zymian glory, we are the ones who have to complete all that our ancestors had failed to do and achieve. Slaughters and genocide in wars, just like humiliations and deprivations between wars, have marked lives of many of our generations. Only we Zymians were not allowed to be what we are, only we had to abandon our most beautiful traditions, forbidden to sing our most beautiful songs, we were the ones who had to tiptoe around and stay out of the way of the others. Even such as we were careful and cautious, we were yet not good enough. We were dispossessed, forbidden even to mention our mother Zymia, to cherish our culture and practice our religion, and the moment a war would had started we were slaughtered like animals.” In his definition of the term racism, Meindert Fennema follows the same path of links: “Racism is a discourse which differentiates people according to physical characteristics, combines these with social characteristics, assumes both to be hereditary, and assigns different social positions to the thus distinguished racial or cultural groups.” (M. Fennema, ‘Racism and Ethnicism in the Netherlands’, LUT Lustrum congress, Leiden, 12–14 September 1990). One frequently encounters the view in which the contemporary world is seen as the stage of escalating complexity, uncertainties and disarray (what Juergen Habermas describes as “neue Unuebersichtlichkeit”), accompanied by the belief that in such a world the full picture of reality escapes us. It should be a sobering fact that rarely in history was the present differently perceived by intellectuals who could afford to contemplate the state of reality. In his study “The Myth of the Global Chaos,” Yahya Sadowski challenges the assumption of the global chaos as the essential description of the modern world, particularly when it features as an ingredient in a political analysis, justifying the absence of a pertinent action (Y. Sadowski, The Myth of Global Chaos, Washington, DC: Brookings Institution Press, 1998). Sometimes, the “obligatory dressing” of a reality description pops out by force of paradoxes that it creates, like in the TV news where the presenter started by saying: “As reported by foreign news agencies the events in former BH, i.e. in Yugoslavia, are not today in the centre of the world’s attention.” For some time the catchphrase laid dormant after it was first said by the writer Dobrica C´osic´ in 1970, in his speech to Serbian Academy of Science and Art. Fifteen years later C´osic´ was already recognized as an oracle of Serbian nationalism (before becoming Yugoslav President under auspices of Milosˇevic´), and his quotations saturated public discourse. He did his best to keep them in circulation—in the book of his talks with Slavoljub Đukic´ in Cˇovek u svom vremenu (The Man in His Time), Beograd: Filip Visˇnjic´, 1989, C´osic´ comments his famous proverb: “I condensed into this paradoxical thought my experience and years of reflection.” Ironically, the author of the slogan that purportedly articulates a deep historical truth is on the record saying in an interview given to the Belgrade daily Politika (22 November 2003): “We lie out of love and humanism, we lie for the sake of honesty. We lie for the sake of freedom. The lie is a form of our patriotism and affirmation of our innate intelligence. We lie in a creative, imaginative, and inventive manner.” Quoted by Mirko Kovacˇ in ‘Srpski put C´osic´ Dobrice’ (The Serbian Way of C´osic´ Dobrica), essay in five installments. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011).

64 Propaganda, War Crimes Trials and International Law

40 41

42 43

44 45 46

47 48 49 50 51

52

See more on C´osic´ in S. Slapsˇak, Ogledi o bezbrizˇnosti (Essays on Unconcern), Beograd: Radio B92, 1994; S. Blagojevic´, Tri cˇiste obicˇne pameti (On a Daring and Sober Common Sense), Beograd: Radio B92, 1996, and in S. Blagojevic´ and H. Demirovic´, Bloedverwanten – de Joegoslavische Oorlog en de Europese Vrede (Blood Connections – Yugoslav War and European Peace), Amsterdam: Uitgever van Oorschot, 1994. Let it be noted that the role of C´osic´ in the Serbian culture of the time was diagnosed and anticipated in unambiguous terms already in the late 1980s by the publicist and literary critic Slobodan Blagojevic´, who wrote about him in the context of “populistic usurpers of tradition.” Croatian propaganda concentrated on the idea of “Millennial nation/culture” standing as the European “Antemurales Christi.” For practical purposes, in the ICTY the three languages are abbreviated as “BCS,” and within the institution treated as a single language, although the linguistic distinction is respected in official documents, translations and procedures, depending on the backgrounds of the recipient. Martin Heidegger, Brief Über den Humanismus, Frankfurt a.M: Klostermann, 1949, p. 5. Conceptualized in 1979 by Roger Fowler, Bob Hodge, Gunther Kress and Tony Trew (R. Fowler, B. Hodge, G. Kress and T. Trew, Language and Control, London: Routledge, 1979), critical linguistics is complementary to sociolinguistics, founded by Herbert Paul Grice, that investigates the effect of society on the way language is used. D. Birch, Language, Literature, and Critical Practice, London: Routledge, 1989. Founded by Bernard Berelson and Harold Lasswell in the Second World War, used for systematic analysis of the German war propaganda and subsequently developed by Harvard scholars as the method of contingency analysis. The ideologist, author, and politician Dobrica C´osic´ (see note 39) demonstrated his skill with words giving a new twist to the idea of expulsion (or liberation): “We need not aspire to ethnically clean Serbia, but we should liberate those who don’t feel free with Serbs and who limit Serb freedom.” (Promene, Novi Sad: Dnevnik, 1992, p. 176). Gaudreault-DesBiens, ‘From Sisyphus’s Dilemma to Sisyphus’s Duty?’ The phrase coined by Daniel C. Dennett in his influential book Consciousness Explained, London and New York, NY: Penguin Books, 1993. See L.A. Festinger, A Theory of Cognitive Dissonance, Evanston, IL: Row Peterson and Company, 1957. See C.W. Sherif, M. Sherif and R.E. Nebergall, Attitude and Attitude Change. The Social Judgment-Involvement Approach, Philadelphia, PA: W. B. Saunders, 1965. E.g. Paradigm of Narrative Rationality (PNR), established by Walter Fisher, is one of those particularly suitable for analysis of myths in effectuating influence. The PNR stresses influence through narration—that is, persuasion through storytelling, as opposed to the theoretical views endorsing the idea that the most persuasive and influential messages are based on rational facts. The key terms of the theory are probability, coherence and fidelity of a narrative. Another noteworthy theory, that could help in modeling proliferation of propaganda messages, is the theory of memes that Richard Dawkins introduced in his Selfish Gene (R. Dawkins, The Selfish Gene, Oxford: Oxford University Press, 1976) and a number of his subsequent books. See more in Susan Blackmore’s Meme Machine (S. Blackmore, Meme Machine, Oxford and New York, NY: Oxford University Press, 1999). Francisco Gil-White was apparently (and regrettably) removed from his position at the University of Pennsylvania as a consequence of his views, not so much about Milosˇevic´ himself but about the way international media reported about him. See F. Gil-White, ‘How Politicians, the Media, and Scholars Lied about Milosˇevic´’s 1989 Kosovo Speech’, Historical and Investigative Research, rev. 8 September 2005, Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011).

The indictable propaganda: a bottom-up perspective 65 53 See S. Booth-Butterfield, ‘Steve’s Primer of Practical Persuasion.’ Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). 54 Only in 1993 two influential books of that orientation were published: Pandemonium: Ethnicity in International Politics from Daniel Patrick Moynihan, and Balkan Ghosts: A Journey Through History authored by Robert Kaplan. 55 Ljiljana Bacˇevic´, ‘The National Awareness of Youth’ (1990), see also Bora Kuzmanovic´, ‘Social Distance Toward Different Nations (Ethnic Distance)’ (1995), Vjeran Katunaric´, ‘On the Eve of New Ethno-Political Conflicts’ (1991), and Dragana Marjanovic´, ‘Manipulating Nationalism in Serbia: Context Effects in Ethnic Distance Measurements as an Indicator of the Impact of Nationalist Propaganda’ (2001). 56 The author was the research coordinator, sample designer and head of data processing for the segment of the research headed by Ratko Dunđerovic´ and realized in Bosnia and Herzegovina. The results of the research are presented in S. Vrcan et al. (eds), Polozˇaj, svest i ponasˇanje mlade generacije Jugoslavije (Situation, Consciousness, and Behavior of the Young Generation in Yugoslavia), Beograd: Prosveta, 1986. 57 See M. Ule, ‘Differences in Value Orientation of Young People in Former Yugoslavia (1986)’, Foreign Psychology (Journal of Russian Academy of Science, Institute of Psychology), vol. 8, thematic issue ‘Psychology Of War’, 1997. 58 See V. Pecˇjak, ‘A Psychological View of War’, Foreign Psychology (Journal of Russian Academy of Science, Institute of Psychology), vol. 8, thematic issue ‘Psychology Of War’, 1997. 59 See D. Pantic´, Jugoslavija na kriznoj prekretnici (Yugoslav Crisis at the Turning Point), Beograd: IDN, 1991. 60 For important indicators of how deeply rooted these changes presently are, see the study of M. Kandido-Jaksˇic´, ‘Social Distance and Attitudes Towards Ethnically Mixed Marriages’, Psihologija, vol. 41, no. 2, 2008, pp. 149–162. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011).

Bibliography * *

See the exhaustive list of topic literature on the Yugoslav break-up from the period 1992–96: Publishing on the Internet. Online. Available HTTP: and Abazovic´, D., C´urak, N., Seizovic´, Z., Sˇacˇic´, N. and Turcˇalo, S., Ethnic Mobilization in Bosnia and Herzegovina (Ethno-Mobilization and the Organized Production of Violence in Bosnia and Herzegovina – Conscious Preparations), Bolzano: MIRICO, European Academy, 2007. Publishing on the Internet. Online. Available HTTP:

(accessed 1 February 2011). Austin, J.L., How to Do Things With Words, Oxford: Clarendon Press, 1962. Bacˇevic´, Lj., ‘Nacionalna svest omladine’ (The National Awareness of Youth), in Mihailovic´, S., et al. Deca krize: Omladina Jugoslavije krajem osamdesetih (Children of Crisis: Youth of Yugoslavia in the Late Eighties), Beograd: Institut Drusˇtvenih Nauka, Centar za politikolosˇka istrazˇivanja i javno mnenje, 1990. Bachelard, G., La formation de l’esprit scientifique: contribution a une psychanalyse de la connaissance objective, Twelfth Edition, Paris: Vrin, 1960, p. 14.

66 Propaganda, War Crimes Trials and International Law Barker, D. and Knight, K., ‘Political Talk Radio and Public Opinion’, Public Opinion Quarterly, vol. 64, no. 2, 2000, pp. 149–170. Birch, D., Language, Literature, and Critical Practice, London: Routledge, 1989. Biserko, S. (ed.), ‘Bosna i Hercegovina – Jezgro velikosrpskog projekta’ (Bosnia and Herzegovina; The Core of the “Greater Serbia” Project), Beograd: Helsinsˇki odbor za ljudska prava u Srbiji, Edition “Svedocˇanstva” 27, 2006. Biserko, S., ‘Srpska elita i realizacija srpskog nacionalnog programa’, in Biserko, S. (ed.), Kovanje antijugoslovenske zavere, Beograd: Helsinsˇki odbor za ljudska prava u Srbiji, Edition “Svedocˇanstva” 26, 2006, pp. 7–84. Blackmore, S., Meme Machine, Oxford and New York, NY: Oxford University Press, 1999. Blagojevic´, S., Tri cˇiste obicˇne pameti (On a Daring and Sober Common Sense), Beograd: Radio B92, 1996. Blagojevic´, S. and Demirovic´, H., Bloedverwanten – de Joegoslavische Oorlog en de Europese Vrede, Amsterdam: Uitgever van Oorschot, 1994. Booth-Butterfield, S., et al., ‘Simultaneous versus exclusive processing of persuasion arguments and cues’, Communication Quarterly, vol. 42, 1994, pp. 21–45. Brankovic´, S., ‘Determinante javnog mnjenja u Srbiji’, in Pecˇujlic´ et al., Rađanje javnog mnjenja i politicˇkih stranaka, Beograd: Institut za politicˇke studije, 1992. Brankovic´, S., ‘Srbija u ratu sa sobom’ (Serbia in War With Itself), Sociolosˇki pregled, Beograd, 1995. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Brehm, J.W., Explorations in Cognitive Dissonance Theory, New York, NY: John Wiley & Sons Inc., 1962. Brodin, M.S., ‘Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic’ (Boston College Law School, Faculty Papers. Paper 24. 2005), University of Cincinnati Law Review, vol. 73, 2005, pp. 867–943. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Brown, R., Words and Things, Glencoe: The Free Press, 1958. Bugarski, R., Jezik od mira do rata (Language from Peace to War), Beograd: Beogradski krug, 1994. Chaiken, S., ‘The heuristic model of persuasion’, in Zanna, M., Olson, J. and Herman, C. (eds), Social influence: The Ontario symposium, Volume 5, Hillsdale, NJ: Lawrence Erlbaum Associates, 1987, pp. 3–40. Chaiken, S., Liberman, A., and Eagly, A., ‘Heuristic and systematic information processing within and beyond the persuasion context’, in Uleman, J. and Bargh, J. (eds), Unintended thought, New York, NY: Guilford, 1989. Chaiken, S. and Maheswaran, D., ‘Heuristic processing can bias systematic processing: Effects of source credibility, argument ambiguity, and task importance on attitude judgment’, Journal of Personality and Social Psychology, vol. 66, 1994. Cˇolovic´, I., The Politics of Symbol in Serbia: Essays in Political Anthropology, London: Hurst and Co, 2002. Cunningham, S.B., The Idea of Propaganda: A Reconstruction, Westport, CT: Praeger, 2002. Cushman, T., ‘Anthropology and Genocide in the Balkans: An Analysis of Conceptual Practices of Power’, Anthropological Theory, vol. 4, no. 5, 2004, pp. 559–564. Dawkins, R., The Selfish Gene, Oxford: Oxford University Press, 1976. Dennett, D.C., Consciousness Explained, London and New York, NY: The Penguin Press, 1991.

The indictable propaganda: a bottom-up perspective 67 Deutsch, K.W., The Nerves Of Government: Models of Political Communication and Control, New York, NY: Free Press, 1963. Dimitrijevic´, N., ‘Recˇi i Smrt: Nacionalisticˇka Konstrukcija Stvarnosti’ (Words and Death: Nationalistic Construction of Reality), Recˇ, 60/5, December 2000. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Đukic´, S., Cˇovek u svom vremenu (The Man in His Time), Beograd: Filip Visˇnjic´, 1989. Dvornikovic´, V., Karakterologija Jugoslovena (Characterology of Yugoslavs), Beograd: Prosveta, 1990. Epstein, R., ‘Fingerprints Meet Daubert: The Myth Of Fingerprint “Science” Is Revealed’, Southern California Law Review, vol. 75, 2002, pp. 605–658. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Festinger, L.A., A Theory of Cognitive Dissonance, Evanston, IL: Row Peterson and Company, 1957. Fisher, W.R., Human Communication as Narration: Toward a Philosophy of Reason, Value, and Action, Columbia, SC: University of South Carolina Press, 1989. Fowler, R., Hodge, B., Kress, G. and Trew, T., Language and Control, London: Routledge, 1979. Gagnon, V.P., The Myth of Ethnic War: Serbia and Croatia in the 1990s, Ithaca, NY: Cornell University Press, 2004. Gil-White, F., ‘How Politicians, the Media, and Scholars Lied about Milosevic’s 1989 Kosovo Speech’, Historical and Investigative Research, rev. 8 September 2005, 2005. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Habermas, J., Moral Consciousness and Communicative Action, Cambridge, MA: MIT Press, 1990. Habermas, J., Theory of Communicative Action, London: Beacon Press, 1981. Hajdinjak, M., ‘The Root Cause of Instability in the Balkans: Ethnic Hatred or TransBorder Crime’, Sofia: Intl. Centre for Minority Studies and Intercultural Relations, 2004. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Harff, B. and Gurr, T.R., ‘Systematic Early Warning of Humanitarian Emergencies’, Journal of Peace Research, vol. 35, no. 5, 1998, pp. 551–579. Online. Available HTTP: (accessed 1 February 2011). Harff, B. and Gurr, T.R., ‘Toward Empirical Theory of Genocides and Politicides: Identification and Measurement of Cases since 1945’, International Studies Quarterly, vol. 32, no. 3, 1988, pp. 359–371. Harff, B., ‘How to Use Global Risk Assessments to Anticipate and Prevent Genocide’, Poloitorbis (special issue on “Today’s Conversations about Genocide Prevention”), January 2010. Heidegger, M., Brief Über den Humanismus, Frankfurt a.M: Klostermann, 1949. Higgins, E.T. and Kruglanski, A. (eds), Social psychology: Handbook of basic mechanisms and processes, New York, NY: Guilford Press, 1996. Jackall, R. (ed.), Propaganda, London: MacMillan Press Ltd, 1995. Jo, E. and Berkowitz, L., ‘A Priming Effect Analysis of Media Influences: An Update’, in Bryant, J. and Zillmann, D. (eds), Media Effects: Advances in Theory and Research, Hillsdale, NJ: Lawrence Erlbaum Associates, 1994.

68 Propaganda, War Crimes Trials and International Law ‘Joint Doctrine Manual: Psychological Operations, B-GJ-005-313/FP-001’, Canadian Forces, 2004. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Jovic´, B., Poslednji dani SFRJ (Last Days of the SFRY), Beograd: Politika, 1995. Jowett, G.S. and O’Donnell, V., Propaganda and Persuasions London: Sage Publications, 1992. Judd, C.M., Ryan, C.S. and Parke, B., ‘Accuracy in the judgment of in-group and out-group validity’, Journal of Personality and Social Psychology, vol. 61, 1991, pp. 366–379. Kandido-Jaksˇic´, M., ‘Social Distance and Attitudes Towards Ethnically Mixed Marriages’, Psihologija, vol. 41, no. 2, 2008, pp. 149–162. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Kaplan, R., Balkan Ghosts: A Journey Through History, New York, NY: St. Martins Press, 1993. Katunaric´, V., ‘Uocˇi novih etnopoliticˇkih raskola: Hrvatska i Bosna i Hercegovina’ (On the Eve of New Ethno-Political Conflicts: Croatia and Bosnia and Hercegovina), Beograd, Sociologija, vol. 3 (Juli-Septembar), 1991. Kovacˇ, M., ‘Srpski put C´osic´ Dobrice’ (The Serbian Way of C´osic´ Dobrica), essay in five installments. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Kramer, R.M. and Messick, D.M., ‘Getting By with a Little Help from Our Enemies: Collective Paranoia and Its Role in Intergroup Relations’, in Sedikides, C., Schopler, J. and Insko, C.A. (eds), Intergroup Cognition and Intergroup Behavior, Mahwah, NJ: Lawrence Erlbaum Associates, 1998. Krech, D., Crutchfield, R.S. and Ballachey, E.L., Individual in society, New York, NY: McGraw-Hill, 1962. Kuzmanovic´, B., ‘Social Distance Toward Different Nations (Ethnic Distance)’, in Lazic´, M. (ed.), Razaranje drusˇtva: Jugoslovensko drusˇtvo u krizi 90-ih, Beograd: Filip Visˇnjic´, 1995. Lalic´, L. (producer), Images and Words of Hate: TV News at 19:30, Beograd: B92 video and film production and “Right to Pictures and Words Foundation”, Arhitel, 1998. Lalic´, L., Images and Words of Hate: Vukovar 1991, Beograd: “The Right to Pictures and Words against Censorship and Abuse of Media”, Arhitel, 1995. Lalic´, L., Three Years in TV Serbia, Beograd: Independent Media Union, 1995. Lazic´, M. (ed.), Razaranje drusˇtva: Jugoslovensko drusˇtvo u krizi 90-ih (Destruction of Society: Yugoslav Society in the Crisis of 90s), Beograd: Filip Visˇnjic´, 1995. Lenkova, M., Hate Speech in the Balkans, The International Helsinki Federation for Human Rights, Athens: Etepe, 1998. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Mandic´, D., ‘Making Serbs: Serbian Nationalism And Collective Identity, 1990–2000’, A thesis presented in partial fulfillment of the requirements for the degree of Bachelor of Arts, Department of Sociology, Princeton University, 2007. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Marjanovic´, D., ‘Manipulating Nationalism in Serbia: Context effects in Ethnic Distance Measurements as an Indicator of the Impact of Nationalist Propaganda’, Budapest:

The indictable propaganda: a bottom-up perspective 69 Central European University, Nationalism Studies Department, 2001. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Milgram, S., Obedience to Authority: An Experimental View, New York, NY: Harper and Row, 1974. Milosˇevic´, M., Political Guide to Serbia 2000, Beograd: Media Center, 2000. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Milutinovic´, M., Kako sam vodio medijski rat (How I Waged the Media War), Beograd: Narodna knjiga, 1998. Mladenovic´, R.M. and Hierodeacon C´ulibrk, J. (eds), Jagnje Bozˇije i zvijer iz bezdana: Filosofij a Rata (The Lamb of God and the Beast from the Abyss: Philosophy of War), Cetinje: Svetigora, 1996. Moynihan, D.P., Pandemonium: Ethnicity in International Politics, Oxford: Oxford University Press, 1993. Nodilo, N., Stara vera Srba i Hrvata (The Old Faith of Serbs and Croats), Split: Logos, 1981. Nye, J.L. and Brower, A.M. (eds), What’s social about social cognition?, Thousand Oaks, CA: Sage, 1996. Pantic´, D., Jugoslavija na kriznoj prekretnici (Yugoslav Crisis at the Turning Point), Beograd: IDN, 1991. Pecˇjak, V., ‘A Psychological View of War’, Foreign Psychology (Journal of Russian Academy of Science, Institute of Psychology), vol. 8, thematic issue “Psychology Of War”, 1997. Pecˇujlic´, M., Milic´, V.B., Goati, V.A., Brankovic´, S.G., and Kovacˇevic´, M.G., Rađanje javnog mnjenja i politicˇkih stranaka: analiza empirijskih istrazˇivanja u Srbiji 1990–1991 (The Birth of Public Opinion and Political Parties: The Analysis of Empirical Research in Serbia 1990–1991), Beograd: Institut za politicˇke studije, 1992. Pesˇic´, V., ‘Serbian Nationalism and the Origins of the Yugoslav Crisis’, Peaceworks, no. 8, US Institute of Peace, 1996. Petty, R. and Cacioppo, J., Communication and persuasion: The central and peripheral routes to attitude change, New York, NY: Springer-Verlag, 1986. Petty, R.E. and Krosnick, J.A. (eds), Attitude Strength: Antecedents and Consequences, Mahwah, NJ: Lawrence Erlbaum Associates, 1995. Pratkanis, A. and Aronson, E., Age of Propaganda: The Everyday Use and Abuse of Persuasion, New York, NY: Henry Holt and Co., 1992. ‘Psychological Operations, Field Manual FM 3-05.30 MCRP 3-40.6’, Headquarters Department of the US Army, 2005. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Radic´, R., Srbi pre Adama a i posle njega (Serbs Before Adam and Also After Him), Beograd: Stubovi Kulture, Second Edition, 2005. Ramet, S.P., ‘Under The Holy Lime Tree: The Inculcation of Neurotic & Psychotic Syndromes as a Serbian Wartime Strategy’, Polemos (Journal of Interdisciplinary Research on War and Peace), vol. V, no. 9–10, December 2002, pp. 83–97. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Sadowski, Y., The Myth of Global Chaos, Washington, DC: Brookings Institution Press, 1998.

70 Propaganda, War Crimes Trials and International Law Searle, J., Expression and Meaning: Studies in the Theory of Speech Acts, Cambridge: Cambridge University Press, 1979. Searle, J., Speech Acts: An Essay in the Philosophy of Language, Cambridge: Cambridge University Press, 1970. Selltiz, C., Edrich, H. and Cook, S.W., ‘Ratings of favorableness of statements about a social group as an indicator of attitude toward the group’, Journal of Personality and Social Psychology, vol. 2, no. 3, September 1965, 408–415. Sherif, C.W., Sherif, M. and Nebergall, R.E., Attitude and attitude change. The social judgment-involvement approach, Philadelphia, PA: W. B. Saunders, 1965. Sherif, M. and Hovland, C.I., Social Judgment: Assimilation and Contrast Effects in Communication and Attitude Change, New Haven, CT: Yale University Press, 1961. Sherif, M. and Sherif, C.W., ‘Attitude as the Individuals’ Own Categories: the Social Judgment-Involvement Approach to Attitude and Attitude Change’, in Sherif, M. and Sherif, C.W. (eds), Attitude, Ego-Involvement and Change, New York, NY: John Wiley & Sons, 1968. Shvavitt, S. and Brook, T.C., Persuasion: Psychological Insights and Perspectives, Boston, MA: Allyn and Bacon, 1994. Siegel, P.C., ‘Target Bosnia: Integrating Information Activities in Peace Operations NATOLed Operations In Bosnia-Herzegovina, December 1995–1997’, DoD Command and Control Research Program, 1998. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Slapsˇak, S., Ogledi o bezbrizˇnosti (Essays on Unconcern), Beograd: Radio B92, 1994. Strutt, S., ‘DNA and Criminal Justice’, Included in the Book of Readings for Griffith University law students, 2000. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Szayna, T.S., Identifying Potential Ethnic Conflict: Application of a Process Model, Santa Monica: RAND Arroyo Center, 2000. Publishing on the Internet. Online. Available HTTP: (accessed 1 February 2011). Thompson, M., Forging War; the Media in Serbia, Croatia, and Bosnia-Herzegovina, London: Article 19, 1994. Ule, M., ‘Differences in Value Orientation of Young People in Former Yugoslavia (1986)’, Foreign Psychology (Journal of Russian Academy of Science, Institute of Psychology), vol. 8, thematic issue “Psychology Of War”, 1997. Vrcan, S., Aleksic´, J., Dunđerovic´, R., Flere, S., Ilisˇin, V., Mihajlovic´, S., Obradovic´, V., Radin, F. and Ule, M. (eds), Polozˇaj, svest i ponasˇanje mlade generacije Jugoslavije (Situation, Consciousness, and Behavior of the Young Generation in Yugoslavia), Beograd: Prosveta, 1986. Zavalloni, M. and Cook, S.W., ‘Influence of judges’ attitudes on ratings of favorableness of statements about a social group’, Journal of Personality and Social Psychology, vol. 1, no. 1, January 1965, 43–54.

Chapter 2

Word scene investigations: toward a cognitive linguistic approach to the criminal analysis of open source evidence in war crimes cases Predrag Dojcˇinovic´ * A dog, if you point at something, will look only at your finger.1 David Foster Wallace

Propaganda in the antechamber of international law In every extended family, there is a relative whose presence is not welcome at all family gatherings. In war crimes trials and international criminal law in particular, the concept of propaganda is one such family member. Propaganda shares a branch with other conceptual relatives such as “incitement” and “instigation,”2 or “intent” and “intention.”3 However, while these related concepts are placed within the confines of well-defined and relatively safe niches, whether as modes of liability or classes of mens rea, propaganda is usually treated as a multifaceted contextual borderliner. The presence of propaganda denotes information and complexity, but most of all complications, beyond a pragmatic backdrop of most war crimes cases. More often than not, lawyers and investigators prefer to avoid the propagandistic web of references and the jurisprudence frequently exploits the concept as a mere background decoration to the judgments. At the same time, the pre-trial records offered by various scientific studies or journalistic publications, also known as “open source evidence” in criminal intelligence analysis, confirm that propaganda carries the potential to become one of the most fundamental and explicit elements in major war crimes trials. It is difficult to build a complete war crimes case against political or military leaders, the so-called “leadership case,” without propaganda as one of its main building blocks. Yet, such construction work is too often performed by ignoring or at least minimizing the use of propaganda as a potential source of evidence. Over the past several decades, a critical part of the vocabulary used by legal scholars and practitioners of law has been blending with the conceptual apparatus *

The views expressed in this chapter are those of the author(s) alone and do not necessarily reflect the views of the International Criminal Tribunal for the Former Yugoslavia or the United Nations in general.

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used by theorists of propaganda in social sciences.4 One of the most evident examples is the concept of “intent.” In his seminal study Propaganda – The Formation of Men’s Attitudes from 1965, Jacques Ellul, who was both a legal scholar and a social scientist, writes: “Propaganda is necessarily a declaration of one’s intentions.”5 Ellul knew very well that certain concepts dwell in both domains. Other scholars have followed a very similar line of reasoning. Garth S. Jowett and Victoria O’Donnell, for example, putting the logic of analysis appropriately in reverse, argue that “often, the direction of a specific behavior is the intent of a propaganda effort.”6 In other words, the course of events, and, more specifically, the patterns emerging from the propagandist’s conduct, can reveal, or at least indicate, the intent hidden behind an entire propagandistic mechanism during its activity cycle. Along similar lines, Philip M. Taylor writes that “what distinguishes propaganda from all other processes of persuasion is the question of intent.” Moreover, Taylor is right in his claim that “success, however, also needs to be measured against the intention behind the process.”7 A consensus among the researchers of propaganda to place an essential mental element in the heart of their analysis has therefore been reached. The concept of intent, or intention, has grown into a separate area of study in the social and cognitive sciences, humanities and philosophy of law. One of the most curious features of intention is that as “a purely internal thing,” as G.E.M. Anscombe put it, a thing residing “purely in the sphere of the mind,”8 intentions can both be meaningful and meaningless, actionful and actionless. Thus, intent, or intention, can also be functional as an isolated and selfsufficient mental event, a thing for itself, inactive and ineffective, deprived of its causal potential. In his influential essay Intention and Punishment, H.L.A. Hart distinguishes three essential classes of examples in the law corresponding to the concept of intention. The first class Hart calls “intentionally doing something,” the second “doing something with a further intention,” and, the third class, “bare intention,” which, according to Hart, implies “intending to do something in the future without doing anything to execute this intention now.”9 Such a condition of intent, or intention, manifesting itself only in a continuous present tense, indicates that it may be relatively easy to identify the impact of propaganda when the recipients of the messages were, for instance, under the strong influence of false information, mythmaking or lies. The audience becomes detached from the external physical reality and enveloped in a virtual world. Under these conditions, the response of the audience can sometimes be compared to the responses of the minds under the influence of hallucinations and delusional ideas. They are always extreme, extraordinary, and in war circumstances potentially aggressive. Moreover, behavioral patterns expressed through non-verbal communication (facial expressions, body-language, dress code, i.e. uniforms and militant paraphernalia) can often be more telling than words. All this suggests that it is sometimes difficult to pin down the core connotations of intent, or intention, if it remains internalized in an almost solipsistic sense of the word. In his textbook International Criminal Law, the former judge and president of the ICTY, Antonio Cassese, explains the concept as follows: “By intent or

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intention (dolus directus) is meant awareness that by engaging in a certain action or by omitting to act I shall bring about a certain result (such as, for example, the death of a civilian) coupled with the will to cause such result.”10 In his definition of intent, Cassese, somewhat unintentionally, brings together some of the key components of propagandistic communications: intent, action and result. The traces of additional evidence of an inherent “conceptual blending” between science and law can be found along these lines. Placing the concept of Bewegung (movement) in the center of Nazi discourse, in his philologist’s notebook Lingua Tertii Imperii Victor Klemperer included the following remark: “Its entire vocabulary is dominated by the will to movement and to action.”11 As part of his early theoretical insights, Ellul was of the opinion that propaganda “must be rooted in action, in a reality that is part of it.”12 Arguing that propaganda should not be reduced to the concept of persuasion, Barak Kushner’s claim is that “the aim is to cause action, not reflection.”13 Taylor comes closest to hitting the target with his description of propaganda as “part of the struggle for perceptions in which words attempt to speak as loud as actions, and sometimes even to replace the need for action.”14 Given the body of knowledge emerging from the research in the social and cognitive sciences in particular, any approach to the analysis of textual propaganda today should begin with the premise that, as physical and intentional manifestations of human behavior, words, in fact, are actions. As J.L. Austin emphasized half a century ago, “by saying something we do something.”15 Only in this area can the researchers, criminal intelligence analysts and investigators of war crimes propaganda identify the linkage between the search for evidence and the specific modes of liability as defined by international law.

Open source intelligence: methodology and methodologist in war crimes investigations The criminal intelligence analysis of open source evidence in war crimes investigations, particularly of textual forms of propaganda, must be based on a welldefined research methodology of the most relevant sources of information. A traditional approach to case analysis, described by Marilyn B. Peterson, a distinguished criminal intelligence analyst, as “the organizational context for analysis,” must be reformulated and redefined with respect to the new elements emerging from the war crimes investigations.16 Perhaps the most frequently used model of case analysis today is based on the so-called “intelligence cycle.” In analytical textbooks, this method is usually visualized as a string of related analytical steps: (a) tasking and negotiation; (b) collection; (c) collation; (d) evaluation; (e) analysis and interpretation; (f) reporting; and (g) task review. The intelligence cycle, in fact, serves as a methodological umbrella for a number of analytical procedures and applications.17 As functional as it may be in national and international intelligence analysis of organized crime, this framework is not entirely adequate for the methodology required in the analysis of propaganda in war crimes cases. A general

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recommendation by Marilyn B. Peterson, however, remains valid in a war crimes context as well: “To complete a case analysis, all the materials relating to the investigation must be reviewed to determine what is needed to assist the investigation and what data are available to be analyzed.”18 The two most important elements in the analysis of propaganda are the source of information and the content or conceptual, primarily linguistic, components of the information. The information accessible to the general public, the so-called “open source intelligence” (OSINT), constitutes the primary pool of information. This category consists of all available print and electronic media. The print media are newspapers, magazines, bulletins, books and other publicly disseminated materials. The electronic media include television, radio, video and audio tapes, the internet and computer-generated products, such as DVDs or CD-ROMs. None of these records should initially include documents or evidence identified as confidential, restricted, protected by law or interagency agreements, or by the internal rules of an organization. Their primary value lies in their unrestricted public accessibility. This evidence can, as a matter of fact, be obtained from newspaper stands, bookstores, public archives and libraries, the internet or through license-based commercial internet applications such as LexisNexis, Factiva, and many other known search engines. Only in exceptional cases do courts and tribunals rely on special requests for assistance from various commercial media enterprises or governmental agencies.19 There are several key criteria in assessing the importance of media outlets in a given context. First, it is necessary to establish the degree of influence a medium may have had in a specific environment. This element primarily relates to the type of media, print or electronic, as well as to the accessibility of an outlet to its readers, listeners or viewers in a specific area or community, in other words, the circulation of a newspaper or a magazine, or the zone covered by a radio or television broadcasting company.20 The birth of the internet, of course, has introduced a virtual integration of all traditional print and electronic media as they were known in the past. The internet has also given a rapid and strong boost to the information processing technologies and techniques in both temporal and spatial domains of their influence. The world wide web allows combined packages of information—text, image and sound—to be produced and delivered simultaneously. Related to these factors, today as much as in the past, are the economic variables or the financial resources available to the relevant population at a given moment. Another key factor is general political context. In countries where access to specific parts of the internet or mobile telephone networks can be temporarily denied, censored or even permanently shut down by the state authorities, as the examples of China21 and the United Arab Emirates22 show, the economic prosperity of a nation does not necessarily play a significant role. Also, the status of a newspaper or a radio/television company may play a considerable role in determining whether the audiences rely more on a source of information with an already established tradition and editorial policy or not. In some cases, a specific section of a newspaper or only a part of a TV show can be made particularly

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attractive for the audience. In times of major armed conflicts, it is mainly the prime-time news, or the “breaking news” alerts, documentary reports and opinions by the prominent members of the society that become the focus of the attention.23 The alternative sources of information, such as new and state-independent media initiatives, often have very limited influence in relatively closed and oppressed societies. They can be simultaneously strategically tolerated and publicly demonized through the most influential media in the society. Moreover, the status of a media outlet is part of the equation which includes the status of the owners or power holders, those individuals, groups, political parties or movements whose financial and ideological control over the editorial policy is direct and decisive. In conservative societies, and particularly in traditionalist and patriarchal cultural milieus, audiences usually lean towards the media controlled by a single person, like the late president of Serbia and Yugoslavia Slobodan Milosˇevic´, the “strong man” of the Balkans as he was affectionately called by the international press, or by a group of influential associates, as it was with the Rwandan Radio Télévision Libre des Mille Collines (RTLM), an enterprise established by the prominent Hutu hard-liners. In some cases, the level of literacy and education can be an additional variable in identifying the most efficient propagandistic channels of communication. For example, the oral transmission of information or the traditional mouth-to-mouth mode of communication, whether true or false, can be a generally accepted manner of bringing and disseminating the news within the community. Some forms of oral transmission of information, even when they seem unconventional, for example, gossiping or rumors, take different forms in different societies. Therefore, it can be hypothesized that the liberal democratic societies with well developed alternative sources of information and open forums for critical thinking use segments of the Internet and telephone text messaging only as more advanced and sophisticated offspring of some of the oldest information processing models. In this realm, truth and facts do not constitute relevant parameters and principles. The unverified and short sensationalist narratives, however, do. A separate category of potentially relevant open source evidence includes reports and documents produced by NGOs, such as local and international human rights and other similar groups active in the territory covered by the war crimes investigations. Documents produced by the NGOs often provide valuable leads for investigative purposes and, if corroborated by other available evidence, they can be used as separate exhibits in trials. Some of those leads are patterns of propagandistic communications. This type of evidence can be introduced through expert witnesses, NGO representatives as the originators and authors of the reports, or as corroborative evidence tendered through the witnesses whose testimonies deal with some of the aspects covered by these documents and reports.24 This is, of course, provided that the reliability, relevance and probative value of their content has initially been verified by legal and analytical teams. A special category of open source evidence is based on public appearances and statements of potential witnesses as recorded by the media. In the course of their

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research, criminal intelligence analysts select leads and potential evidence originating from various individuals who may have left authentic and clear traces in public life during the relevant period of time. Some are victims of war interviewed by the local or international press, NGOs or various research groups, whereas some are former members of political and military leaderships and elites who may have been directly or indirectly implicated in crimes under investigation. The latter group is typically comprised of the propagandists themselves. These are individuals whose recurrent interviews and statements for the media, or their own articles and books, such as diaries or memoirs dealing with some of the most relevant events, may have been laden with propagandistic messages or references to them.25 All of them are potential fact witnesses or suspects in ongoing investigations. Their contemporaneous public utterances can, in many cases, be more truthful, accurate and reliable than the recorded statements and court testimonies subsequently given to the representatives of the international courts and tribunals. Self-conditioned by the purpose and intent, as well as by the unfolding events on the ground, propagandists often tend to speak their minds in an unrestrained manner. By contrast, signed statements are usually recorded many years after the relevant events. Witnesses may have discussed the events many times over the years with their associates, relatives or other witnesses who all may have contributed parts of their own recollections. Also, in most circumstances, witnesses follow live broadcasts of the trials and media coverage relating to the crime-base of their own evidence. The information revealed in the course of these trials may influence their original experience and perception of the events. An unintentional appropriation of the recollections and statements from other witnesses, the phenomenon known in psychology as cryptomnesia, or “hidden memories,” can take place.26 Some witnesses, of course, may have even “suppressed” the most traumatic memories and the process of recollection can become a very difficult and painful experience for them. The Auschwitz survivors, on the other hand, in most cases offered strong evidence that their memories, however altered or reshaped they may have become, are still strong, painful, recurrent and oppressive. Most people suffering from the extreme forms of posttraumatic stress syndrome (PTSS) may perhaps only be envious of the idea of “suppressed” or “disassociated” memories. Be that as it may, when the so-called “autobiographical memory,” as the most common source of our personal experiences, becomes part of a context shared with other people, most curious cryptomnesic narratives can be formed. Inasmuch as “current evidence suggests there is no erasing in the adult brain,”27 one cannot speak of anything resembling a “total recall” of an event either. New elements are often added to the basic narrative. These “additives” may even become more real and dominant than the genuine product of the recollections. Neuroscientist and science writer Jonah Lehrer refers to this as an “uncomfortable reality.” He remarked in an essay on the methods of memories: “As long as we have memories to recall, the margins of those memories are being modified to fit what we know now.” 28 This is, of course, not to say that all aspects of recollected testimonies should be regarded as relatively unreliable. As a matter of fact, in

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terms of long-term memory our minds are very well equipped to rely on the most consistent emergent phenomenon of its engineering known as factual memory, that is, as opposed to the previously discussed forms of procedural memory, the kind of memory which, according to the leading neuroscientist in this field of research, Antonio Damasio, captures “a fundamental divide between ‘things’—entities that have a certain structure, in repose—and the ‘movement’ of things in space and in time.”29 This basically means that a “universal witness,” provided that the brain has not suffered a specific kind of damage between the two relevant points in time, i.e. the occurrence of the event and the recollection of the event, would always be able to call to mind the names, dates, locations and similar facts and connect them as landmarks of the past events into a coherent and reliable testimony before the court. This law of recollection applies to any human mind, inside or outside the courtroom. That is precisely why this type of evidence provides the international legal arena with some of the most valuable evidentiary “recalls” of the past events. Having briefly touched the surface of this mental process, one could even argue that all interviewers—investigators, analysts, lawyers and, ultimately, judges— should have at least basic skills and knowledge from cognitive science available to them as part of their investigative or deliberative toolkits. The consequence of not being in possession of such knowledge could subsequently allow a good cross examiner to deceptively exploit, or even deliberately cause, some of the most sincerely recollected inconvenient fictions of the viva voce evidence.30 Relying on the leading premise of cognitive linguistics that, as part of the location our bodies assume in an interdependent environmental context, “meaning is embodied,”31 the likelihood of having multiple views and descriptions of a single event with different or even contradicting meanings given by a single person is more than realistic. The cognitive fluidity of our minds, and our linguistic capacity as the most dominant part of its conceptual apparatus, gives us the ability of a multiple perspective approach.32 Every new attempt at describing an event, particularly under new conditions, and that may include evidence recalled before an international court, will bring, as Donald Davidson suggested, a “redescription” of an event with alterations inserted into an already existing view on the causes of an event. Looking into the perceptual processes in our minds, Gerald Edelman, one of the most outstanding neurobiologists of our time, refers to this phenomenon in his field of research as recategorization. Some of Edelman’s key arguments are captured by the following claim: “By its nature, memory is procedural and involves continual motor activity and repeated rehearsal in different contexts. [. . .] Unlike computer-based memory, brain-based memory is inexact, but it is also capable of great degrees of generalization.”33 In the footsteps of Edelman’s strict framework of the neurobiological study of memory, one can say that new stimuli, new information input, create new links, or threads, woven around the basic, or factual, set of values, or primary events. These new “colors” may thus re-categorize the memory of the central narrative without causing any permanent alterations in the factual foundations of a described event. Edelman’s claim, after all, is that the order of events is based on patterns, essentially temporal,

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and then spatial. Precisely these patterns are based on an unalterable network of facts. The point of convergence between the functioning of our brain and a linguistic approach to the interpretation of the relevant cognitive aspect of the mechanism itself can clearly be recognized at this end of the process. This is one of the reasons why Davidson, the theoreticians of propaganda and the legal experts would undoubtedly all agree about the importance of our recognition of a pattern of a single event within a Davidsonian “context of its cause.” An apparently simple body movement can sometimes send a serious signal, or convey a message, about the sender, whereas every new viva voce description of the same event will certainly open one or several new streamlines. The facts—dates, names and locations—in this process, however, remain the same. The most interesting group, however, is compiled of propagandists as suspects. The investigative interviews with suspects, their associates or followers can be designed as sets of generic questions based on the semantic pattern analysis of the open source evidence originating from the suspects or their associates prior to and during the events. If some of the relevant utterances are consciously or unconsciously authenticated by the suspects or witnesses, first in their official statements and then before the trial chamber, such evidence can be of the highest forensic and probative value in the cases dealing with propaganda, i.e. the cases with the elements of public incitement, instigation or related forms of aiding and abetting. This type of evidence can successfully close the evidentiary feedback loop, an analytical and prosecutorial process opened by the initial identification of the relevant open source records and specific utterances, continued with the authentication of these records or utterances in the official witness statements and their subsequent verification before the court by the originators or witnesses who would have been influenced by them, and, finally, concluded with a closing brief by the prosecution indicating the value of this evidence.

Methodologist in propaganda: new environments, new voyagers The most critical element in this process, however, is the professional profile of the researchers, criminal intelligence analysts and investigators. The starting premise is that investigating war crimes propaganda means cutting deep through the most complex social, historical, political and cultural tissue. As part of their model of the process of propaganda, Jowett and O’Donnell have defined a structure they call a “cultural rim.”34 They describe this circular maze of concepts as “the infrastructure that provides the material context in which messages are sent and received.”35 There is a fundamental consensus of opinions among the theorists of propaganda today that some of the most relevant features of propagandistic communications are culture-dependent. Whether part of the often publicly neglected currents in historical and cultural traditions, or when they are strategically concealed behind the semantic veils of local manufacture, the reasons behind this consensus among the social scientists can particularly affect war

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crimes propaganda. The most direct implication for propaganda-related war crimes investigations is basically the following: the propaganda-related investigation must first and foremost be conducted by an adequately educated native speaker or a non-native professional who is fluent in the language, or languages, in which the propagandistic messages were produced and processed.36 As Jowett and O’Donnell write: “The propaganda that emerges is the product of forces established long before the activity originated and is controlled by these forces. That is why the uses and methods by which propaganda emerges differ from society to society. The propagandist is influenced by past models through the allusions to historical figures, methods, and impulses for current propagandistic activity.”37 Investigating war crimes propaganda without this insight, as a matter of analogy, would be equal to driving a motor vehicle without being able to recognize and correctly interpret the traffic signs, their meaning and connotations, under radically different contextual conditions. In national jurisdictions, contrary to the international courts and tribunals, teams of researchers, analysts and linguists are not often employed on a permanent basis to read and interpret a whole variety of unintelligible signs only because the majority of the lawyers, investigators and criminal intelligence analysts are able to perform these operations independently. In their natural cognitive habitats, of course, all of them are contextually preconditioned and additionally trained to navigate through their familiar environments in a reasonably successful way. The language of major war crimes suspects, on the other hand, holds the key to their crimes. Public speeches by political and military leaders, particularly in authoritarian environments, implicitly testify to that effect. The initial attempts at defining the methodology of criminal intelligence analysis in the traditional sense of law enforcement investigations procedures were not far from this conclusion either. Frederick T. Martens, an intelligence analyst and former supervisor at New Jersey State Police Intelligence Bureau Analytical Unit, outlined the importance of the psychological, linguistic, political and historical methods of analysis of organized crime or the types of crime with patterns comparable to the ones identified in war crimes investigations. Martens writes that “combining both linguistic analysis with psychological principles could provide law enforcement with a powerful analytical tool.” On the role of the past, Martens says that “the discipline of history is a natural foundation for the organized crime analyst. That is, historians are continuously searching out facts that were heretofore unknown or hidden from the public.”38 In propaganda-related war crimes investigations, a lack of such methodological foundations would, for instance, substantially affect the quality of evidence relevant to demands such as mens rea and intent, both of critical importance in virtually all war crimes cases. In addition to their linguistic skills and knowledge of the contextual information, as part of their general education and professional training, the researchers, criminal intelligence analysts and investigators of propaganda should also have the knowledge and ability required to identify the differences in value and importance in the type of discourse (written or spoken text, formal or informal, etc.) including different genres, such as works of fiction and art (novel, essay, poetry,39 music

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lyrics,40 theatre plays), journalistic work (news reports, interviews, editorials, opinions, etc.), scholarly studies (articles, books),41 documentary material (reprints, documents, letters, etc.) or a mélange of textual and visual (cartoons, photographs, film footage and stills, etc.),42 as well as the register (formal or informal tone of the text, written or spoken), and field of discourse (political, historical, cultural, legal, military, etc.). The two additional components of a linguistic context are the previous discourse, or repetitive and cumulative value of the utterances which preceded a specific utterance, and the immediate linguistic environment determining the meaning, or connotations of a single word or phrase defined by particular cognitive conditions. An example of the latter class would be different interpretations of the word “Turk” by the Bosnian Serbs as opposed to the rest of the population in Bosnia and Herzegovina. For the Bosnian Serbs, a “Turk” is not necessarily a citizen of Turkey, but a Bosniak or Bosnian Muslim as a direct descendant of the Ottomans who ruled over the Serbs and other Christians for several centuries. The Bosnian Serb General Ratko Mladic´ preferred to use this noun to refer to the Bosnian Muslims on formal and informal, political and military, occasions. For the specifically conditioned recipients of this message, namely Serb combatants and volunteers, frequently reiterated single-noun communications served as emotional warnings and calls for revenge based on an ethnic and religious bias stemming from a deeply rooted historical resentment. A similar line of logic and a propagandistic equivalent in the abuse of a single noun is the Kinyarwanda word “Inkotanyi,” used by the Hutu to refer to the Tutsi ethnic group in Rwanda, often explained in scholarly and journalistic publications simply as a derogatory term for Tutsi. It should, however, be emphasized again that the type of discourse remains the most basic component of the linguistic context.43 The trial records of all propaganda cases produced so far clearly show that the door into the minds of propagandists, that is, their intent, or intentions, their actions and consequences of these actions, can be found in the configuration of the linguistic material produced by the propagandists. Many evidentiary and procedural courtroom disputes have been fought over the meaning and connotations of individual words. They are the threads tagged with key words and phrases, the building blocks of these cases. As a US army intelligence officer with professional experience in the territory of former Yugoslavia and the ICTY, Kristan J. Wheaton, noticed: “It is imperative that an analyst understands as much as possible about the culture of whatever it is he is trying to analyze.” Wheaton then emphasizes that “a key element of culture is language.”44 All grand trial narratives, including legal documents such as pre-trial briefs (PTB) and closing arguments, have, intentionally or not, often been built on individual words and concepts. It would not be possible to understand the Streicher trial record without a wide range of semantic and conceptual implications of the simple noun “Jew,” or the adjective “Jewish,” as used in Julius Streicher’s newspaper Der Stürmer. Having also in mind this anti-Semitic publication, in his philologist’s notebook Victor Klemperer writes: “The will to action spawns new verbs. They want to get rid of the Jews, so they entjuden (dejew), they want to make sure that all business life is

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in Aryan hands, so they arisieren (aryanize), they want to re-establish the purity of their ancestral blood, so they aufnorden (nordify).”45 Klemperer refers to the Nazi version of anti-Semitism as “means of propaganda,” implying that it is a multidimensional narrative, a storm of story lines and strategies coming from the past, such as the use of Germanic mythology, running through the present moment by pointing at the social and economic origins of the alleged problems, and heading, finally, towards a projected future in which the past would become a new and modern, futuristic and fascist, pure Germanic habitat without Jews.46 How would the ICTR “Media Trial,”47 or any of the ICTR cases for that matter, have looked without the words “Inyenzi,” cockroaches, or “Inkotanyi,” a reference to the nineteenth-century military forces in Rwanda? Similarly, there has not been a trial held so far before the ICTY without numerous references to the words or concepts “Ustasha,” “Chetnik,” “Turk,” “Balija” and “Shqiptar,”48 all so complex in their “meaning” and connotations that there is no adequate single interpretation for any of them. They are, in fact, conceptual structures, as one of the leading world linguists Ray Jackendoff defined similar types of words and phrases. Jackendoff says that conceptual structures do not mean anything, “they are meaning: they do exactly the things meaning is supposed to do, such as support inference and judgment.”49 They are thoughts that bear no direct semantic correspondence to the world. In any form, even the most accurate court translations and interpretations of such concepts, or conceptual structures, are not sufficient to provide deeper insights into the polysemic resonances, the forms of conceptual relativity as defined by the philosopher Hilary Putnam,50 particularly in the minds of the native speakers. Putnam introduced “conceptual relativity” demonstrating that a single concept, word or phrase, can have a set, or sets, of meanings, related or unrelated, all meanings being equal residents within the same body. All of these meanings can be correct, but some of them may have a greater resonance under the specific conditions. This is precisely the case with the aforementioned words and concepts. In order to identify a particular semantic resonance, or a set of related conceptual relatives, or more precisely a conceptual resonance, models of semantic analysis, as applied in cognitive linguistics, should become part of a standard operating procedure in all investigations and trials involving aspects of propaganda. After all, like social ontology in general, the ontology of the war crimes trials is ultimately decided in and by language.

The language lab: semantic analysis, speech acts, conceptual framing and priming A pragmatic approach to the semantic analysis of textual propaganda in war crimes investigations can be outlined as a model emerging from the fringes of the speech act theory.51 With its foundations in the philosophy of language, the speech act theory has been known and applied both in legal theory and practice.52 Referring to the American law of evidence, the originator of the speech act theory, J.L. Austin, indicated a linguistic and legal distinction between the utterances as acts

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(or actions) on the one hand and the utterances as acts (or actions) with semantic content on the other hand.53 The aspect Austin wished to emphasize was that an utterance would be regarded as a mere hearsay, and therefore not admissible, in terms of what someone said, i.e. the content of the statement or the intentions incorporated in the statement, whereas it might be regarded as relevant and admissible as an action or, in Austin’s words, a “performative.” As questionable as this may be today, it brings to mind a conventional dichotomy between “subjective” and “objective,” i.e. the content, or the interpretation of the content, and the physical occurrence. An important inherent logical aspect of this relationship was very well indicated by Donald Davidson, “Saying that one intends to do something, or that one will do it, is undeniably an action and it has some of the characteristics of forming an intention.”54 This, of course, does not necessarily mean that “saying” or “intending” in the form of utterances or speech acts have to bear any semantic content at all. In a mystical poetic mode, W.B. Yeats intuitively described the physicality of this occurrence as “a mouthful of air.” The philosopher who further developed and refined Austin’s basic speech act framework, John Searle, refers to the same phenomenon as “acoustic blasts,”55 or speech acts, the “minimal units of linguistic communication.”56 The poet and the philosophers seem to suggest that the meaning of words can be as natural as breathing. The second aspect, the semantic content of speech acts, on the other hand, would in legal analysis, contrary to Austin’s American example, usually be limited to the elements of truth or falsity of an utterance as assertion or premise. Law would seek the forensic correspondence, or points of convergence, between the utterances and some generally accepted facts. The elements such as time, place and individuals linked to specific events constitute some of the most pertinent facts for any criminal or legal analytical framework. The approach to propaganda in war crimes investigations, however, should take both aspects of speech acts into account. Some “acoustic blasts” deprived of specific semantic content, like booing or cheering at stadiums or public rallies, can be an indication of a response to the “meaning intention” and “communication intention”57 transmitted through an entire speech, or a single speech act, word or phrase. In all cases in which “meanings” are attributed or attached to the speech acts as acoustic blasts, one cannot speak of “meaninglessness” as such anymore. That is the moment when a “meaningless” speech act is admitted into a network of other “meaningful” concepts. In his ontological investigations of language, W.V.O. Quine noted that the utterances such as “Ouch,” “Red” and “Square” are in isolation each “a one-word sentence.” They are conceptually conditioned by sensory stimulations. It is a pas de deux of a kind between the body and its natural environment. For these reasons, Quine sees these words “simply as fragments of sentences which were learned as wholes.”58 Thus, a standalone “acoustic blast” ceases to exist by assuming a position, its new life, within a web of external and internal relations. An important component of this web is “semantic frame,” word or phrase, which opens the gates into a far more complex world made of words, views, ideas, beliefs and desires consisting of cultural, social, political, historical, psychological, linguistic and other contex-

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tual avenues. Within this multidimensional cognitive linguistic composition, the key term “frame,” as defined by Charles Fillmore, stands for “any system of concepts related in such a way that to understand any of them you have to understand the whole structure in which it fits.”59 Similarly, drawing an analogy with numbers, the pragmatist philosopher Richard Rorty pointed out that there are “relations all the way down, all the way up, and all the way out in every direction: you never reach something which is not just one more nexus of relations.”60 These are only some of the most fundamental rules of the game as they should be applied in the area of semantic analysis of propaganda-related war crimes cases. In the footsteps of the speech act theory, and cognitive linguistics in particular, a new model of semantic analysis would therefore have to focus on the mapping of the main components of the text. The building blocks of any propagandistic discourse are specific words and phrases, or speech act devices. The origin of every such device identified by the analyst as potentially relevant has to be traced back to its maker or messenger. The speech act backtracking method would provide a necessary explanation for the trajectory and contextual background of each word or phrase before the speech act device may have been released or planted. As the IMT, ICTR and ICTY jurisprudential records indicate, such a procedure would generate some of the most valuable evidence to be introduced in individual or, more importantly, in a series of related trials. The Akayesu case before the ICTR is an example of how a criminal case within the framework of international law should be approached in this regard.61 In the judgment, the Trial Chamber (TC) attributed particular importance to the difficulties presented by different languages used during the trial. The TC refers to “the fact that the syntax and everyday modes of expression in the Kinyarwanda language are complex and difficult to translate into French or English. These difficulties affected the pre-trial interviews carried out by investigators in the field, as well as the interpretation of examination and cross-examination during proceedings in Court,” stating, finally, that “where the words spoken are central to the factual and legal findings of the Chamber, the words have been reproduced in this judgment in the original Kinyarwanda.”62 By leaving some of the words in the original language, the TC has implicitly acknowledged its preconditioned cognitive inability to have a complete grasp of all conceptual resonances as the native speakers would have perceived them at any point in time before or during the tragic events in Rwanda. The Akayesu TC showed a rare degree of sensitivity to the importance of potential linguistic and general conceptual pitfalls of the trial. A significant portion of the judgment refers to the expert opinion of Dr Mathias Ruzindana, a Rwandaborn sociolinguist, whose evidence and explanations in this regard may have laid the contextual foundations for most, if not all, cases subsequently tried before the ICTR. The Akayesu judgment attributes particular importance to the words Inkotanyi, Inyenzi, Icyitso/Ibyitso, Interahamwe, and the expressions used in Kinyarwanda for “rape,” all provided with sociolinguistic explanations by Ruzindana. The TC explicitly states that “because of their significance to the

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findings of the Chamber,” as further explicated in the text, “the Chamber has relied substantially on the testimony of Dr. Mathias Ruzindana.”63 The first term listed by the TC is “Inkotanyi,” explained by Alison des Forges in her book on Rwanda as “members of the RPF, a term that recalls the important armies of nineteenth century Rwanda.”64 In his memoirs, the Canadian general Roméo Dallaire, then commander of the United Nations (UN) peacekeepers in Rwanda, recalls one of the episodes revolving around the word Inkotanyi and writes: “The rough translation is ‘freedom fighter,’ a term the RPF meant seriously but the opponents used sarcastically.”65 Before the Akayesu TC, however, Ruzindana finally determined that “the term Inkotanyi had a number of extended meanings, including RPF sympathizer or supporter, and, in some instances, it even seemed to make reference to Tutsi as an ethnic group.”66 This term is an example of a conceptual frame with the resonances initially accessible only to the native speakers of Kinyarwanda. Yet, as if the meanings and connotations of the words were merely strings attached to a sound box, it is one thing to know what they are and entirely different thing to have the capacity to conceptually relate to the full scale of sounds and resonances they can produce. The implications of such modus operandi in analysis, case presentation and legal interpretation of the evidence can therefore be twofold: didactic and evidentiary. If the concept of fair trial within international legal framework is to be guaranteed and maintained in practice, the judges, as much as any other participant in the process, investigative or legal, should at the very outset, and preferably prior to the opening of the trial, be educated about a broader context within which the evidence relevant for their case may have originated. The arena of international law should, strictly speaking, never offer a safe haven to the actors ignorant of the contextual elements of the trials they are part of. A prior knowledge of the context would not necessarily introduce bias or prejudice into the trial. Contrary to that assumption, like in national jurisdictions, it would preserve the intellectual integrity of the main participants—judges, prosecutors, defense attorneys, investigators and analysts—and safeguard the quality of the proceedings and trial records as well. Had this self-evident point been placed on the list of the founding principles of the international courts and tribunals, some of the most embarrassing remarks and questions, including the occasional periods of inconvenient but meaningful silence, originating in and around the courtrooms, would have been prevented. The aspect of correct interpretation of the connotations and conceptual resonances of most basic historical, political or cultural references at international war crimes trials, i.e. mainly the contextual evidence, and particularly the references introduced as part of a propaganda discourse, should be included in a manual of the criminal investigations and trials involving instigation, incitement or related forms of aiding and abetting as applied within international legal framework. The analytical procedure itself, in any case, requires a necessary preliminary distinction between the two general categories of speech acts: universal and culture-specific. All concepts included in these two categories constitute individual

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“frames” within sets of particular semantic fields. Referring to the discovery by Charles Fillmore that “words are all defined relative to conceptual frames,” George Lakoff, a distinguished cognitive linguist, says that “groups of related words, called ‘semantic fields,’ are defined with respect to the same frame.”67 In other words: words lend their (good or bad) names to the components of the frames, and frames, while inhabiting clusters of semantic fields, make the communication or interpretation of a linguistic content possible. Assisted by syntactical rules, they provide the necessary minimum of semantic cognitive coherence. It should again be noted that propagandistic narratives are commonly build within the semantic fields of words such as “Jew” or “Jewish” in the Nazi discourse, “Ustasha” and “Chetnik” in the Serbian, Croatian and Bosniak discourse, and “Inyenzi” and “Inkotanyi” in the Hutu discourse. Nevertheless, while the category of universal words and phrases consists of concepts translatable across the linguistic and cultural borders, the category of culture-specific words, apart from their often hidden or coded meanings and connotations, belongs more to the type of linguistic communication which strongly appeals to feelings and emotions rather than to the generally accepted semantic rules of communication.

The hate triangle As intimately related as feelings and emotions may be, Antonio Damasio highlights an important difference between the two sentiments: “Emotions play out in the theater of the body. Feelings play out in the theater of the mind.”68 This level of complexity provides one of the reasons why the conceptual thinking in words and phrases can only be understood as an important part of a much broader cognitive circuitry. The concept of “hate speech,” as one of the central issues discussed in the national and international arena of legal and human rights debates, fits into the domain often ruled by emotions and feelings. In the natural and social sciences, however, hate is defined as a sentiment hardwired into our biological make-up. It has been shown that hate, the same as love, stretches over the multiple locations in the cortex and sub-cortex of our brains. In their pioneer neurobiological research on the neural correlates of hate, Semir Zeki and John Paul Romaya, using the technique of functional magnetic resonance imagining (fMRI), scanned the brains of their selected subjects while they were looking at the faces of the people they hated.69 Part of the questionnaire designed for this experiment was based on Robert and Karin Sternberg’s triangular theory of hate. The core categories or functions of the Sternberg theory are: (a) negation of intimacy; (b) passion; and (c) commitment.70 In relation to the main components of the triangle, Robert and Karin Sternberg write: “Hate propaganda, which proposes story themes, typically accomplishes one or more of three functions.”71 Concurrently, Zeki and Romaya refer to other studies which identified part of the brain “that is mobilized in the context of hate. It contains neurons that are active in phases preparatory to motor acts,” concluding that they are “active in conditions in which cognitive planning is required to trigger a motor act.”72

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Both scientific disciplines clearly point toward the element of “action” as being in the center of the findings. From the biological point of view, however, it should be indicated that a rational type of hate, contrary to an irrational type, can have an evolutionary role in protecting us against hazardous encounters within our natural and social habitats. The irrational type, on the other hand, is one of the instruments of propaganda commonly based on deliberate misinformation and false beliefs, or strategic conditioning of threats and fears, all capable of triggering strong emotional responses in the recipients of the messages. Having in mind his own participation in the war, and referring to doctors’ opinions, Montaigne noted that “there is no emotion which more readily ravishes our judgment from its proper seat.”73 In his essay On fear, he famously stated: “It is fear that I am most afraid of.”74 That is why any approach to the analysis of the processes involving the sentiment of hate, including its consequence such as hate speech or hate crimes, should take both biological and social component of the context into account. Paradoxically or not, it is a cognitive loop within which our minds have to understand and deal with themselves internally. In 1826, William Hazlitt, one of the greatest essayists and literary critics of the English language, described this inner struggle most eloquently in his essay The Pleasure of Hating. Hazlitt opens his treatise by observing a spider in his room. He detects fear in both actors in the scene: the observer and the observed. Hazlitt: “A child, a woman, a clown, or a moralist a century ago, would have crushed the little reptile to death: my philosophy has got beyond that. I bear the creature no illwill, but still I hate the very sight of it.” Hazlitt then describes our cerebral struggle: “We give up the external demonstration, the brute violence, but cannot part with the essence or principle of hostility.”75 Apart from his literary erudition and humanistic orientation, Hazlitt showed the intuition of a scientifically-minded philosopher: “Nature seems (the more we look into it) made up of antipathies: without something to hate, we should lose the very spring of thought and action.”76 Many questions arise from our knowledge today that there is an area in our neural circuits reserved for hate. Can the freedom of expression, including hate speech, taken to its outer social and legal limits, simply be treated as a non-restrictive biological right we all have? Can we, as individuals, use the power of free will and, under any circumstances, decide when or why to keep the multiple input gates for hate closed? Are we after all really in charge of our own decisions and actions?

Framing and priming: Kosovo and Metohija Within the framework of war crimes investigations and trials relating to former Yugoslavia, the name of the former Yugoslav autonomous province of “Kosovo,”77 its extended name “Kosovo and Metohija,” or its contraction “Kosmet,” as used in Serbia, is an example of a concept with multidimensional, temporal and spatial, semantic resonances. The etymology of the name of Kosovo is most likely derived from the noun “kos,” which in Serbo-Croatian means “blackbird.” The name of Metohija, however, roughly means “monastic” or “church” land in Greek,

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connoting an Orthodox, i.e. mainly Serbian, religious and cultural setting. The conceptual resonances of these words in Serbia penetrate deep through the political, historical, cultural, military, demographic and other semantic fields and frames. A political framing of the concept “Kosovo and Metohija” would, for instance, usually be placed within the field of Serbian territorial integrity, its statehood, and the idea known as “all Serbs in one state.”78 A historical framing would be directed towards the Kosovo battle the Serbs fought against the Turks in 1389 as a defining moment for the development of the Serbian national identity. A cultural framing would address the importance of the Serbian Orthodox churches, monasteries, frescoes, and art in general as part of its spiritual life. A military framing would most certainly revolve around courage and sacrifice, including the narrative of betrayal,79 shown during the Kosovo battle. A demographic framing would refer to the increase of the Albanian population against a relatively low birth rate and migrations of the Serbs from “Kosovo and Metohija.” The Serbs, as intended recipients of these messages, would, however, perceive them as a single conceptual package colored with a wide spectrum of emotions and feelings. The conceptual resonance of those words, or phrases, as a speech act can, on the one hand, be compared to the rattling and cocking of armaments following a call, or appeal, for a collective response. The resentment and hostility it can produce, on the other hand, is inextricably linked to the feelings of deep empathy and sympathy. This is a voluminous conceptual generator and resonator of love and hate in the neural circuits of the Serbs. Used as a repetitive technique of propagandistic messaging, words and phrases such as “Kosovo and Metohija” can also be viewed as an example of the phenomenon called “priming.” This is a process in which a single word can lead us into one or several related semantic fields or even an entire battlefield of memories and feelings in a world made of words. In cognitive science, and social psychology in particular, as Jerome Feldman reminds us, “the priming effect is essentially the same as our common experience that one word will often make us think of semantically related words.”80 The phenomenon of priming, in fact, produces the same or similar results through visual and other stimuli. The combined activity of all these components in most cases leads to decisions and actions primed by either mental or physical form of the “butterfly effect.”81 Depending on the type and course of priming, or framing, these actions may vary from extremely aggressive to manifestly nonviolent. One of the leading researchers of the phenomenon of priming, the social and cognitive psychologist John A. Bargh, writes that “the passive activation of behavior (trait) concepts through priming manipulations increases the person’s tendency to behave in line with that concept, as long as such behavior is possible in the subsequent situation.”82 The conceptual framing and priming of “Kosovo and Metohija” has therefore been a powerful device in the hands of the propagandists in Serbia. The central narrative in this regard is the battle of Kosovo from 1389. Noel Malcolm, a British historian and chronicler of the Balkan events, is correct in saying that “the battle of Kosovo has become a totem or talisman of Serbian identity.”83 It is therefore not the historical narrative based on research and

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evidence, but the myth of Kosovo that has played the key role in the formation of the Serbian national identity. In fact, it is a cluster of false beliefs and misinterpretations that have been jointly shaping the perceptions of the Kosovo battle among the Serbs. As a multifaceted myth and narrative, “Kosovo and Metohija” was reintroduced into the public life of Serbia in the early 1980s by a wide range of intellectual and institutional authorities, the academicians, historians, writers, journalists, artists, politicians and others.84 In the case of “Kosovo and Metohija,” seen from the perspective of Searle’s theory of social ontology, a distinction can be made between two basic types of institutional facts. One is “Kosovo and Metohija” the speech act, or language as institutional fact, based on Searle’s argument that “speech acts are themselves institutional fact,”85 and the other is the status or authority of the individuals who may have personally advocated or supported specific aspects of this conceptual frame. But, as Searle frequently accentuates, the bottom-line claim is that “you cannot have institutional facts without language. And once you have a shared language you can create institutional facts at will.”86 Thus, if recognized and generally accepted as means of communication, both types of institutional facts fall under the category of what Searle calls “collective intentionality.” Apart from “singular intentionality,”87 Searle says that we can “share intentional states such as beliefs, desires, and intentions.”88 The intent and effects of propaganda, analyzed as part of any political or military conflict, can be explained in terms of “collective intentionality.” In legal terms, “shared intent” is the closest conceptual relative of “collective intentionality.” This, of course, reveals only a small fragment of the view on the “Kosovo and Metohija” propagandistic framing, the linguistic institutional facts and the status or authority-based institutional facts, both of which are instrumental in creating the Serbian social habitat. It should be noted that, prior to the 1980s, the myth of Kosovo survived mainly in the Serbian oral and literary tradition, for the most part in the Serbian epic and modern poetry. In fact, more often than not, it has been the case in the Serbian scholarly and cultural tradition that historiography and politics, on the one hand, and art and poetry, on the other hand, live a symbiotic life. One of the most illustrative examples in this regard is a special issue of the periodical of the Association of Serbian Writers entitled Kosovo 1389–1989. This publication brought together some of the most exposed representatives of the Serbian intellectual elite at the time. The following short passage from the introductory remarks points at some of the typical elements of the “Kosovo and Metohija” framing: “Albanian separatists have pounced upon the oldest and most sacred part of Serbian soil, the ancient homeland of the Serbs, the cradle of their culture and civilization – Kosovo.”89 On several convergent metaphorical levels, this excerpt suggests that the territory of “Kosovo and Metohija” and the Serbs are inseparable biologically, historically, politically and culturally. The reality of Kosovo metaphors, such as the reference to “the cradle” of Serbian culture and civilization, implicitly points at a key element of the origin, existence and survival of an entire nation.

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It is suggested, as is often the case with the organicist views of human society and culture, that without direct links to the past, that is, a part of the territorial context of the heritage in the case of “Kosovo and Metohija,” there is no future for the Serbs as a whole. In their seminal work on metaphors, Lakoff and Johnson write: “Metaphors may create realities for us, especially social realities. A metaphor may thus be a guide for future action. Such actions will, of course, fit the metaphor.”90 If Donald Davidson was indeed correct in saying that “we must give up the idea that a metaphor carries a message, that it has a content or meaning (except, of course, its literal meaning),”91 it should be emphasized that metaphors could nonetheless also be identified as attractive but potentially fatal linguistic bodies, or cognitive zombies of a kind. As lifeless as they may seem to be, metaphors have the potential of setting our cognition in motion. Moving one step closer to the self-fulfilling prophecy of the metaphors employed in Kosovo 1389–1989, the quoted excerpt is further integrated into the string of references to terrorism, rape, destruction of cultural and historical monuments, desecration of graves, the reduced number of Serbs in Kosovo, etc. Such practice in writing and thinking, starting with what Lakoff and Johnson call “cross-domain mappings in the conceptual system,”92 offers a description of the process of blending of the conceptual metaphors within the Kosovo myth as a grand narrative. The historical characters, places and events, on the one hand, and a propagandistic framing, or priming, based on fear, threats and false information, on the other hand, as different types of speech acts, word by word, can become an embodied cognitive experience. They become the reality. Recognized as the most powerful myth among the Serbs,93 the “Kosovo and Metohija” conceptual framing, or priming, offered in virtually all main Serbian media on a daily basis, appealed to the greatest majority of the Serbs, their fears and their pride equally, conditioning them to act in various ways—mental and physical – and at various, but specific, moments. This phenomenon can have an effect on the temporal dimension in the minds of the people who, as a result, may begin to believe that they are still active participants in the Kosovo battle more than six centuries after the actual event. One of the most telling examples in this regard is the television footage of General Ratko Mladic´ during the takeover of the Bosnian town of Srebrenica in July 1995. While making his way into the town, Mladic´ is recorded as saying: “Here we are on 11 July 1995 in Serbian Srebrenica. On the eve of one more great Serbian holiday, we present this town to the Serbian people. After the rebellion against the Turkish governor, the moment has finally come for us to take revenge on the Turks here.”94 Given the non-presence of the Turkish forces in Srebrenica, the only thing that General Mladic´ could possibly have in mind at that moment would have been a continuation of the Kosovo battle against the Turks from 1389. A phase of that battle, extended in physical time and timeless in the Serbian mythology, was waged under the direct military command of General Mladic´. As the evidence in all ICTY Srebrenica-related trials show so far, one of the consequences of Mladic´’s beliefs was the killings of thousands of Muslim men and boys in and around Srebrenica.

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As a model of persecution against an ethnic minority, i.e. the Kosovo Albanians, a series of measures and policies were instituted by the Serbian and Yugoslav authorities and President Slobodan Milosˇevic´ in the 1980s. Using the North Atlantic Treaty Organization (NATO) intervention against the Federal Republic of Yugoslavia (FRY) between March and June of 1999 as a pretext and justification, the cumulative oppression in Kosovo erupted in an extremely violent and brutal military, paramilitary and police campaign against Kosovo Albanian civilians. Describing this campaign as a fight against the terrorists, that is the Kosovo Liberation Army (KLA), a well-armed and well-organized Kosovo Albanian paramilitary organization, the crimes were subsequently committed by the Serbian and Yugoslav forces against the prisoners of war (POWs). Several of these cases resulted in ICTY indictments.95 Nevertheless, the crimes committed by the Serb and Yugoslav forces soon became an important component of the ICTY indictment against the then Yugoslav President Slobodan Milosˇevic´.96 A timely linguistic analysis of the propagandistic communications relating to Kosovo would have indicated that the crimes, committed under the supreme command of President Slobodan Milosˇevic´, were initially introduced into the Serbian society as part of the mechanism of conceptual framing packaged under commonly known and frequently used nouns such as “Kosovo,” “Kosovo and Metohija,” or “Kosmet.” In brief, the actions of the Yugoslav and Serbian forces and their crimes, including the Kosovo Albanian response, could have been anticipated by identifying the patterns in propagandistic framing, or priming, of the Serbian society based on the analysis of the use of the Kosovo myth and the narrative as a whole.

Investigative leads: “coffee & co.” A single word, phrase, or a single letter—a phoneme—can sometimes offer an important clue or lead in the course of war crimes investigations. A spelling in a text or a pronunciation in an interview can open a peephole into volumes of relevant information. In his lectures on text and translation, Umberto Eco, drawing on his semiological research, gives an example of a universal word with a potential of causing substantial cultural shifts in interpretation: “The words coffee, café, caffé can be considered as reasonable synonyms when they refer to a certain plant.” Eco then places the word in a specific context: “Nevertheless, the expressions ‘donnesmoi un caffé,’ ‘give me a coffee,’ and ‘mi dia un caffé’ (certainly linguistically equivalent to one another, as well as being good examples of different sentences conveying the same proposition, and satisfactory instances of literal translation) are not culturally equivalent.” Eco: “Uttered in different countries, they produce different effects and they are used to refer to different habits. They produce different stories.”97 Interestingly enough, in former Yugoslavia, the same noun—“coffee”— has three different culture-specific spellings in the ICTY-created BCS98 language: “kafa” for the Serbian speakers, “kava” for the Croatian users, and “kahva”99 for the Bosniak, or Bosnian Muslim, population of Bosnia and Herzegovina. The utterance of this word, or its use in a printed document, can initially provide reliable

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indicators into the cultural and ethnic background, including the religious and ideological affiliations of the speaker. The media and ethnically-oriented local authorities, that is, the originators of open source material and official documents, would follow the same pattern. This information can make a world of difference within the framework of an investigation. The only competent analyst to recognize this fact, however, would be a linguistically educated reader or interviewer. However, the witness and suspect interviews are in most cases conducted by investigators, lawyers and analysts who do not speak the language of the witness. Moreover, as part of the procedure, the interpreters and translators are generally advised not to interfere or comment on any issue arising in the course of an interview. If the only reliable source of contextual information, i.e. a linguist, is shut down, the channels of potential confusion and misinformation are wide open. As a consequence, apart from overlooking or simply disregarding some of the potentially relevant aspects of the investigation, such procedure and practice give an opportunity, particularly during the suspect interviews, for the interviewees to manipulate the interviewers. Similar examples are buzzing through the courtrooms in international war crimes trials on a daily basis. Occasionally, thanks to a perceptive participant in the trial, some of these words or phrases are given the treatment and explanation they deserve. The most accurate clarifications and insights come from expert witnesses or simultaneous interpreters, but only if they are approached by the judges regarding an obviously delicate or puzzling linguistic matter. Too many witnesses in propaganda-related cases may have gone through the red light without anyone in the courtroom taking notice of a major evidentiary traffic violation. Too many key words and phrases have never been properly introduced, explained and contextualized. This deprives trial records of a substantial evidentiary content and jurisprudence without an adequate response to that content.

The gap of forking paths: causation, intentionality, free will One of the key modes of criminal responsibility relevant for the investigations within a propagandistic framework is “instigation.” Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute define “instigation” as a form of individual criminal responsibility.100 As noted earlier in this text, contrary to “incitement,” applied in international criminal law principally in relation to the charge of genocide, its closest lexical relative “instigation” is a concept additionally burdened by the factor of “causation.” In their seminal work of legal philosophy and jurisprudence Causation in the Law, H.L.A. Hart and Tony Honoré noted the following set of relations: “In cases of instigation properly so called, viz. ‘counseling’ or ‘procuring,’ accused must be shown to have provided a reason for the principle to commit the criminal act.”101 Hart and Honoré, in their subsequent analysis, relate the concept of “counseling” to the concept of persuasion, one of the main mechanisms in propagandistic communications. The

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philosophers of law emphasize the question “whether accused is responsible if he persuades the principle, not by using threats or bribes but by pointing out the advantages of the proposed course of action.”102 It is suggested, in other words, that in case of persuasion, possibly propagandistic in intent, a perpetrator of a crime, or the instigated person, by accepting the reason communicated by the instigator, may then decide to act and also execute the action from the message. The degree of free will included in this complex equation can in any case be measured only against all determinable factors, conditions and variables, past and present, which may have actually influenced, or even caused, the actus reus. It is, however, virtually impossible to consider all things of potential relevance for the final outcome. That is why the so frequently used Davidsonian ideal of “all things considered” may sound more like an insulated phrase from the analytical philosophy of language than a matter-of-fact statement based on empirical reality. 103 Along these lines, in his critical review of the doctrines of criminal responsibility, offering arguments that the factors of influence in the conduct of any perpetrator must “be voluntary and not involuntary,” and, furthermore, that “this element in responsibility is more fundamental than mens rea in the sense of knowledge of circumstances or foresight of consequences,”104 H.L.A. Hart ultimately makes the case in favor of the complexity of the physical and psychological elements of human actions in terms of body and its functioning within a specific environment. The proposed line of thinking by Hart seems to be the most logical path to follow. Within such constellation, the position of “causation” is, or may be, of fundamental importance in proving “instigation” as a mode of criminal responsibility emerging from propaganda as one of its conceptual relatives. What is causality? The most basic but by no means absolute distinction can be made between the physical and the mental causality. During the initial period of our cognitive development as human beings, first as newborns and then as toddlers, we naturally learn the first lessons about the concept of physical causality. We learn that we are a body that can do things in real space and time. We also learn that by touching objects placed in our environment, we can set them in motion and actually move them from one place to another. We can push and pull a whole variety of physical entities within the reach of our bodies. The “pushpull” lesson may be one of the most important epistemic steps in our cognitive development. Perhaps the most important aspect of this process is a gradually acquired knowledge that we have the ability to move and re-move, place and replace, objects in the physical world. By doing things to objects, we exercise a significant, if not absolute, degree of power and authority over the objects. We can actually “manipulate” the world around us. The etymology of the verb “to manipulate” in Latin, of course, indicates the use of hands. In any case, it is impossible to accurately quantify and determine the path we need to follow in the course of our further cognitive development from being the object-manipulators to the point of becoming the mind-manipulators. In this respect, the inner dynamics of the evolution by natural selection and our environments have completed this job for us, blindly and free of charge. It is, after all, a strong and distinct characteristic of

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our species to develop complex ideas in order to utilize them in a personal or social context. Perhaps only the poets among us are still able to recall the first innocent look at an object. A great poet of the French language Francis Ponge105 may have offered one of the best examples. Having explained why and how a pebble should be examined, Ponge concluded: “Also the pebble is stone at the exact age when personality, individuality, in other words language, emerges.”106 It can be assumed that Ponge’s practical poetic lesson is that both the player and the toy are defined by the language which is being born in the course of the game. A resemblance to an aspect of the Wittgensteinian “language-game” is more than apparent, whereby “the speaking of language is part of an activity, or of a life-form.”107 Having reached certain cognitive maturity, however, we begin to apply and utilize the game of manipulation in many different ways. One of the most direct real-life analogies in this respect is what we can, or cannot, do with billiard balls, and how ordinary pubs can be transformed into the training fields for practice and observation of relatively simple causal chains of events. When we act within the “different surrounding worlds, the different epistemic worlds,”108 as Dan Dennett once put it, we change our Umwelt,109 the external reality we are part of. We can observe the changes taking place and our position in that process simultaneously. The inputting and outputting of information forms a dynamic feedback loop necessary for our awareness about the environment. Step by step, event by event, our minds collect and blend together a series of short stories about mainly space, but also time. As cognitive linguist Mark Turner writes: “Forms of social and psychological causation are understood by projection from bodily causation that involves physical forces.”110 Perhaps the most important aspect of the knowledge we gather by being part of this interactive process is that we are individually, and sometimes collectively, responsible for some of the changes which may have taken place as a direct consequence of our actions. The concept of “responsibility” in this case, of course, has not yet fully entered the realm of social, moral or legal responsibility. More than a few steps away from uniting itself with a more complex mental domain, in its purer form “responsibility” still operates confined within the physical world in a broader sense of the word. The phenomenon of mental causation is a property of our mind which enables us to do things by employing our minds and consciousness only. In other words, we alone can be the designers and the movers of ideas. This is as close as we can get at this point of our evolutionary development to a “brain in a vat” scenario.111 The mental causation, following Searle’s reasoning, is part of intentionality, also known as “aboutness,” or something when our minds are about something or in relation to something. As defined by Searle, “intentionality is that feature of the mind by which mental states are directed at, or are about or of, or refer to, or aim at, states of affairs in the world.”112 Intentions, as we understand the word in our everyday life, that is, “to intend,” are only a component of intentionality. Our intentions are made of desires, beliefs, hopes, fears, love, hate, pride, shame, etc. the factors without which, it is more than clear, the concept of propaganda would be unimaginable. More importantly, our intentions are an integral part of the

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mental causation, a chain of related mental events, which cannot even be described as causal without us intending to do something. This type of mental causation belongs to the category of rational actions. Dealing with the role rationalization plays in the relationship between reason and action in terms of causal explanations, Donald Davidson wrote: “Central to the relation between a reason and an action it explains is the idea that the agent performed the action because he had the reason.”113 A reason, made of beliefs and desires or other intentional states, is an essential value for a description or redescription of an event in terms of its causes. No matter how persistently we follow the Davidsonian path, and with the knowledge of the fact that reasons are often not as nearly clear-cut as they usually seem, the central point of gravity should always be located in, or near, the conjunction “because” or “be-cause.” As the trial records indicate, the judges at the international war crimes tribunals used this conjunction often, particularly in the questions or comments dealing with the element of instigation. It is worth noting that, as opposed to the realm of rational actions, the non-rational or irrational mental causation would include events dwelling primarily in the area between conscious and unconscious, a sphere of our mental activities such as dreaming or hallucinating, which are not necessarily under direct control of our rational actions. An important emergent feature of the mental causation in this regard is Searle’s concept of intentional causation. This form of intentionality may be one of the keys to our understanding of the functioning of our intentions, desires, beliefs and other building blocks of intentionality. Our intentions, for instance, are in most cases self-referential. As Searle put it: “My intention is carried out only if I act by way of carrying out the intention.”114 This means that if intentions are to be satisfied they need to be referred to the world outside our bodies. As earlier discussed in relation to the concept of “intent,” it is perfectly possible to intend and not to act upon the intentions. The range of such actions can vary from raising one of our arms in order to take a glass of water, or pull the trigger of a firearm, to an action such as uttering a word or a phrase. But, intentions can also be grand in magnitude, such as our political beliefs and desires expressed in more complex contextual settings. In Searle’s words, again, “the intention is satisfied only if the intention itself causes the rest of its conditions of satisfaction.”115 This process is equally real within both physical and mental domains, meaning that the causal chain of events affecting our memories or imagination does not have to be explained at the level of particle physics. This clearly indicates why the model of “intentional causation” can be successfully used for the interpretation of human behavior as part of the social and not only the natural sciences. The analogy Searle gives to support his theory can be an important test for the key propagandistic narrative in the former Yugoslav conflict. Searle writes: “Suppose we explain Hitler’s invasion of Russia by saying he wanted Lebensraum in the East.”116 The grand narrative revived by the propaganda machinery in Serbia in the 1980s was the political and military idea to create a state entity called “Greater Serbia.” According to the ICTY indictments and pre-trial briefs, all

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Serbian leaders tried by the Tribunal shared this common goal. It is a common denominator in the cases against Slobodan Milosˇevic´, Biljana Plavsˇic´, Milan Babic´, Milan Martic´, Radoslav Brđanin, Vojislav Sˇesˇelj, Radovan Karadzˇic´ and many others.117 The goal itself was conceptualized by different leaders and propagandists in different terms, textually as well as visually (e.g. geographical maps). As a shared goal, however, this concept may have been instrumental in defining the Serbian political and military leadership as members of a JCE, a legal doctrine initially introduced by the ICTY and subsequently also applied at the ICTR.118 Some of the frequently repeated phrases the JCE members used to refer to their projected and imagined state were “all Serbs in one state,” or “single Serbia,” “unified Serbia,” “Serbian lands,” “Greater Serbia,” or, the most original one, the “Karlobag-Ogulin-Karlovac-Virovitica line.”119 All these names referred to the same geopolitical area encompassing primarily large parts of Croatia and Bosnia and Herzegovina (see Figure 2.1). Although they all may be part of the same branch of conceptual frames, one of them—the “Karlobag-Ogulin-KarlovacVirovitica line” or simply “Karlobag-Karlovac-Virovitica line”—is different from the rest. The research and analysis, and the speech act backtracking method, mentioned earlier, in particular, shows that this phrase was introduced by Vojislav Sˇesˇelj, and, as such, it can be considered as his unique mental fingerprint. Other concepts used countless times by Sˇesˇelj only, as part of a political discourse in Serbia, include the word “amputation,” always linked to the “amputation of Croatia,” or the concept of “retorsion,” implying reprisal, retaliation or retribution, as known in international law. Every time any of these or similar phrases are found in the statements or documents produced by other individuals, such as Serbian politicians or volunteers who joined various (para)military formations, it can be concluded that a specific mind has been cognitively “fingerprinted” by the originator. The most interesting question, however, is whether such “mental fingerprints” may have caused physical actions, particularly those defined as criminal in international law, by the “fingerprinted” mind. In his study Causation and Responsibility, Michael S. Moore, a philosopher of law who has dedicated a significant part of his theoretical work to the phenomenon of causation, says that “when assessing culpable mens rea, there is always a ‘fit problem.’” Although Moore’s discussion in this case relates to the culpability dealing with direct physical harm, his reasoning that “fact-finders have to fit the mental state the defendant had to the actual result he achieved and ask whether it is close enough for him to be punished for a crime of intent like mayhem,”120 logically corresponds to the propagandistic analytical framework which includes intent, causation as part of instigation, actions, and the consequences or results of such a chain of events. As fact-finders, the analysts have to identify and place a “mental fingerprint” into the evidentiary feedback loop, outlined earlier in this text. In other words, as a unique word or phrase, a “mental fingerprint” should fit into the evidentiary feedback loop as one of the links between the instigator and the instigated. In the exact footsteps of Searle’s model, such “fingerprints” can lead analysts to the inference that, for instance, as a key JCE member, or co-conspirator, as someone

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who shared a part of the collective intentionality, or whose will was converging with the wills of other JCE members on the specific point: (a) Slobodan Milosˇevic´ wanted “living space” for the Serbs in the territories of Croatia and Bosnia and Herzegovina; (b) he believed he could get these territories by occupying parts of Croatia and Bosnia and Herzegovina; (c) a and b together, by “intentional causation,” provide at least part of the causal explanation of the decision, hence the intention, to occupy parts of Croatia and Bosnia and Herzegovina; and (d) the intention to invade them is at least part of the cause of the occupation of these territories, by intentional causation. Looking back at Donald Davidson’s thinking that actions do indeed happen because of the specific reasons and that they, i.e. actions, based on the same logic, as this particular parallel between the two philosophers was clearly identified by Joshua Rust in his study on Searle, “must be caused by intentional states.”121

To kill or not to kill: alternative possibilities, self-forming actions, and apparent mental causation An important aspect of this model, however, is a non-deterministic nature of the process itself. In other words, as earlier indicated, an intention does not have to be realized. Intention, individual or collective, can remain fixed or static within the coordinates of the mental process that has preceded it. That is, an intention does not have to meet its conditions of satisfaction in a mental or physical domain. Like a fantasy, or a dream, or if encapsulated in an idea, it can simply stay unrealized, unaccomplished and unexecuted. If this really happens, as it often does, if an intention is indeed born, but not initiated, within, and referred to, the external world, no consequences of its existence can further be discussed. As a theoretical and practical possibility within the framework of intentional causation, this poses a serious problem for the analysis of the consequences of propagandistic discourse. It would, for instance, directly affect the issues of the limits of freedom of expression, hate speech and hate crimes in particular, and degrees of possible culpability or criminal responsibility weighed against it. Searle, however, identifies such a moment as a gap between our beliefs and desires and our decision to act. A decision to act does not necessarily lead to the initiation of the act, or actions, and that is where Searle locates the second gap in the process. If an action is initiated, it has yet to reach the level of execution and completion. Thus, in case of the process breaking up before this moment we can, following Searle, speak about the third gap in the process, that being the gap between the execution and the completion. It can therefore be stated that neither our intentions, i.e. our beliefs and desires, our love and hate or other sentiments, nor our decisions, or even the final moment of initiation, are sufficient causes for the completion of an action. The Searlian “gap” can be described as a specific space in time during which we experience the freedom of the will. The “gap” is a truly invisible part of the process, a slack phase during which our behavior can either remain fixed at a given moment or it can open

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Figure 2.1 Map of “Greater Serbia” published in Velika Srbija (Greater Serbia), newspaper of the Serbian Chetnik Movement, No. 2, Year I, Belgrade, 1 August 1990. On the cover page is a map of “Greater Serbia” as claimed by Vojislav Sˇesˇelj’s political movement. To the west (in Croatian territory), Serbia stretches to the Karlobag–Karlovac–Virovitica line. The text under the map reads: “Serb, Brother, Do Not Forget! These are Serbian Lands!” This map was presented as part of the expert report and testimony of Yves Tomic on 29 January 2008 in The Prosecutor Against Vojislav Sˇesˇelj, Case No. IT-03-67. Courtesy of Yves Tomic.

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the alternative possibilities before reaching the next phase. In any case, it is a decisive moment in a decision-making process. For analysts of propagandistic communications, who are seeking the causal nexus between words and actions, or simply between two different action modes, this model implicates that any uttered word or phrase, even if repeated countless times in public, may or may not have had a causal role in determining the actions taken by an individual under the specific conditions. In other words, if an instigated mind does not close the process by executing and completing the action, we can speak only about a broken chain of events. At this point, proving the causality of instigation, whether direct or indirect, becomes an extremely challenging and difficult task. It is worth noting that the IMT judgment of Julius Streicher, as the first major propaganda-related case of international law, describes the element of causation in a metaphorical language. Referring to a letter from one of Der Stürmer’s readers Streicher published in February 1940, “which compared Jews with swarms of locusts which must be exterminated completely,” the President of the trial chamber concluded the following: “Such was the poison Streicher injected into the minds of thousands of Germans which caused them to follow the National Socialist policy of Jewish persecution and extermination.”122 The judges never took trouble to explain their understanding of the concept of “causation,” or the paths and logic Streicher’s anti-Jewish propaganda may have followed before “causing” so many minds to act towards the persecution and extermination of the Jewish population. The analogies and metaphors seemed to the judges at the time as a sufficient legal instrument in demonstrating a causal chain of events on that magnitude. The fact that from 1933 onwards, Hitler and his party had nearly complete control over the media in Germany, meaning, for instance, that “more than 2,000 newspapers by 1939”123 were in Nazi hands, and that any of these equally anti-Semitic publications, or all of them together, might have “caused” the persecution and extermination, was never mentioned in the Streicher judgment. On the other hand, the judgment in the ICTR Nahimana et al. case, also known as the “Media Trial,” dealing with the element of causation at length, contains a reference to the Streicher judgment as well. Within its own legal framework and in relation to incitement, emphasizing that the “international jurisprudence does not include any specific causation requirement linking the expression at issue with the demonstration of direct effect,” the judgment says the following: “In the Streicher case, there was no allegation that the publication Der Stürmer was tied to any particular violence.”124 This is the correct conclusion by the ICTR judges. However, contrary to the ICTR “Media Trial,” during which the evidence of at least indirect causation was presented,125 the Streicher judgment will be remembered for its lack of an adequate explanation with regard to causation. In this sense, even without the element of causation as a requirement for proving incitement, the Nahimana et al. case, as well as several other ICTR judgments, represent a reasonable step forward in the related jurisprudence. In an environment contaminated with propagandistic communications, political and military in particular, the implementation of volitional actions depends on the

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degree and range of contamination. If the flow of information is not free, if it is directed and orchestrated, especially under the totalitarian or authoritarian regimes, people could be coerced and induced to do things they would not do under different social and political circumstances. This only accentuates the implications and importance of the plurality of alternative possibilities for any individual as a decision-maker in a particular context. Of course, as earlier emphasized in relation to the analysis of open source evidence, a relatively accurate degree of control over the actions exercised by a single person can only be measured against the specific social, political, military, economic and cultural parameters, values and variables. The outcome of such an equation, always closer to an approximation than to an accurate result, would offer an indication with regard to the extent of individual, moral, as well as criminal responsibility of anyone exposed to the various forms of propaganda. In his description of alternative possibilities, Robert Kane, one of the leading contributors to the philosophical and scientific debate on the concept of free will, prefers the metaphor of the “garden of forking paths” from one of J.L. Borges’ much read and analyzed short stories.126 Kane writes that “free will seems to require that open alternatives or alternative possibilities lie before us—a garden of forking paths – and it is ‘up to us’ which of these alternatives we choose.”127 A number of possible alternatives or scenarios an individual may have had at the moment when a specific decision was taken can always be worked out in retrospect. The complexity of the moment, when the actual decision is taken, however, cannot be reduced to a set of reflective calculations. One of the most interesting examples in this respect is the case of Drazˇen Erdemovic´, tried by the ICTY in 1996. After surrendering to the Tribunal and pleading guilty, as one of the perpetrators in the mass killing carried out by the Serbian forces against the Muslim men and boys in Srebrenica in July 1995, Erdemovic´ initially pleaded guilty to murder as a crime against humanity and, after a re-plea in 1998, was eventually found guilty of murder as a violation of the laws and customs of war. In order to determine the most accurate and fair degree of Erdemovic´’s participation in this crime and his criminal responsibility related to it, which means taking into account all factors and variables which may have led the perpetrator to take part in the specific criminal act, and particularly in light of Erdemovic´’s expression of deep remorse, a scientifically minded judge would have to study Erdemovic´ and aspects of his life prior to the outbreak of the war, his position in society, his character, his many self-forming actions and decisions he may have taken in the past, including all possible reasons which may have led to his participation in the war and, finally, the events from the last day or two before the beginning of the mass execution in Srebrenica. All these factors, and various other elements, come together in an amalgamated moment suprême, when Erdemovic´, as a member of the 10th Sabotage Detachment of the Army of Republika Srpska (VRS), was facing the first busload of Muslim men and boys brought to the biggest killing field of Bosnia and Herzegovina. In his initial appearance before the judges, Erdemovic´ stated the following: “Your Honour, I had to do this. If I had refused, I would have

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been killed together with the victims. When I refused, they told me: ‘If you are sorry for them, stand up, line up with them and we will kill you too.’” At a historical moment for international justice and the ICTY, visibly anxious and traumatized, the accused had just enough strength left to utter a few more words: “I am not sorry for myself but for my family my wife and son who then had nine months, and I could not refuse because then they would have killed me. That is all I wish to add.”128 Indeed, the ICTY judges subsequently had to take some of these elements into account: Erdemovic´’s desire to surrender to the ICTY, his remorse and guilty plea, as well as the assumption that the crimes were, in fact, committed under duress and that they were not premeditated. Everything outside a clearly detectable and delineated legal scope, the elements of Erdemovic´’s life which may have been considered as contributing factors to his position when he pulled the trigger for the first time, were largely, and, in strict forensic terms, perhaps reasonably, left in the dark. For a propagandistic framework, however, precisely this area may hold the key to someone’s decision to accept, pursue and execute the ideas transmitted by a propagandist or an instigator. In the closing chapter of The Illusion of Conscious Will, a cognitive-psychological study addressing the relationship between the concepts of morality and responsibility on the one hand, and causal links between our thoughts and actions on the other hand, all placed within the framework of the free will debate, Daniel Wegner introduces the theory of apparent mental causation. Explained in a nutshell, the theory basically rests on the argument that “conscious will is the mind’s way of signaling that it might have been involved in causing the action.”129 If human experience of volitional actions is indeed a mere “signal” of a causative process as a feeling of conscious will, and not the mental causation itself, legal theories may be left with no more than a rough distinction between two different types of feelings: the actions that feel as proposed by our selves and the actions that feel imposed by others. However, what is needed for a more accurate assessment of the role of causation, and Wegner emphasizes the legal theories in particular, is evidence from multiple sources. As an isolated piece of evidence, an admission of guilt, or an expression of intent for that matter, would not be sufficient to prove that causation might have played the key role in a crime. A report based on a personal experience of conscious will, in other words, cannot be treated as the most reliable and conclusive evidence. Erdemovic´’s guilty plea could serve as an appropriate example of the case in question. Apart from the pressure imposed on the decision maker in the heat of the moment, there is, in addition, an undetermined number of formative events, actions and decisions taken in the past. All of them play an important, if not decisive, role in initiating the process. Kane calls this aspect of our lives self-forming actions. Such actions would have significantly influenced our lives at various points in the past and they would certainly have contributed to the development of our self and our character. In this regard, it should be noted that they are not always necessarily active. They are more in a “sleep” or “hibernation” mode. It usually takes another event to reactivate them and, in a dynamic and complex physical world, such acts

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and events can unexpectedly re-emerge as a ripple effect of the past. Self-forming actions, in other words, are not finished and fixed. If the multiple scenarios we are capable of developing as reasonable possibilities or solutions in a specific situation remain at the speculative level, like an exercise in the game of probabilities, Kane’s self-forming actions would continue to reside only within the metaphorical temporality of Borges’ “forking paths” and could not be treated as “reasonable” within the familiar coordinates of empirical facts. On the other hand, the physical consequences of our mental exercises cannot be ignored either. Anything we do voluntarily, intentionally and rationally can be transformed into knowledge and traits of our character which may in turn contribute to an aspect of some of our actions in the future. These are the moments when self-forming actions clearly show that the past is active and that the “game” is still played by the rules established much before the whistle is blown. That is why the preferred analogy with Borges’ “garden of forking paths”—often graphically represented as an algorithmic fractal-like image with a single straight line or branch coming from the past and its side paths forking into the future—remains underdeveloped in terms of its design and origin. The truth is that similar level of complexity projected into the future has been active in the past as well. The consequences of such simplifications can be particularly deceitful when they are applied in relation to individual criminal responsibility. Whether someone adopts a propagandistic message and turns it into an action is a far more complex process than the practice described so far in the currently available trial records.

Conclusion, for a start It is not a rare occurrence that the language and concepts used in seemingly different fields of human activities refer to the same or similar phenomena. Hardly aware of each other’s existence, they seem to live parallel lives. One of the main goals of this chapter is to introduce the possibility of a change to the conceptual divergence in a key area of international war crimes investigations and trials. The phenomenon of propaganda can certainly be considered as one of the most fundamental areas in this regard. As a cognitive device used to prepare the grounds for, and provide incessant support to, both internal and international armed conflicts, without propaganda, its engineers and its vehicles, the political and the military leaders, and particularly their followers, including, ultimately, the executioners, we would not have known much about the strategies and techniques used to commission and commit war crimes on the scale known to us today. One of the lessons we may have learned along the way is that not a single author of a bloody scenario should stand trial without substantial investigations into the identities and actions of the shadows pulling the strings of a grand guignol in the backdrop of any theater of war. And the authors and co-authors, it cannot be emphasized enough, speak the same language, quite literally. This is one of the main reasons why the contextual issues, such as the category of open source evidence, need to be placed within a redefined methodological

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framework of war crimes investigations. A novel approach, proposed by this author, is based on the analytical procedure defined as evidentiary feedback loop and the related phenomenon of mental fingerprinting. Both these models have been developed in the course of more than a decade-long personal experience in investigative, analytical and trial phases of the work dealing with all categories of evidence. New methodologies, however, as this chapter clearly spells out, would also require new methodologists. A new professional profile should be created, a symbiotic form based on the knowledge and experience of the investigators, researchers and criminal intelligence analysts as we have known them in the past. The international war crimes investigations should in the future be conducted only by those professionals who have an in-depth, and particularly linguistic, knowledge of the contextual evidence. The tools available to the new methodologists can, of course, be effective only if the international legal institutions know how to recognize them and apply them in practice. For the investigations and international war crimes trials dealing with the areas such as war propaganda or propaganda for war130—cutting deep through the mental elements of intent and mens rea, or incitement and instigation as relevant modes of liability in the given context—some of the best instruments can be borrowed from the laboratories of cognitive science. The knowledge from the empirical and theoretical research in cognitive linguistics and social psychology, for instance, can be crucial for any propaganda-related investigation or case presentation. As this chapter may have indicated, such a toolbox will not only allow the new methodologists to identify and process the evidence for court purposes, it will also enable them to look into the very heart of the matter: the cognitive and conceptual background of any conflict or crime, either internal or international.

Notes 1 D.F. Wallace, ‘E Unibus Pluram: Television and U.S. Fiction’, A Supposedly Fun Thing I’ll Never Do Again, London: Abacus, 2008, p. 33. 2 The differences in the interpretations and legal definitions of “incitement” and “instigation” have been additionally accentuated by the ICTY and ICTR jurisprudential records. Relying on the ICTR jurisprudence, the entry on “incitement” in Antonio Cassese’s Companion to International Criminal Justice emphasizes the following: “Unlike instigation, incitement is a crime, not a mode of participation in a crime. It does not require the act of incitement to be followed by the actual commission of genocide,” concluding that “incitement is thus an inchoate crime.” A. Cassese (ed.), The Oxford Companion to International Criminal Justice, New York, NY: Oxford University Press, 2009, p. 373. The same publication defines “instigation” as “a form of criminal responsibility recognized under customary international law. It is generally understood as ‘urging, encouraging or prompting’ another to commit a crime, where the actions of the instigator may be shown to have been causal to the actual commission of the crime.” Cassese, ibid., p. 375. Wibke Timmermann, a scholar and practitioner in international law, also draws a careful legal distinction between these two lexical synonyms. Timmermann’s emphasis lies on the importance of “causation” and “intent” as two key elements in proving “instigation,” as defined

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by Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute, whereas “incitement,” following the ICTR jurisprudence, requires “direct and public incitement to genocide,” and, contrary to “instigation,” remains an inchoate crime. The key point of divergence, however, seems to be the concept of “causation,” which is required for instigation, but not for incitement. W. Timmermann, ‘Incitement in International Criminal Law’, International Review of the Red Cross, vol. 88, no. 864, December 2006, pp. 838–843. Publishing on the Internet. Online. Available HTTP: (accessed 9 January 2011). Most law dictionaries contain a range of related entries on “intent” and “intention.” Apart from general semantic and some specific jurisprudential differences, one of the key distinctions emerging from the comparison of the two concepts is that “intent” usually belongs to the context of illegal or criminal acts, whereas the interpretation of “intention” is not necessarily always placing the term in a framework of forbidden or criminal acts. Black’s Law Dictionary defines “intent” as “the state of mind accompanying an act, esp. a forbidden act.” The same dictionary defines “intention” as “the willingness to bring about something planned or foreseen; the state of being set to do something.” B.A. Gamer (ed.), Black’s Law Dictionary, Ninth Edition, St Paul, MN: West, a Thompson Business, 2009, pp. 881–883. A useful string of examples relating to the entries “intent” and “intention” can be found in J.S. James, Stroud’s Judicial Dictionary of Words and Phrases, Fifth Edition, Volume 3, I-O, London: Sweet & Maxwell Limited, 1986, pp. 1324–1326. The jurisprudence of the international war crimes tribunals which included the elements of propaganda in their cases reveals a clear pattern: the concept of “intent” leans towards criminal acts, whereas the concept of “intention” fits also within internal, mental events, not necessarily criminal in nature. The theory of “conceptual blending” originates from cognitive science. It is a mental capacity which, in order to facilitate our day-to-day rational focal cognitive functioning, brings together components of seemingly different but also related domains. The models of conceptual blending are explored and explained by Gilles Fauconnier and Mark Turner in their seminal study The Way We Think: Conceptual Blending and the Mind’s Hidden Complexities, New York, NY: Basic Books, 2002. As Fauconnier and Turner point out in their synthesis, cognitive scientists from other areas have in the course of their research arrived at similar conclusions. For instance, referring to the ideas of Arthur Koestler and Margaret Boden, cognitive archeologist Stephen Mithen, writes that “when thoughts originating in different domains can engage together, the result is an almost limitless capacity for ‘cognitive fluidity.’” S. Mithen, The Prehistory of the Mind: The Cognitive Origins of Art, Religion and Science, London: Thames and Hudson, 1996, p. 71. J. Ellul, Propaganda – The Formation of Men’s Attitudes, New York, NY: Vintage, 1973, p. 59. G.S. Jowett, V. O’Donnell, Propaganda and Persuasion, Fourth Edition, London: Sage, 2006, p. 13. P.M. Taylor, Munitions of the Mind – A history of propaganda from the ancient world to the present day, Manchester and New York, NY: Manchester University Press, 2003, p. 7. G.E.M. Anscombe, Intention, Cambridge, MA: Harvard University Press, 2000, p. 9. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law, Oxford and New York, NY: Oxford University Press, Second Edition, reprinted 2009, p. 117. A. Cassese, International Criminal Law, Second Edition, Oxford and New York, NY: Oxford University Press, 2008, p. 60.

104 Propaganda, War Crimes Trials and International Law 11 V. Klemperer, The Language of the Third Reich: LTI – Lingua Tertii Imperii, A Philologist’s Notebook, trans. Martin Brady, London: Continuum 2006, p. 210. 12 Ellul, Propaganda – The Formation of Men’s Attitudes, p. 21. 13 B. Kushner, The Thought War: Japanese Imperial Propaganda, Honolulu, HI: University of Hawai’i Press, 2006, p. 4. 14 Taylor, Munitions of the Mind, p. 8. 15 J.L. Austin, How to Do Things with Words, Cambridge, MA: Harvard University Press, 1962, p. 91. 16 The criminal intelligence case analysis steps listed by Marilyn B. Peterson can be found in M.B. Peterson, ‘The Context of Analysis – From Analysis to Synthesis: Exploring the Context of Law Enforcement Analysis’, in P.P. Andrews, Jr. and M.B. Peterson (eds), Criminal Intelligence Analysis, California, CA: Palmer Enterprises, 1990, pp. 22–7. 17 Apart from the traditional methodological approaches to case analysis, such as content analysis, profiling, association chart analysis, chronologies, maps, etc. new software applications play an important role in organizing and structuring the analytical products. Different versions of Analyst’s Notebook are a well-known tool used by criminal intelligence analysts. However, the application known as Case Map, a legal analytical tool, can be extremely helpful in bringing the criminal intelligence and legal analytical methods together. 18 M.B. Peterson, ‘Techniques in Criminal Analysis’, Applications in Criminal Analysis: A Sourcebook, London: Praeger, 1998, p. 35. 19 The examples of this type of assistance, for instance, could come through the BBC Monitoring service and the daily reports. The BBC Monitoring open source reports come from more than 150 countries and almost as many languages. The FBIS is an OSINT unit of the CIA. Through their overseas monitoring stations, FBIS provides complete, detailed and accurate summaries of media coverage on various topics. For instance, the BBC Monitoring and FBIS reports were introduced as evidence in a number of ICTY trials. 20 An example of a well researched media landscape in an area engaged in a series of political and armed conflicts is Mark Thompson’s report Forging War: The Media in Serbia, Croatia and Bosnia-Hercegovina, London: Article 19 – International Center Against Censorship, May 1994. In his analysis, Thompson included the chapters dealing with the ownership and control, media freedom, law and censorship, printing and distribution, and other elements relevant for an interpretation of the political and military propaganda in former Yugoslavia. Another useful reference is the chapter ‘Propaganda and Practice’ in A. des Forges’ seminal study Leave None to Tell the Story: Genocide in Rwanda, New York, NY: Human Rights Watch, March 1999. As part of her analysis, des Forges emphasized the links between the most influential media in Rwanda, such as the newspaper Kangura and Radio Télévision Libre des Mille Collines, and the political leadership involved in propaganda and incitement to genocide. It should be noted that parts of both publications, Thompson’s and des Forges’, were introduced as exhibits in various trials before the ICTY and ICTR. 21 The Chinese government’s efforts to censor the flow of information on the Internet are well documented by NGO and media reports; Human Rights Watch, Article 19, Index on Censorship and other organizations have all been monitoring on a regular basis the disputes between various corporations, such as Google, Yahoo!, Microsoft, and the Chinese government. The relevant reports are available on their websites. 22 The United Arab Emirates imposed a ban on BlackBerrys, email and messenger communication in 2010. This issue received wide coverage by the international media and human rights organizations, particularly those concerned with freedom of expression.

Word scene investigations 105 23 In Svetlana Slapsˇak’s content analysis of a single section of the leading Serbian daily Politika, among other factors, Slapsˇak stresses the importance of the social status of the authors whose articles she analyzed. S. Slapsˇak, ‘Some Mechanism of Making Stereotypes: The Belgrade Daily Politika and its Section “Echoes and Reactions”, January–July 1990 – An Analysis of National Themes, Related to Serbs, Albanians and Slovenians’, Ogledi o bezbrizˇnosti, Belgrade: Radio B92, 1994. 24 Some of the finest examples of the NGO authors who testified as expert witnesses before the ICTR and ICTY, based initially on their published reports, are Alison des Forges with her study Leave None to Tell the Story: Genocide in Rwanda, and Mark Thompson with his report Forging War: The Media in Serbia, Croatia and BosniaHerzegovina. 25 After submitting his expert report entitled Political Propaganda and the Plan to Create a ‘State for All Serbs’: Consequences of using Media for Ultra-Nationalist Ends, Renaud de la Brosse, referring to the words of Borisav Jovic´, one of the closest associates of Slobodan Milosˇevic´, testified before the ICTY that Slobodan Milosˇevic´ would ask every day for specific articles to be published in the leading Serbian daily Politika. De la Brosse also quoted a public statement by Dusˇan Mitevic´, then director of the Radio Television Serbia (RTS) that “Milosˇevic´ had direct responsibility as regards distribution of false information and reporting,” ICTY, Case No. IT-02-54, 26 May 2003, page 21221, lines 7–25. Borisav Jovic´ also testified in the Milosˇevic´ case and his book Poslednji dani SFRJ: izvodi iz dnevnika (Last Days of the SFRY), Belgrade: Politika 1995, quoted by Renaud de la Brosse, entered the evidentiary procedure as well. About Milosˇevic´’s perception and use of the media, Jovic´ wrote: “What is not published has not happened at all – that was Milosˇevic´’s motto.” Last Days of the SFRY, Journal of excerpts, trans. David Stephenson for the ICTY, p. 15. 26 I owe this line of thought to Douwe Draaisma, a professor of History of Psychology at the Royal University of Groningen, and his book on memory Vergeetboek, Groningen: Historische Uitgeverij, 2010. 27 J.A. Feldman, ‘Embodied Information Processing’, in J.A. Feldman, From Molecule to Metaphor, Cambridge, MA: The MIT Press, 2008, p. 38. 28 J. Lehrer, Proust Was a Neuroscientist, Boston, MA and New York, NY: Mariner Books, 2008, p. 87. 29 A. Damasio, ‘An Architecture for Memory’, in A. Damasio, Self Comes to Mind: Constructing the Conscious Brain, New York, NY: Pantheon Books, 2010, p. 140. 30 For an analysis of the matter of reliability of viva voce evidence, see the recent study by N.A. Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, New York, NY: Cambridge University Press, 2010. This book offers a comprehensive overview and analysis of the court transcripts from the ICTR, the Special Court for Sierra Leone (SCSL), and the Special Panels, i.e. the East Timor Tribunal. Unfortunately, as the author explains, due to “the educational, cultural and linguistic divergences between witnesses and courtroom staff” at ICTR, SCSL and the Special Panels (p. 5), the ICTY transcripts remained outside the scope of this research. One can only hope that some future research will complete this important project by including numerous examples, no matter how different, subtle or complex they may be, from the ICTY trial records as well. 31 L.A. Janda, Cognitive Linguistics, Glossos: Duke University, the Slavic and East European Language Research Center, 1999–2007, p. 10. Publishing on the Internet. Online. Available HTTP: (accessed 9 January 2011). 32 One of the best examples of such complexity appeared in the form of literary descriptions of an event “re-created” by Raymond Queneau in his masterpiece Exercices de style (Exercises in Style), Paris: Gallimard, 1947. Queneau describes in

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99 short ways a single event that occurred “on the S bus, in the rush hour” in Paris. His description does not only offer multiple perspectives of the same event, i.e. 99 descriptions, it also offers a cognitively challenging and meaningful variety of approaches to the process of linguistic description, indicating that our minds work their way out of situations with the tools that are available to us as individuals. It is worth noting that Queneau was a mathematician by training and that he was well aware of multiple perspectives in any problem solving situation. Exercices de style was based on Queneau’s experience in mathematics, physics, linguistics, music, art, as well as on his belief that the authentic voice of the folk must be used in literary games. In this particular work, Queneau employs an amazing colorful palette of linguistic expressions as ordinarily used by the street bums, servants, tavern denizens, police, and the poorest population from the Parisian suburbs. All the subtleties of his “exercises” show how much contextual knowledge is required from anyone who is trying to understand the core of an event, an innocent bus incident in Queneau’s case study. It is the opinion of the author of this chapter that Exercices de style by Raymond Queneau should be studied as part of the courses taught at any law school or police academy internationally. G. Edelman, ‘Memory and Concepts: Building a Bridge to Consciousnesses’, in G. Edelman, Bright Air, Brilliant Fire: On the Matter of the Mind, London: Penguin Books, 1992, p. 102. Jowett and O’Donnell, Propaganda and Persuasion, p. 359. Jowett and O’Donnell, Propaganda and Persuasion, p. 360. In its formative period, the OTP of the ICTY formed a team of researchers and analysts, the so-called “Leadership Research Team” (LRT), made of historians, philologists, linguists, political scientists, sociologists, philosophers and journalists, whose primary task was to provide an independent support to the investigation and trial teams with evidence relating mainly to the general background of the conflict. All members of the team had to be fluent in the so-called BCS (Bosnian, Croatian and Serbian), both in Latin and Cyrillic scripts. One of the components of this team was the open source unit. The knowledge and support of this team proved to be instrumental in a number of major ICTY cases. Some LRT members became expert witnesses in various trials. As one of the members of this team, I was always of the opinion that none of the “leadership cases” could have been properly tried without the scholarly and evidentiary support of the LRT. Post-ICTY research of the archives and trial records will establish the true extent and quality of the LRT contributions to the specific cases. Based on this experience, however, I would strongly recommend that all international courts and tribunals with predominantly non-native lawyers, investigators and criminal intelligence analysts adopt a similar formula as part of their own organizational structures. Jowett and O’Donnell, Propaganda and Persuasion, p. 358. F.T. Martens, ‘The Intelligence Function’, in P.P. Andrews, Jr. and M.B. Peterson (eds), Criminal Intelligence Analysis, California, CA: Palmer Enterprises, 1990, p. 14. One of the most interesting cases of the so-called “linkage evidence” between literary work and war crimes is the poetry of Radovan Karadzˇic´. Lyric poetry, and Karadzˇic´ is a lyricist, is considered in literary studies to be the purest and most direct expression of feelings and thoughts in language. Karadzˇic´ belongs to the tradition of lyric poetry whose authenticity is based solely on personal and subjective experiences. In legal terms, the origins of mens rea can initially be tracked down in Karadzˇic´’s poetry. Also, as a poet laureate from former Yugoslavia, Karadzˇic´’s poetry received recognition by literary critics and his poems were read by the general public. Part of Karadzˇic´’s authority before and during the war was therefore based on his poetry. Some of Karadzˇic´’s poems are about the destruction of cities, and Sarajevo in

Word scene investigations 107 particular. In a TV documentary made with Karadzˇic´ as president of the Bosnian Serb self-declared autonomous republic and the supreme commander of its armed forces, he stated: “There is a poem of mine about Sarajevo. The title was ‘Sarajevo,’ and first line was ‘I can hear disaster walking. City is burning out like tamyan (incense) in a church.’ In this smoke, there is our consciousness of that. And a squad of armed topola (poplar tree)—armed trees. Everything I saw armed, everything I saw in terms of a fight, in terms of war, in terms of—in army terms. That was 20–23 years ago, that I wrote this poem, and many other poems have something of prediction, which frightens me sometimes [laughter].” This statement is included in the legal analysis of Karadzˇic´ as a poet by J. Surdukowski, ‘Is Poetry a War Crime? Reckoning for Radovan Karadzˇic´ the Poet-Warrior’, Michigan Journal of International Law, vol. 26, no. 2, 673–699. Publishing on the Internet. Online. Available HTTP: (accessed 9 January 2011). 40 The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T, 18 March 2010, is the most indicative and unique trial record in this regard. Bikindi was a celebrated composer and singer, who also worked for the Ministry of Youth and Association Movements of the Rwandan Government. Based on the specific words and manner in which he disseminated them, Bikindi was sentenced for direct and public incitement to commit genocide. Bikindi was, however, acquitted of most charges from the indictment. This case triggered legal debates and critical articles on various related issues before and after the Bikindi judgment. See, for example, a substantial debate on Opinio Juris (accessed 1 January 2011) by Susan Benesch and related string of responses. 41 Memorandum of the Serbian Academy of Sciences and Arts (SANU) is one of the key documents for the interpretations of the subsequent eruption of propagandistic publications among the Serbs of former Yugoslavia. It is primarily the general social and political context that was created in Serbia after the appearance of this secretly drafted document. The first excerpts of the Memorandum were made public in 1986 by Vecˇernje Novosti, a Belgrade daily with the largest circulation in Yugoslavia, most probably through a deliberate leak. Thanks to its initial secrecy and interpretations by the Serbian nationalists, public intellectuals in the first place, the importance of this document has reached almost mythological proportions throughout the territory of former Yugoslavia. The Memorandum played a key role in the revival and renewal of the idea of a “Greater Serbia” or “all Serbs in one state.” Five years before the outbreak of war in late June 1991, more than any other document or individual, it contributed to the creation of a pro-Greater Serbian political, social and cultural context among the Serbs from the former Yugoslavia. Memorandum brought considerable rhetorical alterations to the pro-greater Serbian reasoning. It replaced the Serbs’ historically aggressive approach with a portrayal of them as victims of other ethnic groups and nations of post-Second World War Yugoslavia. In an attempt to explain the general problems the Serbs are allegedly confronted with, the authors of Memorandum, some of the most prominent members of the SANU, employ the following vocabulary: “own state” (not given to the Serbian nation), “persecution and expulsion of Serbs from Kosovo,” “genocide in Kosovo” (against Serbs), “open and total war” (allegedly declared in 1981 by the Albanians against the Serbs), “aggression” (of ethnic Albanians), “exodus” (of Serbs from Kosovo), “the last remnants of the Serbian nation,” “reign of terror,” “ethnically pure Kosovo,” “goal of the Greater Albania,” “the pressure of discrimination” (of Serbs in Croatia), “Serbian Vojvodina,” “disintegration of the Serbian nation,” “despoiled and ravaged” (Serbian literary and artistic heritage), “usurpation and fragmentation of the Serbian cultural heritage,” “physical annihilation, forced assimilation, conversation to a different religion, cultural genocide, ideological indoctrination, denigration and compulsion to

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renounce their own traditions,” “Serbia must not be passive and wait to see what the others will say, as it has done so many times in the past.” A Hutu-ran journal Kangura, founded, owned and edited by Hassan Ngeze, one of the three accused in the ICTR “Media Trial” (Case No. ICTR-99-52-T), published cartoons and illustrations which openly or implicitly communicated extreme antiTutsi messages. The role of Kangura in the Rwandan genocide, including Ngeze’s individual criminal responsibility, is discussed in detail in the Nahimana et al. judgment. The extremist anti-Tutsi propaganda was first published in Kangura in 1990. The equivalents of Kangura in former Yugoslavia are the Serbian Chetnik Movement (SCˇP) and Serbian Radical Party (SRS) publications Velika Srbija (Greater Serbia) and Zapadna Srbija (Western Serbia), distributed in Serbia, Bosnia and Herzegovina and parts of Croatia, the so-called Serbian Krajina populated mainly with the Serbs. The SRS leader Vojislav Sˇesˇelj, who exercised significant influence over the SCˇP/SRS publications, was indicted and put on trial by the ICTY (Case No. IT-03-67) mainly for his propagandistic activities in former Yugoslavia. These three publications, the Hutu and the SRS, are more recent equivalents of Julius Streicher’s weekly Der Stürmer. This is how the jurisprudence is or can be developed from the crimes against humanity (Streicher) to the incitement to commit genocide (Nahimana et al.) to instigation (Sˇesˇelj), all based on the same or similar, textual and visual, patterns of evidence. The given list of the components of linguistic context is based on the model outlined by W. Croft and D. A. Cruse, Cognitive Linguistics, New York, NY: Cambridge University Press, 2004, p. 102. K.J. Wheaton, The Warning Solution: Intelligent Analysis In The Age Of Information Overload, Fairfax, VA: AFCEA International Press, 2001, p. 62. Klemperer, The Language of the Third Reich: LTI – Lingua Tertii Imperii, A Philologist’s Notebook, p. 211. Klemperer’s philological and linguistic approach to the analysis of social, political and cultural phenomena was to some extent continued in Serbia by Ranko Bugarski, a professor of English and General Linguistics at the University of Belgrade. In a thin volume entitled Jezik od mira do rata (Language from Peace to War), Belgrade: Belgrade Circle, 1994, covering the period from 1986 to 1993, Bugarski’s “analysis focuses on the language of war as an extension of the language of politics, as well as on the nature of militarist discourse and political propaganda under these conditions” (p. 141). The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T. Shortcut explanations of these and similar terms are usually offered in the glossaries of scholarly and journalistic publications. The key adjectives commonly used in these explanations are the words “derogatory” and “pejorative.” “Ustasha” is a derogatory term for Croats, “Chetniks” would be an equivalent for Serbs, “Balijas” and “Turks” for Muslims, and “Shiptars,” only when used by the Serbs, for Albanians. Such explanations are simplistic, highly inadequate and fall short of the full range of the connotations and conceptual resonances these words bring into minds of the native speakers. R. Jackendoff, ‘Reference and Truth’, in R. Jackendoff, Foundations of Language: Brain, Meaning, Grammar, Evolution, New York, NY: Oxford University Press, 2002, p. 306. H. Putnam, ‘A Defense of Conceptual Relativity’, in H. Putnam, Ethics without Ontology, Cambridge, MA: Harvard University Press, 2004, pp. 33–51. The most advanced model of speech act theory is offered by the philosopher John R. Searle. For an analysis within a propagandistic framework, the most important aspect

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of Searle’s speech act theory are five different types of illocutionary points. In Mind, Language and Society: Philosophy in the Real World, London: Phoenix, 1999, Searle offers the following definition of illocutionary points: “The illocutionary point of a speech act will be its point or purpose in virtue of its being an act of that type.” (p. 147). Searle’s types of illocutionary points are as follows: (1) assertive, such as statements, descriptions, classifications, explanations, all based on beliefs; (2) directive, such as orders, commands, requests, all based on desires; (3) commissive, such as promises, contracts, guarantees, all based on intentions; (4) expressive, apologies, thanks, congratulations, welcomes, condolences, whereby the truth content is taken for granted; and (5) declarative, such as marriage pronouncements or declarations of war (pp. 149–50). Speech act theory, as applied in legal practice, has its critics as well. An illustrative example is a polemical volume by Franklyn S. Haiman, “Speech Acts” and the First Amendment, Carbondale and Edwardsville, IL: Southern Illinois University Press, 1993. This type of criticism comes from the corner of the staunchest defenders of free speech, particularly in the USA. Haiman’s arguments stem from the reasoning which says that there is “the line we must maintain between speech and action—between symbolism and the reality it may represent” (p. 5). Austin, How to Do Things with Words, p. 13. D. Davidson, ‘Intending’, in D. Davidson, Essays on Actions and Events, New York, NY: Oxford University Press, 2001, p. 90. J.R. Searle, Speech Acts: An Essay in the Philosophy of Language, Cambridge: Cambridge University Press, 1969, p. 3. Ibid., p. 16. J.R. Searle, ‘Fact and Value, “is” and “ought”, and reasons for action’, in J.R. Searle, Philosophy in a New Century: Selected Essays, Cambridge: Cambridge University Press, 2008, p. 169. W.V.O. Quine, Word and Object, Cambridge, MA: The MIT Press, 1960, p. 9. C.J. Fillmore, ‘Frame Semantics’, in C.J. Fillmore, Cognitive Linguistics Research 34, Berlin and New York, NY: Monton de Gruyter, 2006, p. 373. The definition offered by Charles J. Fillmore is adopted by Croft and Cruse in Cognitive Linguistics, p. 15. R. Rorty, ‘A World without Substances or Essences’, in R. Rorty, Philosophy and Social Hope, London: Penguin, 1999, pp. 53–54. The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998. The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para 145. The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para 146. RPF: Rwandan Patriotic Front, also “RPF-Inkotanyi”. A. des Forges, ‘Rwandan terms’, in des Forges, Leave None to Tell the Story: Genocide in Rwanda. R. Dallaire, Shake Hands With the Devil: The Failure of Humanity in Rwanda, New York, NY: Carroll & Graff Publishers, 2004, p. 116. The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para. 147. G. Lakoff, ‘Anna Nicole on the Brain’, in G. Lakoff, The Political Mind: A Cognitive Scientist’s Guide to Your Brain and Its Politics, New York, NY: Penguin, 2008, p. 22. Based on his research of the neurobiological foundations of human mind, Antonio Damasio makes a clear distinction between “emotions” and “feelings” and defines them as follows: “Emotions are actions or movements, many of them public, visible to others as they occur in the face, in the voice, in specific behaviors. To be sure, some

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components of the emotion process are not visible to the naked eye but can be made ‘visible’ with current scientific probes such as hormonal assays and electrophysiological wave patterns. Feelings, on the other hand, are always hidden, like all mental images necessarily are, unseen to anyone other than their rightful owner, the most private property of the organism in whose brain they occur.” A. Damasio, ‘Of Appetites and Emotions’, in A. Damasio, Looking for Spinoza: Joy, Sorrow, and the Feeling Brain, Orlando, FL: Harcourt, 2003, p. 28. S. Zeki and J.P. Romaya, ‘Neural Correlates of Hate’, PLoS One, October 2008, vol. 3, no. 10. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). The triangular theory of hate is explained in detail by R.J. Sternberg and K. Sternberg in The Nature of Hate, New York, NY: Cambridge University Press, 2008. Sternberg and Sternberg, The Nature of Hate, p. 132. Zeki and Romaya, ‘Neural Correlates of Hate’. M. de Montaigne, The Complete Essays, trans M.A. Screech, London: Penguin, 2003, p. 81. Montaigne, The Complete Essays, p. 83. W. Hazlitt, ‘On the Pleasure of Hating’, J. Gross (ed.), The Oxford Book of Essays, Oxford: Oxford University Press, 2008, p. 112. Hazlitt, ‘On the Pleasure of Hating’, p. 112. The name of this region is spelled as “Kosovo” in Serbo-Croatian and as “Kosova” in the Albanian language. The use of the spelling or pronunciation of this word, differing in only one letter, identifies ethnic and cultural origin of the speaker. This phrase was one of the key components in the indictment of Slobodan Milosˇevic´, Case No. IT-02-54, “Kosovo, Croatia and Bosnia.” Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). It was later integrated into virtually all Serb leadership cases tried before the ICTY within the legal doctrine called JCE. This aspect of the Kosovo myth introduced one of the most powerful lasting metonymies in the Serbian language and culture. An historical character and member of the Serbian nobility from the fourteenth century, Vuk Brankovic´, who, contrary to historical evidence, is portrayed in the Serbian oral tradition and epic poetry as a traitor at the Kosovo battle, was transformed into a noun connoting betrayal of the nation. Anyone called “Vuk Brankovic´” receives a label and a curse of a traitor in Serbia. The propagandists often used “Vuk Brankovic´” as a powerful figure of speech to refer to the anti-nationalist political and intellectual leaders in Serbia. For example, Vojislav Sˇesˇelj, the leader of the SRS, titled one of his books Brankovic´ Has Risen from the Grave (Brankovic´ je ustao iz groba), Belgrade: ABC Glas, 1994. Sˇesˇelj was indicted and his trial has been considered to be the biggest propaganda-related trial before the ICTY. For more about this see ICTY Case No. IT-03-67. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). Feldman, From Molecule to Metaphor, p. 89. The phenomenon called “butterfly effect” originates from the work of the meteorologist Edward Lorenz and refers to a high level of sensitivity in dynamical systems. Lorenz understood that the expression was a result of a paper he presented in 1972, entitled “Does the Flap of a Butterfly’s Wings in Brazil Set Off a Tornado in Texas?” Although he did not answer the question, Lorenz “noted that if a single flap could lead to a tornado that would not otherwise have formed, it could equally well prevent a tornado that would otherwise have formed.” E.N. Lorenz, ‘Glimpses of Chaos: It only Looks Random’, in E.N. Lorenz, The Essence of Chaos, London: University of Washington Press, 1993, p. 14.

Word scene investigations 111 82 J.A. Bargh, ‘Bypassing the Will: Toward Demystifying the Nonconscious Control of Social Behavior’, in R.R. Hassin, J.S. Uleman, J.A. Bargh (eds), The New Unconscious, New York, NY: Oxford University Press, 2005, p. 39. 83 N. Malcom, ‘The Battle and the Myth’, in N. Malcom, Kosovo: A Short History, London: Macmillan 1998, p. 59. 84 Slapsˇak, Ogledi o bezbrizˇnosti. 85 J.R. Searle, ‘The General Theory of Institutional Facts (Part II)’, in J.R. Searle, The Construction of Social Reality, London: Penguin, 1996, p. 116. 86 J.R. Searle, ‘Language as Biological and Social’, Making the Social World: The Structure of Human Civilization, New York, NY: Oxford University Press, 2010, p. 63. 87 It should be noted that in philosophy and cognitive science in general “intending” is seen as just one class or type of “intentionality.” Searle defines intentionality as follows: “Intentionality is that property of many mental states and events by which they are directed at or about or of objects and states of affairs in the world.” J.R. Searle, ‘The Nature of Intentional States’, in J.R. Searle, Intentionality: An essay in the philosophy of mind, Cambridge: Cambridge University Press, 1999, p. 1. 88 Searle, The Construction of Social Reality, p. 23. 89 Kosovo 1389–1989, Serbian Literary Quarterly, 1–3, Special Edition on the occasion of 600 years since the Battle of Kosovo, Belgrade: The Association of Serbian Writers, in collaboration with the International October Meeting of Writers, the Agency of Yugoslav Authors – Serbian Agency and Serbian P.E.N. Centre, 1989, p. 41. 90 G. Lakoff and M. Johnson, ‘Metaphor, Truth, and Action’, in G. Lakoff and M. Johnson, Metaphors We Live By, Chicago, IL and London: The University of Chicago Press, 1980, p. 156. 91 D. Davidson, ‘What Metaphors Mean’, in D. Davidson, Inquiries into Truth and Interpretation, New York, NY: Oxford University Press, 2001, p. 261. 92 G. Lakoff and M. Johnson, ‘Chomsky’s Philosophy’, Philosophy in the Flesh: The Embodied Mind and Its Challenge to Western Thought, New York, NY: Basic Books, 1999, p. 499. 93 An excellent study by J. Mertus, Kosovo: How Myths and Truths Started a War, Berkeley, CA and London: University of California Press, 1999, explains how the mechanism of myth making directly affected the social and political processes in former Yugoslavia and Serbia in particular from the early 1980s to the late 1990s. 94 Some of the examples include the following ICTY trials: Krstic´, Case No. IT-98-33, “Srebrenica;” Popovic´ et al., Case No. IT-05-88, “Srebrenica;” Blagojevic´ & Jokic´, Case No. IT-02-60, “Srebrenica,” and several other cases. 95 It should, however, be noted that serious crimes against the Serbian population and the Serbian forces were also committed by the KLA during the armed clashes of 1999. The related ICTY cases are Limaj et al., Case No. IT-03-66, and Haradinaj et al., Case No. IT-04-84. 96 It was the first time that a head of government had been indicted for crimes defined within the framework of international criminal and humanitarian law. Milosˇevic´, Slobodan, Case No. IT-02-54, “Kosovo, Croatia and Bosnia.” Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). 97 U. Eco, Experiences in Translation, Toronto, Buffalo, NY and London: University of Toronto Press, 2001, p. 17. 98 The “Bosnian-Serbian-Croatian” language, or the “BCS,” was introduced at ICTY as a pragmatic solution to the conflict regarding the name of the language used at ICTY. What was in the past recognized by the international linguistic community as a polycentric “Serbo-Croatian” or “Croato-Serbian” language had been renamed by the new states to Croatian, Bosnian, Serbian and Montenegrin language.

112 Propaganda, War Crimes Trials and International Law 99 The phoneme “h” was reintroduced into the orthography of the Bosnian language by a group of Bosnian linguists in Senahid Halilovic´’s Pravopis bosanskoga jezika, Sarajevo: Preporod, 1995. This publication standardized the use of the phoneme “h” in some words where it was rarely used by the Bosnians, including the Bosniaks, before the outbreak of the war in 1992. In his introduction to this publication based on the work done by a commission of linguists between August 1992 and the summer of 1993, Senahid Halilovic´ writes: “This is the first orthography of the Bosnian language. It is meant for the Bosniaks, whose mother tongue is Bosnian . . .” (p. 6). The use of the letter “h” was from that moment on used in all official Bosnian, i.e. Bosniak, publications, including the media, thereby making a clear distinction between the ethnic and religious background of the speaker as opposed to other ethnic groups in BiH. Some of the specific examples are truhlezˇ (rot, decay), uvehnuti (to fade, wither), lahko (not heavy, easy), mehko (soft, tender, gentle) and many other words referenced as examples of “correct writing” in Halilovic´’s book (p. 121). This linguistic intervention—the implantation of the letter “h” in some words—received occasional attention by both academic and satirical commentators throughout former Yugoslavia. Comparable trends in linguistics were recorded in Croatia and Serbia as well. 100 Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute define individual criminal responsibility as follows: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime . . .” 101 H.L.A. Hart and T. Honoré, ‘Criminal Law: Causing, Etc., Others to Act’, in H.L.A. Hart and T. Honoré, Causation in the Law, New York, NY: Oxford University Press, 1985, p. 379. 102 Ibid. 103 The “all things considered” phrase plays the key role in Davidson’s argumentation in his essay “How Is Weakness of the Will Possible?” In this paper from 1969, Davidson deals with the phenomenon of “incontinence,” or “weakness of the will,” or akrasia in Greek, trying to understand why human beings often act against their apparently most reasonable, most sensible or most rational judgments. Davidson: “I assume that no answer is acceptable that frustrates a coherent account of moral conflict, weakness of the will, or other forms of intentional, but irrational, action.” Davidson, Essays on Actions and Events. For a full-scale analysis of the phenomenon of akrasia, see also the study of A.R Melle, Irrationality: An Essay on Akrasia, Self-Deception, and SelfControl, New York, NY and Oxford: Oxford University Press, 1987. 104 Hart, Punishment and Responsibility, p. 90. 105 Francis Ponge (1899–1988). 106 “Aussi bien, le galet est-il exactement la pierre à l’époque où commence pour elle l’âge de la personne, de l’individu, c’est-à-dire de la parole.” F. Ponge, Selected Poems, M. Guiton (ed.), London: Faber and Faber, 1998, p. 100. 107 L. Wittgenstein, Philosophical Investigations: The German text, with a revised English translation, Third Edition, trans. G.E.M. Anscombe, Oxford: Blackwell Publishing, 2001, p. 10. 108 “Curiosity – ‘Epistemic Hunger,’” D.C. Dennett in conversation with P. Dojcˇinovic´, A. Ross, D. Roovers and the audience at De Balie on 5 October 1997 in Amsterdam in the series “How Things Are: Companion for the Modern Thinker.” (Transcript authorized by Daniel C. Dennett.) 109 Umwelt, usually translated as “environment,” is the term used in semiotics. It was first introduced by the Estonian-German biologist Jakob von Uexküll (1864–1944). Whereas “Umwelt” refers to the interactive aspect between the physical habitat and an organism, the organism’s “Innenwelt” (inner world) refers to the experiences and mental representations of that organism. The term “Umwelt” is today integrated into the vocabulary of cognitive science, including the computer science.

Word scene investigations 113 110 M. Turner, ‘Projecting Image Schemas’, in M. Turner, The Literary Mind, New York, NY: Oxford University Press, 1996, p. 18. 111 A hypothesis and thought experiment in cognitive science, “brain in a vat” is basically defined by the idea that human brain can be detached from the body and still be fully functional in a new environment and under different conditions. 112 Searle, Mind, Language and Society, pp. 64–5. 113 Davidson, Essays on Actions and Events, p. 9. 114 J.R. Searle, ‘Why There Is No Deductive Logic of Practical Reason’, in J.R. Searle, Rationality in Action, Cambridge, MA: The MIT Press, 2001, p. 262. 115 Searle, Mind, Language and Society, p. 105. 116 Searle, Mind, Language and Society, p. 106. 117 The indictments and judgments from these and other related cases are all available on the ICTY website. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). 118 The doctrine of joint criminal enterprise was initially introduced in Prosecutor v. Tadic´, Appeal Judgment, Case No. IT-94-1, 15 July 1999. Regardless of the fact that it has been applied in many cases so far, the concept of JCE is far from being undisputed among the legal scholars dealing with international criminal law. Some scholars referred to the “JCE” as the “Just Convict Everyone!” legal doctrine. 119 The “Karlobag-Ogulin-Karlovac-Virovitica line” refers to the four towns in Croatia connected by an imaginary border by Vojislav Sˇesˇelj. That part of the territory should have been, in Sˇesˇelj’s words, “amputated” from Croatia and annexed to a “Greater Serbia.” 120 M.S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics, New York, NY: Oxford University Press, 2009, p. 100. 121 J. Rust, ‘Reason and Action’, in J. Rust, John Searle, London: Continuum, 2009, p. 60. 122 Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the dissenting opinion of the Soviet member), Miscellaneous No. 12 (1946), Nuremberg, 30 September and 1 October, 1946, Buffalo, NY: William S. Hein & Co. Inc, p. 101. 123 J. Herf, The Jewish Enemy: Nazi Propaganda During World War II and the Holocaust, Cambridge, MA: The Belknap Press of Harvard University Press, 2008, p. 19. 124 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003, para. 1007. 125 The Nahimana et al. judgment also refers to the ICTR Akayesu judgment, Case No. ICTR-96-4-T, saying that, in relation to the crime of direct and public incitement to commit genocide, as a result of a speech Akayesu gave in front of a crowd , “there was a causal relationship between his words and subsequent widespread massacres of Tutsi in the community.” Nahimana et al., Case No. ICTR-99-52-T, paras 1014–1015. 126 ‘The Garden of Forking Paths’, a short story by Jorge Luis Borges, as the narrator clearly indicates at the end of the story, is “the forking in time, not in space.” The narrator says that “each time a man is confronted with several alternatives, he chooses one and eliminates the others; in the fiction of Ts’ui Pên, he chooses—simultaneously— all of them. He creates, in this way, diverse futures, diverse times which themselves also proliferate and fork.” J.L. Borges, Collected Fictions, trans. A. Hurley, London: Penguin, 1999. 127 J.M. Fischer, R. Kane, D. Pereboom and M. Vargas, ‘Libertarianism’, in J.M. Fischer, R. Kane, D. Pereboom and M. Vargas, Four Views on Free Will, Oxford: Blackwell Publishing, 2007, p. 14. 128 Erdemovic´, Case No. IT-96-22, “Pilica Farm,” transcript of Friday, 31 May 1996, open session, page 7, lines 5–6.

114 Propaganda, War Crimes Trials and International Law 129 D.M. Wegner, ‘The Mind’s Compass’, in D.M. Wegner, The Illusion of Conscious Will, Cambridge, MA: The MIT Press, 2002, p. 336. 130 Michael G. Kearney discusses the history of confusions in international debates relating to different interpretations of the concepts of “war propaganda” and “propaganda for war”, arriving at the conclusion that, given the critical importance of this distinction for international criminal law, the former “relates to propaganda inciting war crimes against humanity during a conflict, whereas the latter concerns propaganda inciting to wars of aggression.” M.G. Kearney, The Prohibition of Propaganda for War in International Law, New York, NY: Oxford University Press, 2007, p. 217.

Bibliography Andrews, Jr., P.P. and Peterson, M.B. (eds), Criminal Intelligence Analysis, California, CA: Palmer Enterprises, 1990. Anscombe, G.E.M., Intention, Cambridge, MA: Harvard University Press, 2000. Austin, J.L., How to Do Things with Words, Cambridge, MA: Harvard University Press, Second Edition, 1962. Borges, J.L., ‘The Garden of Forking Paths’, in J.L. Borges, Collected Fictions, trans. A. Hurley, London: Penguin, 1999. Bugarski, R., Jezik od mira do rata (Language from Peace to War), Belgrade: Belgrade Circle, 1994. Cassese, A., International Criminal Law, Second Edition, Oxford and New York, NY: Oxford University Press, 2008. Cassese, A. (ed.), The Oxford Companion of International Criminal Justice, New York, NY: Oxford University Press, 2009. Combs, N.A., Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, New York, NY: Cambridge University Press, 2010. Croft, W. and Cruse, D.A., Cognitive Linguistics, Cambridge: Cambridge University Press, 2004. Dallaire, R., Shake Hands With the Devil: The Failure of Humanity in Rwanda, New York, NY: Carroll & Graff Publishers, 2004. Damasio, A., Looking for Spinoza: Joy, Sorrow, and the Feeling Brain, Orlando, FL: Harcourt, 2003. Damasio, A., Self Comes to Mind: Constructing the Conscious Brain, New York, NY: Pantheon Books, 2010. Davidson, D., Essays on Actions and Events, New York, NY: Oxford University Press, 2001. Davidson, D., Inquiries into Truth and Interpretation, New York, NY: Oxford University Press, 2001. Draaisma, D., Vergeetboek, Groningen: Historische Uitgeverij, 2010. Eco, U., Experiences in Translation, Toronto, Buffalo, NY and London: University of Toronto Press, 2001. Edelman, G., Bright Air, Brilliant Fire: On the Matter of the Mind, London: Penguin Books, 1992. Ellul, J., Propaganda – The Formation of Men’s Attitudes, New York, NY: Vintage, 1973. Fauconnier, G. and Turner, M., The Way We Think: Conceptual Blending and the Mind’s Hidden Complexities, New York, NY: Basic Books, 2002. Feldman, J.A., From Molecule to Metaphor, Cambridge, MA: The MIT Press, 2008.

Word scene investigations 115 Fillmore, C.J., Cognitive Linguistics Research 34, Berlin and New York, NY: Monton de Gruyter, 2006. Fischer, J.M., Kane, R., Pereboom, D. and Vargas, M., Four Views on Free Will, Oxford: Blackwell Publishing, 2007. Forges, des, A., Leave None to Tell the Story: Genocide in Rwanda, New York, NY: Human Rights Watch, March 1999. Gamer, B.A. (ed.), Black’s Law Dictionary, Ninth Edition, St Paul, MN: West, a Thompson Business, 2009. Gross, J. (ed.), The Oxford Book of Essays, Oxford: Oxford University Press, Last Edition, 2008. Haiman, F.S., “Speech Acts” and the First Amendment, Carbondale and Edwardsville, IL: Southern Illinois University Press, 1993. Halilovic´, S., Pravopis bosanskoga jezika, Sarajevo: Preporod, 1995. Hart, H.L.A., Punishment and Responsibility: Essays in the Philosophy of Law, Oxford and New York, NY: Oxford University Press, Second Edition, reprinted 2009. Hart, H.L.A. and Honoré, T., Causation in the Law, Second Edition, New York, NY: Oxford University Press, 1985. Hassin, R.R., Uleman, J.S. and Bargh, J.A. (eds), The New Unconscious, New York, NY: Oxford University Press, 2005. Herf, J., The Jewish Enemy: Nazi Propaganda During World War II and the Holocaust, Cambridge, MA: The Belknap Press of Harvard University Press, 2008. Hodkinson, T. and James, M., Expert Evidence: Law and Practice, Third Edition, London: Sweet & Maxwell, Thompson Reuters, 2010. Jackendoff, R., Foundations of Language: Brain, Meaning, Grammar, Evolution, New York, NY: Oxford University Press, 2002. James, J.S., Stroud’s Judicial Dictionary of Words and Phrases, Fifth Edition, Volume 3, I-O, London: Sweet & Maxwell Limited, 1986. Janda, L.A., Cognitive Linguistics, Glossos: Duke University, the Slavic and East European Language Research Center, 1999–2007. Jovic´, B., Poslednji dani SFRJ: izvodi iz dnevnika (Last Days of the SFRY), Belgrade: Politika 1995. Jowett, G.S. and O’Donnell, V., Propaganda and Persuasion, Fourth Edition, London: Sage, 2006. Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the dissenting opinion of the Soviet member), Miscellaneous No. 12 (1946), Nuremberg, 30 September and 1 October, 1946, Buffalo, NY: William S. Hein & Co. Inc, p. 101. Kearney, M.G., The Prohibition of Propaganda for War in International Law, New York, NY: Oxford University Press, 2007. Klemperer, V., The Language of the Third Reich: LTI – Lingua Tertii Imperii, A Philologist’s Notebook, trans. Martin Brady, London: Continuum, 2006. Kushner, B., The Thought War: Japanese Imperial Propaganda, Honolulu, HI: University of Hawai’i Press, 2006. Lakoff, G., The Political Mind: A Cognitive Scientist’s Guide to Your Brain and Its Politics, New York, NY: Penguin, 2008. Lakoff, G. and Johnson, M., Metaphors We Live By, Chicago, IL and London: The University of Chicago Press, 1980.

116 Propaganda, War Crimes Trials and International Law Lakoff, G. and Johnson, M., Philosophy in the Flesh: The Embodied Mind and Its Challenge to Western Thought, New York, NY: Basic Books, 1999. Lehrer, J., Proust Was a Neuroscientist, Boston, MA and New York, NY: Mariner Books, 2008. Lorenz, E.N., The Essence of Chaos, London: University of Washington Press, 1993. Malcom, N., Kosovo: A Short History, London: Macmillan, 1998. Melle, A.R., Irrationality: An Essay on Akrasia, Self-Deception, and Self-Control, New York, NY and Oxford: Oxford University Press, 1987. Mertus, J., Kosovo: How Myths and Truths Started a War, Berkeley, CA and London: University of California Press, 1999. Mithen, S., The Prehistory of the Mind: The Cognitive Origins of Art, Religion and Science, London: Thames and Hudson, 1996. Montaigne, de, M., The Complete Essays, trans. M.A. Screech, London: Penguin, 2003. Moore, M.S., Causation and Responsibility: An Essay in Law, Morals, and Metaphysics, New York, NY: Oxford University Press, 2009. Peterson, M.B., Applications in Criminal Analysis: A Sourcebook, London: Praeger, 1998. Ponge, F., Selected Poems, London: Faber and Faber, 1998. Putnam, H., Ethics without Ontology, Cambridge, MA: Harvard University Press, 2004. Queneau, R., Exercices de style (Exercises in Style), Paris: Gallimard, 1947. Quine, van, W.O., Word and Object, Cambridge, MA: The MIT Press, 1960. Rorty, R., Philosophy and Social Hope, London: Penguin, 1999. Rust, J., John Searle, London: Continuum, 2009. Searle, J.R., Intentionality: An essay in the philosophy of mind, Cambridge: Cambridge University Press, 1999. Searle, J.R., Making the Social World: The Structure of Human Civilization, New York, NY: Oxford University Press, 2010. Searle, J.R., Mind, Language and Society: Philosophy in the Real World, London: Phoenix, 1999. Searle, J.R., Philosophy in a New Century: Selected Essays, Cambridge: Cambridge University Press, 2008. Searle, J.R., Rationality in Action, Cambridge, MA: The MIT Press, 2001. Searle, J.R., Speech Acts: An Essay in the Philosophy of Language, Cambridge: Cambridge University Press, 1969. Searle, J.R., The Construction of Social Reality, London: Penguin, 1996. Sˇesˇelj, V., Brankovic´ je ustao iz groba, Belgrade: ABC Glas, 1994. Slapsˇak, S., Ogledi o bezbrizˇnosti, Belgrade: Radio B92, 1994. Sternberg, R.J. and Sternberg, K., The Nature of Hate, New York, NY: Cambridge University Press, 2008. Surdukowski, J., ‘Is Poetry a War Crime? Reckoning for Radovan Karadzˇic´ the PoetWarrior’, Michigan Journal of International Law, vol. 26, no. 2, 2005. Taylor, P.M., Munitions of the Mind – A history of propaganda from the ancient world to the present day, Third Edition, Manchester and New York, NY: Manchester University Press, 2003. Thompson, M., Forging War: The Media in Serbia, Croatia and Bosnia-Hercegovina, London: Article 19 – International Center Against Censorship, May 1994. Timmermann, W., ‘Incitement in International Criminal Law’, International Review of the Red Cross, vol. 88, no. 864, December 2006. Turner, M., The Literary Mind, New York, NY: Oxford University Press, 1996.

Word scene investigations 117 Vukadinovic´, A. (ed.), Kosovo 1389–1989, Serbian Literary Quarterly, 1–3, Special Edition on the occasion of 600 years since the Battle of Kosovo, Belgrade: The Association of Serbian Writers, in collaboration with the International October Meeting of Writers, the Agency of Yugoslav Authors – Serbian Agency and Serbian P.E.N. Centre, 1989. Wallace, D.F., A Supposedly Fun Thing I’ll Never Do Again, London: Abacus, 2008. Wegner, D.M., The Illusion of Conscious Will, Cambridge, MA: The MIT Press, 2002. Wheaton, K.J., The Warning Solution: Intelligent Analysis In The Age Of Information Overload, Fairfax, VA: AFCEA International Press, 2001. Wittgenstein, L., Philosophical Investigations: The German text, with a revised English translation, Third Edition, trans. G.E.M. Anscombe, Oxford: Blackwell Publishing, 2001. Zeki, S. and Romaya, J.P., ‘Neural Correlates of Hate’, PLoS One, October 2008, vol. 3, no. 10. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011).

Table of cases ICTY Prosecutor v. Vidoje Blagojevic´ and Dragan Jokic´, Case No. IT-02-60. Prosecutor v. Drazˇen Erdemovic´, Case No. IT-96-22. Prosecutor v. Ramush Haradinaj, Idriz Balj, Lahi Brahimaj, Case No. IT-04-84. Prosecutor v. Radislav Krstic´, Case No. IT-98-33. Prosecutor v. Fatmir Limaj, Haradin Bala, Isak Musliu, Case No. IT-03-66. The Prosecutor of the Tribunal Against Slobodan Milosˇevic´, Case No. IT-02-54. Prosecutor v. Vujadin Popovic´, Ljubisˇa Beara, Drago Nikolic´, Ljubomir Borovcˇanin, Radivoje Miletic´, Milan Gvero, Vinko Pandurevic´, Case No. IT-05-88. The Prosecutor v. Vojislav Sˇesˇelj, Case No. IT-03-67. Prosecutor v. Dusˇko Tadic´, Case No. IT-94-1.

ICTR The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T. The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T.

Chapter 3

Propaganda as a crime under international humanitarian law: theories and strategies for prosecutors Dan Saxon *

In war, almost everything is a matter of representation. J.J. Frésard1

Why prosecute propagandists? During war, the lawful job of soldiers is to kill the enemy and destroy its ability to fight, often risking the soldier’s life in the process. Propaganda can play an important role in instilling a belief system—be it complex, such as the ultimate triumph of Soviet communism over fascism and capitalism, or more simple, such as the “need” to exterminate Europe’s Jews—that conditions soldiers to repeatedly risk their lives.2 For many fighting men and women, the nuances of ideology are probably less important than a sense of purpose, because to die for nothing is unthinkable.3 Thus, it is not a crime for politicians and military commanders to encourage their fellow citizens to go to war or to kill enemy soldiers.4 Killing the enemy, however, particularly at close range, requires soldiers to deny the humanity of their opponents.5 That, for most people, is an abnormal act that requires “appropriate” psychological conditioning. Therefore, one may view speech intended to provide such encouragement and sense of purpose as a normal, even patriotic act, necessary to induce young men and women to enter the abnormally aggressive and hostile world of combat. Prosecutors who enforce international humanitarian law (IHL) must separate speech and other forms of expression intended to encourage the lawful killing of enemy soldiers from illegal communications promoting the unlawful killing and mistreatment of civilians and others hors du combat. The International Committee of the Red Cross (ICRC) has identified four ideological premises commonly offered by belligerents to justify violations of the law of armed conflict: *

Dan Saxon, Visiting Professor, Cambridge University, Senior Prosecuting Trial Attorney, Office of the Prosecutor, United Nations International Criminal Tribunal for the Former Yugoslavia. The views expressed herein are those of the author(s) alone and do not necessarily reflect the views of the International Tribunal or the United Nations in general.

Propaganda as a crime under international humanitarian law 119

1 2

3

4

The conviction that the group, ethnic community or nation is fighting for its very survival, and that consequently the humanitarian conventions no longer apply; The conviction that the conflict is one between Good and Evil and that it is a matter of defending superior principles, such as the destruction of fascism or the preservation of “civilization;” Hatred, accompanied by demonization, of the enemy, is often whipped up very effectively and cynically; this is much more often a political tool rather than the result of “ancestral animosities” or spontaneous human emotions; The issue of reciprocity is omnipresent in the reasons put forward to justify violations of IHL; while this is probably a profoundly atavistic reaction (I hurt you because you hurt me), it is also frequently used by those in power, who accuse the adverse party – sometimes quite falsely – of committing the most heinous atrocities.6

When the expression of such ideas contributes to the commission of crimes, the speaker/writer may be held accountable for his or her individual criminal responsibility. In this chapter, the author describes the processes undertaken by international prosecutors to establish the individual criminal responsibility of persons who use propaganda to commit, instigate and/or aid and abet violations of the laws of armed conflict.

Challenges to the investigation of massive crimes Any international prosecution of persons accused of violations of international humanitarian law is a complex affair. Tribunals such as the ICTY, the ICTR and the ICC are located thousands of kilometers from the crime scene(s). Crucial forensic evidence often lies buried in mass graves located in war zones. Eyewitnesses to crimes may be few and often scattered around the world as refugees. Documentary evidence may be non-existent or hidden away in archives which governments shield from view. Once sufficient evidence is gathered to support indictments, accused may remain fugitives for years. Individuals such as Joseph Kony, leader of the Lords Resistance Army in Uganda, and Omar Hassan Ahmad Al Bashir, President of Sudan, indicted by the ICC in 2005 and 2009 respectively and Ratko Mladic´, indicted by the ICTY for his role in the events at Srebrenica in Bosnia and Herzegovina in 1995, fall into this category. After arrests occur, the logistics and costs required to conduct a trial may be staggering. International tribunals established to redress violations of international humanitarian law lack the resources to investigate all crimes and every potential accused. Thus, prosecutors must make difficult choices to select a limited number of events to investigate and a limited number of accused to prosecute. At the ICTY, guidelines for the commencement of investigations emphasize a number of factors for consideration including: 1

The seriousness of the crimes, the numbers of victims, the duration of the offenses and the scope of destruction;

120 Propaganda, War Crimes Trials and International Law

2

3

The role of the person under investigation, especially his or her position in the political or military hierarchy, the extent of his or her authority, and his or her alleged participation in the crimes under investigation; Whether the persons and the crimes to be investigated were exceptionally notorious, even though the persons did not hold a formal hierarchical position.7

Massive crimes, such as the mass murders and the expulsions of entire communities from their homes common to contemporary armed conflicts, require the assistance of large numbers of persons who believe—often passionately—that the atrocities they commit are justified, necessary and even legal. The process of instilling such poisonous beliefs—often performed by leaders trying to fulfill political, military and/or economic agendas—may be crucial to the ultimate commission of such crimes. Prosecutions of serious violations of international humanitarian law based on the use of propaganda bring additional challenges to international prosecutors, who often do not speak, read or understand the language that forms the core of alleged criminal responsibility. The social, cultural, political and historic nuances of language and its forms of expression may be foreign to the prosecutor, whose task is to prove that the use of particular language and expression was a crime. Years of careful (and costly) translation, study and multidisciplinary analysis often underlie criminal charges for the use of speech. Given these complexities, even prior to the search for evidence, international prosecutors should draft a comprehensive investigation plan designed to locate all forms of incriminating and exculpatory evidence in an efficient manner. The purpose of the investigation plan is to clarify the investigative objectives and evidence collection methods. Any such plan should discuss the following issues: 1. 2.

3.

A summary of the proposed investigation which identifies the parameters and subject matter.8 Fundamental questions: every investigation poses fundamental questions that the investigation will attempt to answer through the collection of credible and reliable evidence. For example, “during the armed conflict in country A, did the public speeches of government members encourage Christian soldiers and Christian civilians to murder Muslim civilians?” Clear questions ensure that the investigation will maintain the focus necessary to effectively identify and collect the most relevant evidence.9 Legal framework of the Investigation Plan: any investigation must identify the specific legal elements of the crimes alleged (for example, to prove the occurrence of a crime against humanity, prosecutors must demonstrate a widespread or systematic attack against a civilian population) and the legal theories of individual criminal responsibility that will underlie any prosecution (for example, accused “X,” a government Minister, committed, instigated and/or aided and abetted the murder of Muslims). Prosecutors must provide investigative staff with clear definitions of the legal elements and theories of

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4.

5.

6.

7.

8.

criminal liability, as well as examples of the types of evidence likely to be relevant to establish each element and theory.10 Investigative avenues: large investigations often include several primary investigative avenues. For example, to evaluate whether a political figure illegally used speech to commit, instigate and/or aid and abet crimes, prosecutors and investigators will review the politician’s televised speeches, radio broadcasts and interviews and published writings. In addition, investigative staff will interview the persons who saw, heard and/or read those expressions in order to adduce the effect of that speech on the targeted audience, which may be the general public, an army brigade, or a platoon of insurgents. “Each of these discreet ‘sub-investigations’ should be the subject of a separate section of the investigation plan, with clearly articulated goals and methods.”11 Summary of what is presently known: large amounts of information about armed conflicts, and even particular crimes, are often accessible to international prosecutors prior to the commencement of a formal criminal investigation. The UN and other inter-governmental institutions, NGOs such as Human Rights Watch and Amnesty International, universities and independent research institutions often produce detailed reports about past or ongoing armed conflicts. Media reports, if reliable, may be another important source of information. Review of such information permits prosecutors to design their investigations in a more knowledgeable way.12 Potential witnesses to be interviewed: a list of potential witnesses should describe the identities of the individuals when known and the categories of persons when specific identities are unknown. The list should also explain the kinds of information that might be in the possession of such persons and the relevance of that evidence to the fundamental questions and the legal framework of the investigation.13 Furthermore, in cases involving the use of propaganda in various forms and contexts, investigators must identify those witnesses who can discuss the evidence and explain its significance to the judges. Documentary Evidence: any investigation addressing the use of propaganda requires the location and review of the writings, speeches, interviews and any other forms of public expression by the persons involved. The purpose of this section of the investigation plan is to describe all of the possible sources of such documentation and identify any obstacles to obtaining access to them. It is not uncommon, particularly while armed conflicts are ongoing or in the immediate post-war period, for hostile governments and belligerent parties to block access to archives that are important sources for documentation. Any international prosecutor must be acutely aware of these political and strategic concerns while planning and conducting an investigation. Efforts to overcome these obstacles may involve complex and time-consuming litigation involving the prosecution, the recalcitrant state and the international tribunal.14 Investigative Tasks: the prosecutor leading the investigation should develop a list of tasks to be allocated to members of the investigation team. Each task

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9.

should include specific requirements, a schedule for completion and the expected work product.15 The last criteria is the most important as the prosecutor must project far into the future to the day he or she is presenting this evidence in the courtroom during the trial. What form will the evidence take? Oral? Written? Photographic? Will it be simple or complex? Will the evidence require translation into other languages and if so, do the resources exist to produce those translations? Especially when a case involves the allegedly criminal use of speech or other forms of expression, the prosecutor must plan carefully that all relevant texts of written works and/or recorded speeches and other documents will be accurately translated from the original text to the official languages of the international tribunal. Prosecutors must design mechanisms for revision and “quality control” to ensure that all charges are based on accurate translations and interpretations of the accused’s use of language or other forms of expression. The prosecutor must consider these questions from the commencement of the investigation to ensure that all important evidence may be used effectively during trial. Periodic Review: the progress of any international criminal investigation should be assessed periodically to determine whether the objectives of the original plan remain feasible. Alterations to the plan may be appropriate as the production of new evidence provides additional insights to the alleged criminal events and the persons responsible for them.16 At all stages of an investigation, prosecutors should maintain an open mind about the responsibility of individuals. In order to ensure that all proceedings are fair, they should be prepared to consider conflicting evidence including evidence that might exonerate an accused.17 When exculpatory evidence makes charges impossible to prove, prosecutors must be prepared to stop an investigation and/or dismiss the charges.

The education of international prosecutors on the significance of propaganda During the development of the investigation plan and thereafter, the international prosecutor must undergo his or her own process of study; not only of the language of the accused and/or suspects, but also of the context in which the accused made his or her speech. Ideas do not take hold in social and political vacuums.18 What may sound like benign political or social language may take on entirely different meanings if expressed during a time of war or rising political, ethnic or nationalist tensions. For example, a TC at the ICTR held that one could not properly interpret accused Simon Bikindi’s songs “without considering the cultural, historical and political context in which they were composed and disseminated.”19 International human rights treaties reflect the tensions that may exist between the right to freedom of expression and other fundamental human rights.20 For example, according to Article 18 of the UDHR, “everyone has the right to freedom of thought, conscience and religion.”21 Importantly for the use of propaganda, Article 19 provides:

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Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.22 Preceding provisions of the UDHR, however, would seem to limit the potential for expression under Articles 18 and 19. For example, Article 1 provides: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.23 According to Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.24 The judgments from the European Court of Human Rights (ECHR) provide some guidance as to when so-called “fighting words;” the expression of tough, even violent communications in a democratic marketplace of ideas, cross the frontier between lawful and illegal speech. In Sürek and Özdemir v. Turkey, a Judgment issued on 8 July 1999, the ECHR held that the determining factor when evaluating whether political speech can be legitimately restricted is: “Does the speech or communication constitute incitement to violence, or is it capable of inciting violence?”25 In a concurring opinion to the Judgment in the same case, five judges of the ECHR suggested that less attention should be given to the form of words used and more attention directed to the general context in which the words were used and their likely impact: Was the language intended to inflame or incite to violence? Was there a real and genuine risk that it might actually do so? . . . Did the author of the offending text occupy a position of influence in society of a sort likely to amplify the impact of his words? Was the publication given a degree of prominence either in an important newspaper or through another medium which was likely to enhance the influence of the impugned speech? Were the words far away from the centre of violence or on its doorstep?26 Furthermore, one measure of the effectiveness of a defendant’s use of propaganda will be evidence that the accused’s forms of speech shaped the language of the time. After the commencement of the propaganda campaign, did the accused’s vocabulary and forms of expression become part of the general public’s universe?27 In the former Yugoslavia, words like “Ustasha” and “Balija,” derogatory terms for Croats and Muslims respectively, became common in the documents of Serbian armed forces and Serbian government bodies, as did the use of words

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like “Chetnik” to denote Serbs in Bosnian Muslim army and civilian records. This kind of evidence demonstrates how effective propaganda becomes part of the public’s ideology and daily life. Accordingly, prosecutors must be open to the advice and wisdom of persons from the region where the crimes occurred who can fill in these intellectual gaps and sharpen the prosecutor’s grasp of the environment in which speech and subsequent crimes occurred. Following this period of education, prosecutors will have the requisite knowledge and insight to commence the analysis of the suspect/accused’s28 speech and/or other forms of expression in the historical and political context of the crimes. Perhaps the most helpful evidence for prosecutors are expressions and communications where an accused “takes ownership” of (e.g. endorses) particular criminal objectives, policies and plans. These expressions illustrate the criminal intent of such accused when they disseminate speech about particular groups. This kind of material may be found in articles and books published by the accused, videos and internet posts of the accused speeches, as well as credible news reports, such as film or audio of the accused. Furthermore, records and/or transcripts of government meetings where the accused participated may be a mine of information relevant to the accused’s intent. The same kinds of materials may provide examples of the accused’s expressions of propaganda as well. However, prosecutors should be wary, in a “propaganda case,” not to rely on communications that may be subject to more than one interpretation. Unless the prosecution can demonstrate that a malicious interpretation of the speech is the only reasonable interpretation, judges will not use such evidence to convict an accused.

Proving individual criminal responsibility for the use of propaganda Any successful prosecution requires proof of two fundamental elements, the actus reus (the physical act(s) or omission(s) of the accused) and the mens rea (the criminal state of mind or “criminal intent” of the accused). Article 7(1) of the ICTY Statute refers to the five most common forms of individual criminal responsibility in international criminal law: A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.29

Commission Criminal responsibility for the use of propaganda can also occur through the modes of commission, instigation and/or aiding and abetting. In the most basic

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form of criminal responsibility, when prosecutors accuse a defendant of “commission” of a crime, they suggest that the accused personally performed the actus reus, such as when a murderer shoots his or her victim. With respect to propaganda, the expression of “hate speech” may constitute a form of commission of the crime of persecution as a crime against humanity. According to the jurisprudence: The crime of persecution consists of an act or omission that discriminates in fact and that denies or infringes upon a fundamental right laid down in international customary or treaty law, and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics.30 In certain circumstances, speech, even a song, may constitute a violation of fundamental human rights, such as the right to respect for dignity, when the speech incites to hate and discrimination. Similarly, speech may be a violation of the right to security when it incites to violence.31 Evidence that a public speech compelled citizens of a community to flee their homes, in the context of a broader ethnic, religious or political conflict, could support a finding of the commission of the crime of persecution. The testimony of witnesses who fled their homes can prove the fear instilled by a particular speech. For example, during the armed conflict in the former Yugoslavia, Radoslav Brđanin was a member of the Serbian Democratic Party (SDS) (the party of Radovan Karadzˇic´) and the President of the “Crisis Staff” of the Autonomous Region of Krajina (ARK), a Serb-dominated area within Bosnia and Herzegovina. Brđanin’s public statements “given and heard on TV, meant that [non-Serbs] started packing their bags and leaving.”32 Brđanin’s statements “caused great fear and uncertainty among all the citizens who were of non-Serb nationality in Banja Luka.”33 “[They] instilled fear, because [they] created a very big dilemma for that part of the population, whether to leave or stay.”34 In addition, border records, local municipal government documents, evidence of the sale of property and/or church records showing the movement of individuals and families might demonstrate the psychological impact of a particular speech on a community. As a crime against humanity, persecution also requires proof that the persecutory acts occurred as part of a widespread or systematic attack against a civilian population. The contextual evidence of such an attack could also support a finding that the use of particular speech constituted an act of persecution. In addition to the use of speech directly to commit the crime of persecution, prosecutions of persons for the production and dissemination of propaganda often involve political or military leaders who were not the principal perpetrators of crimes. Modern wars and the violation of the laws of war are intensely group activities, fed by contemporary systems of organization and communication, and led by individuals who are often far from any battlefield. For example, after the

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Second World War, the IMT found that Julius Streicher’s incitement to murder and exterminate Jews at the time when Jews in Eastern Europe were massacred constituted persecution as a crime against humanity.35 More recently, at ad-hoc Tribunals such as the ICTY and the ICTR, the basis of individual criminal responsibility within the mode of “commission” frequently lies in the accused’s participation in a criminal scheme referred to as a JCE. A conviction based on a JCE requires proof of the existence of a group of persons who share a common purpose that involves the commission of a crime.36 In addition, it must be established that the accused participated in and shared the common purpose.37 Crucially, for cases involving purveyors of propaganda, this participation need not involve the commission of a specific crime under a Tribunal’s statutory provisions (for example, murder, deportation, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common criminal design.38 A participant in a JCE need not be physically present when and where the crime occurs nor have an agreement with the principal perpetrator who actually carries out the crime.39 Indeed, the principal perpetrator need not share the common criminal purpose. But what is essential to impute criminal liability to a member of a JCE for a crime committed by another person is that the crime in question forms part of the common purpose.40 Accordingly, the doctrine of JCE provides a legal framework for holding accountable those members of leadership groups who personally perpetrate no crimes, such as, for example, Julius Streicher, but whose acts and omissions, such as the production and dissemination of propaganda, promote armed conflict for criminal ends. Evidence of broad criminal policies and objectives—such as the expulsion of members of religious, national or ethnic groups from a territory—can serve as the strategic and operational framework in which individual political and military leaders disseminated particular kinds of speech. Therefore, prosecutors who investigate the possible criminal use of speech during armed conflict also should establish whether the accused acted to further broader criminal objectives, or, as one court described it, a “genocidal enterprise,”41 and whether the accused’s use of speech furthered those illegal goals. Accordingly, individual expressions of propaganda cannot be considered in isolation. International prosecutors should develop evidence demonstrating that propagandists participated in local, regional and or national programs of persecution that may involve large numbers of persons. The most powerful evidence will be proof that the accused identified with such a program and devoted himself or herself to its accomplishment, thereby placing his or her expressions in the “proper” criminal context.42 For example, after the Second World War, the judges trying the major war criminals at Nuremburg found that when Julius Streicher published his weekly Der Stürmer newspaper with its virulently anti-Semitic articles, letters and drawings, he did so as part of a broader Nazi campaign designed to free “the world of its Jewish tormentors.”43 More recently, during the ICTY trial of Bosnian Serb leader Radoslav Brđanin, the prosecution presented evidence about the six strategic goals of the Serbian

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People of Bosnia and Herzegovina. One of these strategic goals was the permanent and illegal removal of a significant part of the non-Serb population from the territory of the planned Bosnian Serb state. The evidence demonstrated that these goals constituted a “Strategic Plan.”44 In its judgment, the TC found that Brđanin: made one of his most substantial contributions to the implementation of the Strategic Plan by way of a propaganda campaign against Bosnian Muslims and Bosnian Croats, which he conducted before, during and after holding the positions of President of the ARK Crisis Staff, and which merits separate examination. The Trial Chamber is satisfied that the Accused intentionally and systematically made inflammatory statements on the radio, television and print, using the media as a tool to further the implementation of the Strategic Plan.45 The TC, for technical reasons, declined to find Brđanin criminally responsible as a participant in a JCE. However, these reasons were subsequently overturned on appeal.46 The TC’s finding above demonstrates the value for prosecutors, when possible, to place an accused’s use of propaganda within the broader context of a common criminal plan. Participation in a criminal scheme through the use of propaganda also may involve speech that misleads or threatens personnel who try to assist victims of violations of international humanitarian law. For example, over the course of several days in July 1995, Bosnian Serb forces executed several thousand Bosnian Muslim men and boys from in and around the so-called “safe area” of Srebrenica. These executions took place according to a “pre-conceived, coordinated plan to murder” the able-bodied Bosnian Muslim males from Srebrenica and the murders were organized as part of a massive, “wide scale, premeditated killing operation.”47 A TC at the ICTY recently found that the large number of persons who assisted in the implementation of this plan participated in the common criminal purpose and shared the intent to murder.48 Almost in parallel, the Bosnian Serb forces at Srebrenica also implemented a second JCE, a plan to forcibly remove the Bosnian Muslim population from the safe area. This plan commenced with the issuance of a directive by the main staff of the VRS to the commands of VRS corps in March 1995. The directive instructed the Drina Corps, responsible for the area that included Srebrenica, to “create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica.”49 The Drina Corps pursued this plan by restricting the amounts of humanitarian aid to the enclave and with military attacks, including the indiscriminate shelling of civilians, and culminated in the terrorizing of the residents of the town.50 The Bosnian Serbs finally achieved this second common criminal purpose through the busing of Bosnian Muslim women, children and elderly men out of the enclave. One of the participants in the common purpose to expel Bosnian Muslims from Srebrenica was VRS General Milan Gvero, who was responsible for Morale, Legal

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and Religious Affairs for the VRS Main Staff. One of his tasks was the dissemination of information and propaganda for the troops before and during combat operations. On 10 July 1995, as the VRS advanced on Srebrenica, a UN official notified the VRS that, as a response to the VRS attack, NATO air strikes had been approved. On the same day, General Gvero issued a statement to the media in which he explained that the Bosnian Serb army’s combat activities were directed only towards neutralizing Muslim terrorists and was not directed against civilians or members of the UN: Our combat activities at the moment are directed towards simply neutralizing the Muslim terrorists, and are in no way directed against civilians or members of (the United Nations) . . . The civilians from Srebrenica who wish to do so can in an organized and safe manner leave the settlement. All in all, there is no reason for the media and foreigners to get involved in the Muslim war propaganda.51 The ICTY TC held that the purpose of General Gvero’s press release was to mislead the international authorities concerned with protecting the Srebrenica safe area in order to delay any action on their part that could obstruct the efforts of the Bosnian Serb army. Furthermore, General Gvero effectively threatened a high-ranking UN official that, unless NATO air strikes on Bosnian Serb positions near Srebrenica ceased, there might be serious consequences for the UN personnel and Muslim civilians still in the Srebrenica area.52 The Tribunal observed that at the time of General Gvero’s threat, NATO air strikes were the only means to stop the capture of the Srebrenica enclave. Thus, from the Bosnian Serbs’ perspective, the NATO air strikes were the last significant obstacle to their plan to occupy Srebrenica and expel its inhabitants. The importance of General Gvero’s threat was reflected in a conversation that he had with Bosnian Serb President Radovan Karadzˇic´ shortly after General Gvero’s discussion with the UN official. General Gvero described his discussion with the UN official and told Karadzˇic´: “[e]verything is going according to plan. Don’t worry.”53 Indeed, the Prosecution’s evidence demonstrated that the plan included the use of “aggressive propaganda.” The TC found that the evidence that Gvero disseminated false information and issued a serious threat demonstrated that Gvero had a limited but important role in supporting the Bosnian Serb objective to expel the Bosnian Muslim population of Srebrenica: As a senior assistant commander, cloaked with authority from the highest echelons, Gvero took steps to block protective action in favor of the enclave by international authorities, notably UNPROFOR and NATO. The Trial Chamber is satisfied that by disseminating false information and issuing a serious threat, whether effective or not in the end, Gvero made a contribution to the JCE which by its nature cannot be classified as other than significant.54

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The TC also found that the forceful manner in which General Gvero carried out his actions, coupled with his own words to Radovan Karadzˇic´: “everything is going according to plan” illustrated Gvero’s shared criminal intent.55 For his significant contribution to the JCE, the TC found General Gvero guilty of the crimes against humanity of inhumane acts (forcible transfer) and persecution of the Bosnian Muslim population of Srebrenica.56 The conviction of General Gvero for his participation in the JCE is important for three reasons. First, it is the first conviction of a participant in the tragic events at Srebrenica for the use of propaganda.57 Second, the conviction demonstrates that, in particular circumstances, individuals may incur criminal responsibility under international law for their obstruction of organizations dedicating to assisting populations in distress.58 Lastly, and crucially, it confirms that proof of the effectiveness of propaganda is not a determinative factor to prove liability, at least under the JCE mode of criminal responsibility. This last finding suggests a relatively low evidentiary threshold for culpable participation in a JCE, provided that the accused shares the requisite intent to further the criminal purpose. At first blush, it appears contradictory to suggest that an individual can make a significant contribution to a JCE via an ineffective act or omission. Nevertheless, these situations may arise, such as when one participant in a common criminal scheme to attack civilians joins other participants in firing weapons at the intended victims, but, through poor aim or other reasons, fails to actually shoot any victims. The shooter who missed would still contribute to the JCE.59 Furthermore, the legal standard for a determination of prohibited speech, set by the Sürek and Özdemir jurisprudence from the ECHR, mentioned above, does not require that speech actually incited violence but rather that it was capable of doing so. Thus, the TC’s findings that General Gvero incurred criminal responsibility for his use of propaganda “whether effective or not” is consistent with the standards set by the jurisprudence of the ECHR. It is important to note that the ICC does not subscribe to the JCE theory of individual criminal responsibility. Instead, the ICC applies the concept of liability known as co-perpetration through joint control over the crime.60 This theory is similar to JCE in that it also includes the existence of a common criminal plan, the utilization of the principal perpetrators by the members of the plan, etc.61 However, the ICC has also raised the bar for proving this form of criminal responsibility. For example, ICC prosecutors must demonstrate that the contribution of a coperpetrator to the execution of the criminal task was “essential” rather than the “significant” standard applied to cases of JCE.62

Instigation Instigation “means prompting another to commit an offence.”63 To prove a defendant’s criminal responsibility as an instigator, prosecutors must demonstrate that the instigation was a factor clearly contributing to the conduct of other persons

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committing the crime. Thus, unlike the relatively low threshold to establish that propaganda was a significant contribution to a JCE, a determination that speech instigated others to commit a crime would require a finding that the speech was effective. Furthermore, the prosecutor must demonstrate that the accused intended to provoke or induce the commission of the crime, or was aware of the substantial likelihood that the commission of the crime would be a probable consequence of his or her acts or omissions.64 An ICTY TC found that the public speeches of Bosnian Serb leader Radoslav Brđanin instigated the commission of crimes committed against non-Serbs in the ARK: [i]t has been abundantly proved that the Accused made several inflammatory and discriminatory statements, . . . advocating the dismissal of non-Serbs from employment, and stating that only a few non-Serbs would be permitted to stay in the territory of the ARK. In light of the various positions of authority held by the accused throughout the relevant time, these statements could only be understood by the physical perpetrators as a direct invitation and a prompting to commit to crimes. Against this background, the Trial Chamber is satisfied that the Accused instigated the commission of some crimes charged in the indictment.65 Moreover, on 11 July 1995, after Bosnian Serb forces captured the town of Srebrenica, a television crew in Srebrenica filmed General Ratko Mladic´, then the commander of the VRS, as he savored the VRS’s victory. “[T]he time has come,” said General Mladic´, “to take revenge on the Turks in this region.”66 The mass expulsions of Bosnian Muslim women, children and elderly began the next day and the mass executions of Bosnian Muslim men and boys by VRS forces began two days after General Mladic´’s statement.67 The video of General Mladic´’s call for revenge, even standing alone, would be powerful evidence that General Mladic´ prompted his soldiers to commit crimes. In addition, testimony of individual soldiers and officers (if available) that they heard General Mladic´’s speech and acted upon his call to take revenge, would further establish that General Mladic´’s speech was a factor clearly contributing to their decision to commit the crimes at Srebrenica. Furthermore, additional contextual evidence might underline the likely impact of General Mladic´’s call for revenge on the actual perpetrators. On the evening of 11 July 1995, after General Mladic´ made his public call for revenge against the “Turks,” General Mladic´, in the presence of several other VRS officers, told a representative of the Bosnian Muslim community in Srebrenica: “I need to have a clear position of the representatives of your people whether you want to survive . . . stay or vanish.”68 At a similar meeting held the following morning, General Mladic´ told other representatives of the Bosnian Muslim population:

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There is no need for your people to get killed, your husband, your brothers or your neighbors. All you have to do is say what you want. As I told this gentleman last night, you can either survive or disappear.69 This kind of contextual material provides circumstantial evidence that General Mladic´, and, by inference, his VRS subordinates, intended to commit crimes against the Bosnian Muslim residents of Srebrenica, or, at a minimum, were considering this course of action. When viewed in this broader context, General Mladic´’s public call for revenge carries an even more ominous tone. The totality of this evidence would make it more difficult for General Mladic´ to advance an argument that his speech was not a clear contributing factor to the mass executions and expulsions at Srebrenica. Similarly, when viewed together, this material is powerful evidence of General Mladic´’s intent to instigate his subordinates to commit these crimes.70 The challenge for prosecutors to demonstrate a criminal state of mind will always be to prove that particular expressions were meant to inflame passions rather than to appeal to lawful and rational instincts. Some evidence may yield patterns of repeated expressions which, when viewed together, reveal an intent to instigate others to commit criminal acts. The creation of a chronology of the expression of such speech, the forums used, the audiences targeted and the past and subsequent commission of crimes often serves as a practical tool to demonstrate criminal intent. Chronologies also serve as dramatic visual aids to rebut suggestions that speech or other forms of expression had a more benign purpose.

Aiding and abetting Aiding and abetting means that an accused performed an act consisting of practical assistance, encouragement or moral support to the principal offender of the crime. The act of assistance must have had a substantial effect on the commission of the crime by the principal offender. The assistance may consist of an act or omission, and it may occur before, during or after the act of the principal offender.71 When the ICTY TC convicted Radoslav Brđanin for aiding and abetting the forcible transfer and/or deportation of non-Serbs from their homes in Bosnia and Herzegovina, one basis for the Chamber’s finding of guilt was Brđanin’s use of propaganda: [s]ome of the inflammatory and discriminatory statements made by the Accused, in light of the positions of authority that he held, amount to encouragement and moral support to the physical perpetrators of crimes. Moreover, the Accused made threatening public statements which had the effect of terrifying non-Serbs into wanting to leave the territory of the ARK, thus paving the way for their deportation and/or forcible transfer by others.72

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The mens rea of aiding and abetting consists of awareness that the acts or omissions of the aider and abettor assist in the commission of a crime by the principal offender. The aider and abettor need not be aware of the precise crime that is intended or that was actually committed, as long as he or she is aware that one of a number of crimes would probably be committed, including the crime that occurred.73 In the Brđanin judgment, the TC found that Radoslav Brđanin “intentionally made a substantial contribution towards creating a climate where people were prepared to tolerate the commission of crimes and to commit crimes, and where well-meaning Bosnian Serbs felt dissuaded from extending any kind of assistance to non-Serbs.”74 The same TC convicted Brđanin for aiding and abetting the persecution of nonSerbs in Bosnia and Herzegovina, finding that Brđanin held the same criminal intent to discriminate against non-Serbs as did the individuals who actually committed abuses: [t]he essence of the utterances made by the Accused are, . . . instructive of his attitude towards Bosnian Muslims and Bosnian Croats. The Trial Chamber recalls that the Accused repeatedly used derogatory and abusive language when referring to Bosnian Muslims and Bosnian Croats in public. Moreover, he openly labeled these people “second rate” or “vermin” and stated that in a new Serbian state, the few Bosnian Muslims and Bosnian Croats allowed to stay would be used to perform menial work. The Trial Chamber is thus satisfied that not only the physical perpetrators, but also the Accused possessed the intent to discriminate against the Bosnian Muslim and Bosnian Croat victims.75

Helpful albeit circumstantial evidence Circumstantial evidence that an accused used propaganda to prompt another to commit a crime, or contributed to the decision of another to commit a crime, includes evidence that the accused had the ability to do so. This capacity may arise from the accused’s position of authority in the community, his or her communication skills, his or her ability to disseminate speech, or some combination of factors. Thus, evidence that the accused was a respected intellectual, a political or military leader, or held another position of high status in society, indicates that the accused’s speech carried a special authority for the listener, as would specific evidence of an accused’s popularity. In the Brđanin judgment, for example, the TC held that due to Brđanin’s authority, “his public statements were attributed more weight in the eyes of both the Serbs and the non-Serbs.”76 In the “Media Trial,” judges at the ICTR found that accused Ferdinand Nahimana was a “renowned academic” who “used the radio—the medium of communication with the widest public reach—to disseminate hatred and violence”77 during the Rwanda genocide. Furthermore, the Tribunal heard evidence that proved that Hassan

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Ngeze, one of Nahimana’s co-accused and the owner of the virulently anti-Tutsi newspaper Kangura, “as owner and editor of a well-known newspaper in Rwanda, was in a position to inform the public and shape public opinion,” but chose to use the media “to attack and destroy human rights.”78 Evidence of status, communication skills and access to the media, therefore, provides important context to facts about specific speech, its dissemination, and its effect on the perpetrators of crimes. Prosecutors may choose to use the assistance of expert witnesses to provide contextual evidence concerning the meaning and impact of certain kinds of speech used by those accused. For example, in times of war and social crisis, history may be presented in such a way as to inflame ethnic resentments.79 Scholars of linguistics, history and/or politics may provide helpful evidence to assist judges in their understanding of certain forms of expression and its likely impact on an audience. Malicious propaganda campaigns, the slow injection of poisonous beliefs into the minds of the populace, may pre-date the actual commission of crimes. The evidentiary value of such long-term campaigns, however, may be problematic. For example, prior to the 1994 Rwanda genocide, Hutu newspaper owner Hassan Ngeze, published “The Appeal to the Conscience of the Hutu” and “The Ten Commandments” (see Figure 3.1). These tracts urged Hutus to “cease feeling pity for the Tutsi!” and claimed that all Tutsi were dishonest in their business dealings and that Tutsi women “wherever they may be,” were working in the pay of the Tutsi ethnic group. Evidence presented at the “Media Trial” described the effectiveness of Ngeze’s newspaper propaganda and how it helped to create a common belief system amongst Rwanda’s Hutu population. As a result of the publication of the “Ten Commandments,” Hutu began to perceive the Tutsi as enemies and the Tutsi also began to see the Hutu as a threat.80 Rwanda’s national radio broadcast the “Ten Commandments,” the TC found, “to ensure that all the Hutus must become united,” that “they should have a single fighting goal that they should aim for,” and “that they should have no link or relationship between Hutus and Tutsis.”81 This propaganda campaign led to individual crimes as some men killed their Tutsi wives and children of mixed marriages killed their own Tutsi parents.82 On appeal of Ngeze’s conviction for direct and public incitement to genocide, however, the Appeals Chamber held that the TC erred in basing some convictions of Ngeze for direct and public incitement to genocide on pre-1994 issues of Kangura. The Appeals Chamber found that the ICTR TC could not have jurisdiction over acts of incitement that occurred before 1994 based on the theory that this incitement continued in time until the genocide occurred. The Appeals Chamber held that direct and public incitement occurs as soon as the words are uttered or expressed. Thus, pre-1994 issues of Kangura, at most, could only constitute indirect incitement to genocide.83 The older issues might serve as contextual material, however, to assist in understanding the criminal nature of Kangura issues published during the period of the Rwandan genocide.

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Figure 3.1 Kangura, No. 6, December 1990. “The Ten Commandments”. 1 Every Hutu male should know that Tutsi woman, wherever they may be, are working in the pay of their Tutsi ethnic group. Consequently, shall be deemed a traitor: – Any Hutu male who marries a Tutsi woman; – Any Hutu male who keeps a Tutsi concubine; – Any Hutu male who makes a Tutsi woman his secretary or protégé.

Tellingly, in his pre-1994 issues of Kangura, Hassan Ngeze tried to make all Hutus propagandists by telling his readers that: Every Hutu must propagate the present ideology widely. Any Hutu who persecutes his brother for having read, disseminated and taught this ideology shall be deemed a traitor.84 Ngeze’s early efforts to repress Hutus who disagreed with his values illustrate an important source of circumstantial evidence. Effective propagandists will often be skilled, not only in the dissemination of their ideas, but in the imposition of limits on the expression of counter-ideas as well. Thus, international prosecutors should seek evidence of resources or government apparatus devoted to control the expression of ideas and repression of dissent. By shutting down the marketplace of ideas, “good” propagandists ensure that soldiers and other members of the population only hear and assimilate their skewed view of reality. As Catherine Merridale explains, nothing holds a people together better than censorship and isolation:

Propaganda as a crime under international humanitarian law 135 Figure 3.1 Continued 2 Every Hutu male must know that our Hutu daughters are more dignified and conscientious in their role of woman, wife and mother. Are they not pretty, good secretaries and more honest! 3 Hutu woman, be vigilant and bring your husbands, brothers and sons back to their senses. 4 Every Hutu male must know that all Tutsis are dishonest in their business dealings. They are only seeking ethnic supremacy. “RIZABARA UWARIRAYE” (Only he who spent a sleepless night can talk about the night) Shall be consequently considered a traitor, any Hutu male: – – – – 5 6 7 8 9

10

who enters into a business partnership with Tutsis; who invests his money or State money in a Tutsi company; who lends to, or borrows from, a Tutsi; who grants business favors to Tutsi [granting of import licenses, bank loans, building plots, public tenders . . .] Strategic positions in the political, administrative, economic, military and security domain should, to a large extent, be entrusted to Hutus. In the education sector, (pupils, students, teachers) must be in the majority Hutu. The Rwandan Armed Forces should be exclusively Hutu. That is the lesson we learned from the October 1990 war. No soldier must marry a Tutsi woman. Hutus must cease having any pity for the Tutsi. – The Hutu male, wherever he may be, should be united, in solidarity and be concerned about the fate of their Hutu brothers. – The Hutus at home and abroad must constantly seek friends and allies for the Hutu Cause, beginning with their Bantu brothers. – They must constantly counteract Tutsi propaganda. – The Hutu must be firm and vigilant towards their common Tutsi enemy. The 1959 social revolution, the 1961 referendum and the Hutu ideology must be taught to Hutus at all levels. Every Hutu must propagate the present ideology widely. Any Hutu who persecutes his brother for having read, disseminated and taught this ideology shall be deemed a traitor.

Courtesy of Montreal Institute for Genocide and Human Rights Studies at Concordia University. Online. Available HTTP: (accessed 8 February 2011).

The birth of the glorious wartime myth was managed all the way along. The censors ensured that words like “retreat” and “surrender” would never feature in the annals of Red Army operations, but more cruelly they also suppressed evidence of the war’s true human cost. . . . On average, Soviet losses outnumbered those of the enemy by at least three to one, but every pressure worked to hide this statistic. . . . Emotions, too, were censored. Grief was allowed – as long as it stirred soldiers to revenge – but other reactions to danger and pain remained unspoken. The Sovinformburo made sure that nothing that was published referred to men’s fear or doubt.85 Finally, it is axiomatic that it is much easier to start a war than to stop one. Similarly, it is far simpler to inject hate and fear into a society than it is to remove them. Once criminal objectives are obtained, when the ethnic cleansing is over and territory secured, political and military objectives may change to reflect new realities and the consolidation of power, position and new strategic alliances. Extremist ideologies may become inconvenient and counter-productive. Thus, evidence that a government or military leader used propaganda to instill hatred and

136 Propaganda, War Crimes Trials and International Law

instigate violence, and then, after objectives were secured, succeeded to remove or diminish his poison’s effectiveness, would be the mark of a most effective propagandist.

Defenses Any competent prosecutor must consider the likely defenses to criminal charges of serious violations of international humanitarian law. It may be dangerous to rely too heavily on theories such as JCE when, so often in war, crimes occur more as a result of chaotic chains of events than elaborate criminal plans.86 For example, the mass exodus of a civilian population may be the result of fear of lawful combat or a legitimate evacuation by military forces for the protection of civilians.87 Furthermore, while an accused’s use of speech and propaganda may appear onerous in a particular context, the principal perpetrators of crimes may have been pre-disposed, for a myriad of reasons, to criminal conduct prior to hearing the speech. Proving that the accused’s speech contributed to the commission of crimes in this context may become difficult or impossible. During the investigation phase, prosecutors would do well to explore these issues during witness interviews and their review of documents to ensure that events were actually criminal and, if so, that the evidence truly demonstrates the individual criminal responsibility of all accused.

Final thoughts The investigation and prosecution of persons who use forms of expression to commit or contribute to serious violations of international humanitarian law are challenging and complex tasks. Nevertheless, prosecutions based on propaganda activities have made important contributions to the development of international criminal law as well as the enforcement of international humanitarian law. To reduce the suffering caused by war, international tribunals should continue to apply these areas of law to persons who use speech for criminal ends.

Notes 1 J.J. Frésard, The Roots of Behaviour in War: A Survey of the Literature, Geneva: International Committee of the Red Cross, October 2004, p. 29. Publishing on the Internet. Online. Available HTTP: (accessed 30 January 2011). 2 For a recent example, see Ernesto Londonˇo, ‘U.S. Struggles to Counter Taliban Propaganda’, Washington Post, 1 October 2010. 3 C. Merridale, Ivan’s War: The Red Army 1939–45, London: Faber and Faber, 2005, p. 331. 4 For example, British military doctrine emphasizes the importance of the moral component of operational effectiveness, or “fighting power,” i.e. the ability to get people to fight. R. Dannatt, Values and Standards of the British Army, British Army, January 2008, p. 6.

Propaganda as a crime under international humanitarian law 137 5 D. Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society, Boston, MA: Little Brown and Co., 1995, p. 199. 6 Frésard, The Roots of Behaviour in War, p. 30. 7 ICTY and UNICRI authors, ICTY Manual on Developed Practices, Turin: United Nations Interregional Crime and Justice Research Institute (UNICRI), 2009, pp. 14–15. 8 ICTY Manual on Developed Practices, p. 30. 9 ICTY Manual on Developed Practices, p. 30. 10 ICTY Manual on Developed Practices, pp. 30–31. 11 ICTY Manual on Developed Practices, p. 31. 12 ICTY Manual on Developed Practices. 13 ICTY Manual on Developed Practices, p. 31. 14 ICTY Manual on Developed Practices, p. 32; See Rule 54 bis of the ICTY Rules of Procedure and Evidence and Article 92 of the Rome Statute of the Permanent International Criminal Court (ICC) (Rome Statute) and Rule 115 of the ICC’s Rules of Procedure and Evidence. 15 ICTY Manual on Developed Practices, p. 32. 16 ICTY Manual on Developed Practices, p. 32. 17 ICTY Manual on Developed Practices, p. 15. 18 Grossman, On Killing, p. 199. 19 The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-T, 2 December 2008, para. 247. 20 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment, Case No. ICTR-99-52-A, Partly Dissenting Opinion of Judge Meron, paras 5 and 10, “profound disagreement exists in the international community as whether mere hate speech is or should be prohibited . . . overly permissive interpretations of incitement can and do lead to the criminalization of political dissent”. 21 UNGA Res. 217 A (II), UN Doc. A/810, p. 71 (1948). 22 UNGA Res. 217 A (II), UN Doc. A/810, p. 71 (1948), emphasis added. 23 UNGA Res. 217 A (II), UN Doc. A/810, p. 71 (1948), emphasis added. 24 UNGA Res. 217 A (II), UN Doc. A/810, p. 71 (1948), emphasis added. 25 Sürek and Özdemir v. Turkey, ECHR Judgment, 8 July 1999, pp. 27–28. 26 Ibid., p. 40. 27 Merridale, Ivan’s War, p. 330. 28 For the purpose of this chapter, the term “suspect” refers to a person who is the subject of a criminal investigation, but not yet formally indicted for any crime. The term “accused,” which will be used throughout, refers to a person who is the subject of a criminal indictment. 29 Publishing on the Internet. Online. Available HTTP: (accessed 2 August 2010). 30 The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-T, 2 December 2008, para. 391. 31 The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-T, 2 December 2008, paras 392 and 395. 32 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, nte. 62, Witness BT-104. 33 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, nte. 62, Amir Dzˇonlic´. 34 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, nte. 62, Witness BT-11. 35 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1947, pp. 303–304. 36 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-A, paras 64 and 69.

138 Propaganda, War Crimes Trials and International Law 37 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-A, para. 64; Prosecutor v. Miroslav Kvocˇka, et al., Judgment, Case No. IT-98-30/1-A, 28 February 2005, paras 89–90, 97. 38 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-A, para. 64. 39 Prosecutor v. Miroslav Kvocˇka, et al., Judgment, Case No. IT-98-30/1-A, 28 February 2005, para. 112; Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-A, para. 404. 40 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-A, para. 418. 41 Prosecutor v. Radislav Krstic´, Judgment, Case No. IT-98-33-A, 19 April 2004 , paras 134, 143–4. 42 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-A, para. 398, citing Separate Opinion of Judge Iain Bonomy, Milutinovic´ et al. Decision on Ojdanic´’s Motion Challenging Jurisdiction, in particular paras 18–22. 43 Trial of the Major War Criminals Before the International Military Tribunal, Judgment, 1947, pp. 301–304 44 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, paras 75–77. 45 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 323. 46 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, paras 414, 419 and 424. 47 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, paras 1050–1051, 1067 and 1072. 48 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1072. 49 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1086, Ex. P00005. 50 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1085–1086. 51 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1768. 52 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1816. 53 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1819. 54 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1820. 55 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1822. 56 Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, paras 1826 and 1836. 57 N. Ahmetasˇevic´, ‘Hague Recognises Propaganda’s Role in Srebrenica Genocide’, Balkan Insight, 7 July 2010. Publishing on the Internet. Online. Available HTTP: (accessed 17 January 2011). 58 In Prosecutor v. Mile Mrksˇic´, et al., when evaluating aggravating the circumstances that could impact the sentence imposed on Veselin Sˇljivancˇanin, the TC observed that Sˇljivancˇanin had been deceitful in ensuring that international representatives were not given access to the Vukovar Hospital, from which Croat prisoners were removed and subsequently killed in November 1991. Judgment, Case No. IT-95-13/1-T, 27 September 2007, para. 704. However, “aggravating factors” should be directly related to the commission of the offense and it remains unclear whether this factor actually

Propaganda as a crime under international humanitarian law 139

59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82

83

effected the TC’s sentencing decision. Prosecutor v. Mile Mrksˇic´, et al., Judgment, Case No. IT-95-13/1-A, para. 387. I am grateful to Peter McCloskey for this insight. Prosecutor v. Germain Katanga and Mathieu Ngudjol Chui, ICC-01/04-01/07-717, Confirmation of Charges, 30 September 2008, paras 480–534. Prosecutor v. Germain Katanga and Mathieu Ngudjol Chui, ICC-01/04-01/07-717, Confirmation of Charges, 30 September 2008, paras 522–523. Prosecutor v. Germain Katanga and Mathieu Ngudjol Chui, ICC-01/04-01/07-717, Confirmation of Charges, 30 September 2008, paras 521, 524–526. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 269. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 269. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 360. Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, nte. 3503, Ex. P0247 and Ex. P02048, p.11. Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, paras 915–925 and 1050. Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, nte. 3503, Ex. P0247 and Ex. P02048, pp.47–8. Prosecutor v. Vujadin Popovic´, et al., Judgment, Case No. IT-05-88-T, 10 June 2010, nte. 3503, Ex. P0247 and Ex. P02048, p.51. At the time of writing, General Mladic´ remained a fugitive. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 271. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 368. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 272. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 330. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 1053. Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 324. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 1099. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 1101. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 184. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 141. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 140. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 140. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, Judgment, Case No. ICTR-99-52-A, 28 November 2007, paras 408–410. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, Judgment, Case No. ICTR-99-52-A, 28 November 2007, paras 408–410.

140 Propaganda, War Crimes Trials and International Law 84 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003, para. 139. 85 Merridale, Ivan’s War, pp. 27 and 164. 86 X. Agirre, ‘Conspiracy v. Chaos: Scenarios for the Analysis and Litigation of Leadership War Crimes’, unpublished paper, p. 8. Quoted with the permission of the author. 87 Ibid., p. 16.

Bibliography Agirre, X., ‘Conspiracy v. Chaos: Scenarios for the Analysis and Litigation of Leadership War Crimes’, unpublished paper. Ahmetasˇevic´, N., ‘Hague Recognises Propaganda’s Role in Srebrenica Genocide’, Balkan Insight, 7 July 2010. Publishing on the Internet. Online. Available HTTP: (accessed 17 January 2011). Dannatt, R., Values and Standards of the British Army, British Army, January 2008. Frésard, J.J., The Roots of Behaviour in War: A Survey of the Literature, Geneva: International Committee of the Red Cross, October 2004. Publishing on the Internet. Online. Available HTTP: (accessed 30 January 2011). Grossman, D., On Killing: The Psychological Cost of Learning to Kill in War and Society, Boston, MA: Little Brown and Co., 1995. ICTY and UNICRI authors, ICTY Manual on Developed Practices, Turin: United Nations Interregional Crime and Justice Research Institute (UNICRI), 2009. Merridale, C., Ivan’s War: The Red Army 1939–45, London: Faber and Faber, 2005. Publishing on the Internet. Online. Available HTTP: . UNGA Res. 217 A (II), UN Doc. A/810.

Table of cases IMT Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1947.

ICTY Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T. Prosecutor v. Radislav Krstic´, Case No. IT-98-33-A. Prosecutor v. Miroslav Kvocˇka, et al., Case No. IT-98-30/1-A. Prosecutor v. Mile Mrksˇic´, et al., Case No. IT-95-13/1-A. Prosecutor v. Vujadin Popovic´, et al., Case No. IT-05-88-T. Prosecutor v. Milomir Stakic´, Case No. IT-97-24-A.

Propaganda as a crime under international humanitarian law 141

ICTR The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-A.

ICC Prosecutor v. Germain Katanga and Mathieu Ngudjol Chui, ICC-01/04-01/07-717.

European Court of Human Rights Sürek and Özdemir v. Turkey, European Court of Human Rights.

Part 2

Expert evidence

Chapter 4

The challenges of understanding Kinyarwanda key terms used to instigate the 1994 genocide in Rwanda Mathias Ruzindana

Criminal words Language is a double-edged sword. It can heal or kill. In the case of the 1994 genocide in Rwanda, the effect of language was lethal. It is generally believed that the hate media, such as the RTLM1 and the Kangura newspaper, played a key role in the instigation of genocide and other crimes against humanity committed in this small central African country. There exists a wide range of research on the hate media which paved the way for the 1994 Rwandan genocide.2 A number of judgments rendered by the ICTR, in particular the so-called “Media Trial,”3 have brought into the limelight the powerful role which language can play in the commission of crime. However, in a number of ICTR genocide cases, the debate around some recurrent polysemic Kinyarwanda key terms which were used during or even before the 1994 Rwandan genocide is not only to determine whether these words belong in the hate media, but also what they actually mean. Since the use of such key words relates directly to the offenses of genocide and instigation to commit genocide, the TC has to determine their meaning.

Law and linguistics In criminal cases, the prosecution has to convince the judges beyond reasonable doubt that the accused committed the alleged offense. In the case of the offense of “direct and public incitement to commit genocide”4 which many persons tried by ICTR are accused of, the prosecution’s task is even more challenging. It has to prove that: (1) the accused uttered certain words; (2) the words uttered belong in the hate media; (3) they were meant to instigate the commission of crime; and (4) the speaker was aware of this effect. At the ICTR, none of the judges (and most of the main lawyers in the prosecution and defense teams) speaks Kinyarwanda, which is the only language most witnesses use in the courtroom. Arbitration between the parties and determination of some key issues depend largely on the linguistic input provided by interpreters, and in some cases, by expert witnesses. While interpreters are neutral, the same cannot always be said of witnesses who are called by parties to bolster their cases.

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As a matter of fact, in some cases, the testimony of some of these witnesses, both factual and expert, has been rejected on account of lack of neutrality.5 In spite of this shortcoming, the TC cannot do without witness testimony. In order to understand the language used during or even before the Rwandan genocide in 1994, the non-Rwandan lawyers must therefore rely on the input from the linguist.6 At the ICTR, law cannot do without linguistics. It however remains to be seen to what extent this input can actually bridge the communication gap caused by multilingualism. The key terms which will be examined are: 1 2 3 4 5

Inyenzi (cockroach; rebels who attacked Rwanda in the sixties); Inkotanyi (RPF members); Umwanzi (enemy); Icyitso (accomplice); Gukora7 (to work).

These key words have come to acquire special treatment in ICTR court proceedings and judgments, for mainly two reasons. First, they relate directly to the offense of genocide and/or genocide instigation. Second, being polysemic, that is, having more than one meaning, their interpretation is not always evident. In ICTR judgments, these keys words are sometimes enclosed between inverted commas, italicized or kept in their Kinyarwanda form in order to underscore their contentious nature and the peculiarity of their interpretation. In this article, they will be italicized. The words Icyitso (accomplice), Umwanzi (enemy), and Gukora (to work) will be used in their English translation form as is currently the practice at the ICTR.

Aims of the study This study investigates the approach used by the ICTR TCs in determining the meaning of Kinyarwanda key polysemic terms which were used by the hate media before and during the 1994 Rwandan genocide. Previous studies, such as Nkusi et al.8 analyzed these key terms in context. However, very little is known about how the various ICTR TCs interpret them. It will be shown that interpreting from Kinyarwanda to French and English is not without challenges, much more so owing to linguistic and cultural disparity and the language used during the 1994 Rwanda genocide, which was far from straightforward. It will be shown that in a multicultural and multilingual tribunal, where court proceedings can only depend on interpretation and linguistic expertise, meaning cannot always be taken for granted. It will also be shown that while the various TCs recognize that meaning is context dependent, they seldom take the necessary precaution to define context so as to minimize contention and apparent subjectivity, and that some of them have adopted a simplistic approach, failing to grasp the complexity of understanding the language used and the cultural overtones which underlie the use of the terms.

Kinyarwanda key terms and the 1994 genocide in Rwanda 147

In general, at the ICTR, the defense seldom agrees with the prosecution as to the interpretation of the language used. As will be shown in this chapter, the defense tends to interpret polysemic key terms in a narrow sense, rejecting figurative and extended usages.

Media language during and before the Rwandan genocide It is important to stress that, owing to the proliferation of print media from 1990, the war, and the introduction of multiparty democracy, by 1994, a number of Kinyarwanda terms had acquired new extended or broader meanings to accommodate the numerous new realities. This explains why some of the extended meanings of the key words being analyzed in this chapter cannot be found in a pre1994 Kinyarwanda dictionary.

Communication challenges in ICTR proceedings: cultural collision Culture and tradition often affect intercultural communication. In an international tribunal such as the ICTR, while the divergence between the basic legal systems, namely the common law and civil law, has posed “manageable” problems in proceedings, cultural differences have never been tamed and their overtones are often a source of mishaps in the courtroom. In the ICTR courtroom, there are times when cultural collision results in communication breakdown. The ICTR law men (including judges, prosecution trial attorneys and most defense lawyers) know very little, if anything at all, about Rwandan culture and tradition prior to joining the ICTR. They were trained to try cases, ask questions, research facts, contradict allegations and the like. Like most of us, they were brought up, trained and conditioned to think and behave in a particular way. They never understand why a witness who alleges to have been near a scene of crime fails to answer a simple question such as “How far were you from the scene?” This type of question, which they expect to be answered in terms of meters or kilometers, or even yards and miles, for a country which was using the metric system, is rarely answered in anything different from not far, quite close, etc. Getting noneducated Rwandans to answer questions on delicate issues, especially on crossexamination, is a tricky matter and can even be irritating at times. Not only do they have a very rudimentary, and far from accurate notion of time, space and numbers (for large amounts), but also their answers are seldom straightforward. Ignorant as they are of Rwandan culture, traditions and practices, and with no induction course in this area to help them understand these cultural matters, ICTR lawyers tend to use standard yardstick and measurements, which are not only inadequate, but also equally irritating for ordinary non-educated Rwandans who, also out of ignorance of court practices, often find the type of questions asked “stupid” or “irrelevant.”

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These cultural communication challenges are as old as the Tribunal itself. In the Akayesu case, the first to be tried by ICTR, the TC noted: [. . .] it is a particular feature of the Rwandan culture that people are not always direct in answering questions, especially if the question is delicate. In such cases, the answers given will very often have to be “decoded” in order to be understood correctly. This interpretation will rely on the context, the particular speech community, the identity of and the relation between the orator and the listener, and the subject matter of the question. The Chamber noted this in the proceedings. For example, many witnesses when asked the ordinary meaning of the term Inyenzi were reluctant or unwilling to state that the word meant cockroach, although it became clear to the Chamber during the course of the proceedings that any Rwandan would know the ordinary meaning of the word. Similar cultural constraints were evident in their difficulty to be specific as to dates, times, distances and locations.9 Unfortunately, there is no indication that these cultural problems are better addressed today than they were a decade ago. Even if in many judgments, the challenges posed by cultural disparity and even interpretation are acknowledged, the TCs have failed to develop a coherent jurisprudence which can accommodate them. Let us first of all look at two recurrent cultural features which sometimes cause communication difficulties.

Estimating time and distance An American friend once asked me how Rwandans measured time and distance before the advent of modern units of measurement. I responded with the following question: “If you tilled a certain area of your land from sometime in the morning until sometime in the afternoon, why on earth would you need to know that the portion of land you tilled was 12.5 square meters, had 127 furrows, and well, that you worked on it from 6:23 a.m. until 13:45 p.m.?” As a communication tool, language is need tailored. It seldom extends beyond its users’ needs. For an illiterate Rwandan, the day begins when the cock crows for the first time and ends when the night falls. In order to refer to a particular stretch of time in the day, reference is made either to a particular routine activity usually conducted then, or the particular intensity of daylight which characterizes that stretch of time. Before the advent of watches, this type of time telling was adequate for the type of time precision required. As the following exchange shows, it is fruitless (although there is no harm in trying) to ask a non-educated Rwandan witness to tell you exactly when a given event occurred: Q: Did you happen to recall what time of the day you left Kibuye on your way to – you left Mabanza on your way to Kibuye on this day?

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A: No, I do not recall the hour. Q: Do you recall roughly how long the journey from Mabanza to Kibuye took on this day? A: How can I tell you this? I wasn’t wearing a watch and I didn’t ask anybody what time of day it was.10 This witness failed to answer the question either because he honestly did not remember or perhaps because he was being economical with the truth. More generally, however, many non-educated Rwandan witnesses eventually come up with some very rough indication of time of the day, such as morning or evening, middle of day, etc. It would be too easy to blame them for not remembering exactly when particular events occurred. Memory erodes with time and the traumatic conditions of genocide and war are particularly favorable for selective amnesia. As one witness put it, had he known that one day, he would be asked how many people were with him during the attack, he would have counted them. In court proceedings, witnesses are also frequently required to provide distance estimates. If they allege to have seen the accused or heard them utter certain words, they may be required to describe where they were vis-à-vis the accused in order to have been able to see or hear them distinctly. This is a crucial issue which together with some other considerations, make the witness credible or unreliable as the case may be. For non-educated Rwandans, there is no practical way of estimating longer distances. Asking a witness whether Area X is within walking distance is not helpful for a witness who had probably never been in a car at the time of the event referred to. After all, for such a witness, any distance was a walking distance. The Kinyarwanda language has such words as far, very far, close, etc., but they are not always helpful for a lawyer who expects an answer in meters or yards. In the next example, the presiding judge must have been more than frustrated: MR. PRESIDENT: Madam Witness, how far is the conseiller’s house from the secteur? THE WITNESS: There’s a big distance between the secteur office and the conseiller’s house. MR. PRESIDENT: In terms of kilometers, if you can say; how many miles or kilometers, two, three, four, five? THE WITNESS: Look, it is really difficult for me to come up with an estimate. It was a great distance.11 This exchange is by no means atypical. In the mind of this witness, who is no doubt non-educated, the question is properly answered since “great distance,” whatever that means, shows that it is not close. Needless to say, the presiding judge who expected enlightenment in the form of miles or kilometers was left in the dark.

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If witnesses could estimate how long it took them to walk from point A to point B, then perhaps the lawyer can calculate the distance between A and B using the time/distance/speed formula. Unfortunately, there is no guarantee that this will always be fruitful as the next example shows: Q: And how far is it from Murambi to Mubuga? A: It’s a long distance. Q: How long did it take you to get to that place, in terms of time? A: I cannot tell you how long it took me because I left during the night. Q: Did you arrive the same night or the following morning? A: I arrived before morning.12 First of all, “long distance” (which is another way of saying far) cannot be a satisfactory answer to the “how far” question since it is too imprecise. Second, the witness says he cannot estimate how long the journey took because it occurred during the night, as if time stood still in the dark. Third, “before morning” is ambiguous. Does it mean that he arrived early in the morning or that it was still during the night? We could note in passing that night and day do not always cover the same temporal reality even among educated people. Is 2 a.m. morning or night? To the non-initiated, the above exchange seems to flout at least two maxims of Grice’s Cooperative Principles, that of relevance and that of manner. The witness seems uncooperative. It is as if he said: I will not answer your questions, full stop. For shorter distances, non-educated Rwandans often use deictic physical clues. This rudimentary but practical technique is sometimes used at the ICTR. Instead of wasting time and energy requesting witnesses to estimate the distance in meters while this word does not even exist in their vocabulary, it would make more sense if one used the courtroom physical setting for comparative purposes. The answer like the accused was standing like where you are, and I was where the judges are seated, may not be economical, but it is far better than very close or near. The evidence from the ICTR court transcripts shows that many ICTR lawyers continue to waste time by attempting to elicit very precise time and distance data from Rwandan witnesses who, visibly, are non-educated.

Interpretation challenges Conducting court proceedings in three languages is a daunting task. This becomes even more of a challenge when one of the languages is Kinyarwanda, a Bantu language which, in 1994, was far from straightforward, and the players involved (witnesses, judges and lawyers) come from a wide range of cultural backgrounds. With cultural differences, linguistic difficulties are bound to occur.13 It can never be taken for granted that a message which the witness utters in Kinyarwanda and

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which the first interpreter puts in French before the second puts it in English, will not be distorted along the way. Also, even with the best interpreters, misinterpretations are bound to occur.14 These sociolinguistic difficulties of interpreting from Kinyarwanda into English/ French or vice-versa were acknowledged even during the Akayesu judgment, where the TC noted: [. . .] the interpretation of oral testimony of witnesses from Kinyarwanda into one of the official languages of the Tribunal has been a particularly great challenge due to the fact that the syntax and everyday modes of expression in the Kinyarwanda language are complex and difficult to translate into French or English. These difficulties affected the pre-trial interviews carried out by investigators in the field, as well as the interpretation of examination and cross-examination during proceedings in Court. Most of the testimony of witnesses at trial was given in the Kinyarwanda language, first interpreted into French, and then from French into English. This process entailed obvious risks of misunderstandings in the English version of words spoken in the source language by the witness in Kinyarwanda.15 In the case of polysemic words such as enemy or Inyenzi, the Kinyarwanda French/English interpreters have no choice but to stick to the basic meaning, that is, the one which is less interpretative, leaving it to the parties to make more committed interpretations of the terms. Other semantic aspects of the terms, such as connotation and pejoration, are also left out. Thus, a term such as Inyenzi, when translated will become cancrelat in French and cockroach in English, but the offensive and pejorative aspects of the original Kinyarwanda meaning, which is culture and context dependent, will be lost through translation. This kind of omission is a heavy loss inherent with conducting trials in foreign languages (see Figure 4.1).

Kinyarwanda key terms in ICTR judgments: socio-political and historical background In order for the reader to understand the various meanings of the key words under study, it is necessary to place them in their socio-political and historical context. As far back as the thirteenth century, Rwandan population comprised three ethnic groups, the Hutus (80–85 per cent), the Tutsis (14–20 per cent) and the Twas16 (about 1 per cent). Unlike tribal groups elsewhere in Africa, Hutus, Tutsis and Twas speak the same language, share many other cultural values and live side by side. In terms of physical appearance, the three ethnic groups are differentiated by a few stereotypic traits: Tutsis are said to be tall, with a small nose, while the Hutus are said to be short with a big nose, the Twas being even smaller. It is very important to stress the subjective nature of these physical differences since there are many Hutus who are tall or have a small nose and many Tutsis who are not tall

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Figure 4.1 Title page of Kangura, No. 26, November 1991. Exhibit P7 in The Prosecution v. Ferdinand Nahimana (ICTR-96-11-T), Jean-Bosco Barayagwiza (ICTR-9719-T) and Hassan Ngeze (ICTR-97-27-T). See, also, Alison des Forges, Leave None to Tell the Story: Genocide in Rwanda, New York, NY: Human Rights Watch, March 1999, p. 72. The caption from the book: “A photograph of Grégoire Kayibanda, leader of the Hutu Revolution and first president of Rwanda, accompanied by a machete, a cynical comment about Tutsi being the race of God, and a question about what arms can be used to defeat the Inyenzi once and for all.” Courtesy of Editions Karthala (Paris), Robert Ageneau, and Jean-Pierre Chrétien.

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or who have a big nose. Also, intermarriage between these groups weakened whatever relatively objective differences might have existed between them. The 1994 genocide in Rwanda targeted the Tutsi ethnic group and the perpetrators thereof were largely from the Hutu majority group. Before independence in 1962, most ruling elite, including all the kings, were from the Tutsi ethnic group. After independence and up to the genocide in 1994, most ruling elite, including all the presidents, were from the Hutu ethnic group. When the Belgians colonized Rwanda, they rigidified the differences between ethnic groups by, among other actions, issuing identity cards which specifically referred to the owner of the identity card as Hutu, Tutsi or Twa. After independence, this practice continued and was even reinforced later on by the ethnic quota system practised in many sectors during President Habyarimana’s rule. In the late 1950s and early 1960s, some of the Tutsis who had been forced into exile in neighboring countries by repetitive pogroms which targeted them started launching attacks against Rwanda. Those rebels who attacked the country were known as the Inyenzi (literally: cockroach). In October 1990, when the RPF-Inkotanyi attacked Rwanda, they were qualified by some as being basically the same as the Inyenzi who had attacked the country in the sixties. Even if they were not the same combatants who had invaded Rwanda more than two decades earlier, Habyarimana’s regime (including President Habyarimana himself) was convinced that this war, like the Inyenzi’s, aimed at seizing power and reinstalling the feudal system which the Hutu Revolution had abolished some 30 years earlier. Objectively, there were two important similarities between the two rebel movements: (1) they had all attacked the country and were thus to be treated as the enemy; and (2) they were essentially from the Tutsi ethnic group. In 1994, there were many groups in Rwanda, some more radical than others, which had formed along belligerent, ethnic, political, and/or regional lines. Officially, at the national level, there were two belligerent forces: The Rwandan Armed Forces and the RPF-Inkotanyi. The Hutu hardliners from President Habyarimana’s northern region considered the Inkotanyi, the Hutus from the southern part of the country who were in the political opposition parties, Tutsis and all their sympathizers as one enemy block. Those who refused to rally the Hutu cause or to support Habyarimana’s regime were also labeled “accomplices of the enemy,” it being assumed that they supported the RPF-Inkotanyi, which was not necessarily the case. In fact, there were Hutus who were against the Inkotanyi’s war and Habyarimana’s regime. For some moderate Hutus and Tutsis, the enemy consisted of the Hutu hardliners. This brief history shows why, in the minds of the Hutu hardliners, the words Inyenzi, Inkotanyi, enemy and accomplice were closely associated with the Tutsi ethnic group. This association has been widely documented.17

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Polysemy Words which have more than one meaning are said to be polysemic. The word mouse is a good example. Before the advent of computers, sentence (1) below was meaningless. But how do we know whether we are referring to the computer mouse or the animal? The answer is in the context. While the context in sentence 1 is unambiguous (since you cannot connect an animal), the same is not necessarily true with sentence 2. Even in sentence 3, where the word cat could tempt the reader to choose the animal rather than the gadget, there is still a possibility that the cat could be playing with the computer mouse: 1 2 3

Plug in the mouse. Bring the mouse. The cat is playing with the mouse.

There are many ways in which words broaden their meaning, one of them being generalization. As will be shown below, the extended meaning of the polysemic Kinyarwanda terms under study shares at least one semantic or functional feature with the basic meaning. Various words and phrases have been used in ICTR judgments to refer to the polysemic nature of these key words. They include code words,18 double meaning, true meaning, implicit or tacit meaning, figurative meaning, underlying meaning, veiled reference, etc.

Definition of key terms Let us now look at the various meanings which the Kinyarwanda polysemic terms had acquired by 1994. It is important to stress that these words do not always mean the same thing in all contexts. This may appear evident since they are polysemic. However, for various reasons, there is an unfortunate tendency among researchers and court witnesses to favor one interpretation over the others, sometimes against the context. The various meanings listed below were arrived at by taking into account not only the context in which the terms were used, but also the determination of interpretation by the various TCs and the opinions expressed by expert and non expert witnesses both inside and outside the courtroom. Inyenzi 1 2 3 4 5 6

cockroach; the rebels who attacked Rwanda in the 1960s (basic meanings); The Inkotanyi (by analogy to 1); The Inkotanyi’s accomplices (by association); The Inkotanyi’s sympathizers (by extension); Tutsis in general (by association and generalization); Hutu opposed to Habyarimana’s regime (by overgeneralization).

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Up to the early 1960s, the word Inyenzi meant “cockroach.” In the early 1960s, this word acquired another meaning through coinage;19 it broadened to include the mainly Tutsis rebels who were attacking the country. When the attacks seized, this second meaning did not die, but it was not in use in everyday language. When the Inkotanyi attacked the country in 1990, this second meaning was reactivated. For Hutu extremists, the word came to be generalized to Tutsis as an ethnic group. After all, a cockroach cannot beget a butterfly, they would say, arguing that the Inyenzi are the same as the Inkotanyi. Eventually, the meaning of Inyenzi was extended further to include even Hutus who were opposed to the Hutu hardliners. The word Inyenzi acquired a pejorative or derogatory connotation and was used mainly by Hutu extremists and rarely, if at all, by anybody else. Inkotanyi 1 2

RPF members and combatants (basic meaning); Same as points 2 to 6 in Inyenzi above.

The word Inkotanyi existed in the language even before 1990, but was not in everyday use. As we saw earlier, the group that attacked Rwanda from Uganda in October 1990, known as liberators for some, and invaders for others, were refugees who had settled in neighboring countries in the sixties and seventies, fleeing the atrocities which had targeted them. They were mainly of Tutsi ethnicity. They were termed Inyenzi-Inkotanyi by Hutu extremists, or simply called Inyenzi. In the hate media, the terms Inyenzi and Inkotanyi came to mean the same thing and were used interchangeably, although the former was derogatory, while the latter was not. Icyitso 1 2 3 4

Accomplice (basic meaning); RPF supporter and/or sympathizer; Tutsis in general; Anyone opposing Hutu hardliners.

Following the RPF-Inkotanyi’s attack on the country in October 1990, President Habyarimana’s regime rounded up several thousand people suspected of being RPF’s accomplices. These were predominantly Tutsis, and Hutus originating from the south of the country but who, as it turned out to be, were mainly innocent. From then on, the Hutu hardliners, mainly from the northern part of the country, considered Tutsis in general and Hutus opposed to the then regime, to be RPF accomplices. Since, as indicated before, the RPF-Inkotanyi were mainly Tutsis, in the antiTutsi propaganda, the Tutsis from inside the country came to be regarded as their accomplices.

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Umwanzi 1 2 3

Enemy (basic meaning); RPF combatants; Tutsis in general.

When the RPF-Inkotanyi attacked the country, they were naturally viewed by many inside the country as being the enemy or the belligerent force. A commission set up to define the enemy did so along ethnic lines, pointing among others, to Tutsis inside the country. With many Hutu hardliners alleging publicly that the war being fought was between Hutus and Tutsis,20 it is no wonder if the latter were treated as enemy. Gukora 1 2 3

To work (basic meaning); To destroy somebody’s property; To kill Tutsis.

The verb work and the derived noun work are highly polysemic. Of interest here is how these words came to refer to the killing of Tutsis. During the late 1950s and early 1960s, Hutus attacked Tutsis and burnt their homes, killing many of them. When the Inkotanyi attacked, similar acts targeting Tutsis were again committed, but this time on an unparalleled scale. The destruction of property and homes extended to the extermination of Tutsis.

Analysis and discussion As indicated above, in the anti-Tutsi media, the terms Inyenzi, Inkotanyi, accomplice, and enemy were, in some contexts, associated or even equated with Tutsis as an ethnic group. Many factual and expert witnesses pointed this out and the various TCs made this determination. In many cases, the defense contested this determination, restricting the meanings of these terms to the basic ones. Let us now look closely at the treatment of these terms across the various ICTR judgments. In analyzing the treatment of these key terms in various ICTR trials, account will be taken of the following aspects: (1) whether the TC was aware of the polysemic nature of the key terms; (2) whether in the determination of meaning, the TC relied on factual and expert witnesses’ interpretation and/or ICTR jurisprudence; and (3) the type of context, if any, that was relied on in the determination of meaning. Context here is to be understood in the broader sense. It includes all the environment surrounding the speech act, including the specific words used, the speaker, the addressee, the language used, the tone of voice, the physical setting, the social, political, historical and cultural aspects, etc. Where the TC relied on context, it will also be necessary to examine whether all relevant contextual

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aspects have been taken into consideration and, if applicable, the relative weight accorded to each of these aspects.

Inyenzi, Inkotanyi, accomplice and enemy It is significant that the Akayesu judgment, which is the ICTR’s first criminal case, goes to some length to analyze the nature of language and the meaning of some of the key terms used during the Rwandan genocide. For the judges and the parties, none of whom was a Kinyarwanda speaker, a number of key terms, including Inyenzi, Inkotanyi and accomplice which were recurrent throughout the trial of this case, could only have appeared confusing. The TC therefore “relied substantially on the testimony of Dr. Mathias Ruzindana, an expert witness on linguistics, for its understanding of these terms.”21 With regard to the term accomplice for example, in the indictment, the prosecutor had alleged that: During the morning of April 19, 1994, following the murder of Sylvere Karera, Jean Paul AKAYESU led a meeting in Gishyeshye sector at which he sanctioned the death of Sylvere Karera and urged the population to eliminate accomplices of the RPF, which was understood by those present to mean Tutsis. Over 100 people were present at the meeting. The killing of Tutsis in Taba began shortly after the meeting.22 In this quotation, the prosecution alleges that over 100 people who attended the meeting convened by Akayesu, the accused, understood the phrase “accomplices of the RPF” as meaning Tutsis. Obviously, not everyone among the more than 100 people who attended the meeting was called to testify in this case. The prosecution cannot therefore prove that all the people who attended the meeting understood the term “accomplice” in the same way. However, the fact that Tutsis were attacked following this meeting by those who attended it is further evidence that RPF accomplices in this particular context was understood as meaning Tutsis in general, so the TC determined. The TC therefore took due account, in accord with Dr Ruzindana’s expert testimony, that, in ascertaining the specific meaning of some terms and expressions in Kinyarwanda, “it is necessary to place them contextually, both in time and in space.”23 It is important to stress that the mere recognition of context as a determining factor leaves many questions unanswered. In the example cited above, it can be argued that the message understood by the people who attended the meeting is not the one intended by the speaker (i.e. the accused), and that the killing of Tutsis that occurred after the meeting could have been triggered by some other factors. Naturally, if the defense does not present its case along these lines, the TC will make its determination on the basis of the evidence and arguments presented by the parties. Still, the TC should have indicated the precise contextual elements which led to the choice of its interpretation.

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This trial established broad rather than precise jurisprudence in these matters which subsequent trials were expected to draw on. Unfortunately, as will be shown below, this approach was not necessarily adopted in all subsequent trials. In the Niyitegeka judgment, witness KJ testified that the accused had referred to the body of a dead woman as being an Inyenzi. This witness indicated that “At the time, Inyenzi was used to refer to the Tutsi, or anyone opposed to the government at that time.”24 The TC concluded that the “Accused referred to the woman as ‘Inyenzi’ which the Chamber is satisfied was meant to refer to Tutsi.” The TC accepted this witness’s testimony and qualified him as being credible. It did not indicate why it was satisfied that “Inyenzi” in this context meant Tutsis. In the Kayishema and Ruzindana judgment, the TC seems to recognize that the key terms Inkotanyi and Inyenzi can have more than one meaning, but as shown below, it tends to favor one type of interpretation for no apparent reason. The TC either makes what appears to be unsubstantiated generalization, or relies heavily on factual witnesses, whose testimony was not rigorously analyzed in terms of polysemy. In paragraph 293, it states the following: After the crash of the President’s plane, the atmosphere quickly began to change. The Hutu population began openly to use accusatory or pejorative terms, such as Inkotanyi (Kinyarwanda for RPF accomplice/enemy) and Inyenzi (Kinyarwanda for cockroach) when referring to the Tutsis.25 In this quotation, the TC states erroneously that Inkotanyi is the Kinyarwanda term for RPF accomplices/enemy. It also states, without analysis or substantiation, that the terms Inkotanyi and Inyenzi were used to refer to Tutsis, and refers the reader (in a footnote) to the “testimonies of Witnesses G, U and Z” explaining that Inkotanyi meant “all the Tutsis” or the enemy.26 Similarly, it affirms that it “heard evidence of Ruzindana’s anti-Tutsi utterances to the assailants,” saying that the Tutsi refugees were “the enemy.”27 The TC relied on the above claims to deduce the accused’s intent to commit crime: Kayishema’s utterances, as well as utterances by other individuals under his direction before, during and after the massacres, also demonstrate the existence of his specific intent. Tutsis were called Inkotanyi meaning an RPF fighter or an enemy of Rwanda, Inyenzi meaning cockroach.28 The TC does not indicate which contextual elements, if any, it relied on in its determination of meaning. Given the complexity of interpreting these Kinyarwanda polysemic terms, one expected the TC to substantiate its choice of interpretation. It is not being argued here that the TC drew the wrong conclusion. Rather, it is being shown that it failed to draw on previous jurisprudence, notably the kind of caution that was expressed in the Akayesu judgment regarding the interpretation of this type of language.

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The TC seems to have relied on the testimony of factual witnesses, but does not take due precaution to ensure that these witnesses were aware of the polysemic nature of these terms used by the accused. In the Karera judgment, the TC was aware of polysemy. However, its determination of meaning relied almost exclusively on factual witnesses’ testimony and made no reference to ICTR jurisprudence in these matters. In a footnote, the TC made the following observation: The Trial Chamber notes that the terms Inyenzi or Inkotanyi are commonly associated with Tutsis and the RPF, but could also encompass moderate Hutus. For example, Prosecution Witness BLX testified that the Inkotanyi was the armed wing of the RPF. He testified that the term “accomplices” referred to Tutsis who supported the Inkotanyi as well as to Tutsis and Hutus who opposed the MRND. . . . In addition, Prosecution Witness BMB testified: “. . . during the genocide, the term Inkotanyi and the term ‘Tutsi’ were used together . . . the moderate wing of the MDR29 was considered as an accomplice of the Inkotanyi.”30 The fact that this TC’s interpretation of the polysemic terms appears in a footnote with no analysis or comments in the main text and no reference to available ICTR jurisprudence says it all. In the so-called “Media Trial,” as expected, the language used in the various media that were owned, controlled, or utilized by the accused was a subject of heated debate.31 The polysemic key words under study here figured prominently both in oral (mainly the RTLM radio) and print media (such as the Kangura newspaper (see Figure 4.2)). In the “Media Trial” alone, the words Inyenzi, Inkotanyi, enemy and accomplice occur 195, 234, 180 and 128 times, respectively. As expected, the interpretation of these key terms was contentious, not only between the parties and their respective experts, but also between the defense and the TC; this debate even reached the appellate level. The TC relied mainly on expert witnesses’ opinion and on the overall context in which the terms were used. However, in many cases where the interpretation was expected to be contentious, the TC failed to identify the elements constituting context and their relative weight. In these circumstances, the opposing party was justified in challenging the TC’s interpretation, at least from the procedural viewpoint. Referring to the interpretation that the TC in the “Media Trial” made concerning RTLM broadcasts, one defense counsel remarked that: [. . .] the meaning that the judges attributed to these broadcasts was based on their interpretation of a language of which none of them had any mastery (Kinyarwanda) and on an assumption that was only hypothetical. They were operating in the shifting sands of interpretation, with their judgment at the mercy of contrary winds.32

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Figure 4.2 Title page of Kangura, No. 6, December 1990. PEREZIDA YAVUZE KO HARI ABIGIRA BA NYONI NYINSHI. The President said that some people pretend that they know nothing. ESE ABA BAGABO HARI ICYO BAZABIMUFASHAMO??? Do you think that these people will provide him [Habyarimana] any assistance ??? KA KANAMA KARI KAYOBOWE NA NKUBITO ALPHONSE NGO AKA KARAREKUYE INKOTANYI N’ IBYITSO BYAZO, KIYUHA ICYUYA KURUSHA ABAKIBIZE BAZIFATA This small committee lead by Nkubito Alphonse who has released the Inkotanyi and their accomplices, is sweating more than the ones who sweated to arrest them. (Translated from Kinyarwanda by Yvonne and Pierre Galinier). Courtesy of Montreal Institute for Genocide and Human Rights Studies at Concordia University. Online. Available HTTP: (accessed 8 February 2011).

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Let us now look in some detail at one interpretation of the polysemic term Inkotanyi which turned out to be so controversial that it was settled by the Appeals Chamber. On 4 June 1994, RTLM journalist Kantano Habimana told listeners: They should all stand up so that we kill the Inkotanyi and exterminate them . . . the reason we will exterminate them is that they belong to one ethnic group. Look at the person’s height and his physical appearance. Just look at his small nose and then break it.33 The TC concluded that this excerpt was a direct appeal to listeners to kill Tutsis, which the defense refuted. The TC also used it as a proof of genocidal intent. On appeal, the Accused Barayagwiza challenged the TC’s interpretation of the above excerpt. He argued that “no evidence was adduced that RTLM journalists directly and specifically equated the Tutsi[s] with the enemy and that the terms Inyenzi and Inkotanyi varied according to the context.”34 He further contended that the RTLM excerpt “did not call on people to kill the Tutsi[s], but rather to take action against those whom RTLM perceived as enemies.”35 The Appeals Chamber confirmed the TC’s interpretation: The Appeals Chamber would begin by pointing out that the broadcasts must be considered as a whole and placed in their particular context. Thus, even though the terms Inyenzi and Inkotanyi may have various meanings in various contexts (as with many words in every language), the Appeals Chamber is of the opinion that it was reasonable for the Trial Chamber to conclude that these expressions could in certain cases be taken to refer to the Tutsi population as a whole. The Appeals Chamber further considers that it was reasonable to conclude that certain RTLM broadcasts had directly equated the Tutsi with the enemy.36 It is worth pointing out that Nahimana’s Lead Counsel conceded that this excerpt constituted direct incitement to commit genocide: In the heart of Kigali, at the very time when acts of genocide were being perpetrated there, Kantano Habimana, RTLM’s star broadcaster, called on the militiamen at the barriers to identify the “small noses” and kill them. This is direct and public incitement to commit genocide.37 Accused Nahimana also condemned “all [RTLM] broadcasts that gave the impression that people should be killed.”38 It is, however, clear that the TC did not present all the contextual aspects which can compel the listener to opt for only one interpretation of the term Inkotanyi in this excerpt. The TC should have shown that the interpretation chosen is the only one reasonable in the given context.

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The TC should have listed at least the following contextual features which, taken together, irrevocably point to the fact that that the word Inkotanyi as used by the RTLM journalist in the above excerpt, unambiguously means Tutsis as an ethnic group rather than RPF combatants: 1

2

3

4

5

The journalist uses the words “kill” and “exterminate” rather than “vanquish” as one would expect in a war. It would be unusual, though not inconceivable, if the purpose of fighting a war was to exterminate the enemy. Furthermore, the war situation at the time this broadcast was made does not indicate that the Rwandan Armed Forces were defeating the Inkotanyi combatants, quite the contrary. Tutsis, and not the Inkotanyi combatants, were being exterminated. He makes reference to ethnicity (they belong to one ethnic group), which is dangerously misleading since there were Hutus among the Inkotanyi and not all Tutsis were members of the Inkotanyi army. He describes the enemy in terms of height and physical appearance. The journalist refers to physical traits which typically define Tutsis. These, especially “the small nose,” were the basic stereotypic features which were widely known and would leave no possible ambiguity for the listeners. “Breaking the nose” presupposes that the attacker would be using some traditional weapon involving close physical contact. It would be unusual for a fighter using a gun to just aim at the nose with the purpose of breaking it. Knowing the term Inkotanyi to be polysemic, the RTLM journalist would have taken some precaution to disambiguate his message, if indeed, for him, it was ambiguous at all.

In a number of other instances, the TC draws a conclusion regarding its interpretation of key terms before quoting a relevant excerpt which supports it. In all such cases, no analysis of the context is presented. Let us now look at a few other judgments in which these key terms were interpreted with caution, that is, indicating the specific contextual elements which led to the determination of meaning. In the Bagilishema judgment, the prosecution had alleged that in a letter addressed to the prefect, the accused used the term Inyenzi-Inkotanyi to refer to Tutsis in general. In that letter, the accused had also stated that there were no more accomplices in his commune. He said: [. . .] what we presently needed the most is their unity to face the InyenziInkotanyi. We cannot fight against the Inyenzi-Inkotanyi who are threatening to attack from Gitarama Préfecture and, at the same time, counter-attack the Hutu from KAYOVE and RUTSIRO.39 First of all, it is evident that the TC is aware of the polysemic nature of the term Inyenzi-Inkotanyi since, in its analysis, it indicates that “[. . .] this letter can be interpreted in various ways”40 and that “In the present case, the Prosecution

Kinyarwanda key terms and the 1994 genocide in Rwanda 163

did not produce any evidence concerning the use of ‘double language’ in Rwanda.”41 In its analysis, the TC does not rely on any evidence from expert or factual witnesses to determine the meaning of the key terms. Instead, it relies on the context: “Read alone, this could convey the impression that the Accused was fighting Tutsi in general, but it follows from the context that he was referring to attackers coming from another prefecture and not Tutsi inside his own commune.”42 Elsewhere, however, the TC fails to indicate whether it agrees or disagrees with witness Z’s assertion that when the accused told him that it was necessary to mount a roadblock to apprehend the “enemies” who were escaping, he understood that by enemy, the accused meant “Tutsis.” This witness alleged that: He [accused] didn’t need to explain anything to me because we had been made to understand over a long time that the enemy was the Tutsis and he in fact used the [term] Inyenzi and at that point in time, Inyenzi referred either to Tutsis or a member of the RPF or a sympathizer thereof.43 Even if the TC finds this witness unreliable, it is felt that his assertion that by Inyenzi the accused meant Tutsis warrants analysis. This witness’s claim was too important to be dismissed without justification. In the Simba judgment, the TC was aware of the polysemic nature of the key terms being discussed here. As the following excerpt shows, the context in which the polysemic word is used was carefully analyzed: The Chamber also observes that raising money to fight the RPF is not in itself incriminating. The formulations Inyenzi and “chase away snakes” could of course have a double meaning, referring to all Tutsi[s], including civilians. However, Witness ALS, a Tutsi, did not understand the remarks in this way during the meeting. The presence of Frédéric Nzamurambaho, a moderate Hutu member of the PSD44 who was assassinated shortly after 6 April 1994, also speaks against this interpretation.45 The TC took into account relevant contextual elements such as the participants to the meeting and indicated why one particular interpretation of the speaker’s words could not be envisaged. According to the witness and the TC, the word Inyenzi does not mean Tutsis in this context. However, one could still argue that the accused actually meant “Tutsis” and that other participants understood him this way. This being hypothetical, the TC is justified in choosing the interpretation which favors the accused. In the Kajelijeli trial, the TC heard, but did not rely on, an expert witness’s testimony in determining the meaning of recurrent polysemic key terms. Dr Bangamwabo, a Kinyarwanda expert linguist, defined some of the key terms being discussed here. He made a number of unsubstantiated claims which tend to negate the broadening of meaning of the key terms being discussed here. He alleged notably that:

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1 2 3 4

the term “Inkotanyi was not given a broader meaning during the war;”46 the terms “Inkotanyi and Tutsi do not have the same meaning;”47 [. . .] the terms Inyenzi and Tutsi do not have the same meaning;”48 “he had no evidence of any newspaper in which the terms Inkotanyi or Inyenzi made reference to Tutsis.”49

The TC was not impressed by this witness, who was called by the defense. It drew the following conclusion: Considering also the demeanour of the witness, the Chamber finds that Dr Bangamwabo was not neutral in his testimony. The Chamber therefore was left with the clear impression, at the end of Dr Bangamwabo’s testimony and after a review of his report, that he is neither an objective nor an independent expert witness who may assist the Chamber in its quest for the truth.50 It is not clear whether this expert witness deliberately attempted to mislead the TC. Whatever the case, the TC exercised caution. This expert had sought to restrict the meaning of enemy to the warring sides, namely the RPF-Inkotanyi and the Rwandan armed forces. As the following excerpt shows, in interpreting the meaning of this term, the TC took due account of the context, including the particulars of the speech: The Accused seized the leading role in the meeting, and addressed those persons present—who were all of Hutu ethnic origin. And he said to them “[Y]ou very well know that it was the Tutsi that killed—that brought down the Presidential plane. What are you waiting for to eliminate the enemy?” By “the enemy,” Witness GDD understood the Accused to mean the Tutsi ethnic group. This is also the understanding and the finding of the Trial Chamber, given the particulars of that speech, and the circumstances under which it was made.51 Work The last polysemic key term which we will look at is “work,” which, according to several witnesses both factual and expert, was used euphemistically or as a code word during the genocide period to mean “killing Tutsis.” In the Kanyarukiga judgment, the TC did not discuss the meaning of this key term. Having found witness CBR credible, it also accepted his interpretation of the key term: Witness CBR testified that Kanyarukiga was with Ndahimana when Ndahimana stated that the attackers were to “start working” and “begin work,” which was understood to mean “kill the Tutsi.” The Chamber notes its discussion of this witness and his credibility in paragraphs 591 to 595. Given the Chamber’s view

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that Witness CBR is generally credible, it finds it established that Kanyarukiga was with Ndahimana when he asked the attackers to “start working” or “begin work.”52 In the Karera judgment, “Accused Karera asked whether the ‘work’ in Rushashi had been completed. When the bourgmestre replied affirmatively, he requested to know why Vincent Munyandamutsa was still alive.”53 The TC rightly concluded that “work” in the above excerpt means “killing.” In fact, as the context shows, there is no doubt that work in this excerpt means something sinister. The fact that Accused Karera asks why, if work in Rushashi had been completed, Vincent Munyandamutsa was still alive, leaves no shade of doubt as to the meaning of “work.” In a number of other ICTR trials, witnesses indicated that by “work” they understood “killing Tutsis.” In all the cases noted, the TCs do not bother to analyze context, even when it is not unequivocal. Referring to the speech by Interim President Sindikubwabo made in Butare on 19 April 1994, one TC went as far as declaring that he “told the people of Butare to ‘get to work’ in the Rwandan sense of the term by using their machetes and axes.”54 This is of course not the Rwandan sense of the term. It is not clear whether the TC is using a certain witness’s language or whether this is its own understanding of this key term. It probably meant no harm, but the language used here is inappropriate; it is unnecessarily offensive for Rwandans. Expert testimony in the so-called Butare trial (judgment pending) has shown that the speech by President Sindikubwabo referred to here is not necessarily unambiguous, contrary to what this TC seems to imply.

Moving forward For over 15 years now, ICTR TCs have grappled with the interpretation of the polysemic Kinyarwanda terms discussed in this chapter and some others. No glossary has been produced that could offer basic guidelines in this area. There is no solid jurisprudence to go by. Some TCs rely on factual witnesses’ testimony to determine the meaning of the key terms and to infer the accused’s intent to instigate the commission of genocide. Others, while acknowledging that meaning is context dependent, seldom define context. It could be that, compared to the main charges in the indictment, the interpretation of these key terms is considered secondary and does not warrant detailed analysis. It could also be that the interpretation of these Kinyarwanda key terms is taken for granted, which would be unfortunate, given their semantic complexity. Whatever the reason, the various TCs lack a clear approach of interpreting these recurrent Kinyarwanda terms. We believe that the best way to move forward would be to go back to where it all started: the Rwandan culture and language. ICTR judges and other lawyers need not learn Kinyarwanda, but an induction course into the Rwandan culture would go some distance.

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Notes 1 Radio Télévision Libre des Milles Collines. 2 See in particular J.P. Chrétien, J.F. Dupaquier, M. Kabanda and J. Ngarambe, Rwanda: les médias du génocide, Paris: Karthala, 1995, which presents a vivid and detailed analysis of oral and print media in Rwanda, both before and during the genocide in Rwanda. The book contains an impressive amount of illustrative material. Of all available publications to date, A. Thompson, The Media and the Rwanda Genocide, London: Pluto Press, 2007, contains the most multi-faceted presentation of this hate media by lawyers, journalists, human right activists, and academics. For general review on this hate media, see J.P. Ntawizeruwanone, Hate Propaganda at Work: The Case of “Radio Television Libre des Milles Collines”(RTLM) Broadcasts during the Rwanda Genocide (unpublished thesis), Leicester: University of Leicester, 2008, p. 2. 3 Nahimana et al., Case No. ICTR-99-52-T. All the judgments referred to here are available on ICTR website. Publishing on the Internet. Online. Available HTTP: (accessed 19 January 2011). 4 Article 2(c) of the ICTR Statute. 5 Usually, it is the parties (the prosecution or the defense) rather than the judges, who call for the expert witnesses. This explains why some of the expert witness’s testimony appears to be tailored so as to “defend” the party’s case. Even in the case of Kinyarwanda expertise, the judges have to remain watchful for bias. Not an easy task considering that they do not speak Kinyarwanda. 6 Linguistic expertise is fairly common at ICTR. In the Akayesu, Kajelijeli, Nahimana et al., Nyiramasuhuko et al., Muvunyi, and a few others cases, parties presented expert linguistic testimony. Also, during court proceedings, Kinyarwanda interpreters often intervene on request, to clarify non-contentious linguistic issues or even to spell Kinyarwanda words. Unfortunately, misspellings of Kinyarwanda words and names and mistranslations are still noticed in ICTR judgments. For example, in the Nahimana et al. judgment, the word “Inyenzi” is defined as, inter alia, “[a] group of refugees set up in 1959 to overthrow the new regime” (p. iv). This is a factual error since there was no new regime in 1959 in Rwanda. It is also alleged in the glossary that “gutsembatsemba” means “kill them” in the imperative form (p. iv). This is erroneous since the Kinyarwanda verb is in the infinitive rather than imperative form. Its precise meaning is “to exterminate.” 7 There are a few other contentious Kinyarwanda key terms such as Interahamwe (youth wing of the MRND party) and rubanda nyamwinshi (majority people, sometimes used to refer to Hutus),which will not be examined here. 8 L. Nkusi, M. Ruzindana and B. Rwigamba, ‘The Kinyarwanda Language: Its Use and Impact in the Various Media during the Period 1990–1994. A Sociolinguistic Study’, Internal report, Arusha: ICTR, 1998. 9 The Prosecutor v. Jean Paul Akayesu, Judgment, Trial Chamber I, Case No. ICTR-964-T, 2 September 1998, para.156. 10 The Prosecutor v. Ignace Bagilishema, Court Transcript, Case No. ICTR 95-1A-T, 10 February 2000. 11 The Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Court Transcript, Case No. ICTR-00-56-T, 20 September 2005. 12 The Prosecutor v. Elizaphan and Gérard Ntakirutimana et al., Court Transcript, Cases No. ICTR-96-10 and ICTR-96-17-T, 24 September 2001. 13 Discussing the difficulties of translating between English and Kinyarwanda, Ruzindana argued in Translating from English into Kinyarwanda: The Componential Analysis Approach (Unpublished Thesis), Butare: Université nationale du Rwanda, 1981, that if the intended response (by the Kinyarwanda encoder in the source language) is different

Kinyarwanda key terms and the 1994 genocide in Rwanda 167

14

15 16 17

18

19

20

21 22

from that of the reader or the listener (the decoder in the target language), then translation has failed. In this regard, the word “Inyenzi” in Kinyarwanda should trigger the same response as its equivalent translation “cockroach” in English. This being seldom the case owing to cultural differences, then, in a way, we can say that our translation has failed to get the message across. In other words, translating between languages which are culturally very different entails heavy loss in meaning, if there is no compensation. In Rôle de l’interprète dans les procès devant le TPIR. Cas particulier de l’interprète de la cabine kinyarwanda. paper presented at the “ICTR Model or Counter Model for International Criminal Justice The Perspective of the Stakeholders” conference, Geneva, July 2009, Session 3, pp. 39–48, A. Mpatswenumugabo showed that at ICTR, the problems of interpreting to and from Kinyarwanda are further compounded by the lack of adequate documentation, the obscure language used by some of the witnesses and their past psycho-traumatic situations, and the constant switch between three languages. The Prosecutor v. Jean Paul Akayesu, Trial Chamber I, Judgment, Case No. ICTR-964-T, 2 September 1998, para. 145. Some authors treat the words Hutu, Tutsi and Twa as being invariable and write them without the “s” plural marker. We will use the plural marker to distinguish the singular from the plural forms. In the Nahimana et al. judgment, the TC found that “In a number of RTLM broadcasts, the terms Inyenzi and Inkotanyi were explicitly associated or equated with the Tutsi population, and the struggle for power was characterized in ethnic terms” (para. 358) and that “Kangura and RTLM explicitly and repeatedly, in fact relentlessly, targeted the Tutsi population for destruction [. . .], equating the ethnic group with “the enemy,” (para. 963). In Hate Propaganda at Work, p. 43, J.P. Ntawizeruwanone indicates that genocide perpetrators “sometimes used code language that could only be understood by targeted listeners in order to avoid being reprimanded by human rights organisations and the international community” (see also Nkusi, Ruzindana and Rwigamba, The Kinyarwanda Language). Many witnesses testifying in ICTR cases have indicated that the words being studied here were widely understood in their contentious interpretations, by both perpetrators and victims. In this respect, they can hardly be considered “code words,” at least for most Rwandans listening to RTLM or reading anti-Tutsi printed media. According to Ntawizeruwanone in Hate Propaganda at Work, p. 25, “The term has a double origin. First, ‘cockroaches’ are household pests of the Blatta orientalis order. They are mainly nocturnal and run away when exposed to light. Second, ‘Inyenzi’ was a nickname coined by Rwandan guerrillas of the 1960s who called themselves ‘Inyenzi’. The nickname is a Kinyarwanda acronym whose initials stand for ‘INgangurarugo ziYEmeje kuba ingeNZI’ (Brave Men Determined to be the Elites). However, the majority of Rwandans ignored the acronym and understood it as an ordinary Kinyarwanda word meaning ‘cockroaches’”. In a broadcast on 15 May 1994, the RTLM Editor-in-Chief Gaspard Gahigi said: “[. . .] they trumpet, they say the Tutsi are being exterminated, they are being decimated by the Hutu, and other things. I would like to tell you, dear listeners of RTLM, that the war we are waging is actually between these two ethnic groups, the Hutu and the Tutsi.” The Prosecutor v. Jean Paul Akayesu, Trial Chamber I, Judgment, Case No. ICTR-964-T, 2 September 1998, para. 146. (In this and all subsequent quotes, footnotes have been omitted.) The Prosecutor of the Tribunal Against Jean Paul Akayesu, Amended Indictment, Case. No. ICTR-96-4-I, para. 14.

168 Propaganda, War Crimes Trials and International Law 23 The Prosecutor v. Jean Paul Akayesu, Trial Chamber I, Judgment, Case No. ICTR-964-T, 2 September 1998, para. 146. 24 The Prosecutor v. Eliézer Niyitegeka, Trial Chamber I, Judgment and Sentence, Case No. ICTR-96-14-T, 16 May 2003, para. 273. 25 The Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment, Case No. ICTR-95-1-T, 21 May 1999, para. 293. 26 The Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment, Case No. ICTR-95-1-T, 21 May 1999, para. 538. 27 The Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment, Case No. ICTR-95-1-T, 21 May 1999, para. 542. 28 The Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment, Case No. ICTR-95-1-T, 21 May 1999, para. 538. 29 Mouvement Démocratique Républicain (Democratic Republican Movement). 30 The Prosecutor v. François Karera, Judgment and Sentence, Trial Chamber I, Case No. ICTR-01-74-T, 7 December 2007, para. 449. 31 In the judgment, with reference to the offense of direct and public incitement to commit genocide, the TC tries to draw the line between, on the one hand, legitimate war propaganda and freedom of speech presented by the accused in their defense, and hate media and criminal speech acts, on the other (see para. 980 onwards). 32 J.M. Biju-Duval, ‘Crimes against Humanity and Genocide: Opportunities Missed by the International Criminal Tribunal for Rwanda’, in A. Thompson (ed.), The Media and the Rwanda Genocide, London: Pluto Press, 2007, p. 458. 33 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, Trial Chamber I, 3 December 2003, para. 396 34 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, para. 732. 35 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, para. 732. 36 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, para. 739. 37 Thompson, The Media and the Rwanda Genocide, p. 460. 38 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, para. 460. 39 The Prosecutor v. Ignace Bagilishema, Trial Chamber I, Judgment, Case No. ICTR95-1A-T, 7 June 2001, para. 323. 40 The Prosecutor v. Ignace Bagilishema, Trial Chamber I, Judgment, Case No. ICTR95-1A-T, 7 June 2001, para. 323. 41 The Prosecutor v. Ignace Bagilishema, Trial Chamber I, Judgment, Case No. ICTR95-1A-T, 7 June 2001, para. 325. 42 The Prosecutor v. Ignace Bagilishema, Trial Chamber I, Judgment, Case No. ICTR95-1A-T, 7 June 2001, para. 324. 43 The Prosecutor v. Ignace Bagilishema, Trial Chamber I, Judgment, Case No. ICTR95-1A-T, 7 June 2001, para. 928. 44 Parti Social Démocrate (Social Democratic Party). 45 The Prosecutor v. Aloys Simba, Trial Chamber I, Judgment and Sentence, Case No. ICTR-01-76-T, 15 December 2005, para. 215. 46 The Prosecutor v. Juvénal Kajelijeli, Judgment and Sentence, Case No. ICTR-98-44AT, 1 December 2003, para. 72. 47 The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, 1 December 2003, para. 74. 48 The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, 1 December 2003, para. 75.

Kinyarwanda key terms and the 1994 genocide in Rwanda 169 49 The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, 1 December 2003, para. 76. 50 The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, 1 December 2003, para. 81. 51 The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, 1 December 2003, para. 469. 52 The Prosecutor v. Gaspard Kanyarukiga, Judgment Case No. ICTR-2002-78-T, 1 November 2010, para. 472. 53 The Prosecutor v. François Karera, Judgment, Case No. ICTR-01-74, 7 December 2007, para. 382. 54 The Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment, Case No. ICTR-95-1-T, 21 May 1999, para. 279.

Bibliography Chrétien, J.P., Dupaquier, J.F., Kabanda, M. and Ngarambe, J., Rwanda: les médias du génocide, Paris: Karthala, 1995. Kirschke, L. et al., Article 19, Broadcasting Genocide: Censorship, Propaganda & State Sponsored Violence in Rwanda 1990–1994, London: Article 19, 1996. Mpatswenumugabo, A., Rôle de l’interprète dans les procès devant le TPIR. Cas particulier de l’interprète de la cabine kinyarwanda, paper presented at the “ICTR Model or Counter Model for International Criminal Justice The Perspective of the Stakeholders” conference, Geneva, July 2009. Nkusi, L., Ruzindana, M. and Rwigamba B., The Kinyarwanda Language: Its Use and Impact in the Various Media during the Period 1990–1994. A Sociolinguistic Study, Internal report, Arusha: ICTR, 1998. Ntawizeruwanone, J.P., Hate Propaganda at Work: The Case of “Radio Television Libre des Milles Collines”(RTLM) Broadcasts during the Rwanda Genocide (unpublished thesis), Leicester: University of Leicester, 2008. Ruzindana, M., Translating from English into Kinyarwanda: The Componential Analysis Approach (unpublished thesis), Butare: Université nationale du Rwanda, 1981. Thompson, A. (ed.), The Media and the Rwanda Genocide, London: Pluto Press, 2007.

Table of cases ICTR The Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T. The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T. The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44-T. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-202-78-T. The Prosecutor v. François Karera, Case No. ICTR-01-74-T. The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T. The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T. The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55-A. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T.

170 Propaganda, War Crimes Trials and International Law The Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-T. The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T. The Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10 and ICTR-96-17-T. The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T. The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T.

Chapter 5

Propaganda, hate speech and mass killings Anthony Oberschall

In March 2010, the Appeals Chamber of the ICTR upheld the conviction of Simon Bikindi for “direct and public incitement to commit genocide based on public exhortations to kill Tutsis” which he made from a vehicle in an Interahamwe convoy outfitted with a public address system. Bikindi urged that the majority of the population, the Hutu, should rise up to exterminate the minority, the Tutsi.1 The incitement took place at a time when mass killings of civilians was going on in the area. Though Bikindi was not proven to be formally a member of Interahamwe and other organizations responsible for the mass killings of Tutsi civilians, he was a well-known, popular artist whose songs had been playing for years on the radio. The trial chamber held that “the influence he derived from his status made it likely that others would follow his exhortations.”2 Although he was not in a command and control position over the potential killers, his influence on his audience, who included killers and potential killers in ongoing mass violence, was judged an effective incitement to massacres during the larger Rwanda genocide. The original indictment also read that “Simon Bikindi participated in anti-Tutsi campaign in Rwanda in 1994 through his musical composition and speeches he made at public gatherings inciting and promoting hatred and violence against Tutsi.” For instance, Bikindi attended a mass meeting at a football field in Kivumu in 1993 at which he urged the audience to kill Tutsi and during which his music played on cassettes. The Appeals Chamber, however, found that the Kivumu meeting did not lead to anti-Tutsi violence immediately thereafter and overturned the specific Kivumu trial verdict. Both courts examined three songs composed and recorded by Bikindi, which the prosecution charged encouraged ethnic hatred and which were played in a propaganda campaign to target Tutsi as the enemy and to incite the listening public to attack and kill Tutsi. The theme of the songs was Hutu solidarity against the Tutsi, Tutsi as enslavers of Hutu, and similar pro-Hutu and anti-Tutsi themes. The Appeals Chamber found that Bikindi’s songs were “used to fan the flames of ethnic hatred, resentment and fear of the Tutsi . . . however there is no evidence that Bikindi played a role in these broadcasts or in the dissemination of the three songs . . . agreeing to disseminate ethnic hatred against a protected group does not go as far as agreeing to the destruction, in whole or in part, of that group.”

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Thus the Appeals Court declined to rule that ethnic hatred advocacy is a crime under existing international law, but affirmed the widely accepted principle that speech inciting to violence and killings when they are already happening or are imminent is a crime. At issue are the reasons and circumstances for criminalizing ethnic hatred advocacy and propaganda. To answer that question from a social science perspective, several topics have to be addressed: What is propaganda and specifically ethnic hate speech and hate propaganda? How effective is propaganda for shaping beliefs, arousing passions and influencing behavior? When and why do ethnic violence and mass killings occur and how are they organized? How does ethnic hate propaganda enter the causal chains of events and actions leading to mass killings? Would criminalizing ethnic hate speech deter ethnic cleansing and killings? These are big topics on which differences of opinion and some uncertainty exist. Social science has a useful contribution to make about hate speech, hate propaganda, and ethnic violence.

Political discourse, propaganda and hate speech Political communication can be classified on a scale from crude propaganda to democratic deliberative discourse. Propaganda is the use of images, slogans, symbols and falsehoods that resonate with prejudices and emotions for persuasion.3 Another author writes that “propaganda is an endeavor to spread ideas without regard to truth and accuracy.”4 Propaganda is communicated to mass audiences in print media, radio and television, videos, and nowadays also websites and the internet. Political speech, deliberative discourse in assemblies and public debate in democracies is meant to influence people and create a consensus, or at least majority support, for the speaker’s point of view.5 It does often appeal to emotions and prejudices and it does contain inaccurate information, but the core of democratic political speech and deliberative discourse is reasoned argument without lying and deception, and it avoids whipping up destructive passions and hatred.6 Rather than rely on subjective judgments, scholars content analyze political communication. In content analysis of communications, two dimensions are distinguished. The first consists of verbal and visual techniques for making a message persuasive to recipients; the second dimension frames the substance or theme of the message, for example, discourse about ethnic groups and ethnic relations. The common techniques of persuasion are: 1 2 3 4 5

Stereotyping and labeling, typically positive for one’s group and negative for an adversary; Generalization, i.e. lumping all members of a group into the same category; Testimonial, i.e. God, history, ancestors, national heroes, experts and trusted authorities are on our side and support us; Vox populi, vox dei, i.e. everybody is in favor of our program, everyone is joining our bandwagon; Repetition, keep repeating the message over and over again, never change the narrative.

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These five techniques are common to much political communication, but the sixth makes communication into propaganda: 6

Falsehood and lies, from selective omission of facts, deliberate mischaracterization of events and adversaries to out and out fabrication and lies.

The language of propaganda is an Orwellian transformation of normal speech. “Aggression” becomes “self-defense;” “ethnic cleansing” is “voluntary exchange of population;” the property of those who have been expelled is “abandoned” and can be seized by the authorities; prisoners are shot while “trying to escape.” Everything is called its opposite. Stereotyping and generalization eliminate nuances and qualifications from communication. In inter-group relations, they erect all or nothing distinctions that intensify antagonisms and undermine compromise. Testimonial and vox populi, vox dei legitimizes one’s message and delegitimizes the adversary’s. With repetition sooner or later everyone gets exposed to the message and keeps getting reinforcement. Without exposure to contrary messages (explained below), the audience is persuaded to accept the message as true. Persuasion techniques are used in all political communication and advocacy. On political issues, there is no unbiased and proven method of establishing truth and falsity as there is about natural phenomena with the scientific method. As Charles Lindblom put it “I take it as undeniable that what people think about the social world—belief, attitude, value and volition – derive from social interchange far more than from direct observation . . . you depend almost entirely on other people, including acquaintances, journalists, and other people who reach you through press and broadcasting.”7 In the “court of public opinion” adversaries use all means of persuasion, from deliberative discourse to propaganda, i.e. communication filled with falsehood and lies. Falsehood and lies are not meant for benevolent purposes. The communicator manipulates the minds and emotions of the audience under false pretenses. Propaganda justifies harmful, destructive and lethal actions against adversaries for reasons that are false. Teun van Dijk, a well known expert on discourse analysis, asks “when are recipients of communications susceptible to manipulation?” and he answers: (1) when they have incomplete or lack knowledge; (2) when strong emotions are aroused (e.g. fear, atrocity stories and threats) that make them vulnerable; and (3) when “authorities” like professors, public intellectuals, and church leaders are the communicators and the recipients are poorly educated.8 By far the most effective condition for susceptibility to persuasion are threat messages that raise anxiety and fear in the public. Fear arousing appeals are particularly persuasive and create public demand for relief and action to reduce the threat.9 A basic textbook on persuasion states that “experimental data overwhelmingly suggest that all other things being equal, the more frightened a person is by a communication, the more likely he or she is to take positive preventive action. Given the power of fear to motivate and direct our thoughts, there is much

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potential for abuse. Illegitimate fears can always be invented for any given propaganda purpose.”10 The French political scientist J.P. Derrienic writes that the most common discourse of nationalist leaders is “You are threatened and you therefore need me as your leader.”11 The Nazi leader Hermann Goering explained the power of threat propaganda in an interview: “The people can always be brought to do the bidding of the leader. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to great danger. It works the same way in any country.”12 Threats are a huge component of propaganda, and specifically of hate speech and hate propaganda. Other conditions of influence are messages from trusted leaders and experts (cf. above “testimonial”), peer consensus (cf. above “vox populi, vox dei”) and message monopoly, when there is no access to other opinions and arguments. The second dimension of content analysis concerns the framing of the message, in our case the framing of ethnic discourse in hatred. Hate is at the extreme of a scale that runs from dislike through animosity to hate. The response to ethnic dislike tends to be personal avoidance; to animosity, it is avoidance and institutional separation or segregation; hate arouses passion for revenge and aggression. Hate is part of a larger emotional and ideological package that motivates and justifies violence. For James Waller, hate speech, hate discourse and hate ideology in inter-group relations have three components:13 1

2

3

The target group is negatively stereotyped as different, alien, inferior, and inhuman, in an extreme way, not meriting the protection and rights to life, liberty and property accorded to human persons. The labeling is often referred to as “dehumanization” (or “demonization”) because it describes the target as vipers, cockroaches, bloodsuckers, hyenas and other dangerous and harmful animals that one kills and crushes, but it also covers designations for inferior, threatening, dangerous and morally flawed humans such as “slaves,” “barbarians (Huns),” “communists,” “capitalists” and so on, depending on the cultural context. The degree of negative stereotyping awakens sentiments from dislike and animosity to passions like hatred. The target is characterized as an extreme threat to the survival and well-being of one’s ethnic group, nationality or nation. The threat is physical: they threaten to kill us or expulse us from our homes and territory. It can also be demographic: their numbers are multiplying through high birthrate or immigration and they are becoming an alien majority in our midst; economic: they control the productive capacity, vital resources and wealth of our country, exploit and rob us, lower our well-being; cultural: we are losing our values and traditions to their alien culture because they refuse to acculturate and assimilate. All threats can operate at the same time. Advocacy for an eliminationist solution to the threat, which ranges from limitations (quotas) and discrimination (legal segregation) imposed on the target, to expulsion (ethnic cleansing) and in extreme hate discourse killing

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and annihilating. Alternatives to elimination, like avoidance, compromise and negotiated conflict management are rejected in the eliminationist discourse. Negative stereotyping is abusive, disparaging and insulting, and sometimes hateful, but by itself falls short of hate speech, though there are differences of opinion on this score. Hate discourse, which I prefer to hate speech as the fundamental concept, in my view also contains threats, incitement to violence and prejudicial actions against the target, i.e. eliminationist discourse. Threat and fear make the audience susceptible to persuasion and justify negative stereotypes, hate and eliminationist actions against the target group. Although the public can be made susceptible to propaganda, communications research has also found that many people are not simply puppets manipulated at will by propagandists in the mass media. The public selectively exposes itself to communications and communicators it tends to agree with, referred to as selective exposure and confirmation bias, and filters out messages and messengers it tends to disagree with. When exposed to a message, it selects content that is favorable to its viewpoint. Political adversaries select content from the same communication and draw different conclusions, called selective perception. The public also tends to check media messages with opinion leaders in their own social milieu for guidance on whether to believe them or discount them.14 Confirmation bias, selective exposure, selective perception and opinion leaders impede manipulation of the public through the mass media. The public is, however, not uniformly resistant to manipulation. Groups with strong political identities and views embedded in a social milieu discount adversaries’ appeals. But the so-called “independent voter,” who lacks political knowledge and firm political views, and who is not anchored in a political milieu, is influenced by testimonial and bandwagon techniques in political communication.

Content analysis of ethnic discourse: anti-semitism, Sˇesˇelj’s Serb nationalism and Arab racism in Darfur It is instructive to find out how scholars have content analyzed and measured ethnic discourse, and in particular hate content in political communication. William Brustein did a content analysis of major German, French, British, Italian and Romanian newspapers, randomly sampling articles from 1899 to 1939.15 The unit coded was an article. In the code instructions, item 13 was whether Jews were characterized as a threat to society and to the national interest. That is the threat dimension of hate speech. Item 14 was whether derogatory terms were used to describe Jews (Jews are “kikes”). Item 19 was “Jewish malfeasance,” which could be religious (e.g. Jews are Christ killers), economic (Jews manipulate prices and cheat), physical (Jews have crooked noses), social (Jews are parasites), and political (Jews are unpatriotic, they seek world domination). These codes measure negative stereotyping and labeling of the target as dangerous, threatening,

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anti-social and deviant. Items 7, 8, 15, 33 and 34 coded the eliminationist dimension, i.e. advocacy of quotas, bans, boycotts, violence against Jews and Jewish property, and limiting Jewish immigration. Brustein also coded for favorable mentions of Jews, and advocacy on their behalf. He was thus able to measure the balance of pro- and anti-Semitic discourse in the pre-Second World War European press. From a variety of sources Brustein also established a trend of anti-Semitic actions in the five countries (e.g. vandalizing a synagogue). He writes that “the most striking finding . . . is the sharp increase in unfavorable articles about Jews in Germany, Italy and Romania after 1932,”16 which is paralleled by a sharp increase of anti-Semitic acts in Germany and Romania, but not Italy. Regime change and regime policy, Nazism and fascism, account for these changes, and not simply traditional popular anti-Semitism. The news stories reveal a heightened perception of Jews as a threat to non-Jews, which Brustein linked to the deterioration of the nation’s economic well-being (the world depression of the 1930s), increased Jewish immigration, and growth of support for the political left and the extent to which leadership of communism, revolutionary socialism and anarchism were identified with Jews.17 These were themes highlighted also in the political discourse and propaganda of the nationalist, Nazi and fascist parties and leaders. In summary, Brustein did not create a “hate speech” index from the content analysis. He measured the three dimensions of hate discourse separately, extreme negative stereotypes, the Jewish threat, and advocacy for harmful and eliminationist actions against Jews, which were woven into a strong anti-Jewish narrative. That narrative constitutes hate discourse, as the title of his book, The Roots of Hate, makes clear. Another content analysis of political discourse on ethnic relations was done by Anthony Oberschall on behalf of the ICTY in the Vojislav Sˇesˇelj trial.18 Sˇesˇelj founded and headed the SRS, was a member of the Serb Assembly, and recruited, organized and indoctrinated volunteers in the Croatian and Bosnian wars, called Chetniks. He was indicted at the ICTY for participating in a joint criminal enterprise for forcibly removing non-Serbs from parts of Croatia and Bosnia and Herzegovina, for instigating in public speeches the expulsion of Croats from parts of Vojvodina, and for inflammatory ethnic rhetoric to the SRS volunteers to attack and ethnically cleanse non-Serbs. From a CD collection of Sˇesˇelj’s political speeches, interviews, broadcast appearances, news articles, campaigning, legislative speeches and other public communications, for the years 1991 to 1994, using a search engine that identified discourse on Serbs-Croat, Serb-Muslim and SerbAlbanian relations, 242 texts called “records” were randomly sampled and content analyzed for ethnic, nation and nationalities discourse. All paragraphs sampled were analyzed, regardless of whether Sˇesˇelj expressed positive, negative or neutral views on Serb-non-Serb relations. The records were translated into English by a PhD candidate in linguistics at the University of North Carolina who is a native Serbo-Croatian speaker. The coding categories for the content analysis were derived from the scholarly literature on nationalism,19 and the techniques of propaganda described above. All the records were coded by Oberschall.

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Coding the stereotyping and labeling dimension distinguished negative instances denoted “negative labeling/stereotyping” and positive instances, denoted “glorification of the in-group.” A “dehumanization” (some call it “demonization”) category was added separately to measure extreme negative stereotyping. Deliberative discourse on nations and nationalities as one finds in European parliamentary debate was coded simply as “nations and nationalities.” As with Brustein’s research on anti-Semitism, an unbiased content analysis measures positive and supportive ethnic statements as well as negative ones. Threat content was coded into “external threat,” “internal threat,” “victimhood and past atrocities,” which are commonly dredged up in threat discourse. Harmful and eliminationist actions against other ethnic groups distinguished “advocacy and expectation of violence,” “no compromise/omits non-violence as an option,” “revenge and retribution,” “expulsion and exchange of population,” “other threats against nations and nationalities,” and “denies responsibility/plays the blame game.” Sˇesˇelj frequently employed these modes of discourse to justify aggressive actions against adversaries. Last but not least was a category for “falsehood and misinformation” which distinguishes propaganda. Here is a summary of the findings. On stereotyping, in the 242 records, there are 40 negative labels and stereotypes for non-Serbs, including some extreme negative ones, for example, Croats are “vipers.” That compares with 29 records where Serbs are glorified (e.g. courageous). In Sˇesˇelj’s discourse, the Serbs’ adversaries in the former Yugoslavia are inferior to the Serb nation because they are not genuine historical nations like the Serbs. Sˇesˇelj claims that Serbs are under severe and multiple threats. In 40 instances, Serbs have been and are continuing to be victimized by other peoples, nations, foreign states and international organizations. Serbs and Serbia are threatened and surrounded by enemies and internal traitors who want to dismantle its territory and marginalize the Serb people. There are 42 “threats against Serbs” statements, and an additional 29 specific external threats and 28 internal threats. Altogether, 38 per cent of all records contain at least one threat, and often more than one. On harmful and eliminationist responses against adversaries like the Croats and the Muslims, Sˇesˇelj advocates “no compromise” and rejects non-violent options in 32 records, favors coercive and violent measures, such as “amputation” of Croatia and the expulsion of Albanians from Kosovo, in 47 records, blames Serbia’s adversaries in 27 records, and justifies harmful and eliminationist actions by the principles of retribution and revenge in 21 records. On misinformation and falsehood, the stuff of propaganda, Oberschall checked sources cited by reputable historians against Sˇesˇelj’s exaggerations and allegations, specifically the number of Serb deaths at the Jasenovac concentration camp in the Second World War, the claim that Dubrovnik has a predominantly Serb population, that Macedonia is an “artificial nation,” that several hundred thousand Albanians immigrated illegally to Kosovo in the Second World War, and that international treaties in the First World War justified greater territory for Serbia.

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These instances were a few of many false claims that exceeded the bounds of rhetorical exaggeration. Sˇesˇelj developed a Serb nationalist narrative that he repeated again and again, with small variations. Serbs are a heroic and peace loving nation who have been betrayed by external enemies (Croats, Germany, the USA . . .) and by internal traitors (Serbian liberals and democrats . . .) and who keep threatening Serbs and Serbia. The answer to the constitutional crisis in Yugoslavia in 1989–92 is the formation of a Greater Serbia on all lands and districts where Serbs are living or have lived in the past. That means Croatia will be “amputated” and Bosnia partitioned. There is no compromise on these goals. The Serbs’ enemies are bloodthirsty and genocidal, as the Croat Ustasha was in the past and is again under Tuđman, or are the tools of Islamic fundamentalists as the Muslims are, or should not even rightfully live in Serbia, as the Kosovars do. Sˇesˇelj and his Volunteers will defend the Serbs everywhere against aggressors with violence if necessary (“rivers of blood will flow”), which is justified by self-defense and the principle of retribution. Because mixed ethnic populations with ancient hatreds cannot exist in peace, a stable society and state has to be mono-ethnic and mono-national, except for some compliant minorities. Therefore, expulsion of peoples who do not fit into a majority state is justified, can be implemented through voluntary steps, and benefits all, even those who are forced to leave their homes and country. In its totality, Oberschall characterized Sˇesˇelj’s discourse as “xenophobic Serb nationalism.” In his opening statement to the court at his trial on 8 November 2007, Sˇesˇelj claimed that in the 1990s he influenced people by logical, intelligent and well-founded argument, which he also repeated in his rejoinder to Oberschall’s expert report.20 In a reply, Oberschall writes that the content analysis proved to the contrary that Sˇesˇelj “massively used stereotypes, threat discourse, falsehoods, fear inducing discourse, victimhood and other propaganda techniques that appeal to the emotions and were calculated to deceive and manipulate.” But as Oberschall testified at the trial, Sˇesˇelj was not alone with xenophobic nationalist discourse in Yugoslavia at its breakup (see Figure 5.1). Bogdan Denitch writes that “Much of the intellectual underpinning and respectability for the xenophobic nationalist developments among Serbian intellectuals and academics continued to come from the Serbian Academy of Sciences and Arts.”21 In the cross examination by Sˇesˇelj at the ICTY in January 2007, Oberschall declined to characterize Sˇesˇelj’s ethnic discourse as “hate speech” because it was not based on racial categories and biologically anchored justifications for superiority and inferiority, as was true for Nazi anti-Semitism. The eliminationist actions Sˇesˇelj advocated fell well short of the mass killings and genocide of the Nazis and that were advocated by Hutu extremists during the Rwanda genocide. Sˇesˇelj’s discourse was filled with negative stereotypes, but referring to other groups as poisonous snakes, animalistic, dregs, trash, primitive, dishonest, cowardly, and so on was similar to the insulting ethnic language of some other Balkan nationalists and fell short of how Oberschall defined “dehumanization.” Sˇesˇelj’s threat discourse was much exaggerated but was not a total fabrication

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Figure 5.1 Testimony of the prosecution expert witness for propaganda, Anthony Oberschall, in The Prosecutor v. Vojislav Sˇesˇelj, Case No. IT-03-67. The photographs depict the participants in ICTY courtroom on 11–13 December 2007. Above (from left to right): Jean Claude Antonetti, presiding judge, Anthony Oberschall, witness. Below (from left to right): Christine Dahl, prosecutor, Vojislav Sˇesˇelj, accused. Courtesy of Mirko Klarin and Sense Tribunal – Sense News Agency.

since ethnic massacres and atrocities had occurred against Serbs as well as other nationalities in the twentieth century during two Balkan wars and two World Wars. Whether or not Sˇesˇelj’s propaganda reached the intensity of “hate speech,” his goal was to turn ethnic groups and nationalities violently against one another and to undermine non-violent modes of conflict management. Aleksa Đilas noted that “The nationalist ambitions, fears and frustrations of Yugoslavia’s constituent groups . . . were not the invention of nationalist intellectuals or political elites. However the Yugoslav civil war would not have happened if elites . . . had not irresponsibly and deliberately manipulated nationalist sentiments with their propaganda and policies.”22 The Balkan media analyst Mark Thompson writes that fear of Croatian nationalism, anti-Muslim prejudice, and other ethnic animosities were widespread and had many sources, including popular culture and family history. But “without media, Serbia’s leaders could not have obtained public consent and approval for its extreme nationalist politics.”23

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A somewhat different method of measuring hate speech in incitements to ethnic violence and during acts of violence was devised by John Hagan and Wenona Rymond-Richmond for Darfur.24 In underdeveloped societies, the mass media are few and the audience is small in relation to the total population, which limits the use of media content analysis. To get around this obstacle, from the narratives provided by refugees in camps about what they experienced and witnessed during attacks by armed militias (called the Janjaweed) and the Sudanese Army, they coded and counted racial epithets of hatred against black Africans and expressions of Arab supremacist ideology. For instance, one victim of rape reported that the rapist said: “You blacks are not human. You are like monkeys.”25 Other epithets heard during attacks were “you donkeys, you slaves, we must get rid of you,” “black prostitute, whore, you are dirty,” “all the people in the village are slaves, you make this area dirty, we have to clean the area.” The researchers found from a monthly count in 2003 to 2004 that 20–40 per cent of victims reported hearing such racial epithets during attacks. Other witnesses reported hearing the militias chant during training exercises “We are the lords of the land. You blacks do not have any rights here,” and similar slogans. Refugees also reported hearing speeches by militia leaders and Sudanese officials inciting Arabs to violence against the Fur and other black Africans. In a speech on market day, in June 2003, the Arab leader Musa Hilal told the people “we are going to kill all blacks in this area and if you kill people, nobody will be prosecuted. Also if you burn homes, nobody will question you. Animals you find are yours . . .” Eyewitnesses provided accounts of subsequent attacks and burnings by the Janjaweed in the area, who attacked only black villages, and no Arab villages. Hagan and Rymond-Richmond document the racial hate epithets during the recruitment and training of Arab militias, the incitement to violence by their leaders, and the expression of racial hatred during attacks on black African villages and other acts of violence like rape. In addition to racial hatred in incitements to violence, other motives were gaining possession of the land and cattle left by the victims who were killed and forced to flee. In summary, hate discourse and hate propaganda can be measured by reliable techniques that are not subjective, i.e. two researchers with the same codes and coding instructions agree a high percentage of the time, for example, 90 per cent and above, about how to classify the same content. Content is sampled randomly from a complete record of discourse, and is not cherry-picked for occasional and atypical utterances. For hate discourse, three dimensions have to be present: extreme negative stereotypes, fear and threat discourse, and eliminationist actions. There are differences of opinion about the level of intensity, frequency, context, falsehood and extremeness that puts the discourse over the “hate speech” threshold. I view ethnic discourse on a continuum on which one can benchmark the location of historic instances of hate and genocidal speech (like Nazi anti-Jewish propaganda). The benchmark serves for making comparative judgments about other ethnic discourse.

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How is ethnic violence organized? Although there are specific studies of genocide, especially the Holocaust, social scientists embed explanations of such extreme events in a larger theory of ethnic relations, conflict and mass violence. Ethnic nationalism and animosities are neither an invention of political leaders nor an artificial creation of mass media propaganda, but leaders and propaganda amplify them, manipulate them and legitimize ethnic aggression. Irish nationalism, including its violent Republican variety, was not an invention of mass media propaganda. In Northern Belfast, Scott Bollens shows that the policy to break down sectarian segregation by building public housing for mixing Catholics and Protestants at sectarian borders repeatedly failed because of clashes, raids and riots during which houses were damaged, arsoned and abandoned.26 Security concerns became foremost, and eventually the residents and the authorities built fences and so-called “peace walls” as a permanent physical barrier between the two communities. Sectarian militants established control in the segregated housing estates, public parks and shopping areas, which are filled with huge murals glorifying their militants and martyrs and demonizing their adversaries. Children raised in such a sectarian environment learn ethnic prejudices, stereotypes, animosities and hatreds in daily life, which feeds their disposition for ethnic aggression and facilitates recruitment into militant groups. Whatever the role of provocateurs and militants in ethnic clashes, Republican animosities against Protestants and vice versa has a long history in Ireland. The clashes and riots that some participate in and others witness in the media becomes yet another chapter that extends that long history and confirms the reality of ethnic antagonism. It is also the case that in middle class neighborhoods of Belfast Catholics and Protestant families cohabit peacefully. Although the Catholics there tend to be Nationalists and the Protestants Unionists, they do not subscribe to the ethnic violence of Republicanism and Loyalism. Although there has been animosity and conflict between some ethnic groups who live in the same state and/or are neighbors, throughout history, coexistence, cooperation and non-violent conflict management have been the rule in ethnic relations. The occasions for ethnic violence are real conflicts between religious, ethnic, nationality, and language groups (hereafter referred to as “ethnic”), be it competition for political power, territory, jobs, land and other resources, the assertion of fundamental rights like non-discrimination, the expression of collective identity and dignity like use of own language, and similar contentious issues between a government and an ethnic group or between two ethnic groups. Contentious issues serve to mobilize the adversaries, but other conditions are also present for violence. According to Michael Mann, who studied ethnic cleansing, genocide and mass purges, the worst ethnic violence in the twentieth century occurred under particular political circumstances: there is a political regime advocating ethnic violence with an ideology that promotes and justifies it; the leaders organize armed bands and

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militias for ethnic aggression (that I refer to as “violence cadres”); and the leaders persuade their ethnic kin about real and imagined threats from ethnic adversaries, and in turn get their support for eliminating the threat.27 Regime ideology disseminated in the mass media justifies violent and destructive actions that are viewed as immoral and criminal under ordinary circumstances. The majority of the people do not actively participate in the aggression, but approve the ethnic violence, do not oppose it because they fear the regime, or are confused by regime propaganda. In a study of ethnic riots around the world, Donald Horowitz writes that “. . . actual killing is the work of a relatively small fraction of the people . . . But a great many group members . . . condone the violence and provide a sympathetic explanation of it, because it is an extreme manifestation of their own feelings . . . without such support, . . . deadly ethnic rioting could be very much less frequent than they are.”28 There are thus three principal actors in mass violence: the leaders, the violence cadres and the public. Eliminationist violence takes time to become persuasive and to organize. Michael Mann writes that “Murderous cleansing is rarely the initial intent of the perpetrators.”29 For Benjamin Valentino as well mass violence and killings are chosen as a last resort by political and military leaders who want to suppress an insurgency or other real and imagined threats, or implement a radical or racist state policy (e.g. achieve a homogeneous nation-state purged of other peoples).30 Mass violence is not inevitable. When ethnic tensions rise beyond customary levels (e.g. by the invasion of the RPF army in Northern Rwanda and the Arusha agreement that recognized the right of return of Tutsi refugees; mounting insurgency and violence in South Africa; the constitutional crisis in Yugoslavia), political leaders make choices. Some draw on conciliatory institutions for ethnic conflict management, as the South African government and the African National Congress (ANC) leaders did. Other leaders manipulate divisions and tensions and organize mass violence when it serves their purposes, as the militant Hutu leadership did in Rwanda. What is true for countries is also true for sub-state entities. Studies of HinduMoslem communal riots in Indian cities compared cities with frequent and major communal riots with cities with no, fewer and lesser violence. The religious animosities, religious fervor, and demographics of these cities was similar, but in the low-violence cities like Lucknow, local Hindu/Muslim political alliances and civic cooperation are robust and both sets of leaders intervene early and decisively when religious tensions mount. Varshney calls them “institutionalized peace systems.”31 In the high violence cities like Hyderabad, religious rivalry is manifest in politics and in competitive temple and mosque building organized by Hindu nationalists and Muslim fundamentalists. These rivalries and animosities keep getting activated by political leaders. The violence cadres are indoctrinated with hate and contempt for the rival religion and loyalty for their leaders and peers, but other motivations fuel communal rioting as well: looting of homes and businesses, and gaining possession of the land from which inhabitants have been forcefully expelled and to which they are afraid to return or prevented from doing so. When

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tension mounts, armed bands from Hindu temple and Mosque communities, known as “warriors” trained in body building, weaponry, and religious fervor, lead the attack on defenseless civilians and their properties. These cities possess “institutionalized riot systems.” Communal rioting is not simply an inevitable result of deep rooted religious animosities. As Varshney writes, “Without the involvement of organized gangs, large scale rioting and tens and hundreds of killings are most unlikely.”32

Violence cadres Who participates in ethnic violence, and why? Scholarly research has shown that “under particular circumstances most people have the capacity for extreme violence and the destruction of human life.”33 A recent book on ethnic cleansing finds that “ordinary people are brought by normal social structures into committing murderous ethnic cleansing.”34 The social psychologist Albert Bandura agrees: “Over the centuries much conduct has been perpetuated by ordinary, decent people in the name of righteous ideologies, religious principles and national imperatives . . . it requires conducive social conditions rather than monstrous people to produce heinous deeds.”35 Recent research on the perpetrators of extreme collective violence, such as suicide bombers, perpetrators of war crimes and torturers for security agencies, supports the “ordinary man” hypothesis. Scott Atran, of the University of Michigan and CNRS in Paris summarizes the findings on suicide bombers thus: “If you look at the history of these kinds of extreme acts, they are directed pretty much by middle class or higher individuals. They have always been. Never have they been directed by wacky, crazed, homicidal nuts . . . they give up well paying jobs, they give up their families . . . to sacrifice themselves because they really believe that is the only way they are going to change the world.”36 Marc Sageman, a forensic psychiatrist and sociologist, profiled al Qaeda and jihadist group members and found that “two thirds came from solid upper and middle class backgrounds . . . (they) were relatively well educated . . . three quarters were married and had children. I detected no mental illness in this group or any common psychological predisposition for terror.”37 Research on the recruitment and indoctrination of suicide bombers and terrorists stresses the role of fanatical religious ideologists and support communities for making ordinary people into willing killers who believe they are sacrificing themselves for a higher cause, i.e. martyrdom. A comprehensive study of 624 suicide assaults from 29 countries perpetrated by 25 terrorist organizations from 1982 to 2005 found that recruitment and radicalization of suicide bombers and terrorists takes place in a community that instills a culture of death and hatred, and praises and glorifies suicide attackers; “The marketing of a death culture is conducted via three main avenues: (1) the glorification of suicide attackers themselves; (2) the glorification of the ideology and ideas in whose name they carried out the suicide attacks; (3) the dehumanization of the enemy and therefore

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the reinforcement of the moral legitimacy of the suicide attacks.”38 Marc Sageman studied a large data set on 400 al Qaeda terrorists and concluded that conversion to jihad is not a solitary decision but is nurtured in interpersonal relations and with social support.39 Al Qaeda members formed links with others like themselves, congregated in the same mosques, student associations, neighborhood centers and Islamic bookshops and often lived together. It is in these communities that they become radicalized by militants and imams. These studies find that hate and hate ideology against an ethnic target incite violence cadres, but hate does not have to be the sole and main motivation. Some mass killings take place under state authority and military command. Christopher Browning studied the German army troops (Einsatzgruppen) in Second World War Poland who were called-up to serve behind the Russian front and were ordered to round up and kill unarmed Jewish civilians, children, women, old people, in village after village and town after town.40 They had been exposed to Nazi anti-Semitic propaganda as the rest of the German people had for the past decade, but they did not particularly hate the Jews. They killed because they were ordered to, and there was no way out. It was a wartime military command situation. Many found it stressful to kill, and their officers handed out alcoholic drinks generously on killing days. Some killed because of peer solidarity and loyalty to the battalion: if you did not do your quota, other comrades would have to kill more. Some killing was delegated to non-German auxiliaries. A few could not bring themselves to kill and were assigned to truck driving and other nonkilling tasks. A few, maybe 5 per cent, actually took pleasure in killing, but that was exceptional. In the end, regardless of the complexity and diversity of motives and reasons, the battalion was an efficient execution machine of Jewish civilians. Hate was not necessary for killing the Jews. The police chief of Prijedor in the Republika Srpska told the journalist Tim Judah that “the assets of fifty thousand Muslims and Croats expelled from the region had amounted to several million DM [Deutsche Mark] . . . the greater part of these resources have either been transferred to Serbia or here.”41 Elderly nonSerb interviewees in Banja Luka in 1998, who were allowed to remain in the city on account of their age, told Oberschall that their Muslim and Croat relatives had to pay high fees for permits and documents and transportation in Deutsche Marks for leaving the city, which stripped them of foreign exchange, and had to leave behind houses, apartments, furniture and other personal possessions, sometimes even an automobile, seized by Serb militants and officials. The Bosnian Serb leader Biljana Plavsˇic´ was asked the reasons for the ethnic cleansing and mass violence against non-Serbs, and explained at her ICTY trial (December 17, 2002) that “The reason lies in the word fear, fear that renders people blind. Driven by the obsession never to be reduced to the status of victims again (a reference to World War II), we allowed ourselves to become makers of victims.”42 Ethnic aggression is a group activity, organized and often planned, and not random, spontaneous and individual. One mode of organization is when state and regime authorities recruit, finance, train and indoctrinate violence cadres, as was

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true for military forces, special forces, paramilitaries, volunteers, militias and other armed bands in the Rwanda genocide, in the Yugoslav wars, in Darfur, and for the German Army in the Second World War. In all these instances, the regime leaders have command control responsibilities for the actions of the violence cadres. Another mode is when religious leaders and political ideologues enjoy leadership, prestige and visibility in their community, have access to communications media and recruit, indoctrinate and help organize violence cadres, as is the case for jihadists, suicide bombers and terrorist groups. A third mode of organization for ethnic violence is embedded in the ethnic political culture, as Irish Republicanism was in Ireland, North and South. Violence cadres form, but do not have to be recruited and indoctrinated because the population learns the ideologies, justifications, models and precipitating incidents for violent ethnic action as a byproduct of living in a particular culture milieu. The violence cadres are motivated by a variety of emotions, animosities, ideas and justifications for violence against an ethnic adversary among which hate and fear are prominent, but so are compliance to authority, conformity to peers, revenge, strategic calculation (preemptive deterrence or “defensive warfare”), anger from frustrated goal attainment and economic gain. They are ordinary human beings, often above average in education and social status, and are not psychopaths, anti-social and morally warped, though a few may well be.

The effects of nationalist propaganda in Serbia in the 1990s: a case study The gold standard for causal analysis is the randomized, controlled experiment as used in testing the efficacy and side-effects of medication. To study the effects of propaganda on national populations with controlled experiments is not practicable. Researchers cannot keep a sample of the population from being exposed to political communications in the media, as a jury can be ordered to be sequestered by a judge during a criminal trial. The subjects cannot avoid exposure during the experiment, but in real life, many who disagree with content avoid it. The amount of nationalist content that an experiment exposes subjects to pales by comparison to what citizens are exposed to, day in day out, over the course of election campaigns and daily political reporting. Last but not least, there is an ethical dilemma. Suppose that propaganda is effective, is it ethical to risk increasing the ethnic stereotypes, fears and eliminationist disposition of subjects? In the absence of experimental findings, I examine and triangulate other evidence on media propaganda impacts: public opinion and elections; media content; anecdotal evidence about what people believe and say that mirrors propaganda; and knowledgeable opinion about mass media political discourse.

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Ethnic relations before the Yugoslav crisis Survey research on ethnic relations in 1990 found that in a national sample of 4,232 Yugoslavs in 292 localities, only 7 per cent believed that the country would break up into separate states, and that 62 per cent reported that the “Yugoslav” affiliation was very or quite important for them. On ethnic relations in workplaces, 36 per cent described them as “good,” 28 per cent as “satisfactory” and only 6 per cent as “bad” and very “bad;” similar sentiments were expressed for neighborhoods.43 On constitutional choice, 70 per cent expected a Yugoslav federation and confederation to continue, and only 7 per cent expected “separate states.” In another all-Yugoslav survey with over 10,000 respondents, in the summer of 1990, to the question “Do you agree that every Yugoslav nation should have a national state of its own?,” 61 per cent answered “Do not agree at all” and only 16 per cent chose “agree fully.”44 Except for the responses in Kosovo, for the majority of Yugoslavs, on the eve of the civil wars, national sentiments did not translate into hostile interpersonal ethnic relations and a yearning for the breakup of Yugoslavia and its replacement with national states. Public opinion research is confirmed by anecdotal evidence. Misha Glenny writes that in Knin, later a hotbed of aggressive militia activity, “Before May 1991 Croats and Serbs lived together in relative contentment . . . nobody in their wildest fantasy would have predicted that within twelve months . . . Croat soldiers would massacre innocent Serbs while Serb fighters would mutilate innocent Croats.”45

Revival of nationalism Fueled by the plight of the Serbs in Kosovo in the 1980s, Serb nationalism was revived by nationalist intellectuals and academicians and was exploited by Slobodan Milosˇevic´ and his followers for seizing power in Serbia. Concern for kith and kin is common in national sentiment. In Kosovo, Serb nationalist propaganda was filled with exaggerations, fabrications and lies that magnified the threat to Serbs. Although the evidence on the extent of anti-Serb intimidation and violence by Albanians is disputed, there was a real problem and many Serbs in Kosovo believed they were under siege and/or decided to leave Kosovo.46 Judith Mertus researched ethnic incidents in the 1980s in Kosovo and found the media and conversations filled with stories of “old women and nuns are being raped, youngsters beaten up, cattle blinded, stables built from gravestones, churches and old shrines being desecrated” yet no specifics were given about who, where, when.47 For 1981 to 1987, there had been only five interethnic murders, yet Serb intellectuals created a case of an Albanian genocide against Serbs. Charges of sexual assault and rape by Albanians against Serbs were highlighted in the Serb news media. An analysis of crime statistics in Kosovo in the 1980s by Serb social scientists found that rates of sexual assault in Kosovo (0.96 per 100,000 adult males) were lower than in central Serbia (2.43) and in all Yugoslavia (1.63), and that sexual assaults and rapes tended to occur within, not across nationalities.48 Truthful figures were available but ignored.

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The Serb nationalist campaign for saving Kosovo was a classic example of the manipulation of threat and fear propaganda, and it was effective. Milosˇevic´ seized control of the communist party of Serbia with mass rallies all over Serbia displaying Serb flags, folk costumes, Serb music and symbols. Speakers attacked communist party officials and called for their resignation, which many did. The first and largest mass meeting commemorated the 600th anniversary of the Battle of Kosovo in 1389, which turned into a nationalist extravaganza. Between July 1988 and the Spring of 1989, an estimated 100 rallies and demonstrations took place with 5 million participants. The media called it an “anti-bureaucratic revolution.” These events were covered on television and in other media. Milosˇevic´ emerged as the standard bearer for Serbdom and was lionized in the media.49 Milosˇevic´, Serb intellectuals and these campaigns did not create Serb nationalism. Branimir Anzulovic´ notes that “The Serbian elite could not succeed on mobilizing the support of large masses of the population . . . had they not been already under the influence of old national myths.”50 What leaders and intellectuals did is to revive and amplify the old myths, and link the myths to contemporary ethnic threats and fears, which were magnified out of proportion with reality. Serb nationalism was used to discredit the peacetime frame in Balkan ethnic relations and revive the crisis frame. In Croatia and Bosnia, the 1990 election was an opportunity for nationalists to link traditional nationalism with threat and fear-mongering against other nationalities. Every city and town experienced the founding of political parties, often at huge rallies in a sports stadium or public building during which speaker after speaker gave vent to exaggerated nationalist rhetoric and hostile pronouncements and verbal attacks against other nationalities. A content analysis of electoral events from Oslobođenje news stories in 1990 finds them full of affirmations of national symbols and identities, the renaming of localities, the reburial of alleged bones of Second World War ethnic massacre victims; nationalist graffiti on churches, mosques, monuments and cemeteries and other ethnic vandalism; fights over flags and other symbols; ethnic insults voiced in public places; nationalist songs; some rallies precipitated fights that ended with teargas and police arrests; elsewhere, speakers were prevented from addressing the crowd.51 Bigotry, ethnic hatred and falsehoods about nationalities were voiced freely and reached millions of people nightly on television. Bogdan Denitch recalls: “Everyone was traumatized by all the talk of World War II atrocities . . . even those who had seemed to be immune to nationalism . . . Old personal ties and friendships crumbled . . . as families and friends rallied to the defense of their own nation. The pressure to do so was immense.”52 To many, these were signs that peaceful times were sliding into ethnic crisis, and that the authorities were losing control or unwilling to enforce the law against nationalist excesses. There was some opposition to ethnic nationalism: youth and veterans’ organizations, trade unions and some municipalities protested against ethnic polarization. A Youth Association proclaimed that “there is no place for the ghosts of the past . . . we condemn the spread of ethnic hatred.”53 But these protests suffered

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from the waning loyalty to Titoist communist institutions and failed to slow the surge of ethnic nationalism. Ethnic threat and fear propaganda and talk of rape and genocide became commonplace in political speech and in the media. Biljana Plavsˇic´, a professor of biology at Sarajevo University before she became a Bosnian Serb leader, wrote in the newspaper Borba “. . . rape is the war strategy of Muslims and Croats against Serbs. Islam considers this something normal. . .”54 Political leaders who engaged in nationalist propaganda knew full well that television was a key tool of persuasion and how threat and fear discourse conditioned ordinary people to support mass violence. Vojislav Sˇesˇelj proclaimed that “The one who takes the TV stations has taken political power.”55 Mira Markovic´ said in an interview on March 15, 1991 that “Civil war is already happening in Yugoslavia. For the time being it is not an armed conflict . . . this civil war is one of information . . . its purpose is to cause national animosity to the point where an armed conflict is unavoidable.”56 Nationalist propaganda does not have to persuade everyone so long as a large enough number of voters confers the authority of the state to nationalist leaders. In Croatia, Tuđman and the Croatian Democratic Union (HDZ) got 41.5 per cent of the vote, but 58 per cent of the legislative seats, which conferred control of the state institutions: the media, in particular state television, the police, schools, the territorial forces, state enterprises and much scope for patronage. My interpretation of the revival of xenophobic nationalism in the late 1980s and 1990s is that Yugoslavs experienced ethnic relations through two frames or mental structures: a peacetime frame and a crisis frame. People possessed both, but in peacetime the crisis frame was dormant, and in crisis and war the peacetime frame became irrelevant. In the peacetime frame which prevailed in Tito’s Yugoslavia, ethnic relations were cooperative among school mates, in workplaces, and between neighbors. Intermarriage was accepted. Institutions like the armed forces and sports were shared by all groups. Holidays were spent everywhere. Public opinion on ethnic relations in the surveys of 1990 mirrors the peacetime frame. The crisis frame was grounded in the experiences and memories of the twentieth century wars and collective myths rooted in history. In the crisis frame, civilians, old people, women and priests are not distinguished from combatants. Old people, women and priests were not spared. Atrocities, massacres, torture, rape and ethnic cleansing were common. All members of a nationality or religion were held collectively responsible for the actions of some in their group and became targets for revenge and reprisals. The nationalist threat and fear propaganda about the Kosovo crisis in Serbia and elsewhere starting with the 1990 elections discredited the peacetime ethnic frame, awakened the crisis mentality on ethnic relations, and put aggressive nationalist leadership into power.

Propaganda in the Serb media There are many analyses of the Serb media in the 1980s and 1990s. Svetlana Slapsˇak analyzed the first six months of “Echoes and Reactions” in Politika for

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1990 on Kosovo and concluded that negative stereotypes and hate speech against Albanians, and later against Croats, was the principal way in which the public was being prepared to accept war as a resolution of ethnic problems.57 Another researcher content analyzed three illustrated magazines—Duga, TV Novosti and Ilustrovana Politika—and concluded that the narrative of the magazine stories in 1990–91 was “linkage of the past (when Serbs were victims) with the present (when they have to be awakened to the dangers and to resist them (and the future (when Serbs are called to become avengers, heroes, and victors).”58 A Belgrade team of social scientists and journalists content analyzed the main daily news programs of Belgrade Radio–Television/Serbian Radio Television (RTB/RTS) from August 1992 to July 1993 and concluded that “what really happened was not reported, for example, compared to what was reported in the media of other countries; only that was reported which the regime found acceptable. One is dealing with a radical mode of reality construction.”59 In his Special Report on the Media, former Polish prime minister and special rapporteur for the UN Human Rights Commission, Tadeusz Mazowiecki, writes that “the media have served as an effective tool for the dominant political forces in formulating a new agenda based on Serbian nationalism and in fomenting hatred against other nationality groups in the former Yugoslavia.”60 War reporting was filled with falsehood and misinformation. The Serb attack on Zvornik, a border city with a 60 per cent Muslim population, its capture by the Yugoslav People’s Army (JNA), special forces and paramilitaries in April 1992, and the resulting killing, rape and ethnic cleansing of Muslim civilians was reported in Politika as “Muslim extremist forces planned to enslave the local Serbs and were thwarted.”61 A group of writers analyzed the discourse on RTB/RTS about the Bosnian war and found that the Muslims were described as jihad warriors, criminals, slaughterers, Islamic Ustashas, mujahedeen, terrorists and extremists, whereas the Serbs were described as protecting their homes, wives, children and home grounds.62 False atrocity stories were typical. One repeated story was about Serb children fed to animals in the Sarajevo zoo by Muslims.63 The Serb political scientist Vladimir Goati summarized war coverage in the Serb media as follows: “The strict selection of information on civil war in Bosnia and Herzegovina and Croatia created a kind of virtual political reality, a world of fiction that many citizens saw as more realistic than the world of reality . . . The majority of the population, being deprived of alternative sources of information, has accepted the persistent repetition of official statements as the truth.”64

Nationalist media monopoly Regime media propaganda is more effective when it enjoys monopoly access to the audience rather than competing in a plural media environment. Even cultural programming was brought under nationalist control. Musical program editors were fired from Radio Belgrade for broadcasting more Slovene and Croat than Serb music, and the general manager of Radio Serbia divided his staff into “reliable

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Serbs” and “bad Serbs.” Before long, the “unreliable Serbs” journalists and media professionals were pressured out of their jobs, put on “compulsory leave,” or marginalized.65 The largest purge took place in January 1993. Radio and TV reporters and staff resisted, but were harassed, demoted, furloughed and banned from the TV building, and fired. Eventually 200 journalists and 1,000 staff were purged. Because of mass protests in Belgrade for media freedom, the regime allowed some opposition media with limited means—circulation, viewers and listeners—to survive. The regime assumed that control of state TV and the three largest newspapers was sufficient for decisively shaping public opinion. Even so, Studio B and other independent media were harassed and targets of attacks. By 1995, the independent media were largely restricted to Belgrade. The result was that the vast majority of Serbs got biased, slanted regime news, filled with falsehoods.66 Research by the Belgrade Institute of Political Studies found that RTS was watched by 70 per cent of all adults. The regime supporter Politika had 200,000 circulation, compared to the independent newspaper Borba, with 30,000 readers. The report concluded that the Milosˇevic´ regime had 90 per cent mass media penetration, i.e. 90 per cent of public affairs information reached the public through regime media. The regime used its control of the state media for winning elections. A 1994 study of media coverage in recent Serbian elections found that the regime party, the Socialist Party of Serbia (SPS), received 227 minutes’ coverage on regular RTS news in the “election chronicle,” compared to 58 minutes for all the other parties.67 Nationalist control of the mass media was decisive in the Serb majority areas elsewhere, as in Bosnia. On August 1, 1991, eight months before the start of war in Bosnia, Serb paramilitaries supported by the Yugoslav army seized the Kozara mountain transmitter, shortly followed by other seizures. It cut off Sarajevo TV signals to what later became the Republika Srpska and exposed the Bosnian Serbs and others living there to Belgrade TV and other Serb, controlled TV only.68

Persuasion through nationalist propaganda How persuasive was Serb mass media nationalist propaganda in the 1990s? There are three sources to examine. First, changes in attitudes and opinions that reflect changes in mass media content. Second, beliefs voiced by individuals which mirror, sometimes word for word, what they hear and see in the media. Third, voting changes that occur when a candidate or party’s coverage in the media changes. According to a study of public opinion trends in Serbia, “under the influence of civil war, economic collapse and the activities of the official propaganda, in May 1993 xenophobia was observed in 76 per cent of the population compared to the earlier years’ average of 10–15 per cent.”69 In a survey by the Institute of Psychology at the University of Belgrade in 1993, the researchers found a lot of hostility towards Croats (89 per cent), towards Albanians and Muslims (85 per

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cent) and towards national minorities in Serbia, which contrasts starkly with the 1990 survey of Yugoslav ethnic relations described earlier.70 Disinformation and falsehood were persuasive to a large segment of the Serb public. The Institute of Political Studies in Belgrade conducted a poll of 1,380 respondents in Serbia in July 1992 and asked the following questions about the siege of Sarajevo: “Who bombarded Sarajevo from the surrounding hills in May and June?” The answers were “Muslim and/or Croat forces,” 38.4 per cent; “Don’t know” 22.5 per cent and “Serb forces” 20.5 per cent. At the time, Serb forces controlled all the hills around Sarajevo and their artillery shelled the city regularly. The standard news story on Belgrade TV was “the siege of Sarajevo is carried out by Muslims, not Serbs” and “the Serbs are protecting their own hills around the city.”71 Ordinary people echoed the ethnic discourse in the mass media promoted by nationalist leaders, intellectuals and media journalists. A young Serb soldier in his barracks tells an American reporter “the Muslims expelled us from Kosovo with their sexual organs . . . they want to do the same here (Bosnia) . . . the way they reproduce they need room.”72 The words, the narrative, the threat all echo the mass media, Biljana Plavsˇic´ and other leaders. Peter Mass, another journalist, asks a Serb refugee couple why they fled their village. They answer: Muslims planned a takeover, a list of names has been drawn up, Serb women were to be assigned to Muslim harems after the men are killed. They had heard about it on the radio.”73 A Muslim survivor of a detention camp described how his interrogators kept asking the Muslim detainees of plans to turn Bosnia into an Islamic Republic, a favorite threat message of the Serb media.74 Islamic Republic, Serb women into harems breeding Muslim fighters, killing all Serb males—these threat stories were standard fare on the Serb media.

Propaganda and voters It is possible to estimate the effects of mass media on the Serb electorate when the same party or candidate has access to the media and positive coverage compared to when they do not, so long as the time interval is short and the appeal of the candidate and party is to the same voters. There were 2.5 to 2.8 million strongly nationalist voters in the 1990s in Serbia. They distributed their votes to the SPS headed by Milosˇevic´, the SRS headed by Sˇesˇelj, and some smaller allied parties. In the December 20, 1992 elections to the National Assembly of Serbia, SPS and SRS were allies in government, and both parties got lots of access and positive media coverage. The SPS came in first with 1,359,000 votes; the SRS was second with 1,067,000. In mid-1993, the two parties became adversaries over the VanceOwen plan for Bosnia. The SRS submitted a motion of no confidence in the National Assembly of Serbia, which toppled the government and elections for a new Assembly were called. In the campaign leading up to the December 13, 1993 election, Sˇesˇelj and the SRS were presented in an extremely negative manner in the regime-controlled media, i.e. close to all the media. The election outcome was SPS 1,576,000 votes to SRS 595,000 votes, a loss of 472,000 votes, or 44 per cent

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of the 1992 SRS vote.75 That is a huge loss for a party. Further analysis showed that the SRS loss came from a switch within the strongly nationalist voting bloc, from SRS to SPS. The loss measures change due to favorable versus unfavorable mass media coverage upon the electorate, within the same nationalist voter pool. Another instance of voter change due to media persuasion occurred in the difference of the October 5, 1997 presidential election for Serbia with the December 21 run-off only ten weeks later. In October Sˇesˇelj, the nationalist candidate, got 1,734,000 votes to Zoran Lilic´ with 1,475,000, who headed the opposition. The regime media were non-partisan. Due to a realignment of alliances, the regime decided to run its own candidate Milan Milutinovic´ against Sˇesˇelj in December. A content analysis of the RTS election campaign coverage for the last week showed that Milutinovic´ got 81 per cent of broadcast time for presidential candidates, compared to Sˇesˇelj with 19 per cent. Milutinovic´ was presented in a positive way whereas a negative disqualifying media campaign was conducted against Sˇesˇelj. The outcome was 2,182,000 for regime candidate Milutinovic´, and 1,384,000 for Sˇesˇelj, a loss of 350,000 or 20 per cent compared to October. In view of these two election outcomes, access to and favorable coverage in the state media made a difference of 20 per cent to 40 per cent of the vote, a decisive advantage (or liability) for a political leader or party.

Limits to propaganda effectiveness There are limits to the power of propaganda; not everyone becomes a puppet of the regime. As noted earlier, selective attention, confirmation bias, opinion leaders in a social milieu, peer support, cognitive dissonance, and political mobilization are mechanisms that insulate against regime media persuasion and preserve opposition political culture. In Serbia, and especially in Belgrade, throughout the Milosˇevic´ regime years, there were repeated mass protests for freedom of the news media and against regime election fraud. At one of the largest and longest protests, started on March 9, 1991 (known as the “Battle of Belgrade”), thousands of peaceful demonstrators were attacked by the security forces, resulting in hundreds of arrests and many injured, and was followed by thousands of protest marchers the following day and a week-long vigil that was attended by half a million people and became a public forum for opposition speeches. In the December 1996 to January 1997 mass protests against election fraud, one to two hundred thousand protesters marched every evening in Belgrade for 87 days after the regime annulled the election outcome that was won by the opposition Zajedno (Coalition Together) alliance.76 The Belgrade opposition rallies rivaled the Monday evening marches in Leipzig and elsewhere in East Germany in 1989–90 that toppled the East German communist regime, and the huge Czech protests in Wenceslav square in Prague in support of the democratic movement that ended communism there in December 1989.77 Some Serbs opposed the Croatian war in 1991. A “call-up crisis” occurred when large numbers of young men refused to be drafted into the army and reservist units

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refused to serve beyond the borders of Serbia. A report estimates that between one and two hundred thousand young men evaded the draft, many leaving Serbia; soldiers serving in the army deserted; reserve units refused to serve beyond the borders of Serbia, for example, to attack Dubrovnik.78 At a closed session of the Serbian Assembly, it was announced that “the response of reservists in Serbia as a whole was 50 per cent, but in Belgrade only 15 per cent.” Faced with a manpower shortage for fighting war, armed forces chief General Kadijevic´ called for volunteers, and as an inducement, paramilitary units were given all the benefits soldiers enjoyed in the armed forces. In summary, the evidence examined shows threat messages and falsehoods stimulating Serb fears of rival ethnic groups saturated the media, mass meetings and electioneering, revived a crisis mentality and xenophobic nationalism, and persuaded the voters to put the Milosˇevic´ regime into power and keep it there. Xenophobic nationalism became persuasive when authorities, intellectuals, academicians, religious leaders, public figures and politicians all voiced similar crisis messages, when threat discourse heightened suggestibility to nationalist propaganda, and when the regime achieved near monopoly of public affairs media messages. The evidence also shows that Serbs became more hostile and aggressive towards other nationalities after they were exposed to intense nationalist propaganda, and that ordinary people voiced regime propaganda themes. Unfavorable coverage in the media cost even nationalist candidates who were regime rivals a substantial amount of votes. Despite the effectiveness of regime propaganda on the majority of Serbs, a not inconsiderable minority of Serbs remained opposed to xenophobic nationalism.

Concluding thoughts on criminalizing hate speech For some, hate speech is public communications “that express profound disrespect, hatred, and vilification of the members of specific minorities.”79 For others, including myself, extreme negative stereotyping is one of three dimensions of hate discourse or hate ideology. The other two dimensions are threat and fear discourse, and advocacy for eliminationist actions, i.e. harmful, destructive and violent actions. My view on criminalization focuses on how proximate or how removed from actual ethnic violence the dimensions of hate discourse are in the chain of causation. There is a temptation of overreach when it comes to criminalizing behavior that has many and complex causes. Extreme negative stereotyping of an ethnic group is found in conversation, literature, politics, international relations, and in the media but does not necessarily incite to violence. Avoidance and exclusion are common responses to hatred and prejudice. Threat messages in political discourse are also common. There are threats to health, to the environment, to financial well-being, to national secrecy, and threats to the dominant group and culture from ethnic groups who do not assimilate, increase in numbers through immigration and high fertility, want their language and traditions recognized officially, and so on. The dominant group may feel threatened, yet advocates for

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limiting immigration and group autonomy who give vent to negative stereotypes and hostility usually stop short of calling for ethnic violence to eliminate the minority. Despite unfavorable stereotypes and ethnic fears, and in some cases insurgency, Canada, South Africa, Tanzania, Northern Ireland, the successor states to the Soviet Union and some other countries created a constitutional design and power sharing political institutions to accommodate ethnic pluralism. It is the third, eliminationist dimension of hate discourse that should be the focus of criminalization, because it incites to violence against civilians, not just disrespect and hostility, and because it dismisses compromise, accommodation and nonviolent conflict management. Mass media hate discourse that is criminalized should contain advocacy for ethnic violence, not just extreme negative stereotypes, threat and fear. How would such a ban on hate discourse deter or hinder ethnic violence? The bulk of violence is perpetrated by violence cadres, and banning hate discourse is likely to interfere with their recruitment, indoctrination and organization. A ban has a better chance of hindering violence under some circumstances. Some violence cadres, as was the case for the Irish Republican Army (IRA), are recruited through interpersonal, family, and community ties and loyalties that are embedded in Irish Republicanism. Banning media hate discourse would not interfere with formation of the IRA and its offshoots. The strategy for decreasing ethnic violence is long-term education and conciliation, and short-term political conflict management through power sharing, as in the Northern Ireland Peace Agreement. Other violence cadres, especially military, are under a tight command structure. The evidence shows that ordinary men in the military will obey orders to kill innocent people, as the German Wehrmacht reservists did in the Second World War, regardless of how much they have been exposed to hate discourse and agree with it. The strategy for decreasing ethnic violence and killings by hierarchic organizations is to enforce laws against war crimes and crimes against humanity on the leadership that commands killing. In the third mode of recruitment and organization of violence cadres, a non-state organization or coalition of militants, sometimes in alliance with state organizations, recruits and indoctrinates volunteers by means of hate discourse, as is the case for suicide bombers and terrorists, and as was also a pattern for paramilitaries and volunteers in the Yugoslav wars, in Darfur, in the Rwanda genocide, in Hindu-Muslim riots, and other instances. Criminalizing ethnic hate discourse and prosecuting the disseminators of hate propaganda would silence some militants, make others less accessible to the audience, or moderate their hate messages. Criminalizing hate speech should be one step within a larger set of measures to deter and prosecute violence cadres in ethnic violence. Recent antiterrorist legislation in the UK includes specific hate speech crimes like glorification of terrorism with the intention of promoting attack, distribution of terrorist publications, deportation of foreign clerics who incite terror acts together with other actions that impede recruitment, indoctrination and training like attending terrorist training places and funding terrorist activity.80 It is a minimalist use of hate speech

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laws against ethnic violence that can be enforced, lead to prosecutions and have been part of an effective deterrent package in the UK. It might serve as a model for deterring and prosecuting violence cadres elsewhere.

Notes 1 The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-A, 18 March 2010, para. 50. 2 The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-A, 18 March 2010, para. 170. 3 A. Pratkanis and E. Aronson, The Art of Propaganda, New York, NY: Freeman, 2001, p. 11. 4 F. Toennies, Kritik der Offentlichen Meinung, Leipzig, 1922, preface. 5 J. Steiner, A. Bächtiger, M. Spörndli and M.R. Steenbergen, Deliberative Politics in Action. Analyzing Parliamentary Discourse, Cambridge: Cambridge University Press, 2005. 6 W. Gamson, Talking Politics, Cambridge: Cambridge University Press, 1992. 7 C. Lindblom, Inquiry and Change, New Haven, CT: Yale University Press, 1990, pp. 78–79. 8 T. van Dijk, ‘Discourse and Manipulation’, Discourse and Society, vol. 17, no. 2, 2006, pp. 359–383. 9 C. Hovland et al., Communication and Persuasion, New Haven, CT: Yale University Press, 1963. 10 Pratkanis and Aronson, The Art of Propaganda, pp. 210–215. 11 J.P. Derrienic, Les Guerres Civiles, Paris: Presses de Science Po, 2002, p. 102. 12 Quoted in S. Carruthers, The Media War, New York, NY: St. Martin’s Press, 2000, p. 76. 13 J. Waller, Becoming Evil. How Ordinary People Commit Genocide and Mass Killing, New York, NY: Oxford University Press, 2002. 14 E. Katz and P. Lazarsfeld, Personal Influence, Glencoe, IL: Free Press, 1955; D. Mutz, Impersonal Influence, New York, NY: Cambridge University Press, 1998. 15 W. Brustein, Roots of Hate. Anti-Semitism in Europe before the Holocaust, Cambridge: Cambridge University Press, 2003. 16 Brustein, Roots of Hate, p. 25. 17 Brustein, Roots of Hate, pp. 46–47. 18 A. Oberschall, Vojislav Sˇesˇelj’s nationalist propaganda: contents, techniques, aims and impacts, 1990–1994, an expert report for the United Nations International Criminal Tribunal for the Former Yugoslavia, Case No. IT-03-67. 19 A. Smith, Chosen Peoples, Oxford: Oxford University Press, 2003; E. Gellner, Nations and Nationalism, Ithaca, NY: Cornell University Press, 1983. 20 Official Notice Concerning the Expert Report by Anthony Oberschall, August 5, 2006. 21 B. Denitch, Ethnic Nationalism: The Tragic Death of Yugoslavia, Minneapolis, MN: University of Minnesota Press, 1996, p. 117. 22 Aleksa Đilas, ‘Fear Thy Neighbor’, in C. Kupchan (ed.), Nationalism and Nationalities in the New Europe, Ithaca, NY: Cornell University Press, 1995, p. 85. 23 M. Thompson, Forging War: The Media in Serbia, Croatia, and Bosnia Hercegovina, London: Article 19: International Center Against Censorship, 1994, p. 128. 24 J. Hagan and W. Rymond-Richmond, Darfur and the Crime of Genocide, Cambridge: Cambridge University Press, 2009. 25 Ibid., p. 109. 26 S. Bollens, Urban Peace Building in Divided Society, Boulder, CO: Westview, 1999, pp. 102–113.

196 Propaganda, War Crimes Trials and International Law 27 M. Mann, The Dark Side of Democracy, Explaining Ethnic Cleansing, Cambridge: Cambridge University Press, 2005, p. 8. 28 D. Horowitz, The Deadly Ethnic Riot, Berkeley, Los Angeles, CA and London: University of California Press, 2001, p. 14. 29 Mann, The Dark Side of Democracy, pp. 6 and 23. 30 B. Valentino, Final Solutions. Mass Killings and Genocide in the 20th Century, Ithaca, NY: Cornell University Press, 2004. 31 A. Varshney, Ethnic Conflict and Civil Life, New Haven, CT: Yale University Press, 2002. 32 Ibid., p. 11. 33 E. Staub, The Roots of Evil. The Origins of Genocide and Other Group Violence, Cambridge: Cambridge University Press, 1989. 34 Mann, The Dark Side of Democracy, p. 9. 35 A. Bandura, The role of selective disengagement in terrorism and counterterrorism, Palo Alto, CA: Stanford University, Department of Psychology, 2004, pp. 5 and 24. 36 S. Atran, ‘The Surprises of Suicide Terrorism’, DISCOVER, vol. 24, no. 10, October 2003, pp. 1–2. 37 Statement by Marc Sageman to the National Commission on Terrorism Attacks upon the United States, July 9, 2003. Publishing on the Internet. Online. Available HTTP: (accessed 5 January 2011). 38 A. Pedhazur, P. Arlie and L. Weinberg, ‘Explaining Suicide Terrorism’, in C. Ankersen (ed.), Understanding Global Terror, Cambridge: Polity, 2007, p. 6. 39 M. Sageman, ‘Explaining Terror Networks in the 21st Century’, Footnotes, May/June 2008, p. 7. 40 C. Browning, Ordinary Men. Reserve Batallion 101 and the Final Solution in Poland, New York, NY: Harper Collins, 1992. 41 T. Judah, The Serbs, New Haven, CT: Yale University Press, 1997, p. 204. 42 Quoted in I. Wesselingh and A. Vaulerin, Raw Memory: Prijedor, Laboratory of Ethnic Cleansing, London: SAQI, 2005, p. 46. 43 ‘Public Opinion Survey on the Federal Executive Council’s Social and Economic Reforms’, Yugoslav Survey, 1990, No. 1, p. 25. 44 L. Sekelj, Yugoslavia: The Process of Disintegration, Boulder, CO: Social Science Monographs, 1993, p. 277. 45 M. Glenny, The Fall of Yugoslavia, London: Penguin, 1992, p. 19. 46 US Helsinki Watch Committee, Yugoslavia: Crisis in Kosovo, New York, NY: Human Rights Watch, 1990. 47 J. Mertus, Kosovo: How Myths and Truths Started a War, Berkeley, Los Angeles, CA and London: University of California Press, 1999, p. 108. 48 S. Popovic´ et al., Kosovski cˇvor: odresˇiti ili sec´i, Belgrade: Biblioteka Kronos, 1990. 49 R. Thomas, The Politics of Serbia in the 1990s, New York, NY: Columbia University Press, 1999, p. 45. 50 B. Anzulovic´, Heavenly Serbia: From Myths to Genocide, New York, NY: New York University Press, 1999, p. 146. 51 A. Oberschall, ‘The manipulation of ethnicity: from cooperation to violence and war in Yugoslavia’, Ethnic and Racial Studies, vol. 23, no. 6, 2000, pp. 982–1001. 52 Denitch, Ethnic Nationalism, p. 181. 53 Oberschall, ‘The manipulation of ethnicity: from cooperation to violence and war in Yugoslavia’, p. 292. 54 R. Cohen, Hearts Grown Brutal, New York, NY: Norton, 1998, p. 22. 55 Interview with Vojislav Sˇesˇelj in Duga, 13 April 1993. 56 M. Markovic´, Answers, Kingston: Quarry Press, 1996, p. 58. 57 S. Slapsˇak, Ogledi o bezbrizˇnosti, Belgrade: Radio B92, 1994.

Propaganda, hate speech and mass killings 197 58 Z. Markovic´, ‘Die Nation: Opfer und Rache’, in Bremer, T., et al., Serbiens Weg in den Krieg, Berlin: Berlin Verlag, 1998, pp. 86–89. 59 D. Reljic´, Killing Screens, Dusseldorf: Droste, 1998, p. 48. 60 T. Mazowiecki, Special Report on the Media, United Nations, E/CN.4/1995/54, Dec. 13, 1994, para. 165. 61 Thompson, Forging War, p. 81. 62 R. Veljanovski, ‘Die Wende in den Elektronischen Medien’, in Bremer, T. (ed.), Serbiens Weg in den Krieg, Berlin: Berlin Verlag, 1998, pp. 312–313. 63 L. Lalic´, Three Years in TV Serbia, Belgrade: Independent Media Union, 1995, pp. 106–107. 64 V. Goati, Elections in FRY from 1990 to 1998, Belgrade: CeSID, 2000, p. 120. 65 Thompson, Forging War, p. 93. 66 E. Gordy, The Culture of Power in Serbia: Nationalism and the Destruction of Alternatives, University Park, PA: Pennsylvania State University Press, 1999. 67 K. Kurspahic´, Prime Time Crime: Balkan Media in War and Peace, Washington, DC: United States Institute of Peace, 2003, p. 56. 68 Ibid., p. 98. 69 Goati, Elections in FRY, p. 78. 70 I. Spasic´, ‘Symbolization and collective identity in civic protest’, Sociologija, vol. 34, no. 1, Jan/March 1997. 71 Thompson, Forging War, p. 126. 72 Cohen, Hearts Grown Brutal, p. 434. 73 P. Mass, Love Thy Neighbor: A Story of War, New York, NY: Knopf, 1995, p. 113. 74 Thompson, Forging War, p. 264. 75 Goati, Elections in FRY, chapters 2–4. 76 Spasic´, ‘Symbolization and collective identity in civic protest’. 77 A. Oberschall, ‘Protest demonstrations and the end of communist regimes in 1989’, in M. Dobkowski and I. Wallimann (eds), Research in Social Movements, Conflict and Change, Greenwich, CT: JAI Press, 1994, vol. 17. 78 ‘Who wants to be a soldier? The call up crisis – an analytic overview of media reports’, Republika, vol. X, no. 198–9, October 1998, reprinted in B. Magasˇ and I. Zˇanic´, The War in Croatia and Bosnia-Hercegovina, London: Frank Cass, 1991–1995, pp. 329–345. 79 J. Wadron, ‘Free Speech and the Menace of Hysteria’, New York Review of Books, May 29, 2008. 80 J. Beckman, Comparative Approaches to Homeland Security and Anti-Terrorism, Burlington, VT: Ashgate, 2007, chapter 2.

Bibliography Anzulovic´, B., Heavenly Serbia: From Myths to Genocide, New York, NY: New York University Press, 1999. Atran, S., ‘The Surprises of Suicide Terrorism’, DISCOVER, vol. 24, no. 10, October 2003. Bandura, A., The role of selective disengagement in terrorism and counterterrorism, Palo Alto, CA: Stanford University, Department of Psychology, 2004. Beckman, J., Comparative Approaches to Homeland Security and Anti-Terrorism, Burlington, VT: Ashgate, 2007. Bollens, S., Urban Peace Building in Divided Society, Boulder, CO: Westview, 1999. Browning, C., Ordinary Men. Reserve Batallion 101 and the Final Solution in Poland, New York, NY: Harper Collins, 1992. Brustein, W., Roots of Hate. Anti-Semitism in Europe before the Holocaust, Cambridge: Cambridge University Press, 2003.

198 Propaganda, War Crimes Trials and International Law Carruthers, S., The Media War, New York, NY: St. Martin’s Press, 2000. Cohen, C., Hearts Grown Brutal, New York, NY: Norton, 1998. Denitch, B., Ethnic Nationalism: The Tragic Death of Yugoslavia, Minneapolis, MN: University of Minnesota Press, 1996. Derrienic, J.P., Les Guerres Civiles, Paris: Presses de Science Po, 2002. Dijk, van, T., ‘Discourse and Manipulation’, Discourse and Society, 2006, vol. 17, no. 2. Đilas, A., ‘Fear Thy Neighbor’, in Kupchan, C. (ed.), Nationalism and Nationalities in the New Europe, Ithaca, NY: Cornell University Press, 1995. Gamson, W., Talking Politics, Cambridge: Cambridge University Press, 1992. Gellner, E., Nations and Nationalism, Ithaca, NY: Cornell University Press, 1983. Glenny, M., The Fall of Yugoslavia, London: Penguin, 1992. Goati, V., Elections in FRY from 1990 to 1998, Belgrade: CeSID, 2000. Gordy, E., The Culture of Power in Serbia: Nationalism and the Destruction of Alternatives, University Park, PA: Pennsylvania State University Press, 1999. Hagan, J. and Rymond-Richmond, W., Darfur and the Crime of Genocide, Cambridge: Cambridge University Press, 2009. Horowitz, D., The Deadly Ethnic Riot, Berkeley, Los Angeles, CA and London: University of California Press, 2001. Hovland, C., et al., Communication and Persuasion, New Haven, CT: Yale University Press, 1963. Judah, T., The Serbs, New Haven, CT: Yale University Press, 1997. Katz, E. and Lazarsfeld, P., Personal Influence, Glencoe, IL: Free Press, 1955. Kurspahic´, K., Prime Time Crime: Balkan Media in War and Peace, Washington, DC: United States Institute of Peace, 2003. Lalic´, L., Three Years in TV Serbia, Belgrade: Independent Media Union, 1995. Lindblom, C., Inquiry and Change, New Haven, CT: Yale University Press, 1990. Magasˇ, B. and Zˇanic´, I., The War in Croatia and Bosnia-Hercegovina, London: Frank Cass, 1991–1995. Mann, M., The Dark Side of Democracy, Explaining Ethnic Cleansing, Cambridge: Cambridge University Press, 2005. Markovic´, M., Answers, Kinston: Quarry Press, 1996. Markovic´, Z., ‘Die Nation: Opfer und Rache’, in Bremer, T., et al., Serbiens Weg in den Krieg, Berlin: Berlin Verlag, 1998. Mass, P., Love Thy Neighbor: A Story of War, New York, NY: Knopf, 1995. Mazowiecki, T., Special Report on the Media, United Nations, E/CN.4/1995/54, Dec. 13, 1994. Mertus, J., Kosovo: How Myths and Truths Started a War, Berkeley, Los Angeles, CA and London: University of California Press, 1999. Mutz, D., Impersonal Influence, New York, NY: Cambridge University Press, 1998. Mutz, D., ‘Protest demonstrations and the end of communist regimes in 1989’, in M. Dobkowski and I. Wallimann (eds), Research in Social Movements, Conflict and Change, Greenwich, CT: JAI Press, 1994, vol. 17. Mutz, D., ‘The manipulation of ethnicity: from cooperation to violence and war in Yugoslavia’, Ethnic and Racial Studies, vol. 23, no. 6, 2000. Oberschall, A., Vojislav Sˇesˇelj’s nationalist propaganda: contents, techniques, aims and impacts, 1990–1994, an expert report for the United Nations International Criminal Tribunal for the Former Yugoslavia, Case No. IT-03-67. Pedhazur, A., Arlie, P. and Weinberg, L., ‘Explaining Suicide Terrorism’, in Ankersen, C. (ed.), Understanding Global Terror, Cambridge: Polity, 2007.

Propaganda, hate speech and mass killings 199 Popovic´, S., et al., Kosovski cˇvor: odresˇiti ili sec´i, Belgrade: Biblioteka Kronos, 1990. Pratkanis, A. and Aronson, E., The Art of Propaganda, New York, NY: Freeman, 2001. ‘Public Opinion Survey on the Federal Executive Council’s Social and Economic Reforms’, Yugoslav Survey, 1990, No. 1. Reljic´, D., Killing Screens, Dusseldorf: Droste, 1998. Sageman, M., Statement to the National Commission on Terrorism Attacks upon the United States, July 9, 2003. Publishing on the Internet. Online. Available HTTP: (accessed 5 January 2011). Sageman, M., ‘Explaining Terror Networks in the 21st Century’, Footnotes, May/June 2008. Sekelj, L., Yugoslavia: The Process of Disintegration, Boulder, CO: Social Science Monographs, 1993. Slapsˇak, S., Ogledi o bezbrizˇnosti, Belgrade: Radio B92, 1994. Smith, A., Chosen Peoples, Oxford: Oxford University Press, 2003. Spasic´, I., ‘Symbolization and collective identity in civic protest’, Sociologija, vol. 34, no. 1, Jan/March 1997. Staub, E., The Roots of Evil. The Origins of Genocide and Other Group Violence, Cambridge: Cambridge University Press, 1989. Steiner, J., Bächtiger, A., Spörndli, M. and Steenbergen, M.R., Deliberative Politics in Action. Analyzing Parliamentary Discourse, Cambridge: Cambridge University Press, 2005. Thomas, R., The Politics of Serbia in the 1990s, New York, NY: Columbia University Press, 1999. Thompson, M., Forging War: The Media in Serbia, Croatia, and Bosnia Hercegovina, London: Article 19: International Center Against Censorship, 1994. Toennies, F., Kritik der Offentlichen Meinung, Leipzig, 1922. US Helsinki Watch Committee, Yugoslavia: Crisis in Kosovo, New York, NY: Human Rights Watch, 1990. Valentino, B., Final Solutions. Mass Killings and Genocide in the 20th Century, Ithaca, NY: Cornell University Press, 2004. Varshney, A., Ethnic Conflict and Civil Life, New Haven, CT: Yale University Press, 2002. Veljanovski, R., ‘Die Wende in den Elektronischen Medien’, in Bremer, T., et al., Serbiens Weg in den Krieg, Berlin: Berlin Verlag, 1998. Wadron, J., ‘Free Speech and the Menace of Hysteria’, New York Review of Books, May 29, 2008. Waller, J., Becoming Evil. How Ordinary People Commit Genocide and Mass Killing, New York, NY: Oxford University Press, 2002. Wesselingh, I. and Vaulerin, A., Raw Memory: Prijedor, Laboratory of Ethnic Cleansing, London: SAQI, 2005.

Table of cases ICTR The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-A.

ICTY The Prosecutor v. Vojislav Sˇ esˇelj, ICTY Case No. IT-03-67.

Part 3

Trials and jurisprudence: a scrutiny

Chapter 6

Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher Margaret Eastwood

Who was Julius Streicher the notorious German ‘Jew-baiter’? “He was, in short, a common man’s fanatic. Hitler was distant, Goebbels too intellectual, but a terrible message with enormous fervor, and fervor is always convincing.” R.L. Bytwerk1

Propaganda, persecution and mass murder In 1945–46, the Streicher case represents the first time that the action of inciting mass murder through propaganda was successfully prosecuted by the IMT. At Nuremberg, Streicher, the anti-Semitic Nazi propagandist or latterly nicknamed, the “King or Beast of Franconia” was accused of using propaganda that incited anti-Jewish hatred by endorsing the Nazi Party’s persecutory policies. Prior to the establishment of the IMT, international criminal law had not prosecuted individuals for inciting mass murder through words alone.2 This chapter explores how the prosecution selectively interpreted and reclassified Streicher’s anti-Semitic propaganda used in speeches and published in his private newspaper Der Stürmer (The Attacker), as “words used as persecution,” notwithstanding that hateful words were not criminalised under the Nuremberg Charter. The main theme being, how did the prosecution’s evidence against Streicher progress from “insufficient to determine his guilt,” to providing the mens rea that enabled the IMT to find him guilty of “incitement to murder and extermination”? After the Nuremberg trials,3 the offense of “persecution” under paragraph 6(c), Crimes Against Humanity, became synonymous with the systematic persecution of the Jews under the Nazi Party’s genocidal conquests. Today, this offense is analogous with “direct and public incitement to commit genocide” as codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter Genocide Convention).4

The foremost anti-Semite of Nazi Germany? Streicher’s anti-Semitic career began in 1919: he claims that his decisions to “educate the world” about the “Jewish Race” was based on his early childhood,

204 Propaganda, War Crimes Trials and International Law

after being plagued and cheated by Jews.5 By 1919, Streicher became active in the racist organization Schutz und Trutzbund, “German Racialists” Defence and Offence League.6 In 1922, Streicher merged his followers with Adolf Hitler, almost doubling the membership of the Nazi Party, and earning Hitler’s lifelong gratitude. Hitler wrote in Mein Kampf that it must have cost Streicher a great effort to hand over the movement to him. Streicher participated in the Munich “Beer Hall Putsch” in 1923; Hitler made him “Director of Propaganda” and Streicher drove around Munich, speaking to street-corner crowds, announcing the revolution. In the same year, Streicher founded his anti-Semitic newspaper, Der Stürmer, which reached a peak circulation of 480,000 in 1935. As editor, he routinely blamed the Jews for all social ills occurring in Germany. After the Nazi Party came into power, Hitler soon appointed Streicher as Gauleiter7 of Franconia that governed Nuremberg. By 1940, after allegedly being involved in major financial and sex scandals and slandering Hermann Göring, Streicher was stripped of all party offices and “retired” to his rural estate in Pleikershof. However, with Hitler’s protection, to the distain of other Nazi leaders, and against numerous critics and enemies, Streicher carried on publishing his private newspaper Der Stürmer during the war.8 Kipphan9 claims “Stürmer was perhaps the most radical racist paper in modern history, one of the freest publications in pre-World War II Nazi Germany, being subject neither to strategical Party considerations, nor to censorship of Goebbels’ Propaganda Ministry.”10 Normally, Hitler praised the work of Streicher and Der Stürmer, and this was the reason he allowed the defendant a free hand. (See Figure 6.1.) Captain Drexel Sprecher, assistant trial counsel for the USA, notes: “Streicher was known outside of Germany as the foremost anti-Semite of Nazi Germany, and after Goering and Hess was probably the most widely known of the defendants.”11 Streicher had been one of Hitler’s first political allies and a devoted Nazi follower, plus, Der Stürmer had given him notoriety throughout Germany.

Indictment and pre-trial interrogations Streicher’s indictment charged him with Counts One—“the common plan or conspiracy,” and Four—“crimes against humanity,” under Articles 6(a) and 6(c) respectively. Although the Tribunal did not specifically state the prerequisite actus reus for crimes against humanity, this was implied as: “persecution of political, racial, and religious groups . . .” under the Nuremberg Charter.12 For this offense the prosecution needed to prove that Streicher had the criminal intent or mens rea to incite, prompt or provoke another to commit acts of mass murder. Thus, the basis for Streicher’s criminal responsibility for committing “persecution” took on a new meaning in international criminal law. Initially, during the pre-trial interrogations, the interrogator was more concerned in determining Streicher’s “knowledge” of the Nazis’ plans to wage aggressive war, and sought to link him with “participation in a common plan or conspiracy” under Count One, otherwise he lacked the mens rea for committing this crime.13

Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher 205

In his opening speech to the IMT, Justice Jackson specifically addressed the role played by the “inciters behind the scenes” of the “Nazi conspiracy,”14 which was the offense allegedly committed by Streicher. Evidence and information obtained during interrogations was categorized and classified as containing “probative value.”15 Interrogations aimed to fill the gaps in documentary evidence, and/or give additional information regarding Streicher’s activities as Gauleiter and his anti-Semitic propaganda. Overy comments: “Although his interrogators refused to believe it, the chief defendant selected to represent Nazi anti-Semitism, Julius Streicher, played almost no role in carrying out the genocide and could furnish no account of it.”16 Despite the allegations of guilt made against Streicher during the interrogations, there appeared to be a distinct lack of substantive evidence against him, which was expressed by Colonel Brundage only weeks before the trial started (see Figure 6.2). These concerns were documented in a memorandum sent to Colonel Amen, the Director of the Interrogation Division: “It is noteworthy that there appears to be scant material of probative value in this office respecting Streicher as a War Criminal”.17 In another memo to the Tribunal’s Board of Review, on November 10, 1945, Brundage again reiterated the perceived lack of evidence against this defendant. This was ten days before the start of the trial. The memo discussed the preliminary trial brief, in which Brundage noted: “The case, as it now stands against Streicher, is not strong,” he considered that additional evidence needed to be processed.18 Brundage considered that a stronger case could develop more quickly by obtaining evidence of Streicher’s conduct as Gauleiter.19 Streicher’s name had become synonymous with the extermination process of European Jews. As a result, his acquittal would have been difficult for the Allies who held his propaganda as morally reprehensible. Through this propaganda designed to incite hatred and fear, Streicher devoted himself, over a period of 25 years, to creating a psychological basis essential to carrying through a program of mass murder. Streicher’s propaganda was disseminated in a country in which there was no free market of ideas; in which, in fact, as the defendant well knew and approved, no countervailing argument could find public expression; and in which, therefore, the impact of such propaganda was of a clearly foreseeable and peculiarly sweeping force.20 Thus, in order to establish Streicher’s guilt, the overall strategy of the prosecution needed to focus more on his anti-Semitic propaganda by linking incitable “words” with Hitler’s extermination program.

Changing negativity into a positive outcome Despite the interrogator’s misgivings concerning the lack of evidence with “probative value” relating to the charge of “conspiracy” under Count One, these actions remained a prominent feature in the prosecution’s trial brief.21 In addition, the trial brief noted that Streicher’s actions were linked with “the programme of relentless persecution of the Jews designed to exterminate them.”22 During

206 Propaganda, War Crimes Trials and International Law

Figure 6.1 This document contains information regarding the career and activities of the defendant, Julius Streicher. It was produced on July 2, 1945, and used by the prosecution as background information to prepare their case against Streicher. Courtesy of The National Archives, UK, ref. WO 208/3806.

Streicher’s trial, over 50 documents were entered into evidence, with more than 20 quotations consisting of extracts taken from anti-Semitic speeches and articles published in the defendant’s newspaper, Der Stürmer. At the start of the prosecution’s submissions, Griffith-Jones referred to the defendant’s indictment, which contained a “Statement of Individual Responsibility” and outlined the offenses allegedly committed by Streicher.23 Griffith-Jones noted that the case against Streicher could be described by the unofficial title that he assumed for himself as “Jew-baiter Number One.”24 This was shown by the intensity of Streicher’s propaganda, its scale and the extended period of time over which he developed, promoted and intensified his anti-Semitic themes, beliefs and assumptions. These were decisive factors in establishing Streicher’s involvement with incitement to mass racist murder: “For the course of some 25 years this man educated the whole of the German people in hatred and that he incited them to the persecution and to the extermination of the Jewish race. He was an accessory to murder, perhaps on a scale never attained before.”25 Consequently, this statement summarizes the main thrust of the prosecution’s case and the rationale that Streicher had a longstanding involvement with this aspect of Nazism from its earliest period, which supported the prosecution’s wider claim that his actions were a causal factor in the persecution of the Jews. It was not difficult for the

Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher 207

Figure 6.2 Memo sent by Colonel Brundage in the course of the investigation conducted by the prosecution in the case against Julius Streicher. Courtesy of US National Archives and Records Administration.

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prosecution to select damning extracts, as according to Griffith-Jones: “[h]is newspapers were crowded with them, week after week, day after day. It was impossible to pick up any copy without finding the same kind of stuff in the headlines and articles.”26 Nevertheless, the prosecution faced the onerous task proving that Streicher’s actions were indeed criminal under the Nuremberg Charter. First, extracts from his early anti-Semitic propaganda was introduced into evidence that included four speeches made during this period.27 This evidence aimed to show that Streicher’s anti-Semitic sentiments would later form part of the Nazi Party’s persecution and segregation policy against the Jews. It sought to stress that, from his earliest political involvement, Streicher had engaged in propaganda that identified Jews as unwanted within Germany, and/or perhaps more widely, claimed their existence represented as a form of oppression against the freedom of German citizens that required the expulsion of this group. A further short extract taken from a speech in April 1925, aimed to emphasize that Streicher wanted to promote not merely the reduction of the allegedly divisive and threatening influence of Jews from the public life of Germany, but their physical removal, even destruction, as a group. During the 1930s, Streicher continued to publish propaganda that intended to entrench the idea that the continuing physical existence of Jews posed a severe threat to the very life of the German nation. This was demonstrated in an article from Der Stürmer in July 1934, entitled “Who is the Enemy?” that warned of a Jewish program for world domination; it blamed Jews for destroying social order and claimed that Jews wanted war, while the rest of the world wanted peace.28 Griffith-Jones sought to strengthen the prosecution’s case by highlighting the defendant’s involvement in other anti-Semitic dimensions of the Nazi Party regime. In order to determine Streicher’s guilt, Griffith-Jones intended to show that the adoption of the Nuremberg Laws of 1935 officially started the Nazi Party’s policy of persecution of Jewry in Germany, by outlawing Jews from positions of private and public authority, depriving them of the right to German citizenship and making marriage and sexual relations between Jews and Germans a criminal offense.29 After the Nazi Party came to power, no legislation within Germany protected Jews, or any other group, religious or otherwise, from Nazi Party policies. Kipphan considers: “When these laws were proclaimed they met only imperfectly Streicher’s more rigorous standards, but publicly he claimed that the racial laws were the fruits of his enlightenment.”30 After Hitler had totally excluded Jews from the political, economic and cultural spheres of German life, Griffith-Jones claimed that Streicher escalated persecutory measures in the Eastern Territories, which was indicated in this order for the “Handling of the Jewish Question.”31 Griffith-Jones wanted to prove that Streicher’s opinions and their practical implications bore the same persecutory characteristic as the measures expressed by the Nuremberg Laws. The chief Soviet prosecutor, General Rudenko, argued: “The fanatical Nuremberg Laws were only the ‘beginning of the struggle’ for this

Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher 209

‘Judophobe Number 1.’”32 Griffith-Jones’ tactic aimed to produce evidence that would establish Streicher’s intentions were clearly identifiable in his anti-Semitic propaganda. To illustrate this, an article written and published in the New Year edition of a newly formed semi-medical newspaper was entered into evidence. Streicher created the paper; the article called “German People’s Health through Blood and Soil,” made reference to fact that Jews and Aryan women should not “crossbreed.”33 By using this article, Griffith-Jones sought to connect Streicher’s racist propaganda related to “racial contamination,” with the measures introduced by the Nuremberg Laws later that year, in which Jews were banned from having sexual relations with, and forbidden to marry, non-Jews. In order to emphasize further the significant role taken by Streicher in the Nazi Party’s policy against the Jews, Griffith-Jones submitted into evidence an extract taken from Der Stürmer in 1936. This appeared to illustrate that Streicher deliberately aligned his propaganda campaign with the increasing anti-Semitic practices of the Nazi regime more generally: The Stürmer’s 15 years of work of enlightenment has already led an army of initiated – millions strong to National Socialism. The continued work of Der Stürmer will help to ensure that every German down to the last man will, with heart and hand join the ranks of those whose aim it is to crush the head of the serpent Pan-Juda beneath their heels. He who helps to bring this about helps to eliminate the devil, and this devil is the Jew.34 Griffith-Jones suggested that this extract provided clear evidence that Streicher wanted the Jew to be widely demonized and eventually crushed by the state— which was acting on behalf of German citizens. It showed his intentions to incite Germans to “eliminate the Jew devil,” precisely at the time when the effects of the Nuremberg Laws were intensifying and gathering pace. In one sense, this aspect of Streicher’s speech gave further support to the prosecution’s case that a direct relationship existed between his anti-Semitic words and specific acts of both symbolic and physical persecution. This was so close that the words themselves could be considered an integral part of Nazi Party policies and practices. Another tactic aimed to show the extraordinary lengths that Streicher utilized in his propaganda to portray the Jew as an “evil-doer,” and a malign source behind Germany’s national troubles. This was shown by a weekly column in Der Stürmer that printed libels against the Jews all over Germany. Such propaganda formed part of, and assisted in, the Nazis’ general boycott of the Jews. Another article in Der Stürmer from 1939, reported on the annual Easter (Eastertide) Jewish ritual, in which Streicher claimed that Jews were still performing this medieval practice of kidnapping and murdering Christian children.35 The prosecution submitted that Streicher’s “ritual murder” propaganda deliberately intended to stir up racial hatred by showing such graphic images that misrepresented the Jews. The prosecution claimed that Streicher’s anti-Semitic propaganda increased in its ferocity after 1938, and resorted to extreme measures

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to get his message across to the public. In order to prove this allegation, the prosecution entered into evidence extracts from a special issue of Der Stürmer, containing a collection of articles referring to preserving “German Blood and Race”: The supreme aim and highest task of the State is therefore to preserve People, Blood, and Race. But if this is the supreme task, any crime against this law must be punished with the supreme penalty. Der Stürmer takes therefore the view that there are only two punishments for the crime of polluting the race: Long term penal servitude for attempted race pollution and death for the completed crime.36 These extracts clearly illustrated Streicher’s intention—if the Jews polluted, or attempted to pollute “German blood,” then they should face long-term imprisonment or death. In fact, the punishments proposed by Streicher were far worse than those introduced by the laws themselves.37 This evidence wanted to support the claim that Streicher’s propaganda acted as a militant force urging on ever more extreme measures of persecution under the guise of national self-defense. Other headlines from special editions of Der Stürmer sought to illustrate that Streicher took every opportunity to persecute Jewish citizens, in various ways, including humiliating and degrading them by writing derogatory articles concerning their private lives: • • • • • •

“Jewish Race Polluters at Work.” “Fifteen-Year-Old Non-Jewess Violated.” “A Dangerous Race Polluter. He regards German women as fair game for himself.” “The Jewish Sanatorium. A Jewish institution for the cultivation of race pollution.” “Rape of a Feeble-Minded Girl.” “The Jewish butler. He steals from his Jewish masters and commits race pollution.”38

Many of these headlines were accompanied by derogatory cartoons of the Jews drawn by Philippe Rupprecht, who went under the pen name of Fips.39 Both of Streicher’s editors—Ernest Hiemer and Karl Holz—wrote anti-Semitic articles for Der Stürmer, which the prosecution used as evidence against him. Streicher made a statement that “Holz and Hiemer were legally responsible for the articles printed in Der Stürmer, but he, (Streicher) was morally responsible, since he could have edited more closely, and prevented the printing of offensive articles, ‘if he had wanted to do so.’”40 Griffith-Jones presented two extracts taken from Der Stürmer, one written by Streicher and the other by Karl Holz: “Revenge will break loose one day and will exterminate Jewry from the face of the earth.”41

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“. . . a parasite, a mischief maker, an evil-doer, a disseminator of disease, who must be destroyed in the interest of mankind.”42 By selecting extracts containing emotive words such as “revenge,” “exterminate” and “destroy,” the prosecution wanted to support their argument that “words used as persecution” themselves represented an integral part of Nazi Party policies and practices. Griffith-Jones submitted the following argument: “This was no longer propaganda for the persecution of the Jews; this was propaganda for the extermination of Jews, for the murder, not of one man, but of millions.”43 To extend the prosecution’s metaphor, Streicher was personally implicated in both the “conception” and “birth” of the Nazis’ ideological justification of the physical annihilation of European Jews, which later culminated in Hitler’s program of actual mass murder. Griffith-Jones asserted that, in 1938, Streicher’s propaganda moved beyond advocating the Jews’ persecution, to positively inciting the mass murder of millions of Jews. Such an offense was not officially recognized as an international offense or recognized as a distinct, identifiable crime under the Charter. Nevertheless, Streicher’s actions could be classified as “persecution,” and his case developed around the indirect consequences of his anti-Semitic propaganda, which allegedly created the climate of loathing leading to the Jewish exterminations. In fact, the prosecution assumed that Streicher should take some responsibility for the introduction of the Nuremberg Laws, seeing as he advocated and campaigned for Jewish segregation long before the racial laws came into force. This opinion was echoed by Bytwerk, who wrote that “the world assumed the Nuremberg Laws were Streicher’s personal triumph, since in Germany and the rest of the world, he was considered second only to Adolf Hitler as the enemy of the Jews.” 44 In the prosecution’s final submission to the Tribunal, Griffith-Jones argued that Streicher may have been less directly involved in the physical commission of the crimes against Jews, than some of his co-conspirators, but his crime was not less in its severity.45 His lack of physical involvement did not make him any less guilty of murderous intent: “The Nazi Party could not have done what they did, without having a large number of people, men and women, who were prepared to put their hands to their bloody murder.”46 This argument alleged that Streicher set himself the task of indoctrinating Germans and, thereby, producing murderers: “In its extent his crime is probably greater and more far-reaching than that of any of the other defendants.”47 Streicher was more responsible, since the affects of deeprooted racist hatred were an unknown entity, and seeds of hatred were sown within Germany until that generation—and perhaps even its children—died. In his early propaganda, Streicher had preached persecution, after that, he personally promoted and then encouraged step-by-step escalation of the Nazi Party’s anti-Semitic policies. “As persecutions took place he preached extermination and annihilation and, as we have seen in the ghettos of the East, as millions of Jews were being exterminated and annihilated, he cried out for more and more.”48 This was a powerful argument; it accused Streicher of being the key inciter of Jewish hatred,

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which positioned him with the dominant Nazi leaders who had status and backing of the German government, even when Streicher had none of these attributes.

Cross-examination of a condemned man Cross-examination gave the prosecution a chance to discredit Streicher’s testimony, weaken his credibility as a witness, and cast doubts over his defense statement. It sought to build on the arguments presented during the initial prosecution, and introduce new evidence. The Daily Telegraph of April 29, 1946, described Griffith-Jones’ approach as suave and icily courteous. Wolf Frank, the simultaneous translator, remembers it as dramatic and damning—he recorded that GriffithJones never even glanced at Streicher. “He treated him as if he were a disgusting mess on the pavement, which one would skirt, eyes and nose averted.”49 New evidence presented during the cross-examination aimed to discredit Streicher’s testimony by establishing his knowledge of the Nazis’ extermination of Jews taking place in the Eastern Territories. Griffith-Jones suggested that, despite Streicher’s early and personal involvement with the Nazi Party’s movement from the 1920s, “It might be preferable to avoid cross-examination of Streicher’s acts before 1937 and concentrate on his incitement to persecution after that date, and on the ways he had rallied public opinion, which was valuable to all Nazi plans.”50 In spite of this, the British prosecutors had not given up completely on establishing Streicher’s guilt under Count One. An official document dated June 1, 1946, recorded the views of the British prosecution a month after the cross-examination of April 29, 1946: As for Count One, Sir David thought Streicher would present difficulties and he thought the team should consider that aspect. It raises the question as to how far participation in getting political control of Germany which Hitler and those around proceeded to use as an instrument of aggressive war justifies a verdict of guilty under Count One.51 This difficulty did not arise in establishing that the German people had been terrorized by the Nazi Party and their own government in order to gain control. The problem was in proving that the driving force behind Hitler’s ruthless regime was aggressive war. Participation in this action justified a guilty verdict under Count One. Here lay the prosecution’s dilemma. To compensate for this lack of evidence with “probative value,” the prosecution now planned to accentuate Streicher’s actions in relation to persecution of the Jews under crimes against humanity. The prosecution made their strategy clear, during the above meeting in which they discussed Streicher’s case. Although this meeting took place after the cross-examination, it is assumed that this was the thinking behind Streicher’s cross-examination prosecution: With regard to Streicher, Sir David (Maxwell Fyfe) did not think there would be any difficulty in proving the case but it ought to be coordinated with the

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counts we are pressing for; have a clear argument that Streicher is guilty of accessory before the fact52 and murder under Count Four.53 This comment indicated that the prosecution were confident of establishing Streicher’s guilt under Count Four, and planning to press for a guilty verdict based on his actions of “incitement to murder.” The prosecution planned to prove that, even with this knowledge of actual genocide unfolding, Streicher’s propaganda continued to incite racial hatred and, thereby, encouraged the killings to continue. This included extracts printed in Der Stürmer from 1939 onwards. Griffith-Jones alleged that Streicher openly advocated, urged, supported and demanded extermination of the Jewish people. His propaganda “Was of a character calculated at once to promote general acceptance of the idea of extermination as just and appropriate, and to agitate for mass extermination.”54 Paralleling these activities with the allegations previously discussed, they are more significant in terms of Streicher’s responsibility for committing crimes against humanity under Count Four of the indictment. During the cross-examination, Griffith-Jones attempted to outwit the defendant and demonstrate that Streicher lied in respect of what he had read in the Jewish Swiss newspaper, the Israelitisches Wochenblatt, The Times in London, the Declaration of the United Nations, and other foreign sources. This line of reasoning became the key argument pursued during Streicher’s cross-examination, thus, an important factor in determining his guilt. Pursuing this line of questioning, Griffith-Jones entered a bundle of documents into evidence containing various extracts of articles written between January 1939 and January 1941 either by Streicher, or other members of Der Stürmer staff.55 First, an article printed November 4, 1943, which stated: “It is actually true that the Jews have so to speak disappeared from Europe and that the Jewish ‘Reservoir of the East’ from which the Jewish pestilence has for centuries beset the peoples of Europe has ceased to exist.”56 During their initial submission, Griffith-Jones argued that this article confirmed that Streicher knew what was happening; perhaps not the full details, but that he clearly knew that the Jews were being exterminated in the Eastern Territories. Other extracts taken from the Israelitisches Wochenblatt, from July 1941 until the end of the war were entered into evidence. They contained details of the number of Jews killed during this period in the Occupied Territories.57 When questioned regarding these reports, Streicher responded by saying that they only spoke of thousands and not millions of deaths: “That is no proof that millions were killed. There are no details as to how they came to their end.” 58 By showing these extracts, the prosecution intended to establish that Streicher had lied to the Tribunal regarding his knowledge of such events. In order to substantiate this claim, further extracts from various articles published by Streicher were entered into evidence.59 Griffith-Jones wanted to know if the word used for extermination “Ausrottung,” meant rooting out, or extirpation: “Can you tell me, is that ‘extermination’? Does that mean murder of Jews? What else can it mean?”60 Streicher objected to Griffith-Jones’ interpretation of this extract, because the

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meaning of the word depended on the context of the article. In effect, Streicher could not offer a suitable defense for the choice of language used in these extracts, but he replied confidently: “When that article appeared, mass killing had already taken place a long time ago.”61 President Lawrence noted that Streicher should take note of the date of the article, which in December 25, 1941 did not mean that the exterminations had finished.62 The next extract from an article in the Israelitisches Wochenblatt, stated that millions of Jewish victims were being transported to “unknown destinations in the East.”63 Griffith-Jones wanted to know: “Is that what you call a hint of disappearance of Jews from the East?”64 Another report with the heading “Eye for Eye, Tooth for Tooth,” was taken from The Times, and then reprinted in Der Stürmer.65 Streicher claimed that when he spoke about exterminating the Jews, it was not meant literally. Dr Gilbert noted that when Streicher made this comment, it produced a contemptuous reaction from the defendant Frank, who glared at him during the intermission and hissed: “The swine did not know anything about the murders! – I am the only one who knew anything about it! How can he lie under oath like that?”66 The defendant claimed that he had literary license to take revenge against the verbal attacks made against Germany by the American Jew Kaufman.67 This extract clearly indicated that in 1942 mass atrocities had already been committed against the Jews. It sustained the prosecution’s argument that Streicher had knowledge of Hitler’s extermination policy. In order to establish that further sources of information were available to Streicher, other than reports in foreign newspapers, Griffith-Jones sought to convince the Tribunal that the defendant must have heard of the Declaration of the United Nations, made on December 17, 1942.68 Again, these reports clearly referred to the number of Jewish deaths in Germany and the Occupied Territories. Another article dated January 8, 1943 stated: “The Polish Government in London has issued a new declaration which states that all the information received agrees that a third of the three million odd Jews have lost their lives.”69 In order to prove that Streicher carried on inciting Jewish hatred, even after being aware of the reports in foreign newspapers, Griffith-Jones entered into evidence an article written by Streicher’s editor, Hiemer, on January 28, 1943.70 This extract illustrated that Streicher’s editor had advocated the mass killing of Jewry as a solution to the “Jewish question,” which amounted to racial incitement of the worst kind.71 Here, the prosecution pressed Streicher to admit that National Socialism thought the only solution for Jewry was extermination, and that he published these articles that incited anti-Jewish hatred, whilst being perfectly aware of what was happening in the Eastern Territories.72 Streicher would not concede and/or accept that Hitler’s intention was to exterminate European Jewry. GriffithJones expressed puzzlement that Streicher had testified under oath that morning that the Israelitisches Wochenblatt did not contain figures of Jews murdered: “You didn’t say that the figures were unbelievable; you told this Tribunal, on your oath, that the newspaper contained nothing except the hints of disappearance, with no mention of figures.”73 The second phase of the cross-examination aimed to highlight certain discrepancies in Streicher’s testimony and destroy confidence in

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his reliability as a witness. The prosecution sought to show how he had copied an article, verbatim in Der Stürmer, from the Israelitisches Wochenblatt, dated August 27, minus the references made to the number of Jews missing and murdered. After writing “The Jewish reservoir of the East which was able to counterbalance the force of assimilation in the West no longer exists,” the original text from the Israelitisches Wochenblatt then went on to say: “three million dead, the same number outlawed; many thousands, all over the world, mentally and physically broken.”74 Griffith-Jones pursued the cross-examination by wanting to know: “Are you telling this Tribunal now that on August 27, or when you read the above article, you did not know that Jews were being murdered in the East, and that you had not read of those things in the Israelitisches Wochenblatt?”75 This was the main crux of the prosecution’s cross-examination. This evidence demonstrated that Streicher had definitely read one particular copy of the Israelitisches Wochenblatt. Despite this damning evidence the defendant was not prepared to admit that he believed what was printed in a foreign Jewish newspaper. After this exchange of words, it appeared that Griffith-Jones’ cross-examination strategy had been successful. After seeing this particular copy of the Israelitisches Wochenblatt, Streicher had undoubtedly known exact details of the exterminations, and the evidence produced by the prosecution had shown this to the Tribunal. Griffith-Jones wanted to remind Streicher that the prosecution suggested: “he incited the German people to murder.”76 In order to support this allegation, he wanted to illustrate that Streicher’s genocidal intentions were obvious in an article published on January 6, 1944, after already reading of Jewish exterminations: After the National Socialist uprising in Germany, a development began in Europe, too, from which one can expect that it will free this continent for all time of the Jewish disintegrator and exploiter of nations; and, over and above this, that the German example will, after a victorious termination of the Second World War, bring about the destruction of the Jewish world tormentor on the other continents as well.77 Griffith-Jones introduced further extracts from Der Stürmer from the 1940s that sought to show Strieicher’s mens rea: January 24, 1944: Whoever does what a Jew does is a scoundrel, a criminal, and he who repeats and wishes to copy him deserves the same fate annihilation, death. March 2, 1944: Eternal night must come over the born criminal race of Jews so that eternal day may bless awakening non-Jewish mankind. May 25, 1944: The cause and the carrier of the disease, the germ, will see to that. But if the nations are to be restored to health and are to remain healthy in the future, then the germ of the Jewish world plague must be destroyed, root and branch.

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August 10, 1944: Der Stürmer stated that if Judaism lost the war it would be ruined: “Then Judaism should be annihilated down to the last man.”78 Griffith-Jones wanted an explanation why Streicher had gone on week after week crying for the extermination and murder of the Jews, when he knew what was happening. In response, Streicher repeated his previous claim: “If a Jew, Erich Kaufman, demands mass murders in Germany, then perhaps I, as an author, can say that the Jews too should be exterminated. That is a literary matter.”79 Streicher protested: “I state here that if I had known what had in fact happened in the East, then I would not have used these quotations at all.”80 Despite Streicher’s denials, the prosecution had made its argument clear, and convincingly demonstrated that Streicher had read at least one copy of the Israelitisches Wochenblatt, and lied under oath regarding his knowledge of Jewish exterminations in the Eastern Territories: “You must have known then, must you not, after reading that article, after sending your cameraman, after the United Nations published their declaration, after Hitler’s prophecies had been made repeatedly in his proclamations, after you said his prophecy had been fulfilled? You really say you didn’t know?”81 Despite Streicher’s denials, the prosecution had made its argument clear. There were “Plenty of figures, it now turns out, doesn’t it?”82 After the crossexamination, not only did the prosecution establish that Streicher had knowledge of Jewish deaths; but went on to prove that the defendant carried on inciting Jewish hatred in Der Stürmer even after he knew of the exterminations. Yet, Telford Taylor comments that neither direct nor cross-examination had resolved the difficulties of deciding Streicher’s fate.83

Victor’s justice or wilful revenge? In reaching a decision, the Allied judges needed to establish whether Streicher was guilty “beyond reasonable doubt” of these charges alleged by the prosecution, or innocent as the defense claimed. This included the “common plan or conspiracy” under Count One—crimes against peace; and “persecutions” under Count Four— crimes against humanity. President Lawrence gave details of Streicher’s antiSemitic propaganda “For his twenty-five years of speaking, writing, and preaching hatred of the Jews, Streicher was widely known as ‘Jew-Baiter Number One.’”84 This echoed the same opinion as the prosecution and found that “Streicher’s speeches and articles, week after week, month after month, had infected the German mind with the virus of anti-Semitism and incited the German people to active persecution.”85 The judgment discussed in some detail “how” Streicher’s anti-Semitic propaganda had “persecuted the Jews” even when knowing the consequences of his actions. It mentioned a leading article of September 1938, in which Streicher termed the Jew as “a germ and a pest, not a human being, but a parasite, an enemy, an evil-doer, a disseminator of diseases who must be destroyed in the interest of mankind.”86 Another article referred to by the judgment, but written by Karl Holz, urged that “only when world Jewry had been annihilated

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would the Jewish problem be solved.”87 In order to illustrate how Streicher had “infected” the readers of Der Stürmer with anti-Semitic hatred, the judgment referred to a letter written in February 1940, by one of its readers. This extract “compared Jews with swarms of locusts that must be exterminated completely.” The judgment accepted that there was a causal link in which one Der Stürmer reader was incited, thereby, a consequence of Streicher’s propaganda. Although this did not establish every Der Stürmer reader was affected in the same way; it was sufficient for the judges to determine that incitement had occurred: “Such was the poison that Streicher injected into the mind of thousands of Germans, that it caused them to follow the National Socialists policy of Jewish persecution and extermination.”88 The prosecution never established that Streicher was responsible for millions of Germans joining the Nazi Party; they merely speculated that he did, and the Tribunal were convinced by their submissions. To offer further illustrations of how Der Stürmer incited Jewish hatred, the judgment referred to an article published in May 1939, in which Holz advocated the extermination of Russian Jews: “A punitive expedition that will provide the same fate for them that every murderer and criminal must expect. Death sentence and execution. The Jews in Russia must be killed. They must be exterminated root and branch.”89 The judges considered that this article clearly demonstrated the writer’s intention was to “inject poison into the minds of thousands of Germans,” 90 and to his detriment, Streicher had taken responsibility for everything written by his editors and published in Der Stürmer. The judgment noted that during August 1941 and September 1944 “Streicher intensified his efforts to incite the Germans against the Jews.”91 Even more disastrous, Streicher had incited the mass murder of Jews, whilst knowing that exterminations were taking place in the Occupied Eastern Territories. The judgment noted that with this knowledge Streicher “continued to write and publish his propaganda of death.”92 The most damaging evidence referred to in the judgment was the evidence submitted by the prosecution during its cross-examination. This was a contextual comparison of an extract from the Israelitisches Wochenblatt, copied verbatim in Der Stürmer, minus the references to “three million dead, the same number outlawed, and many thousands, all over the world, mentally and physically broken.” The Tribunal were convinced that Streicher “continually received current information on the progress of the ‘final solution,’”93 which illustrated that Streicher had knowledge of the exterminations. The Allied judges agreed that, from 1939, the defendant had “Set out to incite the German people to murder, and to accept the fact of the murder of the Jewish race.”94 The judgment mentioned further evidence that had established the defendant’s knowledge of the exterminations. In December 1942, Streicher referred to an article in The Times that mentioned the atrocities. He said that “Hitler had given a warning that the Second World War would lead to the destruction of Jewry.”95 In January 1943, Streicher wrote and published an article that said “Hitler’s prophecy was being fulfilled that world Jewry was being extirpated, and it was wonderful to know that Hitler was freeing the world of its Jewish tormentors.”96 This extract

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demonstrated that when Streicher wrote this article, he personally knew that Hitler’s extermination program was well underway. It highlights both the defendant’s knowledge of events taking place and his enthusiasm to endorse the prospect of a world free from Jews. After the Tribunal had taken the evidence and submissions presented by both the prosecution and the defense into account, they determined that “Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes as defined by the Charter and constitutes a crime against humanity.”97 The judgment found that Streicher was not guilty of Count One, but that he was guilty on Count Four. On October 1, 1946, after finding Streicher guilty, the Tribunal sentenced him to death by hanging. Dr Gilbert recorded the defendant’s reaction to his sentence. Seemly, he expected the death sentence: “Death, of course. Just what I expected. You all must have known it all along.”98

Defense arguments ignored by the Tribunal The judges dismissed as a “blatant lie” that Streicher’s solution to the “Jewish question” ruled out the physical extermination of Jews, in favor of the adoption of a new Jewish state in Madagascar: In the face of the evidence before the Tribunal it was idle for Streicher to suggest that the solution of the Jewish problem which he favored was strictly limited to classification of Jews as aliens and the passing of discriminator legislation such as the Nuremberg Laws, supplemented if possible by international agreement on the creation of a Jewish State, to which all Jews should emigrate.99 Kipphan noted that in 1934 Streicher proposed the island of Madagascar as the place for an international concentration camp for Jews,100 and by 1938, he told Der Stürmer readers that the Madagascar idea was now under serious discussion by foreign statesmen.101 However, in 1941, Streicher claimed that peace would only come after the last trace of the Jew had been wiped from the globe; by then he must have realized that segregation, emigration and expulsion would not rid the world of Jewry.102 The defense did not convince the Tribunal that deportation to the island of Madagascar was the intention of Streicher’s anti-Semitic propaganda, in which he incited mass murder of the Jews. Streicher’s hatred of the Jews and obsession with anti-Semitism had not waned during the time spent at Nuremberg, even when other defendants shied away from its implications and had chosen to denounce it. This was evident when Dr Gilbert asked Streicher whether, if he had foreseen the consequences, he would have altered his course, the defendant replied: “I have to say what I believe.”103 Streicher thought it was cowardly of the defendant Ley to commit suicide and leave behind a “Political Testament” calling the Nazi anti-Semitic policy a “big mistake.” Gilbert considered that Streicher

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possessed a “fanatic bigotry bordering on paranoia,” and “there is neither sadism nor shame in his attitude, just a cool, apathetic obsessive quality.”104 While Streicher’s attitude towards anti-Semitism did not help his innocent plea, it made it easier for the prosecution to demonstrate that Streicher’s unremitting propaganda was capable of stirring-up anti-Jewish hatred. The judges did not appear to take into consideration that Der Stürmer was not a press organ of the National Socialist German Workers’ Party (NSDAP), and not entitled to show the Nazi Party symbol. This in itself indicated a lack of importance given to linking Streicher with the Nazi Party’s official propaganda. Neither did the Tribunal appear to consider that Der Stürmer was merely one of amongst 3,000 anti-Semitic newspapers and publications that provided articles on the Jewish question, or that its circulation had fluctuated and declined during the war to a mere 15,000 copies. The Tribunal appeared to discount the facts that Streicher did not remain in his official position until the end of the war, and, unlike other Gauleiters, he was not appointed Wehrkreiskommissar of his Gau at the outbreak of war. None of the Allied judges considered the principle of freedom of the press or whether it was applicable in Streicher’s case. Judges Parker and Biddle brought up the principle of freedom of speech when deliberating on defendant Hans Fritzsche’s verdict. When discussing Fritzsche’s verdict, Judge Parker noted: “A man should not be convicted for what he said and wrote unless it was an incitement to a crime,” and Judge Biddle agreed with him. Judge Birkett differed and argued that Fritzsche’s case raised “no question of freedom of speech,” and proposed to convict him on Counts One, Three and Four.”105 What Fritzsche did was not substantially different from that of the Allied propagandists; he was, as Davidson comments, “merely on the other side.”106 The Nuremberg Tribunal, by condemning Streicher while acquitting Fritzsche of crimes against humanity, appeared to provide a dividing line between the direct incitement to criminal action and the simple, albeit abhorrent, activity of propaganda.107 On consideration of the issues, it is possible to argue that Streicher was a small “redundant cog” in the mechanism of the Nazi Party’s hierarchy. Without his antiSemitic propaganda, Hitler’s extermination policy would still have taken place. Kipphan reflected on the fact that Der Stürmer had limited appeal: “It was not the voice of the German people and its preoccupation with sex meant that parents, public figures, journalists, and educators all rejected it.”108 Other authors have debated the link between Streicher’s anti-Semitic propaganda and mass killing in the East.109 That is not to say that Streicher was not guilty of contributing towards the climate of “incitement to murder.” Conversely, the prosecution did not establish that one man’s newspaper could be held totally responsible for solely influencing the scale of Jewish killing. Clearly, Streicher did not have the mental aptitude to outwit the intelligent British prosecutor, Griffith-Jones. Tests undertaken by the prison psychologist, Dr Gilbert, recorded Streicher’s intelligence score as below average.110 In the end, it was the information not copied from the Swiss Jewish newspaper the Israelitisches Wochenblatt that damaged Streicher’s testimony, which was ironic considering its source.

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The main focus of the Tribunal’s judgment dealt with how Streicher’s antiSemitic propaganda had involved inciting others to “active persecution.” Although the mens rea was not explicitly stated in the Tribunal’s judgment of Streicher, the prosecution implied it throughout the trial by arguing that he had knowledge of the exterminations, yet, continued to incite the deaths of 6 million Jews. This shows that some subjective element of knowledge was a feature of Streicher’s guilty actions. If the judgment had ruled out Streicher’s mens rea, by definitely stating that unintentional incitement was not within the ambit of persecution, there would have been no need to prove his intent, or any mental element whatsoever. In effect, this would make “incitement to murder and extermination” a crime of strict liability.111 Nevertheless, since Streicher’s judgment did not specifically define the mens rea necessary for an act of incitement to genocide, it was, to some extent, left undecided in the specifics at least. In his defense, Dr Marx denied a causal link existed between Streicher’s propaganda and the exterminations: “Was the German nation really filled with hatred for the Jews by Der Stürmer and Streicher’s speeches, in the sense and to the extent asserted by the prosecution?”112 Marx argued that the prosecution’s evidence on this point was inconclusive: “It draws conclusions, but it has not produced actual proof. It alleges the existence of results, but cannot produce evidence for that assumption.”113 In 1974, almost 20 years after the Nuremberg trial, Kipphan raised the question of a connection between “words and deeds” with the British prosecutor, Griffith-Jones, he responded by saying: “The Nuremberg Tribunal did not sentence Streicher for being a propagandist of anti-Semitism: it sentenced him for being a party to the murder of millions of people.”114 Regarding Streicher’s conviction, Griffith-Jones went on to say: There was overwhelming evidence that Streicher knew of Hitler’s policy to exterminate the Jews and that that policy was systematically carried out; and that Streicher, with that knowledge, incited and encouraged the execution of that policy and helped to make it acceptable to the German people. Such conduct, I suppose under the law of every civilised State and certainly under the law of the USA and UK, made him a party to the crime. With that evidence it was quite unnecessary both in law and as a matter of commonsense, to produce further evidence to link Streicher with the actual extermination programme . . .115 In this response, Griffith-Jones maintained that the evidence against Streicher overwhelmingly established his knowledge of Hitler’s extermination policy. The prosecution concentrated on this, which was why the cross-examination sought to establish that Streicher knew of the exterminations by reading reports in foreign newspapers, but continued to incite and encourage the policy to take place. This was sufficient evidence to find Streicher guilty, without providing any additional evidence linking him with the exterminations.

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Prosecution of “incitement to genocide” in the twenty-first century Evaluating the Streicher case does not merely analyze the historical prosecution process of a Nazi and anti-Semite; it provides an insight into how inciting “words” were used for the first time as “persecution” and recognized by the Nuremberg Tribunal as a sub-set of crimes against humanity. The term “incitement to murder and extermination” was used in the Streicher judgment to reflect acts of “persecution” under Article 6(c). Since the introduction of the Genocide Convention, the crime of “direct and public incitement to commit genocide” has been recognized as an offense by the ICTR.116 More importantly, the Streicher case has a direct link with contemporary offenses of “incitement to genocide” prosecuted under the jurisdiction of the ICTR. The Streicher case was considered in the Akayesu judgment as the “most famous conviction for incitement,”117 and in this case the Rwandan Trial Chamber gave a ruling on the mens rea required for the crime of “direct and public incitement to commit genocide.” The Chamber held: “It lies in the intent to directly prompt or provoke another to commit genocide. It implies a desire on the part of the perpetrator to create, by his actions, a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging.”118 Since the Akayesu case, the ICTR has tried several cases of “direct and public incitement to commit genocide,” under Articles 2(3)(c) and 3(h) of the Rwandan Statute.119 Georges Ruggiu was an Italo-Belgian journalist and presenter with the RTLM; he made radio broadcasts inciting and encouraging the Hutu to kill Tutsi during the Rwanda genocide in 1994. Ruggiu became the third defendant charged with “direct and public incitement to commit genocide,” under the jurisdiction of the ICTR, a crime punishable as “persecution” under Article 3(h) of the Rwandan Statute.120 During Ruggiu’s prosecution in 1997, the Streicher case received acknowledgement when the Rwandan Trial Chamber examined legal precedents in international law relating to the crime of “persecution,” and turned to the Nuremberg judgment of Julius Streicher.121 The Chamber noted that in this historic case the IMT held that the publisher of a private anti-Semitic weekly newspaper Der Stürmer incited the German population to actively persecute the Jewish people.122 Ruggiu’s judgment specifically considered the point established in the Akayesu case that the act of “direct and public incitement to commit genocide” was a “specific crime,” because of its critical role in the planning of genocide.123 In this respect, Ruggiu contributed to the genocide, even though “he did not strike a blow or fire a shot.”124 A similar analogy was given in the case of The Prosecutor v Ferdinard Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze,125 when the Trial Chamber referred to their involvement with the media and political affiliations as the “bullets in the gun. [If] the trigger had such a deadly impact [it was] because the gun was loaded.”126 This means that the causality link which led to the gunshot involves individuals, institutions, and media-bullets.127 Ruggiu was originally due

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to be tried with Nahimana, Barayagwiza and Ngeze, but removed from the case after pleading guilty to inciting genocide and to persecution, as a crime against humanity. In June 2000, the ICTR sentenced Ruggiu to 12 years’ imprisonment. Ruggiu testified in the so-called “Media Trial” in the case of Nahimana et al.128 in which three suspects were charged with offenses of “incitement to genocide” for using propaganda that fuelled the genocide in Rwanda. What the ICTR needed to determine in this case was whether and to what extent the RTLM and the newspaper Kangura had influenced those who had committed mass murder during the Rwanda conflict. Similar to Streicher, in the presentation of evidence against the defendants, the prosecution produced certain articles published by the Kangura, and broadcast by the RTLM. The newspaper was charged with publishing a large number of articles urging the majority Hutus to eliminate the Tutsi minority in Rwanda.129 The RTLM was charged with broadcasting several transmissions in which the Hutus were urged to persecute the Tutsis. A major difference between the Streicher and the “Media Trial” cases was that these defendants were charged, along with the institutions that they represented, whereas, Streicher faced charges as an individual newspaper owner. Nahimana represented the RTLM, Ngeze the Kangura, and Barayagwiza the Coalition pour la Défense de la République (CDR) political party, which was the linchpin between the other two accused. The Trial Chamber noted that RTLM “broadcasts engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population;” Kangura “echoed the contempt;” and the CDR “created a political framework for the killing of Tutsi and Hutu political opponents.”130 Nahimana and Ngeze were sentenced to life imprisonment, whereas Jean-Bosco Barayagwiza had his sentence reduced to 35 years’ imprisonment for the time already served since his initial arrest in Cameroon. Although life cannot be compared with the death sentence handed down to Streicher by the Nuremberg Tribunal for publishing comparable propaganda, it should not be classified as a lesser offense, as it reflects the jurisdiction of the Rwandan Tribunal, rather than mirroring the severity of the offense.

The Streicher case—a precedent for incitement to genocide? In 1945–46, prior to the adoption of the Genocide Convention, the prosecution at Nuremberg faced the problem of determining whether the defendant, Julius Streicher, could be found guilty of inciting mass murder by using “words as persecution.” The prosecution’s main accusation was that, between the accession to power and the end of the war in Europe, Streicher both instigated and participated in the systematic persecution of the Jews, within Germany and in GermanOccupied Territory, which culminated in mass murder of an estimated 6 million women and children. In this respect, Streicher was accused of being an “accessory before the fact,” and, therefore, guilty of “aiding and abetting” the implementation of the laws that made these offenses “legal” in Germany. Although “incitement to murder and extermination” did not exist as a specific offense under the Nuremberg

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Charter, Streicher’s actions were interpreted as a sub-set of “persecution” under Article 6(c) of the newly created category of crimes against humanity. Given that the legal classification of “incitement to genocide” had not been officially recognized at the time of Streicher’s trial, either specifically within the Nuremberg Charter, or, at international criminal law more generally, it is understandable that the Tribunal’s judgment improvised by using the term “incitement to murder and extermination.” From the outcome of Streicher’s judgment, it is possible to conclude that the defendant did not need the mens rea for physical killing, or take an active part in ordering mass murder to take place, in order to be found guilty of “persecution on political and racial grounds” under crimes against humanity. His lack of physical involvement was inconsequential to the Tribunal, as long as Streicher had the requisite knowledge of the exterminations taking place, yet repeatedly called for them to take place, he had the genocidal intent. The Tribunal considered those who acted as “instigators and accomplices” to be equally guilty, or more so along with those who gave orders to the exterminators. Thus, liability for “incitement to murder” was not restricted to those responsible for planning, organizing, or implementing the extermination program. Despite not expressly using the term “incitement to genocide,” the judgment clearly implied that Streicher’s actions were broadly equivalent to this, as yet, unclassified offense. The Allies expected a guilty verdict from the Nuremberg judges, and were clearly not disappointed with the death sentence. In his final address to the Tribunal, Justice Jackson claimed that Streicher, “the venomous vulgarian,” manufactured and distributed obscene racial libels that incited the populace to accept and assist the progressively savage operations of ‘race purification.’”131 Streicher, like Hitler, had managed to obtain notoriety inside and outside Germany, he had progressed from having the lowly status of publishing a private anti-Semitic newspaper to being one of the Nazi defendants in a major war crimes trial. This makes the prosecution of Streicher unique in international criminal law. However, it has taken the Ruggiu and Nahimana et al. cases to provide a comprehensive ruling on the mens rea required for successfully prosecuting various forms of propaganda that have incited racial and ethnic hatred. Despite the pitfalls evident in distinguishing between propaganda per se, and the media deliberately used to incite and stir up ethnic tension between the Hutu and Tutsi tribes, the Rwandan Tribunal has provided a precedent that was not clearly obvious in the Streicher case. Nevertheless, this case remains an important precedent for prosecuting “persecution” within international criminal law, which was borne out by its reference in the Ruggiu and Akayesu cases. The Rwanda Chamber quoted Streicher’s judgment in order to demonstrate its relevance to Ruggiu’s case; he (Ruggiu), like Streicher, infected peoples’ minds with ethnic hatred and persecution.132 This confirmed that, after 50 years, the Streicher judgment remains an important and significant authority in cases involving “persecution” that have resulted in “incitement to genocide.” It is regarded as the first case in international law that prosecuted a defendant for offenses involving propaganda that used “persecution” as an instrument to “incite mass murder.”

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Notes 1 R.L. Bytwerk, Julius Streicher: The man who persuaded a nation to hate Jews, New York, NY: Stein and Day, 1983, pp. 49–50. Bytwerk’s book has been regarded as the definitive study of Streicher and Der Stürmer. 2 That is not to say that “incitement to murder” was not recognized as a criminal offense under the common law systems of the UK. 3 Other trials took place later under the jurisdiction of the Control Council Law No. 10, and the IMTFE. 4 Adopted by Resolution 260 (III) A of the UN General Assembly on 9 December 1948. Entry into force: 12 January 1951. 5 This information is taken from the document on the career and activities of Julius Streicher. WO 208/3806, Public Records Office (PRO). 6 See, F.L. Carsten, The Rise of Fascism, Second Edition, Berkeley, CA: University of California Press, 1982, p. 106. 7 A Gauleiter was the party leader of a regional branch of the Nazi Party. Gauleiter became a Nazi paramilitary rank, and would eventually become the second highest position, ranking only below the rank of Reichsleiter. 8 See, Klaus Kipphan’s paper The Trial of Julius Streicher: Justice Denied? Annual Meeting of the American Historical Association in Chicago, December 30, 1974, p. 4. A copy of this paper has been obtained directly from Klaus Kipphan. 9 Klaus Kipphan is a Professor of History at Juniata College, International Studies Department, Pennsylvania. 10 K. Kipphan, Julius Streicher: Propagandist of the Holocaust, Juniata Peace Studies: Peace, Justice and Conflict, R. Church and K. Kipphan (eds), Huntington, PA: Juniata College, 1976, p. 20. 11 D.A. Sprecher, Inside the Nuremberg Trial: A Prosecutor’s Comprehensive Account, vol. II, Lanham, MD: University Press of America,1999, p. 919. 12 Article 6(c) and Count Four of the indictment. The Charter of the International Military Tribunal, Article 1 (hereinafter, Charter), International Military Tribunal Trial of the Major War Criminals (hereinafter, TMWC). The Avalon Project: Documents in Law, History and Diplomacy, New Haven, CT: Yale University Law School. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). 13 See, A. Cassese, International Criminal Law, Oxford: Oxford University Press, 2003, p. 165. Cassese mentions various instances where “knowledge” amounts to aiding and abetting a crime. The IMT at Nuremberg, in Einsatzgruppen (at pp. 568–73), two British courts respectively in Schonfeld (at p. 64) and Zyklon B (at p. 93), the German Supreme Court in the British Occupied Zone in the Synagogue case (at p. 229), the ICTY in Kupresˇkic´ and others, and then the Appeals Chamber in Tadic´ (at p. 229). 14 TMWC, vol. 2, Justice Jackson Opening Speech, November 21, 1945, p. 104. 15 Article 19 “shall admit any evidence, which it deems to be of probative value.” Charter, vol. 1. 16 R. Overy, Interrogations: The Nazi Elite in Allied Hands 1945, London: The Penguin Press, 2001, p. 178. 17 Memorandum sent to Colonel Amen, October 17, 1945. US, NA, RG 238, Entry 7A, Box No. 21, File: Streicher, Julius. 18 Clagett memo on Streicher, November 10, 1945. 19 Ibid. 20 Dodd Research Center, Box No. 316, 8065, p. 3. 21 Julius Streicher – Trial Brief, Part I, Relevant sections of the Indictment. FO 371/57533/06173, PRO. 22 Indictment: Count 1 para. IV (D) 3 (d) and Count IV.

Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher 225 23 24 25 26

27

28 29

30 31 32 33 34 35 36 37 38 39

40 41

TMWC, vol. 1 Indictment: Appendix A. TMWC, vol. 5, January 10, 1946, p. 90. TMWC, vol. 5, January 10, 1946, p. 91. TMWC, vol. 5, January 10, 1946, p. 91. See pictures and cartoons from Der Stürmer in Varga, pp. 186–95; and Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). See photographs of Streicher and propaganda of his at Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). Streicher’s Speech, 20 November 1924. From ‘Kampf fem Weltfeind,’ p. 24. Doc. M12, Exhibit GB-165; Streicher’s Speech in the Central Hall of the Coliseum in Nuremberg 23 November 1922. (Extracts from ‘Kampf fem Weltfeind,’ pp. 17–20. Doc. M-11. TMWC, vol. 5, January 10, 1946, p. 90; Streicher’s Speech, 3 April 1925. Extracts from ‘Kampf fem Weltfeind,’ p. 42. Doc. M-13. Streicher’s Speech in the Hercules Hall in Nuremberg 21 April 1932, Extracts from ‘Kampf fem Weltfeind,’ p. 134. Doc. M-14. See picture of Der Stürmer at Publishing on the Internet. Online. Available HTTP:

(accessed 1 January 2011). The Reich Citizenship Law (September 15, 1935). The Law stripped Jews of their German citizenship and introduced a new distinction between “Reich citizens” and “nationals.” Certificates of Reich citizenship were in fact never introduced and all Germans other than Jews were until 1945 provisionally classed as Reich citizens. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). ‘Der Kampf erhaelt uns jung’, Fraenkische Tageszeitung, November 23, 1937. Heinz Preiss, ‘Trotz Not und Verbot’, Fraenkische Tageszeitung, November 12–13, 1936. See Kipphan, Julius Streicher: Propagandist of the Holocaust, p. 23. Doc. 212-PS 21 November 1945, p. 120. General Rudenko, the Soviet Chief Prosecutor, final submission on July 29, 1946, p. 610. Translation from Deutsche Volksgesundheit aus Blut und Boden, New Year’s Issue 1935. Doc. M-20, Exhibit GB-168, FO 731/57533. Leading Article by Julius Streicher from Der Stürmer of September 1936 (No. 39). ‘To everyone! The Stürmer was right. The Battle against the devil.’ Doc. M-6, Exhibit GB-170. See picture of Der Stürmer at Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). Extract leading article in special issue No. 8 Der Stürmer, January 1939. Doc. M-39. Section 5: (1) A person who acts contrary to the prohibition of Section 1 will be punished with hard labour. (2) A person who acts contrary to the prohibition of Section 2 will be punished with imprisonment or with hard labour. Extract leading article in special issue No. 8. Der Stürmer, January 1938. Doc. M-40, Exhibit USA-260. See, Bytwerk, Julius Streicher: The man who persuaded a nation to hate Jews, p. 56. Publishing on the Internet. Online. Available HTTP: and (accessed 1 January 2011). WO 208/3806, PRO. Information taken from (Ref: SHAEF Interrogation Briefs, GBI/01-D/383.6/89). Extract leading article in Der Stürmer, Written by Karl Holz No. 28, July 1938. Doc. M-35.

226 Propaganda, War Crimes Trials and International Law 42 43 44 45 46 47 48 49 50 51 52

53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81

Extract leading article in Der Stürmer, No. 38, September 1938. Doc. M-36. TMWC, vol. 5, January 11, 1946, p. 103. Bytwerk, Julius Streicher: The man who persuaded a nation to hate Jews, p. 37. TMWC, vol. 5, January 10, 1946, p. 118. TMWC, vol. 5, January 10, 1946, p. 118. TMWC, vol. 5, January 10, 1946, p. 118. TMWC, vol. 5, January 10, 1946, p. 118. Conversation with Wolf Frank. Cited in A. Tusa and J. Tusa, The Nuremberg Trial, London: Macmillan London Limited, 1983, p. 337. Minutes of the British prosecutors’ meetings on April 16, 1945, made available by Kenneth Duke. Cited in Tusa and Tusa, The Nuremberg Trial, p. 335. Notes of Meeting held on Saturday, June 1, 1946. FO 1019/86, PRO. Criminal responsibility is not limited only to those who perform the criminal acts themselves. As a general principle, anyone who “aids and abets” the perpetrator by encouraging or in any way knowingly helping him (for instance, by providing information, implements, or practical help) is an accomplice and is considered equally guilty. Notes of Meeting held on Saturday, June 1, 1946. FO 1019/86, PRO. See Dodd Research Center, Box No. 8065, Closing Brief against Julius Streicher. Article dated January 1939, Doc. D-809, Exhibit GB-331; Article dated April 1939, Doc. D-810, Exhibit GB-332; Article dated May 1939, Doc. D-811, Exhibit GB-333. Doc. 1965-PS, Exhibit GB-176. TMWC, vol. 12, April 29, 1945, p. 359. Ibid. Documents submitted by the prosecution, ‘A’ bundle, at 30-A; Documents submitted by the prosecution, ‘B’ bundle, at 24-B, extract dated November 27, 1942. TMWC, vol. 12, April 29, 1945, p. 359. Ibid. See, Overy, Interrogations: The Nazi Elite in Allied Hands 1945, pp. 187–190 Documents submitted by the prosecution, ‘B’ bundle, at 24B, extract dated November 27, 1942. TMWC, vol. 12, April 29, 1945, p. 362. Documents submitted by the prosecution, ‘A’ bundle, p. 35-A. G.M. Gilbert, Nuremberg Diary, New York, NY: Da Capo Press, 1947, p. 306. T.N. Kaufman, Germany Must Perish, Newark, NJ: Argyle Press, 1941, p. 1. Extract taken from the Declaration of the United Nations. Published in London, Washington and Moscow, the Declaration received assent and support of all Allied nations and dominions. Further extracts from the Israelitisches Wochenblatt were admitted into evidence. Articles dated December 23 and 30, 1942, both were written along similar lines. Documents submitted by the prosecution, ‘A’ bundle, p. 35-A. TMWC, vol. 12, April 29, 1945, p. 366. Documents submitted by the prosecution, ‘B’ bundle, at 30B, extract dated February 26, 1943. TMWC, vol. 12, April 29, 1945, p. 368. Documents submitted by the prosecution, ‘B’ bundle, p. 36B. Ibid. TMWC, vol. 12, April 29, 1946, p. 373. Ibid. D 791: GB 379. TMWC, vol. 12, April 29, 1945, p. 364. TMWC, vol. 12, April 29, 1946, p. 372. TMWC, vol. 12, April 29, 1946, p. 373.

Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher 227 82 TMWC, vol. 12, April 29, 1946, p. 370. 83 T. Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, New York, NY: Alfred A. Knopf, 1992, p. 380. 84 TMWC, vol. 1, Judgment: Streicher. 85 Ibid. 86 Doc. M-36, presented in evidence by the prosecution on January 10, 1946. 87 Article dated January 1939, Doc. D-809, Exhibit GB-331. 88 TMWC, vol. 1, Judgment: Streicher. 89 Evidence submitted on April 29, 1946, vol. 12, p. 357. Doc. D-811, Exhibit GB-333. 90 TMWC, vol. 1, Judgment: Streicher. 91 TMWC, vol. 1, Judgment: Streicher. 92 TMWC, vol. 1, Judgment: Streicher. 93 TMWC, vol. 1, Judgment: Streicher. 94 Streicher’s cross-examination: TMWC, vol. 12, April 29, 1946, p. 356. 95 TMWC, vol. 1, Judgment: Streicher. 96 TMWC, vol. 12, April 29, 1945, p. 367. Evidence produced during crossexamination. 97 TMWC, vol. 1, Judgment: Streicher. 98 Gilbert, Nuremberg Diary, p. 432. 99 TMWC, vol. 1, Judgment: Streicher. 100 TMWC, vol. 1, Judgment: Streicher, Der Stuermer, No. 4, 1934, quoted in: Anon, Was soll mit den Juden geschehen. Praktische Vorschläge von Julius Streicher und Adolf Hitler, Paris: Editions Du Carrefour, 1936. 101 TMWC, vol. 1, Judgment: J. Streicher, ‘Madagaskar’, Der Stuermer, No. 1, January 1938. 102 TMWC, vol. 1, Judgment: J. Streicher, ‘Der grosse Friedhof’, Der Stuermer, August 14, 1941. 103 See Gilbert, Nuremberg Diary, p. 9. 104 Gilbert, Nuremberg Diary, pp. 41–75. 105 Taylor, The Anatomy of the Nuremberg Trials, p. 566. Adjudged not guilty, Biddle Papers, ‘Notes on Judgement,’ ‘Meetings on Individuals,’ September 9 and 11, 1946; R.E. Conot, Justice at Nuremberg, New York, NY: Harper & Row, 1983, p. 491; J.E. Persico, Nuremberg: Infamy on Trial, London: Penguin Books, 1994, p. 389, for a discussion of the Russians’ deliberations on Streicher’s guilt. 106 E. Davidson, The Trial of the Germans, New York, NY: Macmillan, 1966, p. 548. 107 G.D. Morte, ‘De-Mediatizing the Media Case: Elements of a Critical Approach’, Journal of International Criminal Justice, vol. 3, 2005, pp. 1019–1033, p. 1029. 108 Kipphan, Julius Streicher: Propagandist of the Holocaust, 1976, p. 22. 109 The question of Streicher’s legal and moral responsibilities for the Holocaust has been discussed in Kipphan’s paper The Trial of Julius Streicher: Justice Denied?; Tusa and Tusa, The Nuremberg Trial, p. 404; B.F. Smith, Reaching Judgement at Nuremberg, New York, NY: Basic Books. 1977, pp. 200–203. 110 Gilbert, Nuremberg Diary, p. 32. 111 “At present there are no crimes of strict liability (i.e. crimes for which no mens rea need be proved) within international criminal law. Most relevant conventions specify the required mens rea, which is usual phrased in terms of ‘intention’ or ‘wilfulness.’ Lack of mens rea will also formulate a defence, including mistake, duress or insanity”. See, C. De Than and E. Shorts, International Criminal Law and Human Rights, London: Sweet & Maxwell, 2003, p. 3. 112 TMWC, vol. 18, July 12, 1946, p. 198. 113 Ibid. 114 Letter from Griffith-Jones to Klaus Kipphan, dated October 25, 1974. Cited in the footnote 122 of the paper The Trial of Julius Streicher: Justice Denied?

228 Propaganda, War Crimes Trials and International Law 115 Letter from Griffith-Jones to Klaus Kipphan, dated October 25, 1974. 116 See, S. Benesch, ‘Vile Crime or Inalienable Right: Defining Incitement to Genocide’, Va. J. Int’l L., vol. 48, 2007–2008, p. 509; C.S. Maravilla, ‘Hate Speech as a War Crime: Public and Direct Incitement to Genocide in International Law’, Tul. J. Comp. & Int’l L., vol. 17, no. 113, 2008, p. 144; Morte, ‘De-Mediatizing the Media Case: Elements of a Critical Approach’, p. 1028; R.H. Snyder, ‘Disillusioned Words Like Bullets Bark: Incitement to Genocide, Music, and the Trial of Simon Bikindi’, Ga. J. Int’l & Comp. L., vol. 35, no. 645, 2007, pp. 670–73; W.K. Timmermann, ‘The Relationship Between Hate Propaganda and Incitement To Genocide: A New Trend In International Law Towards Criminalization of Hate Propaganda’, Leiden Journal Of International Law, vol. 18, 2005, pp. 257–282, 267; J. Wallenstein, ‘Punishing Words: An Analysis of the Necessity of the Element of Causation in Prosecutions for Incitement to Genocide’, Stan. L. Rev., vol. 54, 2001–2002, p. 351; A. Zahar, ‘The ICTR’s “Media” Judgment and the Reinvention of Direct and Public Incitement to Commit Genocide,’ Criminal Law Forum, vol. 16, 2005, pp. 33–48. 117 The Prosecutor v. Jean Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para. 550. 118 The Prosecutor v. Jean Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para. 560. 119 Each of the defendants were charged amongst other offenses, direct and public incitement to commit genocide. The Prosecutor v. Kambanda, Case No. ICTR-97-23S; The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I. The Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). 120 Other defendants charged with this offense were The Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-I and The Prosecutor v. Kambanda, Case No. ICTR-9723-S. 121 The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-31-I. 122 The Prosecutor v. Georges Ruggiu, Judgment and Sentence, Case No. ICTR-97-32-I, 1 June 2000, para. 19. 123 The Prosecutor v. Georges Ruggiu, Judgment and Sentence, Case No. ICTR-97-32-I, 1 June 2000, para. 15. 124 The Prosecutor v. Georges Ruggiu, Judgment and Sentence, Case No. ICTR-97-32-I, 1 June 2000, para. 77. 125 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T, 3 December 2003. 126 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T, 3 December 2003, para. 953. 127 Morte, ‘De-Mediatizing the Media Case: Elements of a Critical Approach’, p. 1028. 128 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T, 3 December 2003. 129 In a cover of issue 26 of Kangura, a picture of a machete appeared together with the question ‘what weapon shall we use to destroy the Tutsis once and for all?’ The Prosecutor v. Nahimana et al., paras 160–173. 130 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T, 3 December 2003, paras 949–951. 131 TMWC, vol. 19, July 26, 1946, p. 413. This was quoted as “Bulgarian” in the trial transcript. 132 Ibid.

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Bibliography Alvarez, J.E., ‘Crimes of States/Crimes of Hate: Lessons from Rwanda’, Yale Journal of International Law, Summer, 1999. Arendt, H., The Origins of Totalitarianism, New York, NY: Harvest, 1951. Benesch, S., ‘Vile Crime or Inalienable Right: Defining Incitement to Genocide’, Va. J. Int’l L., vol. 48, 2007–2008, p. 509. Bytwerk, R.L., Julius Streicher: The man who persuaded a nation to hate Jews, New York, NY: Stein and Day, 1983. Carsten, F.L., The Rise of Fascism, Second Edition, Berkeley, CA: University of California Press, 1982. Cassese, A., International Criminal Law, Oxford: Oxford University Press, 2003. Conot, R.E., Justice at Nuremberg, New York, NY: Harper & Row, 1983. Davidson, E., The Trial of the Germans, New York, NY: Macmillan, 1966. De Than, C. and Shorts, E., International Criminal Law and Human Rights, London: Sweet & Maxwell, 2003. Fritzsche, H., The Sword in the Scales, London: Allan Wingate, 1953. Gerhart, E., America’s Advocate: Robert H. Jackson, Indianapolis, IN: The Bobbs-Merrill Co., Inc., 1958. Gilbert, G.M., Nuremberg Diary, New York, NY: Da Capo Press, 1947. Goldensohn, L., The Nuremberg Interviews: Conversations with the Defendants and Witnesses, London: Pimlico, 2006. Heydecker, J.E. and Leeb, J., The Nuremberg Trial: A History of Nazi Germany as Revealed through the Testimony at Nuremberg, New York, NY: The World Publishing Company, 1962. Kaufman, T.N., Germany Must Perish, Newark, NJ: Argyle Press, 1941. Kelley, D.M., 22 Cells in Nuremberg – A Psychiatrist Examines the Nazi Criminals, New York, NY: Basic Books, 1947. Kipphan, K., The Trial of Julius Streicher: Justice Denied, Annual Meeting of the American Historical Association, Chicago, US (30 December), 1974. Kipphan, K., Julius Streicher: Propagandist of the Holocaust, Juniata Peace Studies: Peace, Justice and Conflict, R. Church and K. Kipphan (eds), Huntington, PA: Juniata College, 1976. Maravilla, C.S., ‘Hate Speech as a War Crime: Public and Direct Incitement to Genocide in International Law’, Tul. J. Comp. & Int’l L., vol. 17, no. 113, 2008, p. 144. Morte, G.D., ‘De-Mediatizing the Media Case: Elements of a Critical Approach’, Journal of International Criminal Justice, vol. 3, 2005, pp. 1019–1033. Overy, R., Interrogations: The Nazi Elite in Allied Hands 1945, London: The Penguin Press, 2001. Persico, J.E., Nuremberg: Infamy on Trial, London: Penguin Books, 1994. Peterson, E.N., Limits of Hitler’s Power, Princeton, NJ: Princeton University Press, 1969. Rauschning, H., Hitler Speaks, London: Thornton, Butterworth, 1939. Smith, B.F., Reaching Judgment at Nuremberg, New York, NY: Basic Books, 1977. Snyder, R.H., ‘Note, Disillusioned Words Like Bullets Bark: Incitement to Genocide, Music, and the Trial of Simon Bikindi’, Ga. J. Int’l & Comp. L., vol. 35, no. 645, 2007, pp. 670–73. Sprecher, D.A., Inside the Nuremberg Trial: A Prosecutor’s Comprehensive Account, vols I and II, Lanham, MD: University Press of America, 1999.

230 Propaganda, War Crimes Trials and International Law Taylor, T., The Anatomy of the Nuremberg Trials: A Personal Memoir, New York, NY: Alfred A. Knopf, 1992. Timmermann, W.K., ‘The Relationship Between Hate Propaganda and Incitement To Genocide: A New Trend In International Law Towards Criminalization of Hate Propaganda’, Leiden Journal of International Law, vol. 18, 2005, pp. 257–282, 267. Tusa, A. and Tusa, J., The Nuremberg Trial, London: Macmillan London Limited, 1983. Varga, W.P., The Number One Nazi Jew-Baiter: A Political Biography of Julius Streicher, Hitler’s Chief Anti-Semitic Propagandist, New York, NY: Carlton Press, 1981. West, R., A Train of Powder, Chicago, IL: Ivan R. Dee, 1955.

Table of cases ICTR The Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-I. The Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T. The Prosecutor v. Kambanda, Case No. ICTR- 97-23-S. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T. The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-31-I. The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I.

Chapter 7

Propaganda in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia Michael G. Kearney

Propaganda and international criminal law Propaganda has always been central to the commission of crimes within the jurisdiction of international criminal tribunals. Successive judgments have carried sustained analyses and references to the significance of propaganda. The role of hate speech, censorship and incitement in preparing peoples for war, and in establishing atmospheres of hatred and fear in which emotion, confusion and uncertainty can be exploited in order to further the commission of the most serious and appalling international crimes has been repeatedly stressed. The manner by which individuals responsible for such propaganda have been charged before international criminal tribunals appears relatively consistent, that is to say, in the majority of instances, the tribunals’ condemnation of propaganda, and identification of the crucial role it plays, rarely translates into sustained and focused analysis of an individual criminal responsibility for their speech or their role in propaganda frameworks. The judgment of the IMT at Nuremberg may be considered as having set the template for how subsequent ad hoc tribunals addressed propaganda. The judgment is notable in two regards from the perspective of propaganda, hate speech or incitement. In the first instance, and following on from the charges set forth in the indictment, the judgment repeatedly emphasizes and stresses the crucial role that propaganda played in Nazi preparation for wars of aggression and the war crimes and crimes against humanity, including genocide, that were to characterize those conflicts. In the second instance, the IMT’s only finding of guilt resting on evidence of propaganda was made with respect to incitement to genocide. Count One of the indictment at Nuremberg alleged that as part of the common plan or conspiracy to wage aggressive war, the defendants had disseminated various doctrines which served the furtherance of the criminal plan and that the defendants had employed doctrinal techniques as part of the common plan or conspiracy in order to “incite others to join in the common plan or conspiracy” to wage aggressive war.1 The judgment noted that, “[i]n the field of education, everything was done to ensure that the youth of Germany was brought up in the atmosphere of National

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Socialism and accepted National Socialist teachings” and that the Nazi government had “endeavoured to unite the nation in support of their policies through the extensive use of propaganda” thus preparing the ground for the acceptance of war and the idea of “German world supremacy.”2 Military, economic, and psychological propaganda are all noted as evidence against several of the defendants ultimately found guilty of crimes against peace, yet the emphasis is notably light in comparison with the general comments of the judgment regarding propaganda. The judgment at Nuremberg paved the way for the development of the crime of direct and public incitement to genocide, which was to be set forth in the 1948 Genocide Convention and which is found in the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda and the Rome Statute. The evidence against two defendants Streicher and Fritzsche, revolved primarily around their propaganda activities. Streicher’s anti-Semitic propaganda, considered in light of his knowledge of the Holocaust, led the IMT to conclude that “Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes as defined by the Charter, and constitutes a crime against humanity.”3 Despite having established Fritzsche’s participation in the control and dissemination of propaganda, including his responsibility for a “vigorous propaganda campaign [. . .] carried out before each major act of aggression,” he was acquitted of crimes against peace and crimes against humanity. As in the cases of von Schirach, von Papen and Streicher, the IMT held that Fritzsche had never “achieved sufficient stature to attend the planning conferences which led to aggressive war,” nor was “there any showing that he was informed of the decisions taken at these conferences,” thus his activities could not be said “to be those which fall within the definition of the common plan to wage aggressive war as already set forth in this Judgment.”4 The Tribunal held “that Fritzsche sometimes made strong statements of a propagandistic nature in his broadcasts. But the Tribunal is not prepared to hold that they were intended to incite the German people to commit atrocities on conquered peoples, and he cannot be held to have been a participant in the crimes charged.” Acquitting Fritzsche on all charges, the IMT concluded its analysis of his responsibility by stating that his aim had been “to arouse popular sentiment in support of Hitler and the German war effort,”5 a finding that was condemned in a dissent by the Soviet judge Nikitchencko who stressed that, “The dissemination of provocative lies and the systematic deception of public opinion were as necessary to the Hitlerites for the realisation of their plans as were the production of armaments and the drafting of military plans. Without propaganda, founded on the total eclipse of the freedom of press and of speech, it would not have been possible for German Fascism to realize its aggressive intentions, to lay the groundwork and then to put to practice the war crimes and the crimes against humanity.”6 Both the ICTY and the ICTR have had occasion to consider cases pertaining to the crime of direct and public incitement to genocide, the Nahimana judgments at

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Trial and on Appeal at the ICTR being the most significant. The development and refinement of such jurisprudence is crucial in combating and understanding the obligations of states and individuals with regards the prevention and punishment of genocide, yet there has been far less jurisprudence that grapples directly with the criminalization of hate speech and of incitement to crimes other than genocide. Several cases at the ICTY have considered whether international law criminalizes hate speech, and there have been convictions for direct and public incitement to genocide, yet in the overall corpus of the Tribunal, the gulf between the myriad descriptions of the modes and effects of propaganda and consideration of propaganda as behavior that gives rise to individual criminal responsibility remains as wide as it had been at Nuremberg. A key contributory factor has been the application at the ICTY of the theory of JCE which in practice has seen evidence of propagandistic activity used to demonstrate individuals’ knowledge of a common plan and as a substantial contribution to that plan. With the Tribunal’s emphasis on the theory cases in which individuals are directly charged on account of their speech as a crime of incitement or as hate speech constituting a persecutory act have been thin on the ground. The ICTY has not had an individual case such as Nahimana where the facts and the charges revolve predominantly around propaganda. The Sˇesˇelj indictment, with its explicit emphasis on war propaganda and manifold allegations of crimes of incitement seemed to posit a promising opportunity to further develop upon the judgment and reasoning in the ICTR’s Nahimana judgment, by considering hate speech and propaganda within the fold of international criminal law, but beyond the specific crime of incitement to genocide. The continuing impact of what Slavoj Zˇizˇek has termed the post-Yugoslavia “poetico-military complex”7 has, however, left that trial in frequent chaos, with the proceedings characterized by what in itself can be deemed as a theatre of propaganda. Nonetheless, at the ICC there are clear signals that propaganda is going to demand sustained attention within the post-ad hoc development of international criminal law. The ICC’s Prosecutor in 2010 requested a summons to appear for Joshua Arap Sang, a radio DJ, alleging he bore individual criminal responsibility for “cultivating” the masses in order to commit crimes against humanity in Kenya between 27 December 2007 and the end of January 2008, including by using coded language disseminated through radio broadcasts to help coordinate the attacks.8 Sang, while not a politician, was alleged to have been a prominent member of the community due to his position as a broadcaster on the most popular vernacular radio station, Kass FM. A summons to appear was duly granted by the Pre-Trial Chamber in March 2011. The Chamber found that there were not reasonable grounds to believe that Sang was an indirect co-perpetrator, as his contribution to the commission of the crimes was not essential, but the Chamber was satisfied that there were reasonable grounds to believe that Sang otherwise contributed to the commission of the crimes in accordance with Article 25(3)(d) of the Rome Statute.9 Furthermore, UN Security Council Resolution (1970) of 26 February 2011, referring the situation in Libya to the ICC, in its preambular part rejected “unequivocally

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the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government.” Amongst those individuals listed in the Resolution’s Annex as being subjected to travel bans or asset freeze, was Saif al-Islam Qadafhi, one of the justifications cited having been his engagement in “Inflammatory public statements encouraging violence against demonstrators.” A second notable factor must be that other than with respect to the crime of incitement to genocide, no statute of any international criminal tribunal incorporates any reference to propaganda or incitement. This is in marked contrast with the domestic criminal codes of most states, yet it does remain open to international criminal tribunals to draw on customary international law as well as human rights law’s prohibitions of propaganda for war and of incitement to hatred and to violence.10 Bearing in mind that the treatment of propaganda by international criminal tribunals has to date been patchy and often convoluted, even if propaganda has been a consistent presence in the jurisprudence, the aim of this chapter is to reflect upon some of the key methods and means by which the ICTY has addressed propaganda in its jurisprudence.

Propaganda: mode of liability or international crime In its first judgment, the Tadic´ case, the ICTY reflected on the role which propaganda had played in fomenting ethnic discord in the former Yugoslavia. One aspect of this propaganda campaign was the recollection of the atrocities of the Croat Ustasha during the Second World War.11 The Tribunal found that once the former Yugoslavia began to disintegrate, Serb-dominated media played on fears of subjugation of Serbs in areas in which Serbs were minority communities, adopting the theme that Serbs had “no choice but a full-scale war against everyone else.”12 Political leaders were found to have engendered fear to create support for their nationalist policies through speeches and public rallies. Such findings and analyses were to arise repeatedly throughout the Tribunal’s jurisprudence. Individuals subsequently tried at The Hague including Milosˇevic´, Sˇesˇelj and Brđanin were noted in the Tadic´ judgment as having fueled conflict and crimes by means of propaganda. As noted by the Trial Chamber in Tadic´, such tensions as existed in the former Yugoslavia were exacerbated by the use of propaganda and political maneuvers, “the twin tools advocated by Slobodan Milosˇevic´ to shift the balance of power in the former Yugoslavia to Serbia.”13 The indictment in Kordic´ and Cˇerkez charged Dario Kordic´ with having committed the crime of persecution as a crime against humanity as set forth in Article 5 of the ICTY Statute through the use of hate propaganda, alleging that by “encouraging, instigating and promoting hatred, distrust and strife on political, racial, ethnic or religious grounds, by propaganda, speeches and otherwise” as part of a campaign of widespread or systematic persecutions, he should be held individually criminally responsible under Article 5.14 Noting that this was the first

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instance of such a charge before the ICTY, and that it was not enumerated as a crime in the ICTY Statute the Trial Chamber proceeded to review the international case-law in order to determine whether the criminal prohibition of hate speech falling short of incitement to violence had attained the status of customary international law. Although holding that hate speech per se was not an international crime, Kordic´ was found responsible for the commission of the crime of persecution by means of instigation which was premised on the prosecution’s argument that he had incited such crimes. Radoslav Brđanin’s propaganda also contributed to his conviction for instigating and aiding and abetting the crimes against humanity of deportation and forcible transfer, which was upheld on appeal. The Trial Chamber convicted Brđanin, a leading figure in the ARK, of persecution as a crime against humanity incorporating deportation and inhumane acts (forcible transfer) as crimes against humanity. The Trial Chamber was satisfied that Brđanin was at the very heart of the ARK Crisis Staff, and as a key figure, was the driving force behind its major decisions, and noted the key role of the SDS propaganda war, which had been aimed towards “creating mutual fear and hatred and particularly inciting the Bosnian Serb population against the other ethnicities.”15 Stressing how the media had been taken under control of the Bosnian Serb leadership, the judgment held that “The use of propaganda was an integral part of the implementation of the Strategic Plan and created a climate where people were prepared to tolerate the commission of crimes and to commit crimes.”16 The Trial Chamber continued to hold that the propaganda campaign achieved its twin goals of influencing the Bosnian Serb population against non-Serb inhabitants and preparing them for the crimes to be later committed, and of creating an atmosphere of terror among the non-Serb population which contributed to the massive exodus of non-Serbs.17 In discussing Brđanin’s role and responsibility in general, the judgment noted that he continued to make “threatening public statements [. . .] that were designed to terrify the remaining Bosnian Muslims in order to get them to leave the Bosnian Krajina,”18 following the ARK Crisis Staff’s handover of power to the ARK assembly in July 1992. The judgment identified one of Brđanin’s “most substantial contributions to the implementation of the strategic plan” to have been by way of a propaganda campaign which the Trial Chamber considered to merit separate consideration given his intentional and systematic inflammatory statements on radio, television, and in print.19 After detailing the scope and content of this propaganda campaign, the judgment held that Brđanin’s public statements had a disastrous impact on people of all ethnicities and that, “They incited the Bosnian Serb population to commit crimes against Bosnian Muslims and Bosnian Croats.”20 In particular, it noted that “the accused intentionally made a substantial contribution towards creating a climate where people were prepared to tolerate the commission of crimes and to commit crimes,” 21 confirming that the non-Serb population understood Brđanin’s public statements “as direct threats to leave the areas under Bosnian Serb occupation, and many did so in fear for their lives.”22

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The impact of Brđanin’s propaganda campaign was a key influence in the Trial Chamber’s finding of guilt on the charges of deportation and inhumane acts (forcible transfer). The judgment held that decisions of ARK Crisis Staff could be attributed to Brđanin, and in considering the wording of the Staff’s decision of May 1992 that advocated the resettlement of the non-Serb population, found that it was not satisfied that the decision ordered the municipal authorities to commit deportation and forcible transfer.23 Nonetheless, the Chamber was satisfied that while the decisions were framed in terms of voluntary compliance, “to the municipal authorities and police they could only have meant a direct incitement to deport and forcibly transfer non-Serbs from the territory of the ARK.”24 Holding that this was the only reasonable conclusion that could be drawn in the light of Brđanin’s “unambiguous public statements made repeatedly from early April 1992 onwards, calling on the non-Serb population to leave”25 the judgment concluded that Brđanin not only instigated these forcible transfers and deportations26 but that he had also aided and abetted the execution of these crimes since his “inflammatory and discriminatory public statements, issued repeatedly from his several positions of authority, could only be and were understood by non-Serbs as direct threats to leave the area under Bosnian Serb occupation.”27 The judgment does not clarify the distinction with regards Brđanin’s propaganda as to instigating or aiding and abetting. In Popovic´ et al., the Trial Chamber held that instigating and aiding and abetting were modes of liability only if the crime with which the defendant is charged was actually carried out,28 and that such actions were of substantial effect,29 but the distinction between the two forms of liability, particularly as they relate to propaganda activity remain unclear. William Schabas has noted a “certain redundancy” with regards the Rome Statute’s provisions on complicity in Article 25(3), that seem particularly pertinent and worthy of clarification from this perspective.30 Fausto Pocar, a judge at the ICTY, has approved of the holding in the ICTR Appeals Chamber’s Nahimana judgment that hate speech “may under certain circumstances amount to a persecutory act rising to the level of required gravity, either on its own or when taken in conjunction with other similar infringements.”31 He suggests that the conclusion to draw from this decision was not to conflate hate speech with incitement to violent crimes, but rather that hate speech may amount to an underlying act of persecution.32 Such a finding has yet to be made at the ICTY, with cases such as Kordic´ and Brđanin suggesting that the Trial Chamber favors considering propaganda as a means of liability rather than as an underlying criminal act. One notable circumstance where the ICTY has suggested that propaganda may in and of itself constitute an underlying criminal act relates to the war crime of terror. In the Galic´ case, the Trial Chamber, again in a decision upheld on appeal, found Stanislav Galic´ guilty of amongst other crimes, the crime of terror as a violation of international humanitarian law. In a finding which has received some criticism,33 the judgment held that the “Tadic´ Conditions” to be satisfied in determining whether the Tribunal had jurisdiction over a war crime of terror, had been met.34 The Trial

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Chamber identified the crime in Article 51 of Additional Protocol 1 to the Geneva Conventions, affirming that the war crime of terror shares the same elements as the crime of attacks against civilians—acts of violence willfully directed against the civilian population or individual civilians not taking direct part in hostilities, causing death or serious injury to body or health within the civilian population35—plus the additional mental element, namely that the offense “was committed with the primary purpose of spreading terror among the civilian population.”36 In finding that the “prohibition against terror is a specific prohibition within the general prohibition of attack on civilians,”37 the Trial Chamber drew upon the travaux preparatoires to the 1974–77 Diplomatic Conference held under the auspices of the ICRC. While the facts in Galic´ related to sustained sniper and shelling attacks on the civilian population of Sarajevo during the siege of 1992–95, the Trial Chamber’s reasoning noted that the ICRC’s summary of the discussions of what was to become Article 51(2) included the Committee’s recording that “specific reference was made in this connexion to propaganda.”38 This point was restated by the Appeals Chamber which held that the prohibition on terror directed against the civilian population in the Additional Protocols was declaratory of customary international law. With regards the actus reus of the crime, the Appeals Chamber noted that whereas the acts or threats of violence can vary, the primary concern must be the existence of the “specific intent” to spread terror,39 and in this context cited with approval that many states during drafting had referred to “propaganda” as a possible method of terror.40 A review of the travaux shows that Ghana, speaking also on behalf of Nigeria, Uganda and Tanzania, felt that draft Article 46 that was to become Article 51 of Additional Protocol 1 should cover “not only propaganda” but all acts calculated to spread terror among the civilian population,41 with Uganda specifying that the object of its support of Ghana’s position was “to obtain recognition of the role of propaganda in spreading terror.”42 India, suggesting that the method of spreading terror should be of secondary importance, nonetheless, requested explicit reference in the draft to “psychological or propaganda warfare.”43 Poland also felt acts of psychological warfare should be prohibited in this regard,44 whilst the sole dissent was from the USA which concurred that attacks on civilians intended to spread terror should be prohibited, but stressed that “the prohibition of the free flow of information was unacceptable.”45 The Appeals Chamber in Galic´ approved the Trial Chamber’s understanding that terror meant “extreme fear”46 and moved to distinguish between the incidental terror that almost inevitably arises from contemporary armed conflict from the crime of spreading terror. Drawing on examples cited in the indictment, the Appeal Chamber explained that an incident whereby an explosive device was placed outside of an ongoing military attack could be distinguished from a case “of extensive trauma and psychological damage” caused by “attacks [which] were designed to keep the inhabitants in a constant state of terror.”47 The facts in Galic´ itself did not include any reference to propaganda, incitement or hate speech, yet the case is notable, not only for pronouncing on the war crime

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of terror, but for suggesting that “propaganda” may in circumstances constitute “acts or threats of violence” and thus engagement in propaganda may in and of itself constitute a war crime. The Tribunal’s acknowledgment that propaganda can have an effect equivalent to physical violence is welcome, and in light of the emphasis on linking fear and propaganda in the overall jurisprudence of international criminal law, such as noted with respect to Brđanin’s propaganda above,48 may not be surprising. Such an acknowledgement, rooted in the travaux preparatoires, and necessary in light of the facts in the cases that each international criminal tribunal has had to address, represents a welcome step forward in bringing propaganda to the fore as a realm of criminal behavior of significant consequence in and of its own right.

Propaganda and joint criminal enterprise In reviewing the manner by which evidence of defendants’ engagement in propaganda activities was held to have demonstrated a substantial or significant contribution to a JCE, this section will consider the cases of Milomir Stakic´, Krajisˇnik, Milan Martic´ and Milan Gvero. Each of these judgments includes fairly substantial references to the role of propaganda in fomenting fear and criminal behavior, predominantly with respect to deportation and forcible transfer as crimes against humanity. The trial of Milomir Stakic´, President of the Serb-controlled Prijedor Municipality Crisis Staff, is primarily notable insofar as the Trial Chamber’s decision to apply “co-perpetratorship” as a mode of liability was overturned by the Appeals Chamber in favor of the theory of JCE. In its factual findings on the general background and political developments pertinent to the case, the Trial Chamber noted that following Slovenia and Croatia’s declarations of independence in June 1991 and the subsequent influx of Serb refugees into the municipality of Prijedor, Croats and Muslims began to leave the area because of a “growing sense of insecurity and fear amongst the population.” The judgment noted how pro-Serb propaganda became increasingly visible, with stereotyping of and derogatory broadcasts targeting Croats and Muslims. Municipal newspaper Kozarski Vjesnik and Radio Prijedor were described as having being key to the dissemination of propaganda, while TV Sarajevo was cut off by Serbian paramilitary forces and replaced with Serbian nationalist propaganda which would previously have been banned in Yugoslavia.49 In considering the actus reus elements of “co-perpetratorship,” the Trial Chamber held that Stakic´, acting with his co-perpetrators, shared the common objective of consolidating Serbian control in Prijedor Municipality which had a majority Muslim population, with their first aim being to separate Serbs from the other communities.50 The first in a series of agreements necessary to achieve the common goal was made in a meeting convened by Stakic´ in April 1992 and the takeover of the municipality by the Serbian authorities on 30 April 1992 was the culmination of months of planning by the SDS.51 The Trial Chamber noted

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that “A propaganda campaign helped to polarise the Prijedor population along ethnic lines and created an atmosphere of fear” and that Stakic´ made a number of media appearances during the summer of 1992 “instilling inter-ethnic suspicion.”52 Local crisis staffs established by the Municipality following the takeover were given basic tasks in June 1992 which included developing “the most varied forms and methods of information and political propaganda activities” (others were to generally coordinate and control security, military, and police affairs).53 The judgment noted that the directors of local media outlets as well as other named journalists would regularly attend meetings of the Crisis Staff or other pertinent committees while interviews with Stakic´ in favor of the SDS and its participation in the takeover of the municipality were published.54 With respect to the common criminal goals, the judgment noted that “The creation of an atmosphere of fear in Prijedor Municipality” culminated in the agreement amongst members of the Crisis Staff to use armed force against civilians and to establish the Omarska, Keraterm and Trnopolje camps.55 The Trial Chamber held that Stakic´ knew that his role and authority as the leading politician in Prijedor was essential for the accomplishment of the common goal, that he was aware that he could frustrate the objective of achieving a Serbian municipality, and that the evidence demonstrated that the actus reus and mens rea for co-perpetratorship existed.56 The Chamber held that as a result of the SDS-generated propaganda, the non-Serb population had been living in fear and uncertainty, given the “atmosphere of mistrust, fear, and hatred” fueled by the political tensions from the second half of 1991 until the takeover of power in April 1992.57 Relying amongst other evidence, on Stakic´’s responsibility for and engagement in propaganda as noted in the judgment, the Trial Chamber held that Stakic´ had used his position of authority to facilitate the deportation of civilians from the Municipality. Stakic´ was held responsible for not only committing the crime as a co-perpetrator but also for planning and ordering the crime.58 The Appeals Chamber’s judgment adopted the theory of JCE, asserting that the campaign at the heart of this JCE consisted of prescribed criminal acts, notably the crimes against humanity of persecutions, deportation and other inhumane acts (forcible transfer) punishable under Articles 5(h), 5(d) and 5(i) of the Statute respectively.59 It upheld the Trial Chamber’s factual findings, holding that the Appellant participated in a JCE in the first category, the Common Purpose of which was to persecute, deport, and forcibly transfer the Bosnian Muslim and Bosnian Croat populations of Prijedor.60 The Appeals Chamber agreed with the statement made in the Krnojelac Trial judgment that the term “forced,” when used in reference to the crime of deportation, is not to be limited to physical force but includes the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.61 This is in keeping not only with

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the reasoning in Galic´, but also the Trial Chamber’s finding in Krstic´ with respect to the Elements of Crimes for the ICC. These provide that the term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.62 The Appeals Chamber upheld the Trial Chamber’s conclusion that “the atmosphere in the municipality of Prijedor during the time relevant to the Indictment was of such a coercive nature that the persons leaving the municipality cannot be considered as having voluntarily decided to give up their homes.”63 Although Stakic´’s propaganda was not explicitly addressed by the Appeal Chamber, it did uphold the Trial Chamber’s finding that this “atmosphere” was created by the propaganda activities of the SDS and the Municipality, as coordinated and vocalized by Stakic´, and for which he was therefore responsible both individually and as part of the JCE. Although convicted of crimes against humanity, Stakic´ was acquitted on charges of genocide and complicity in genocide. The Trial Chamber, noting that instigation as a mode of liability had been dismissed, stated that with respect to genocide, instigation was the derogated mode of criminal liability insofar as the direct and public incitement to commit genocide would take priority. Since incitement was not charged in the amended indictment, however, the Chamber limited its discussion to the crimes of genocide and complicity in genocide.64 In determining that Stakic´ did not possess the requisite dolus specialis for genocide, the judgment drew on the evidence presented regarding his propaganda activity. The Trial Chamber held that “even though Dr Stakic´ helped to wage an intense propaganda campaign against Muslims, there is no evidence of the use of hateful terminology by Dr Stakic´ himself from which the dolus specialis could be inferred.”65 It was held that although his statements did reveal an intention to adjust the ethnic composition of Prijedor, the Chamber could not infer an intention to destroy the Muslim group. On appeal, the Prosecutor challenged the Trial Chamber for not having given adequate weight to Stakic´’s derogatory statements as evidence of genocidal intent.66 Stakic´ himself claimed the evidence at Trial demonstrated that his speeches had demonstrated “his desire for peace” and denied that he had given “nationalistic or incendiary speeches.”67 The Appeals Chamber concluded that the Trial Chamber’s assessment of Stakic´’s derogatory statements was reasonable, noting that “evidence demonstrating ethnic bias, however reprehensible, does not necessarily prove genocidal intent.” 68 Similarly in the case of Momcˇilo Krajisˇnik, which cited Stakic´ with approval, the Trial Chamber held that the evidence did not show that the crime of genocide formed part of the common objective of the JCE in which the accused had participated, noting that “Even the more extreme statements of the Accused, such as his speech at the Bosnian-Serb Assembly session of 8 January 1993, do not enable the Chamber to conclude that his intent went further than the removal of Muslims and Croats from territories in Bosnia-Herzegovina.”69

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The operative indictment against Krajisˇnik charged that between 1 July 1991 and 30 December 1992, Krajisˇnik, Plavsˇic´ and others, including Slobodan Milosˇevic´, Zˇeljko Razˇnatovic´ aka “Arkan,” Radovan Karadzˇic´ and Ratko Mladic´, participated in a JCE in which they planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of persecutions of the Bosnian Muslim, Bosnian Croat or other non-Serb populations of 37 municipalities in Bosnia and Herzegovina. Krajisˇnik, a member of the Bosnian Serb (later “Republika Srpska”) leadership during the war was on the Main Board of the SDS and President of the Bosnian Serb Assembly. He was alleged to have supported or participated in “spreading propaganda and engendering fear and hatred against Bosnian Muslims and Bosnian Croats” and “in providing misleading information to the public as well as to the international community and non-governmental organizations about crimes committed by Bosnian-Serbs.”70 The common objective of the JCE was identified as being to ethnically recompose the territories targeted by the Bosnian-Serb leadership by drastically reducing the proportion of Bosnian Muslims and Bosnian Croats through expulsion, with the crimes of deportation and forced transfer being the original crimes of this common objective. Krajisˇnik gave the go-ahead for the expulsion program to commence during a session of the Bosnian-Serb Assembly when he called for, “implementing what we have agreed upon, the ethnic division on the ground.” The Trial Chamber, in setting out the political precursors to the crimes alleged, noted that a “state of fear” had been shaped in Bosnia when collective memory of crimes committed against Serbs during the Second World War were fueled by ethnically based attacks and threats against Serbs. The SDS was held to have exploited such growing fears thereby “exacerbating the mutual mistrust among the ethnicities” with Krajisˇnik and others in the JCE emphasizing the links between ongoing violence against Serbs and the “genocide” committed against Serbs during the Second World War, as well as by stressing the threat facing Bosnian Serbs left as a minority in an “Islamic republic.”71 One of the first acts of the Bosnian-Serb Assembly following a plebiscite it claimed as having given it legitimacy, was the recommendation to the SDS Deputies’ Club in the BosniaHerzegovina Assembly to foster a division of the joint mass media and the creation of separate radio and television channels, “which shall provide objective, true and just accounts of the Serbian people.”72 In respect of the takeover of Prijedor Municipality, the Trial Chamber noted how SDS controlled radio broadcast accusations and propaganda against Muslims and Croats which included ethnic insults,73 while restrictions on the movement of Muslims in Focˇa were accompanied by increasingly aggressive SDS political propaganda as well as outbursts of violence and house-burning.74 The judgment noted that Krajisˇnik’s overall contribution to the JCE was “to help establish and perpetuate the SDS party and state structures that were instrumental to the commission of the crimes. He also deployed his political skills both locally and internationally to facilitate the implementation of the JCE’s common objective through the crimes envisaged by that objective.”75 Of 11 distinct, yet related

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alleged contributions of Krajisˇnik to the JCE, three that the Trial Chamber held to have been proven were related directly to propaganda, hate speech, incitement, or control and manipulation of information for criminal ends.76 Of these three identified grounds of contribution, the only one which the Chamber explicitly explained by reference to evidence of propaganda was that of: (d) Directing, instigating, encouraging and authorizing the Bosnian Serb Political and Governmental Organs and the Bosnian Serb Forces to carry out acts in order to further the objective of the joint criminal enterprise.77 In holding that this claim had been proven, the Trial Chamber noted Krajisˇnik’s speech to the Bosnian-Serb Assembly on 18 March 1992 when he called for the “ethnic division on the ground,” thereby instigating, encouraging and authorizing the implementation of the common objective. Another example cited by the Trial Chamber included how at the 12 May 1992 Assembly session which saw the establishment of the VRS, Krajisˇnik openly advocated violence against Muslims and Croats, saying “it will be possible to solve this thing with Muslims and Croats only by war.”78 In conclusion, the Trial Chamber held that Krajisˇnik was found guilty through participation in a JCE of persecution as a crime against humanity, deportation as a crime against humanity and inhumane acts (forced transfer) as a crime against humanity, in large part due to his incendiary speeches and oversight in the Bosnian-Serb Assembly.79 The Trial Chamber’s reliance on the alleged contributions were revisited by the Appeals Chamber following allegations of errors relating to the judgment’s analysis of the JCE. An amicus curiae brief submitted that the conduct identified by the Trial Chamber did not amount to a significant contribution to the JCE, claiming that: “The Chamber appears to have considered that because [Krajisˇnik] did not stop MPs in the Assembly from making inflammatory statements, that, as speaker, he was in effect encouraging and adopting their statements. [. . .] A speaker cannot be held responsible for whatever is said in the parliamentary assembly. The approach appears to conflate the ‘prevent/punish’ requirement of command responsibility with JCE.”80 In response, the Appeals Chamber first recalled that the participation of an accused person in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose, and that the contribution need not be necessary or substantial, but it should at least be a significant contribution to the crimes for which the accused is found responsible.81 The Chamber held that the brief made but a single relevant claim, namely the statement that “the Trial Chamber erred in considering his failure to prevent other members of the Bosnian-Serb Assembly from making inflammatory statements as a contribution to the JCE.”82 In considering whether the Trial Chamber found that this failure on Krajisˇnik’s part constituted a contribution to the JCE, or whether the Trial Chamber had simply referred to this as one of the factors demonstrating

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Krajisˇnik’s knowledge, support and intent for the crimes, as the prosecution contended, the Appeals Chamber concluded that the failure could arguably constitute a significant contribution to the JCE.83 Noting the Trial Chamber’s finding that Krajisˇnik did not act as a neutral parliamentary speaker, since “[w]hen he was not generating or echoing extreme political views himself, his method was to lend support to aggressive elements in the Assembly by giving them a platform for their views,” and that there was no evidence that Krajisˇnik ever tried to moderate extreme views, the Appeals Chamber held this could arguably constitute a significant contribution to the JCE.84 The Appeals Chamber concluded on this point by stating that “more importantly” the Trial Chamber clearly did not find that Krajisˇnik’s contribution to the JCE was limited to his failure to prevent other members of the Bosnian-Serb Assembly from making inflammatory statements since the judgment found that Krajisˇnik contributed to the realization of the JCE in various wide-ranging ways. A footnote to this paragraph in the Appeals Chamber’s reasoning,85 further suggested that Krajisˇnik’s failure to prevent other members of the Bosnian-Serb Assembly from making inflammatory statements could arguably fall under proven allegation C, which read: (c) Supporting, encouraging, facilitating or participating in the dissemination of information to Bosnian Serbs that they were in jeopardy of oppression at the hands of Bosnian Muslims and Bosnian Croats, that territories on which Bosnian Muslims and Bosnian Croats resided were Bosnian Serb land, or that was otherwise intended to engender in Bosnian Serbs fear and hatred of Bosnian Muslims and Bosnian Croats or to otherwise win support for and participation in achieving the objective of the joint criminal enterprise.86 Finally, Krajisˇnik challenged the judgment’s findings with respect to political precursors, and specifically the Trial Chamber’s finding that, from its inception in September 1991 the ARK started taking over television and radio installations, broadcasting “Serb” programs that intimidated other nationalities, and barring Muslim leaders from the radio while giving SDS leaders unlimited access. Krajisˇnik asserted that the taking of control over the television relays was merely due to the “one-sided programs broadcast on RTV [Radio Television] Sarajevo and other Muslim controlled media from Sarajevo,” a claim that the Appeals Chamber promptly dismissed as a “bare assertion.”87 As President of the Republic of Serbian Krajina (RSK), Milan Martic´ held the highest political office and controlled the armed forces of the Republika Srpska. The Trial Chamber considered that in holding such positions he was obligated to prevent the commission of crimes and to ensure that all inhabitants of the territories under his authority enjoyed respect for human rights. It was held proven beyond reasonable doubt that Milan Martic´ abused these positions and that through continuous and systematic efforts to create an ethnically Serb territory, promoted an atmosphere of mistrust and fear between Serbs and non-Serbs, in particular

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Croats, thereby contributing significantly to the furtherance of the common purpose of the JCE, of which he was a key member in the Serbian Autonomous Region (SAO) Krajina and the RSK.88 Martic´ was convicted, inter alia, of deportation as a crime against humanity, and forcible transfer as a crime against humanity. The Trial Chamber’s factual findings noted that in the Knin area, the Croat population began to fear for their safety and began requesting authorization from the RSK authorities to leave the RSK territory. The judgment noted that “The insecurity of the Croats was also aggravated by speeches of Milan Martic´ on the radio that he could not guarantee their safety, particularly in the area of Knin. As a result, in the period between 1992 and 1993 the RSK police directed the Croat population towards Croat settlements.”89 The Trial Chamber found that Martic´ actively participated in the furtherance of the common purpose of the JCE by providing substantive financial, logistical and military support to the SAO Krajina and the RSK, by actively working together with the other JCE participants to fulfill the objective of a united Serb state, by fueling an atmosphere of insecurity and fear through radio speeches, by refraining from intervening against perpetrators who committed crimes against the non-Serb population, and by actively participating in the forcible removal of the non-Serb population.90 The Chamber concluded that many of the crimes found to have been perpetrated against the non-Serb population were outside the common purpose of the JCE, but that Martic´ had willingly took the risk that these crimes might be perpetrated against the non-Serb population.91 At the Appeals Chamber, Martic´ submitted that the Trial Chamber erred in finding that he actively participated in the furtherance of the common purpose of the JCE, arguing that the findings were mainly based on circumstantial evidence and that they did not satisfy the requirement that inferences of fact should leave no room for reasonable doubt.92 Martic´ specifically alleged error regarding the Trial Chamber’s consideration of his radio speeches. In dismissing this sub-ground of appeal, the Appeals Chamber simply noted “that Martic´’s submission was unsupported by reference to any evidence.”93 One of the four founding Generals of the Bosnian Serb Army, Milan Gvero, whose case was joined in Popovic´ et al., was the Assistant Commander for Morale, Legal and Religious Affairs of the Bosnian Serb Army, responsible for building morale amongst the troops and of “managing the dissemination of information and propaganda for the troops in support of the aims of the war, in the preparation for and during the course of combat operations.”94 Directive 7 issued by VRS Supreme Command and qualified as a state secret, set out tasks for the VRS including addressing the importance of unity between Serbian political and military leadership, and stressed the need for “more ‘aggressive propaganda’” in order to “create a free and unified Serbian state in the former Yugoslavia” which would be aimed at limiting the scope of United Nations Protection Force (UNPROFOR) activity and at shaping international public opinion.95 The directive included a section for “Moral and Psychological Support”—which under the heading “Support for Combat Actions”—stated that:

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[e]xternally a more aggressive propaganda and information presence should be maintained, aimed at gaining allies, deepening discord in the coalition, unmasking the biased and hostile activities of certain individuals and parts of UNPROFOR and some humanitarian organizations and undermining the enemy’s fighting morale. This is to be achieved through planned and organised information and propaganda activities coordinated from State level.96 Gvero was also tasked with external propaganda related to the perception of the VRS in international media, but the Trial Chamber held that the evidence showed that he was limited in what he could do with respect to the media given that the Republika Srpska’s International Press Centre was outside his control.97 A subsequent Directive issued at the end of March read in the section for “Moral and Psychological Support” that: [t]hrough planned and coordinated informative and propaganda activities with state organs and media institutions, expose the bias of UNPROFOR and the international community, which are allowing the enemy to arm freely and continually attack Serbian defensive positions from the “protected zone” of Tuzla [. . .] Coordinate giving information to the public about combat actions in the operation and psychological and propaganda activities directed against the enemy through the Centre for Information and Propaganda Activities of the VRS Main Staff.98 In making its findings on the charges against Gvero, the Trial Chamber held that he had knowledge of the Strategic Objectives of the JCE and knew of the plan to forcibly remove the civilian population from the Srebrenica and Zˇepa enclaves.99 The joint plan was held to have been demonstrated by Directive 7100 to whose drafting Gvero provided input into his area of responsibility, namely the objectives pertaining to “Moral and Psychological Support,” and he was thus well aware of its content, and of his responsibility for implementing those specific objectives.101 The overall role played by Gvero within the VRS staff stemmed from his senior position in the VRS Main Staff and he was held to be informed of all major developments in the campaign so as to ensure he could intervene if necessary “if issues of morale arose or dissemination of information might be needed.”102 The Trial Chamber considered the prosecution’s claims regarding Gvero’s alleged responsibility for restrictions on humanitarian aid and the transport of wounded and sick out of Republika Srpska but did not find that the evidence showed the alleged actions constituted a contribution to the JCE. That Gvero had made a significant contribution to the common purpose of the JCE was found by the Trial Chamber to have been demonstrated through his efforts “to delay and block international protective intervention” to prevent the VRS from overtaking the Srebrenica enclave and forcibly removing the civilian population. The Chamber considered the evidence under the sub-heading “War Propaganda, Misleading Information and Threats,” focusing on the Prosecution’s allegations

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that Gvero had disseminated false information to the media and international organizations and that he had threatened and pressured UNPROFOR Commander Nicolai in an effort to stop NATO bombings. The Trial Chamber pointed to the following evidence which it held illustrated clearly that Gvero had been “entrusted with key functions related to external propaganda and interaction with international organizations, aimed at supporting the plan to forcibly transfer the populations of Srebrenica and Zˇepa.”103 This evidence included his media statement on the occasion of the VRS’s military assault on the enclave “in which he explained that the VRS” combat activity was directed towards neutralizing Muslim terrorists and was not directed against civilians or members of UNPROFOR. His conclusion was that “there is no reason for the media and foreigners to get involved in the Muslim war propaganda.”104 The Trial Chamber asserted that in light of Gvero’s knowledge of the plan to forcibly remove and the action taken to implement it, this “was unquestionably a misleading press release.” The judgment continued, “While of course the release of false information to the media and international authorities does not constitute a criminal act, the purpose of the release was not an innocent one. The only reasonable inference as to the goal behind this communiqué is that it was intended to mislead, in particular the international authorities concerned with protecting the enclave, with a view to delaying any action on their part which might thwart the VRS’ military efforts.”105 The Trial Chamber noted that the following day Gvero called UNPROFOR headquarters in Sarajevo and spoke with General Nicolai adopting “his earlier tactic of falsely asserting that this was only the VRS responding to attacks.”106 The Chamber held that Gvero’s aim in calling Nicolai had been to threaten him with the lives of UN staff and of civilians unless the NATO airstrikes—“the only means by which the VRS’ advance towards and capture of the enclave could be halted”107— and which thus constituted the last significant obstacle to the completion of the plan, were halted. On the basis of these acts taken in combination, the Trial Chamber was “satisfied that Gvero played a limited but important role in supporting the VRS’ military action, which was essential to the success of the plan to forcibly transfer” and “that by disseminating false information and issuing a serious threat, whether effective or not in the end, Gvero made a contribution to the JCE which by its nature cannot be classified as other than significant.”108 Adducing from the same evidence that Gvero shared the intent to see the plan carried out, the Trial Chamber found him to be a participant in the JCE to forcibly remove.109 Gvero was held guilty of inhumane acts (forcible transfer) as a crime against humanity punishable under Article 5(i) of the Statute.110 Based on his responsibility for and knowledge of Directive 7, the Trial Chamber further held that Gvero was criminally responsible for committing persecution through the underlying acts of forcible transfer, cruel and inhumane treatment and terrorizing civilians, committed through his participation in the JCE to forcibly remove with persecutory intent,111 and thus guilty for persecution as a crime against humanity.112

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Summary It is difficult to adduce from Gvero’s conviction the importance of the propaganda highlighted throughout the judgment given that the key “propaganda act” around which the Trial Chamber stressed as a significant contribution to the JCE, consisted of a private phone call in which he threatened a UN official. This is indicative, however, of the peculiar location of propaganda in the jurisprudence. Having reviewed the above it may be surmised that several themes with respect to propaganda have developed at the ICTY. The judgments are clear in identifying that propaganda was at the core of many of the common plans shared by defendants to undertake war crimes and crimes against humanity. That the goal of such propaganda was to induce, on the one hand, a state of terror such that civilians would feel their only option was to leave their homes, and, on the other, to fan a state of hatred whereby combatants would further such deportations or transfers through the commission of “incidental” war crimes appears clear. The propaganda activities of defendants in high ranking political and military positions has been relied upon as evidence of their contributions to JCEs both in the first and third categories, while propaganda may be sufficient to be criminal in its own right with respect to the war crime of terror and persecution as a crime against humanity. In sum, though, given the sweep of the Tribunal’s jurisprudence, it is difficult to identify how international criminal law has developed in order to address propaganda. Given the scope and intensity of the propaganda described in the jurisprudence, should one be surprised to see so little attention given to the specific issue of whether an individual defendant’s speech had risen to the required level of gravity that it be considered criminal? The theory of JCE has been criticized for allowing findings of guilt against individuals where it can be all too unclear as to what weight specific allegations or evidence adduced is of in the final determination. It would appear from this brief overview of some of the leading cases where the ICTY has considered evidence of propaganda that such is often the case. Thus whereas the distinction between hate speech and of incitement to crimes is a well established principle of general criminal law, in many of these judgments the Tribunal has not found it necessary to address the specifics of the particular crimes as they relate to various manifestations of propaganda and speech-related crimes, but has rather identified an individual’s engagement in some form of propaganda, hate speech, or incitement as being amongst evidence of a contribution to a JCE. As the ad hoc Tribunals wind down, the future application of the theory of JCE is not guaranteed, with early signals from the ICC suggesting rather that the Court will follow the theory of perpetration by means. It is to be hoped that the latter theory will allow for greater consideration to be given to propaganda, incitement and hate speech in international criminal law and that it shall allow for the single individual responsibilities of the participants in the commission of crimes to be more precisely assessed, rather than perpetuate the general and often ambivalent manner in which propaganda has been addressed at the ICTY.113

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It was suggested at the outset that perhaps what was lacking at the ICTY was a case akin to that of Streicher at Nuremberg, or of Nahimana at the ICTR, where the Trial Chamber could step back from the complexities and challenges presented in considering imputed criminal liability from the perspective of the Tribunal’s role going beyond basic accountability to encompass perhaps peacemaking, reconciliation, deterrence and the creation of a historical record,114 thereby facilitating a focus on many of the unresolved issues pertaining to propaganda in international criminal law. The case of Vojislav Sˇesˇelj may once have appeared to provide such a case, but it has instead been repeatedly been disrupted. The indictment against Sˇesˇelj accuses him of individual criminal responsibility for various crimes he committed by way of “direct and public denigration” and public speeches,115 as well as of having participated in a JCE by way of “inflammatory speeches in the media” instigating Serb forces to commit war crimes and crimes against humanity,116 “participated in war propaganda and incitement of hatred,”117 in public speeches instigated “a persecution campaign against the local Croat population,” and indoctrinated Serb forces “with his extreme rhetoric” so that they engaged in ethnic cleansing of non-Serbs “with particular violence and brutality.”118 As things stand however, propaganda remains certain to continue playing a somewhat ill-defined yet pervasive role in the remainder of the Tribunal’s activities. Indictments filed in ongoing cases such as Gotovina et al., Karadzˇic´ and Prlic´ et al., each allege that the accused participated in or acted in furtherance of JCEs by “dissemination of information, false information and propaganda,”119 “the use of propaganda, disinformation and psychological warfare,”120 “the dissemination of propaganda to Bosnian Serbs intended to engender in Bosnian Serbs fear and hatred of Bosnian Muslims and Bosnian Croats,”121 “by speeches, propaganda and false information [. . .] created, instigated and supported a charged antiMuslim atmosphere, promoted ethnic division and fostered religious mistrust.”122 With the prosecution’s ever greater reliance on charges revolving around propaganda, it shall be interesting to see how and whether the remaining judgments of the ICTY consider how propaganda is to be located in contemporary international criminal law.

Notes 1 International Military Tribunal (Nuremberg), Indictment, Count One—The Common Plan or Conspiracy, I Nazi Conspiracy and Aggression, Washington, DC: United States Government Printing Office, 1946. 2 International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946, p. 182. 3 International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946, p. 296. 4 International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946, pp. 327–328. 5 International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946, p. 328.

Propaganda in the jurisprudence of the ICTY 249 6 Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression: Opinion and Judgment, p. 175. 7 S. Zˇizˇek, Living in the End Times, London: Verso, 2010, p. 95. 8 Prosecutor’s Application, ICC-01/09-30-Conf-Exp 15 December 2010, para. 24. 9 Prosecutor v. Ruto et al., Case No. ICC-01/09-01/11, 8 March 2011. 10 M.G. Kearney, The Prohibition of Propaganda for War in International Law, New York, NY: Oxford University Press, 2007. 11 Prosecutor v. Dusˇko Tadic´ a.k.a. “Dule”, Case No. IT-94-1, 7 May 1997, para. 87. 12 Prosecutor v. Dusˇko Tadic´ a.k.a. “Dule”, Case No. IT-94-1, 7 May 1997, para. 88. 13 Prosecutor v. Dusˇko Tadic´ a.k.a. “Dule”, Case No. IT-94-1, 7 May 1997, para. 130. 14 Prosecutor v. Dario Kordic´ and Mario Cˇerkez, Amended Indictment, Case No. IT-9514/2-A, 30 September 1998, paras 37(c) and 39(c). 15 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 80. 16 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 80. 17 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 83. 18 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 322. 19 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 323. 20 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 330. 21 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 330. 22 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 331. 23 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 573. 24 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 574. 25 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 574. 26 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 577. 27 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 578-583. 28 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, paras 1009 and 1015. 29 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, paras 1009 and 1018. 30 W. Schabas, An Introduction to the International Criminal Court, Third Edition, Cambridge: Cambridge University Press, 2007, p. 213. 31 F. Pocar, ‘Persecution as a Crime Under International Law’, J Nat’l Sec L & Pol’y, vol. 2, 2006–8, p. 355. at p. 360. 32 Ibid., p. 361. 33 Prosecutor v. Stanislav Galic´, Separate and Partially Dissenting Opinion of Judge Nieto-Navia, IT-98-29-T 5, December 2003. 34 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-T, 5 December 2003, para. 89. 35 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-T, 5 December 2003, para. 62.

250 Propaganda, War Crimes Trials and International Law 36 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-T, 5 December 2003, para. 133. 37 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-T, 5 December 2003, para. 98. 38 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-T, 5 December 2003, para. 100. 39 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-A, 30 November 2006, para. 102. 40 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-A, 30 November 2006, para. 102, fn 317. 41 TP Vol XV, CDDH/III/SR. 7, para. 11. 42 TP Vol XV, CDDH/III/SR. 8, para. 18. 43 TP Vol XV, CDDH/III/SR. 8, para. 73. 44 TP Vol XV, CDDH/III/SR. 8, para. 14. 45 TP Vol XV, CDDH/III/SR. 8, para. 70. 46 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-A, 30 November 2006, para. 103, fn. 320. 47 Prosecutor v. Stanislav Galic´, Judgment, Case No. IT-98-29-A, 30 November 2006, para. 102. 48 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 1 September 2004, para. 322; Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, 3 April 2007, para. 322. 49 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, paras 52, 105–7. 50 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 470. 51 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, paras 472–3. 52 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 476. 53 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 97. 54 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 107. 55 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 47. 56 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 498. 57 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 688. 58 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 712. 59 Prosecutor v. Stakic´, Judgment, Case No. IT-97-24-A, 22 March 2006, para. 73. 60 Prosecutor v. Stakic´, Judgment, Case No. IT-97-24-A, 22 March 2006, para. 78. 61 Prosecutor v. Stakic´, Judgment, Case No. IT-97-24-A, 22 March 2006, para. 281. 62 Prosecutor v. Radislav Krstic´, Judgment, Case No. IT-98-33-T, 2 August 2001, para. 1342. 63 Prosecutor v. Stakic´, Judgment, Case No. IT-97-24-A, 22 March 2006, paras 282–3. 64 Prosecutor v. Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 503. 65 Prosecutor v. Milomir Stakic´, Judgment, Case No. IT-97-24-T, 31 July 2003, para. 554. 66 Prosecutor v. Stakic´, Judgment, Case No. IT-97-24-A, 22 March 2006, para. 49. 67 Prosecutor v. Stakic´, Judgment, Case No. IT-97-24-A, 22 March 2006, para. 50. 68 Prosecutor v. Stakic´, Judgment, Case No. IT-97-24-A, 22 March 2006, para. 52. 69 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 1092. 70 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 7. 71 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, paras 43-7. 72 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 78.

Propaganda in the jurisprudence of the ICTY 251 73 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 471. 74 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 623. 75 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 1120. 76 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 1121. 77 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 1121. 78 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 1121. 79 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 1126. 80 Prosecutor v. Momcˇilo Krajisˇnik, Appeals Chamber Judgment, Case No. IT-00-39-A, 17 March 2009, para. 209. 81 Prosecutor v. Momcˇilo Krajisˇnik, Appeals Chamber Judgment, Case No. IT-00-39-A, 17 March 2009, para. 215. 82 Prosecutor v. Momcˇilo Krajisˇnik, Appeals Chamber Judgment, Case No. IT-00-39-A, 17 March 2009, para. 217. 83 Prosecutor v. Momcˇilo Krajisˇnik, Appeals Chamber Judgment, Case No. IT-00-39-A, 17 March 2009, para. 217. 84 Prosecutor v. Momcˇilo Krajisˇnik, Appeals Chamber Judgment, Case No. IT-00-39-A, 17 March 2009, para. 217. 85 Prosecutor v. Momcˇilo Krajisˇnik, Appeals Chamber Judgment, Case No. IT-00-39-A, 17 March 2009, para. 217, fn 537. 86 Prosecutor v. Momcˇilo Krajisˇnik, Judgment, Case No. IT-00-39-T, 27 September 2006, para. 1121. 87 Prosecutor v. Momcˇilo Krajisˇnik, Appeals Chamber Judgment, Case No. IT-00-39-A, 17 March 2009, para. 436. 88 Prosecutor v. Milan Martic´, Trial Chamber Judgment, Case No. IT-95-11-T, 12 June 2007, para. 498. 89 Prosecutor v. Milan Martic´, Trial Chamber Judgment, Case No. IT-95-11-T, 12 June 2007, para. 297. 90 Prosecutor v. Milan Martic´, Trial Chamber Judgment, Case No. IT-95-11-T, 12 June 2007, paras 448–453. 91 Prosecutor v. Milan Martic´, Trial Chamber Judgment, Case No. IT-95-11-T, 12 June 2007, para. 454. 92 Prosecutor v. Milan Martic´, Judgment, Case No. IT-95-11-A, 8 October 2008, para. 118. 93 Prosecutor v. Milan Martic´, Judgment, Case No. IT-95-11-A, 8 October 2008, para. 134. 94 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1752. 95 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 199 96 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1757. 97 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1753. 98 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1761. 99 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1803.

252 Propaganda, War Crimes Trials and International Law 100 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1806. 101 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1802. 102 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, paras 1805–6. 103 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1813. 104 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1814. 105 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1815. 106 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1816. 107 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1818. 108 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1820. 109 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1822. 110 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1826. 111 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1833. 112 Prosecutor v. Popovic´ et al., Judgment, Case No. IT-05-88-T, 10 June 2010, para. 1836. 113 S. Manacorda and C. Meloni, ‘Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?’, J Int. Criminal Justice, vol. 9, no. 1, 2011, p. 177. 114 Shane Darcy, ‘Imputed Criminal Liability and the Goals of International Justice’, Leiden J Int’l L, vol. 20, 2007, p. 377. 115 Prosecutor v. Vojislav Sˇ esˇelj, Third Amended Indictment, Case No. IT-03-67, 7 December 2007, para. 5. 116 Prosecutor v. Vojislav Sˇ esˇelj, Third Amended Indictment, Case No. IT-03-67, 7 December 2007, para. 10b. 117 Prosecutor v. Vojislav Sˇ esˇelj, Third Amended Indictment, Case No. IT-03-67, 7 December 2007, para. 10c. 118 Prosecutor v. Vojislav Sˇ esˇelj, Third Amended Indictment, Case No. IT-03-67, 7 December 2007, para. 10g. 119 Prosecutor v. Gotovina et al., Amended Joinder Indictment, Case No. IT-06-90-PT, 17 May 2007, para. 17c. 120 Prosecutor v. Gotovina et al., Amended Joinder Indictment, Case No. IT-06-90-PT, 17 May 2007, para. 28. 121 Prosecutor v. Radovan Karadzˇic´, Third Amended Indictment, Case No. IT-95-5/18PT, 27 February 2009, para. 14c. 122 Prosecutor v. Prlic´ et al., Second Amended Indictment, Case No. IT-04-74-T, 11 June 2008, para. 39a.

Bibliography Darcy, S., ‘Imputed Criminal Liability and the Goals of International Justice’, Leiden J Int’l L, vol. 20, 2007, p. 377. International Military Tribunal (Nuremberg), Indictment, Count One—The Common Plan or Conspiracy, I Nazi Conspiracy and Aggression, Washington, DC: United States Government Printing Office, 1946. Kearney, M.G., The Prohibition of Propaganda for War in International Law, New York, NY: Oxford University Press, 2007. Manacorda, S. and Meloni, C., ‘Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?’, J Int. Criminal Justice, vol. 9, no. 1, 2011, p. 177. Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression: Opinion and Judgment.

Propaganda in the jurisprudence of the ICTY 253 Pocar, F., ‘Persecution as a Crime Under International Law’, J Nat’l Sec L & Pol’y, vol. 2, 2006–9, p. 355. Schabas, W., An Introduction to the International Criminal Court, Third Edition, Cambridge: Cambridge University Press, 2007. Zˇizˇek, S., Living in the End Times, London: Verso, 2010.

Table of cases IMT International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946.

ICTY Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T. Prosecutor v. Stanislav Galic´, Case No. IT-98-29-T 5. Prosecutor v. Stanislav Galic´, Case No. IT-98-29-T. Prosecutor v. Stanislav Galic´, Case No. IT-98-29-A. Prosecutor v. Gotovina et al., Case No. IT-06-90-PT. Prosecutor v. Radovan Karadzˇic´, Case No. IT-95-5/18-PT. Prosecutor v. Dario Kordic´ and Mario Cˇerkez, Case No. IT-95-14/2-A. Prosecutor v. Momcˇilo Krajisˇnik, Case No. IT-00-39-T. Prosecutor v. Momcˇilo Krajisˇnik, Case No. IT-00-39-A. Prosecutor v. Radislav Krstic´, Case No. IT-98-33-T. Prosecutor v. Milan Martic´, Case No. IT-95-11-T. Prosecutor v. Milan Martic´, Case No. IT-95-11-A. Prosecutor v. Popovic´ et al., Case No. IT-05-88-T. Prosecutor v. Prlic´ et al., Case No. IT-04-74-T. Prosecutor v. Vojislav Sˇesˇelj, Case No. IT-03-67. Prosecutor v. Milomir Stakic´, Case No. IT-97-24-T. Prosecutor v. Stakic´, Case No. IT-97-24-A. Prosecutor v. Dusˇko Tadic´ a.k.a. “Dule”, Case No. IT-94-1.

ICC Prosecutor’s Application, ICC-01/09-30-Conf-Exp, 15 December 2010. Prosecutor v. Ruto et al., Case No. ICC-01/09-01/11, 8 March 2011.

Chapter 8

The ghost of causation in international speech crime cases* Susan Benesch

In its best-known ruling on incitement to genocide, the ICTR described that crime as an unequivocal cause of mass killing. The tribunal said of the defendant Hassan Ngeze, a newspaper editor, “He poisoned the minds of his readers, and by words and deeds caused the deaths of thousands of innocent people.”1 Sentencing the radio executive Ferdinand Nahimana to life imprisonment2 in the same case, the judges told him, “Without a firearm, machete, or any physical weapon, you caused the deaths of thousands of innocent civilians.”3 The idea that inflammatory speech is a catalyst for genocide is widely believed, likely correct and of no small importance: it is the reason why incitement to genocide became an international crime in the first place,4 and an inspiration for this book. But the impact of speech on groups is complex, and difficult to measure or prove. In the famous so-called “Media Trial” case cited above, the ICTR welded its own causal link between certain speech acts and thousands of deaths, since causation was not proved, despite testimony from more than 100 witnesses over the course of a three-year trial. No prosecution for incitement to genocide to date has led evidence that speech caused thousands of deaths: only evidence that the speech was made, juxtaposed with separate evidence of mass violence afterward, or opinions from witnesses who heard or read the speech and surmised that it had influenced other people to kill on a fearsome scale. Yet judges have often made stirring pronouncements about causation, such as the ones cited above—curiously since there was no legal need for them. Incitement to genocide is a crime whether it leads to genocide or not.5 Neither factually supported nor legally required, then, causation still haunts this young body of case-law. In the ICTR’s first incitement to genocide judgment in 1998, against Jean-Paul Akayesu, the bourgmestre or mayor of the Rwandan township of Taba, the Trial Chamber declared that evidence of causation was required, only to concede the contrary a few pages later. The judges asserted that there “must be proof”6 of a possible causal link (and twice claimed to have found it7), yet also asserted the opposite, which is correct: incitement may be punished

*

An extended discussion of the ideas presented here will be forthcoming as a law journal article.

The ghost of causation in international speech crime cases 255

without proof that it caused genocide. Explaining that view, the judges wrote eloquently: In the opinion of the Chamber, the fact that such acts are in themselves particularly dangerous because of the high risk they carry for society, even if they fail to produce results, warrants that they be punished as an exceptional measure. The Chamber holds that genocide clearly falls within the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even where such incitement failed to produce the result expected by the perpetrator.8 It must be noted, in light of any critique, that the ICTR was pioneering an almost entirely new branch of law. The IMT at Nuremberg tried Julius Streicher and Hans Fritzsche on the basis of their newspaper writings and broadcasts, respectively, but speech crimes had not been criminalized in the Nuremberg Charter. Instead, Streicher was convicted for crimes against humanity (the IMT acquitted Fritzsche)9 in a judgment barely two pages long.10 Incitement to genocide was codified soon afterward, in 1948, and Akayesu was the first person to be convicted for that crime, almost exactly 50 years after that. Incitement is among the five acts prohibited by the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (the others are attempt, complicity, conspiracy and genocide itself) to fulfill the treaty’s purpose of preventing genocide, such an “odious scourge”11 that special legal measures were justified, in the view of the Convention’s authors. To this day, incitement to genocide has special status in international criminal law12 since there is no law against incitement to a “grave crime” such as war crimes or crimes against humanity.13 International law does prohibit other types of speech and some “lesser” forms of incitement. Instigation is speech directed at an individual or group,14 sometimes in private, and is not a crime in itself, but a form of individual criminal responsibility for another crime, akin to aiding or abetting, under the statutes of both the ICTY and the ICTR, although not the ICC.15 Hate speech can be an international crime if it constitutes persecution in the context of a widespread and systematic pattern of crimes against humanity. And the International Covenant on Civil and Political Rights requires states to prohibit three “lesser” forms of incitement: incitement to hostility, to discrimination and to violence.16 This chapter focuses on incitement to genocide for several reasons: because it is the speech crime that has quickly given rise to the largest body of international criminal law, because of the pressing need to interpret it more clearly (as the jurisprudential confusion over causation demonstrates) and because of the unique opportunity that incitement to genocide represents for genocide prevention. It seems to be a precursor, if not a prerequisite, for genocide. The drafters of the Genocide Convention—working in response to the Holocaust and with Nazi propaganda indelibly in mind—surmised that racist, inflammatory speech had been a necessary condition for genocide. One of the delegates remarked,

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“It was impossible that hundreds of thousands of people should commit so many crimes unless they had been incited to do so and unless the crimes had been premeditated and carefully organized.”17 The drafters disagreed however, sometimes heatedly, over which forms of speech or incitement to prohibit as part of the new treaty. They were divided over where to draw the line between speech that is repugnant and speech that is dangerous—a debate that remains unresolved to this day.18 Some of their drafts would have included categories of speech much broader than incitement, such as propaganda and hate speech.19 For example the UN Secretariat’s draft genocide convention included a provision that would have criminalized all forms of public propaganda tending to provoke genocide, not only direct incitement.20 In the end, the Ad Hoc Committee for the convention rejected that formulation, and suggested prohibiting direct incitement, whether public or private, and “whether such incitement be successful or not.”21 A Soviet proposal would also have provided for the disbanding of organizations that allegedly aspired to “inciting racial, national or religious hatred, or the commission of Genocide.”22 The drafters dismissed the Soviet proposal and also ruled out prohibiting private incitement because “it was felt that such incitement was not serious enough to be included in the convention.” They further narrowed their definition to “direct” incitement.23 In the final version of the treaty, only seven words define a single speech crime: “direct and public incitement to commit genocide.” The Statutes of the ICTR, the ICTY and the ICC have all followed the Genocide Convention, using essentially the same wording.24 No language was inserted to limit the crime to successful incitement, and this has been consistently interpreted by scholars and judges to mean that it is possible to have committed incitement even if no genocide ensues.25 Incitement to genocide is a so-called inchoate crime, which means that it is complete and punishable even if it does not lead to the intended result, in this case genocide. The Genocide Convention’s drafters focused on inchoate crimes in order to fulfill the Convention’s first stated purpose—to prevent genocide—not only to prosecute after the disaster has already occurred. This policy is wise and coherent, but it means that when courts do prosecute, judges can find themselves handing down a life sentence based only on the content of speech (often elusive, as discussed below) and on the speaker’s intent (which must be inferred unless a defendant confesses, since judges cannot enter the defendant’s mind). It is a challenging paradox: on the one hand, speech seems to be a critically important engine of genocide, and, on the other, convictions for this type of speech rest on a relatively slim and flexible reed. This chapter examines the tendency to see causation when it is not there, and finds that a key reason for the tendency is the lack of an adequate means of identifying incitement to genocide, since it is tempting to compensate by inferring causation. To solve this problem, I propose a method for identifying the crime that relies instead on the likelihood that the speech could have caused genocide, and the speaker’s awareness of that danger.

The ghost of causation in international speech crime cases 257

Why causation haunts the case-law Causation slips into judicial rulings on incitement to genocide for several reasons, all of which are signs of systemic difficulties in international criminal law. First, there is a void to fill. Causation stands in for a tool that courts are lacking: a systematic method for identifying incitement to genocide. That crime, like other speech crimes in international law, has not yet been clearly defined. Second, the idea that speech caused thousands of deaths gives reassurance that the speech in question was not only a crime but an especially severe one, comparable to the other acts codified in international criminal law, such as war crimes, crimes against humanity and genocide.26 This seems especially important in light of the fundamental, long-established right of freedom of expression. Speech is different from other acts that are always or nearly always criminal and never constitute rights, such as killing or torture. It is difficult to hand down the same punishment for speech that would be meted out for killing, in other words, unless it seems clear that the speech did effectively kill. Finally, causation can be easily (and mistakenly) inferred from circumstantial evidence. For instance, if a Tutsi businessman’s name was read over the notorious RTLM airwaves and the man was later killed during the genocide, one might assume that the first event caused the second one, as the ICTR repeatedly did in the “Media Trial” judgment—even where there was a delay of months or years between the naming and the killing, and even without any evidence that the killers were aware of the broadcast.27 As the ICTR Appeals Chamber pointed out in its decision on the “Media Trial” case, the Trial Chamber drew many such conclusions, on evidence that was “at the very least, tenuous.”28 In some cases, proof of the killings themselves was tenuous, and still the tribunal found that they had been caused by speech 29. In part because of this, the Appeals Chamber reversed some of the convictions of each of the three defendants (two of the founders of RTLM radio (see Figure 8.1) and Ngeze, the newspaper editor) and reduced their sentences.30 Four of five of the appeals judges partly dissented, however, and Judge Mohamed Shahabuddeen drew his own sweeping conclusion on causation. “It was the acts of the appellants which led to the deeds which were done: a causal nexus between the two was manifest,” he wrote, without explaining how or where the nexus had manifested itself.31 It is difficult to prove such a nexus, since the effect of speech on large groups of people is hard to measure, poorly understood, and is only one of a constellation of forces that affect why people act as they do. One relatively strong form of evidence would be a genocidaire’s own report that he was driven to kill by speech that he read or heard. Even this evidence could be viewed skeptically, since a perpetrator might have been tempted to deflect blame away from himself and onto the speaker, and might not fully understand his own motivations. In any case there has been scant testimony from the killers themselves, in trials for incitement to genocide thus far (there was none in the “Media Trial” case, for example—only testimony that killers listened to the station). Exceptionally, a genocidaire testified

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Figure 8.1 First paragraph of the statute of the Radio Television Libre des Milles Collines (The Thousand Hills Free Radio Television). “Encouraged by the positive evolution of democratic pluralism; convinced of the permanent necessity of reinforcing pluralist democracy and republican institutions; determined to facilitate the circulation of diversified ideas as only these can permit the harmonious development of society; determined to contribute to the education of the people and to transmit to them accurate, objective, and varied information. The undersigned have decided to create a FREE RADIO TELEVISION.” The undersigned include J. Bosco Barayagwiza and Ferdinand Nahimana, both convicted in The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T. Courtesy of Editions Karthala (Paris), Robert Ageneau, and Jean-Pierre Chrétien.

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that he and others were motivated to kill by the songs of the Rwandan pop star Simon Bikindi,32 which were broadcast frequently over RTLM radio.33 Bikindi was indicted for three of his songs but, ironically in view of the genocidaire’s testimony, he was convicted for none of them. A panel of ICTR judges from Argentina, Cameroon and the Czech Republic listened to the songs in Kinyarwanda (a language they did not understand) and to extended arguments over how to translate the songs, and finally decided that they did not constitute incitement to genocide “per se.”34 Instead, Bikindi was convicted in 2008, for only one of the long list of charges for which he had been indicted. Late in June 1994, when the genocide had already raged for close to three months and was almost finished, Bikindi was said to have called over a loudspeaker, while driving down a road in his home province of Gisenyi: “The majority population, it’s you, the Hutu I am talking to. You know the minority population is the Tutsi. Exterminate quickly the remaining ones.”35 That language was direct, public and could hardly have been more explicit in content, not like most of the speech over which courts have so far labored in incitement to genocide trials. Nor was it an example of speech that the drafters of the Genocide Convention had in mind in their efforts to prevent genocide, in the sense that Bikindi spoke over the loudspeaker long after the genocide began. One more, new form of evidence that inflammatory speech catalyzes violence has emerged, so recently that it had not yet been published as this book went to press. Professor David Yanagizawa-Drott has used statistical methods of econometrics to compare rates of killing in Rwandan villages that received the notorious broadcasts of RTLM, with rates in similar villages that did not.36 Yanagizawa-Drott’s results, which indicate that tens of thousands more people were killed in villages that received the signal, is apparently the first quantitative evidence that inflammatory speech can catalyze mass violence. This work was not yet available during the “Media Trial” case, however, and it is unlikely that such evidence could be compiled in future cases since it is based on data collected long after the genocide, and on the extraordinary topography of Rwanda.37

The existing definition of incitement to genocide is inadequate At first glance it might seem easy to identify incitement to genocide by the elements of the crime, since they are few and simple. The speech must be direct and public, according to the Genocide Convention.38 The Convention also requires that the speaker specifically intended39 to bring about genocide; incitement to genocide cannot be committed by accident. As the ICTR explained in its Akayesu judgment, “direct and public” incitement need not be shouted directly to a crowd. It may also be transmitted on placards or posters or other written materials, or by means of any audiovisual communication, i.e. media.40 Similarly, incitement need not be explicit. “[T]he direct element of incitement should be viewed in the light of its cultural and linguistic content,” the

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Trial Chamber found. “Indeed, a particular speech may be perceived as ‘direct’ in one country, and not so in another, depending on the audience.”41 The main question, the tribunal went on to explain, is “whether the persons for whom the message was intended immediately grasped the implication thereof.”42 Inciters most often use coded, indirect language, especially before genocide begins. (And they are even less likely to use explicit language, now that courts have begun to convict defendants for incitement to genocide.) Indirect language can be understood by audiences as a call to genocide, but this does not make it easy to spot for outsiders such as judges, who often must try to understand the language and its import years after the fact, and in translation. Moreover, incitement invariably comes mixed with a wide variety of increasingly angry, racist, inflammatory propaganda and speech—all direct and public. Legitimate (albeit repugnant) speech can resemble incitement, and vice versa. On the one hand, propaganda, hateful speech and even noncriminal political speech often feature stereotyping and prejudice, falsehoods, generalization and appeals to emotion and fear, like incitement. On the other hand, incitement to genocide is often expressed in coded or indirect language, so that both its meaning and the intent of the speaker can be elusive and easy to confuse with less inflammatory forms of speech. Not surprisingly, then, hundreds of courtroom hours have been spent—and dozens of pages of judgments written—discussing particular examples of speech without clear conclusions on whether or why they constituted incitement to genocide. The ICTR has not been alone in this. Canadian courts spent more than six years grappling with the fiery but elliptical speech that the Rwandan politician Léon Mugesera made to a Hutu audience in Rwanda on November 22, 1992. Mugesera was quickly indicted in Rwanda for incitement to violence, but he escaped the charge by fleeing to Canada, where other Rwandan expatriates denounced him.43 If he had committed incitement to genocide, he would face deportation from Canada. The case made its way through the Canadian courts, and in 2003 a Canadian federal appeals court ruled for Mugesera: “This speaker was a fervent supporter of democracy . . . the themes of his speeches were elections, courage and love . . . even though it is true that some of his statements were misplaced or unfortunate, there is nothing in the evidence to indicate that Mr. Mugesera [was guilty].”44 But the government appealed, and in 2005, the Supreme Court of Canada found that Mugesera had indeed committed incitement to genocide.45 During the “Media Trial” case, which lasted more than three years, the ICTR Trial Chamber parsed dozens of documents and recordings, including an especially vicious text called the “Ten Commandments” of the Bahutu, or Hutu people. The Commandments were published by the Rwandan newspaper Kangura, in December 1990, and later read out on RTLM radio. Among other racist notions, the Commandments proclaimed that all Tutsi were dishonest in their business dealings and were “seeking only ethnic supremacy.” The text’s unnamed author clearly sought to frighten Hutus who had ties to Tutsi, branding as a traitor any Hutu male who married a Tutsi woman, or made a Tutsi woman his concubine,

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secretary or protégée, and any Hutu who had business dealings with Tutsi. Commandment No. 8 reads, ominously, “Hutus must cease having any pity for the Tutsi.” In its analysis of the document, the tribunal made these uncontroversial observations: that it “conveys contempt and hatred for the Tutsi ethnic group” and that “[T]he Tutsi were portrayed as the enemy, as evil, dishonest and ambitious.”46 Witnesses variously described the Commandments as incitement to hatred and incitement to violence.47 The tribunal did not explain, however, whether they were also incitement to genocide. In the ICTR’s latest incitement to genocide case, the trial of Bikindi, the Trial Chamber was presented with more evidence of the effect of the speech in question, such as the genocidaire who testified that Bikindi’s songs had motivated him to kill. But the Trial Chamber struggled to determine the meaning of the songs. The judges sat gravely listening to them (as recordings, or sung directly into the record by the defendant) and noted that they were described by witnesses as “captivating, catchy, having good rhythm and melody, and making listeners want to dance.”48 Experts agreed, and the Chamber did not doubt, that Bikindi was talented and popular, which only increased the impact of his music in Rwanda. Even the prosecution’s experts disagreed over how to interpret the songs, however. The title of the song Twasezereye, for example, was translated as, “We bid farewell to the monarchy” but there was much debate at trial over the meaning of “monarchy.” Bikindi wrote the song in 1986 (by his account) or in 1987 (by the prosecution’s)49 for the twenty-fifth anniversary of Rwandan independence. Some prosecution experts testified that the song celebrated freedom from Belgian colonialism, and others said it referred to the Tutsi-dominated monarchy of the past.50 Twasezereye’s verses refer to colonial practices such as whipping, and also to the traditional practice of castrating a defeated ruler and attaching his genitals to a Kalinga drum, a symbol of the Tutsi. The defense expert indeed suggested that Twasezereye referred broadly to independence of both kinds, for all Rwandans. Bikindi himself claimed that the songs bore a message of peace. After reviewing all this, the Trial Chamber concluded rather blandly that to remind Rwandans of what had happened under the monarchy, in the context of rising inter-ethnic tensions, was “not neutral.”51 All three songs, the tribunal found, “manipulated the history of Rwanda to extol Hutu solidarity”52 and were used for a propaganda campaign in 1994 in Rwanda “to incite people to attack and kill Tutsi.”53 The Trial Chamber declined to convict Bikindi because the songs’ meaning did not constitute incitement to genocide, and it was not clear that Bikindi had intentionally wielded the “weapon”: there was not enough evidence that he had composed the songs with intent to incite attacks and killings, even if they were eventually used for that purpose, especially by broadcasters over RTLM’s airwaves.54 Even while acquitting the defendant for composing and singing the songs, the Trial Chamber declared that they had caused many deaths. The songs had, the Trial Chamber opined, “an amplifying effect on the genocide.”55

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A sturdier understanding of incitement to genocide Instead of drawing unfounded conclusions about the harm that speech actually caused, it would be more effective and more logical to gauge the likelihood that speech could have led to genocide, when it was made or disseminated. This approach would chase away the ghost of causation, and solve other problems in the jurisprudence. First, the length of time between speech and its ostensible result would no longer matter. In the case of Mugesera’s speech, the focus would shift from the genocide that began 17 months after the speech, to the possibility of genocide at the time of the speech—a more tenable inquiry. As the ICTR Appeals Chamber pointed out in the “Media Trial” case, a delay between speech and its result makes it even more illogical to draw any conclusion about the effects of speech: “[T]he longer the lapse of time between a broadcast and the killing of a person, the greater the possibility that other events might be the real cause of such killing and that the broadcast might not have substantially contributed to it.”56 Second, when there is a reasonable likelihood that speech will catalyze genocide, this is often foreseeable by the speaker, providing evidence of his or her intent to cause genocide. Speakers who can move crowds usually know which speech, delivered in which circumstances, is likely to do it. Therefore, for example, if a singer composed and sang songs in a time and place where they had a reasonable possibility of catalyzing genocide, this would be evidence of the singer’s guilty mens rea, or state of mind. (see Figure 8.2) This proposal begs the question: How can one gauge the likelihood that a speech act may lead to genocide? In earlier work, I suggested a preliminary framework57 for making such judgments, and have since refined it as follows. First, five criteria affect the force, or dangerousness, of a speech act when it is delivered: the speaker, the audience, the content or meaning of the speech, the socio-historical context and the mode of transmission. The most dangerous speech act is one for which all five variables are maximized: an especially powerful speaker, an audience that is highly vulnerable to incitement (because the audience is fearful, for example), a speech act with compelling content (and minimal competition from other sources of information), an effective and influential mode of transmission and a dangerous, conflictive historical and social context. For each of these criteria, a set of indicators will aid analysis. No single indicator or criterion is required, since none is an element of the crime of incitement to genocide. This framework is not intended to displace the existing requirements for incitement to genocide: that it be direct and public, and that the speaker act with specific intent. Instead, these indicators are intended as tools for analysis—not only for prosecution, but also (and especially) for efforts to limit incitement to genocide before it can lead to its terrible consequence. Proposed indicators are listed here, in the form of questions. 1.

The speaker (In speech disseminated via mass media, the speaker is most often a journalist, or a person quoted by a journalist or in some cases, both.)

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Figure 8.2 Cartoon taken from the democratic newspaper Kanguka, No. 58, May 1992, p. 7 (previously published in the periodical Imbaga). The person on the left: “There are not enough dead people, tell them to fight even harder.” He thinks: “In this way, I will see how I can be accused of rape and assassination.” In the middle with a megaphone Kangura, Hassan Ngeze. On the right, there is a killing scene. One of the witnesses declares: “But why are we fighting ourselves? Are we not in the process of being manipulated?” Courtesy of Editions Karthala (Paris), Robert Ageneau, and Jean-Pierre Chrétien.

a. b.

2.

Did the speaker have authority over the audience? Did the speaker have influence over the audience? If so, what kind? (Influence need not derive from a formal political post; cultural and religious figures and entertainers may have even more influence over an audience than political figures command.) The audience (The audience may be large or somewhat indeterminate, e.g. the public in a particular country, or all readers of a newspaper. This would not invalidate the analysis, which should focus on the audience that is most likely to react to the speech.) a. Who was the principal audience for the speech, or the audience most likely to react to it? b. Did the audience have the means or capacity to commit violence against the group targeted in the speech? c. Was the audience fearful? d. Was the audience exposed to, or did it have access to, alternate views or sources of information? (It is common for governments supporting incitement to shut down alternative sources of information, since this gives greater force to the incitement.)

264 Propaganda, War Crimes Trials and International Law

3.

4.

5.

Content of the speech act a. Was the speech understood by the audience as a call to violence? b. Did the speech describe the victims-to-be as other than human, e.g. as vermin, pests, insects or animals? This is a rhetorical hallmark of incitement to genocide, and to violence, since it dehumanizes the victim or victims to be. c. Did the speech assert that the audience faced serious danger from the victim group? Another hallmark of incitement, this technique is known as “accusation in a mirror.” Just as self-defense is an ironclad defense to murder, collective self-defense gives a psychological justification for group violence, even if the claim of self-defense is spurious. d. Did the speech contain phrases, words, or coded language that has taken on a special loaded meaning, in the understanding of the speaker and audience? e. Was the speech echoing previous, similar messages? Repetition greatly increases the force of an inflammatory message. Socio-historical context a. Were there underlying conflicts between the groups in question? b. Were there recent outbreaks of violence following other examples of hate speech? This would have put speaker and audience on notice that such speech can indeed lead to violence, providing evidence of the speaker’s intent and increasing the dangerousness of the speech. c. Was the audience suffering economic insecurity, e.g. lacking in food, shelter, employment, especially in comparison with its recent past? Mode of transmission a. Was the speech transmitted in a way that would reinforce its capacity to persuade, e.g. via a media outlet with particular influence, or set to compelling music?

This framework would not solve all of the interpretive challenges with which judges have wrestled in the world’s first incitement to genocide cases, of course, but it would supply a method of analysis that is more tractable and more suited to genocide prevention than their efforts thus far. For example, Léon Mugesera’s speech would be said to constitute incitement to genocide not because of the genocide that began 17 months after he spoke, but because of factors including what came before it, which helped to make the speech dangerous. In Bugesera, Rwanda, in March 1992, Tutsis were massacred following “accusation in a mirror”—false radio reports that Tutsi were planning to massacre Hutu.58 This was so well-known in Rwanda that it is very likely that when Mugesera spoke in November 1992, he knew of those killings a few months earlier, and understood how volatile the context already was. The context was volatile, but perhaps it was not too late to prevent genocide. International criminal law must therefore grapple with speech that comes before genocide—albeit cautiously, and with freedom of expression firmly in mind.

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Notes 1 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 1101. 2 Nahimana’s life sentence was reduced when some of his convictions were reversed on appeal, as discussed further below. 3 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 1099. 4 As one of the delegates to the drafting meetings for the Genocide Convention remarked, “It was impossible that hundreds of thousands of people should commit so many crimes unless they had been incited to do so and unless the crimes had been premeditated and carefully organized.” See UNAOR A/C.6/SR 84, 21 September to 10 December 1948, p. 219. 5 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment and Sentence, Case No. ICTR-99-52-T, para. 1015. 6 The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, para. 349. (“With regard to the allegation made in paragraph 14 of the Indictment, the Chamber feels that it is not sufficient to simply establish a possible coincidence between the Gishyeshye meeting and the beginning of the killing of Tutsi in Taba, but that there must be proof of a possible causal link between the statement made by the Accused during the said meeting and the beginning of the killings.”) 7 The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, para. 362 (“The Chamber is satisfied beyond a reasonable doubt that there was a causal link between the statement of the Accused at the 19 April 1994 gathering and the ensuing widespread killings in Taba”, para. 673). 8 The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, para. 562. 9 For a detailed discussion of the Streicher case, see Margaret Eastwood’s chapter in this volume. Fritzsche, who had been head of the Radio Division of the German Propaganda Ministry, was acquitted by the IMT but later convicted by a German court. For details on Fritzsche’s cases, see W.K. Timmermann, ‘Incitement in International Criminal Law’, Intl. Rev. Red Cross, vol. 88, 2006, p. 823. 10 The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, Part 22, 1946, p. 501. 11 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, Chapeau, Article I, Article III(c). 12 A. Cassese, International Criminal Law, Oxford: Oxford University Press, 2008, p. 229. 13 There were attempts to codify incitement to crimes against humanity and war crimes during the drafting of the Rome Statute, but they were not successful. See W. Schabas, Genocide in International Law: The Crime of Crimes, Second Edition, Cambridge: Cambridge University Press, 2009, p. 325. 14 M. Kremnitzer and K. Ghanayim, ‘Incitement, Not Sedition’, in David Kretzmer and Francine Kershman Hazan (eds), Freedom of Speech and Incitement Against Democracy, The Hague: Kluwer Law International, 2000, pp. 147–211. 15 Article 4(3)(c) of the ICTY Statute, Article 2(3)(c) of the ICTR Statute, Article 25(3)(e) of the ICC Statute. 16 Article 20 of the International Covenant on Civil and Political Rights. 17 UNAOR A/C.6/SR 84, 21 September to 10 December 1948, p. 219. 18 For more on this and other related points, see S. Benesch, ‘Vile Crime or Inalienable Right: Defining Incitement to Genocide’, Virginia Journal of International Law, vol. 48, no. 3, Spring 2008, pp. 458–528, see generally, and especially pp. 487 and 493. 19 UNAOR A/C.6/SR 84, 21 September to 10 December 1948. See also Schabas, Genocide in International Law: The Crime of Crimes, p. 319.

266 Propaganda, War Crimes Trials and International Law 20 Nehemiah Robinson, The Genocide Convention; A Commentary, New York, NY: Institute of Jewish Affairs–World Jewish Congress, 1960, p. 66. 21 Robinson, The Genocide Convention; A Commentary, p. 67. 22 Robinson, The Genocide Convention; A Commentary, p. 68. 23 Robinson, The Genocide Convention; A Commentary, p. 67. 24 Article 2(3)(c) of the ICTY and ICTR Statutes, Article 25(3)(e) of the ICC Statute. 25 Robinson, The Genocide Convention; A Commentary, p. 67, see also Schabas, Genocide in International Law: The Crime of Crimes, p. 319 and The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, para. 562. 26 International criminal law is limited to especially “grave” or serious crimes. For detailed discussion, see Margaret M. de Guzman, ‘Gravity and the Legitimacy of the International Criminal Court’, Fordham International Law Journal, vol. 32, no. 5, 2008, pp. 1400–1465. 27 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, para 513. 28 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, para 513. 29 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, para 509. 30 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, pp. 346–347. 31 The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, p. 370. 32 The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-T, 2 December 2008, para. 253. (“Witness BHI testified that he and other Interahamwe interpreted Bikindi’s songs as a warning that the Tutsi were going to return and subjugate the Hutu once again, and thus encouraged him and other Interahamwe to kill during the genocide.”) 33 A. des Forges, Leave None to Tell the Story: Genocide in Rwanda, New York, NY: Human Rights Watch, March 1999, p. 315. 34 The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-T, 2 December 2008, para. 421. 35 The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-T, 2 December 2008, para. 266. 36 D. Yanagizawa-Drott, ‘Propaganda and Conflict: Theory and Evidence from the Rwandan Genocide’, draft on file with the author. 37 Yanagizawa-Drott used statistics from gacaca courts, village-based trials that were held throughout Rwanda starting in 2005, more than a decade after the genocide. Rwanda’s exceptionally hilly terrain provided another unusual data set: many pairs of villages that were similar except in altitude—so that one received the RTLM signal and the other did not. 38 Convention on the Prevention and Punishment of the Crime of Genocide, Article III. 39 Ibid., Article II. 40 The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para. 559. 41 The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para. 557. 42 The Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998, para. 558. 43 William A. Schabas, ‘International Decision: Mugesera v. Minister of Citizenship and Immigration’, AJIL, vol. 93, 1999, pp. 529, 530. 44 Mugesera v. Canada (Minister of Citizenship and Immigration) (FCA), 2003 FCA 325, (2003), [2004] 1 FCR 3, at [240]. Publishing on the Internet. Online. Available

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45 46 47 48 49 50 51 52 53 54 55 56 57 58

HTTP: http://reports.fja.gc.ca/en/2003/2003fca325/2003fca325.html (accessed 16 August 2007). Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100, 2005 SCC 40. Publishing on the Internet. Online. Available HTTP: http://scc.lexum. umontreal.ca/en/2005/2005scc40/2005scc40.html (accessed 16 August 2007). The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Trial Chamber I, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003, para. 152. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Trial Chamber I, Judgment and Sentence, Case No. ICTR-99-52-T, 3 December 2003, para. 158. The Prosecutor v. Simon Bikindi, Judgment, Case No. ICTR-01-72-T, 2 December 2008, para. 195. The Prosecutor v. Bikindi, Judgment, Case No. ICTR 01-72-T, 2 December 2008, para. 193. The Prosecutor v. Bikindi, Judgment, Case No. ICTR 01-72-T, 2 December 2008, para. 213. The Prosecutor v. Bikindi, Judgment, Case No. ICTR 01-72-T, 2 December 2008, para. 248. The Prosecutor v. Bikindi, Judgment, Case No. ICTR 01-72-T, 2 December 2008, para 254. The Prosecutor v. Bikindi, Judgment, Case No. ICTR 01-72-T, 2 December 2008, para. 255. The Prosecutor v. Bikindi, Judgment, Case No. ICTR 01-72-T, 2 December 2008, para. 255 The Prosecutor v. Bikindi, Judgment, Case No. ICTR 01-72-T, 2 December 2008, para. 264. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgment on Appeal, Case No. ICTR-99-52-A, 28 November 2007, para. 513. See Benesch, ‘Vile Crime or Inalienable Right’. Des Forges, Leave None to Tell the Story, pp. 66 and 68.

Bibliography Benesch, S., ‘Vile Crime or Inalienable Right: Defining Incitement to Genocide’, Virginia Journal of International Law, vol. 48, no. 3, Spring 2008, pp. 458–528. Cassese, A., International Criminal Law, Oxford: Oxford University Press, 2008. des Forges, A., Leave None to Tell the Story: Genocide in Rwanda, New York, NY: Human Rights Watch, March 1999. Guzman, de, M., ‘Gravity and the Legitimacy of the International Criminal Court’, Fordham International Law Journal, vol. 32, no. 5, 2008, pp. 1400–1465. Schabas, W., Genocide in International Law: The Crime of Crimes, Second Edition, Cambridge: Cambridge University Press, 2009. Schabas, W., ‘International Decision: Mugesera v. Minister of Citizenship and Immigration’. AJIL, vol. 93, 1999, pp. 529, 530. Timmermann, W., ‘Incitement in International Criminal Law’, Intl. Rev. Red Cross, vol. 88, 2006, p. 823. Yanagizawa-Drott, D., ‘Propaganda and Conflict: Theory and Evidence from the Rwandan Genocide’, draft on file with the author.

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Table of cases ICTR The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T. The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T. The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-T.

IMT The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, Part 22, 1946.

Chapter 9

Crimes of atrocity, the problem of punishment and the situ of law Lawrence Douglas

Coming to terms with atrocity The contact with atrocity—first in the form of Nazi crimes, and more recently in the shape of atrocities in the Balkans and genocide in Rwanda—has given birth to a branch of law essentially unknown before Nuremberg. In the decades since Nuremberg, international criminal law has developed remarkable jurisdictional principles for puncturing the shield of sovereignty; it has redefined what jurists understand as “international;” it has exploded temporal limitations on prosecution; and it has given rise to a prosecution-facilitating, victim-centric jurisprudence supported by novel theories of liability. At the same time that it has sponsored these dramatic innovations, however, international criminal law has failed to rethink the basic purposes of the criminal sanction. This failure, more than even the practical obstacles that face international prosecutions, leaves international criminal law in a troubled state, lacking a coherent justificatory logic. It is my immodest goal in this chapter to try to map out the conceptual problems facing international criminal law, and to suggest a possible solution to them. This solution, as we will see, asks us to see the international criminal trial as a didactic (perhaps “propagandistic” would be too strong) exercise and the punishment of crimes of atrocity as performing a symbolic purpose. Seeing the trial and punishment of perpetrators of atrocity in these terms, I believe, will help us better to grapple with the critical question of situ—what or where are the proper staging grounds for doing justice to crimes of atrocity?

Shattering the International Military Tribunal paradigm In the familiar domestic national paradigm, law views criminal behavior as a deviant act, characteristically committed by a discrete individual, that harms community norms and interests. The state, in this account, intervenes as the accuser and as the agent for enforcing and defending violated norms of community order. As such, the state serves as the locus of legality—in certain positivist accounts, such as the Hobbesian, this is true by definition; and this strong connection

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between state power and legal efficacy informs the theory of sovereignty and the prerogatives of immunity that generally have insulated the state from legal interference.1 The contact with Nazi atrocity revolutionized law by creating the exigent need, if not the theoretical apparatus, for puncturing this shield of sovereignty. Today we accept without argument the idea that state actors responsible for atrocities should have to answer for their conduct in courts of criminal law—be they domestic, international or of a hybrid character. But we run the risk of forgetting how deeply radical this idea was before Nuremberg. Sovereignty: the plenary power of the nation state, articulated in the political theory of Hobbes, enshrined in the Peace of Westphalia—this foundational principle was widely seen before Nuremberg as an absolute bar to international prosecutions.2 As a practical matter, the shield of sovereignty has hardly lost its luster: 60 years after Nuremberg, it remains mighty strong—from the perspective of the human rights lawyer, frustratingly so. Moreover, the very trope of puncturing sovereignty has its limits, as it overlooks how the contact with atrocity has also, in authorizing the exercise of such unorthodox practices as universal jurisdiction, empowered the sovereign act—made it more fluid and extended its reach.3 Nonetheless, the conceptual shift has been dramatic. In the wake of Nuremberg, Karl Jaspers framed the term Verbrecherstaat, the criminal state, a notion meant to name and denote a phenomenon that lay beyond the ken of the standard model of the criminal law and was nonsensical to it. Jaspers’ formulation demanded that the state be seen not as the defender of order but as the principal perpetrator of crimes, as the very agent of criminality.4 We get a clearer sense of the importance of this conceptual shift when we look more closely at the four foundational international crimes that can puncture the shield of sovereignty: crimes against the peace, war crimes, crimes against humanity, and genocide. Of these, crimes against the peace may seem the most anomalous inasmuch as it has never acquired a coherent definition in international law. Although crimes against peace are nominally under the jurisdiction of the ICC, this jurisdiction is contingent on the framing of a workable definition of the crime—something that has long bedeviled international jurists and despite recent progress toward this end, it is far from clear that aggressive war will ever play a meaningful part in the work of the ICC.5 But if we turn the clock back to Nuremberg, crimes against the peace was the gravamen of the prosecution’s case—it was understood as the principal international crime. The history of how this came to be is vexed, and made for sharp disagreements among the Allied powers and between members of the American team, which pioneered the idea.6 But if it lacked an adequate definition and arguably violated nulla crime, nulla poena sine lege,7 the incrimination made sense from the perspective of the classic theory of sovereignty. By seeking to punish the unprovoked attack of one nation on another, the prosecution of crimes against peace can be seen as a conservative gesture, an attempt to safeguard and not usurp the system of sovereign nation states. The jurisprudential theory of Nuremberg can be expressed in this way: on

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certain rare occasions, such as in the case of transparently unprovoked warfare, it may be necessary to puncture the shield of sovereignty in order to protect the larger system of sovereign nation-states. We find this same jurisprudential understanding expressed in the two other substantive crimes adjudicated at Nuremberg: war crimes and crimes against humanity. Like crimes against the peace, the prosecution of war crimes allowed the international community to shatter sovereignty for the ultimate purpose of preserving it; its prosecution at Nuremberg meant to forestall the possibility that warring sovereigns will annihilate one another by relying on impermissible means, particularly in an age in which the technologies of war-making make possible slaughter on a scale unimaginable at an earlier period of history. The IMT’s conceptualization of crimes against humanity, a crime first recognized at Nuremberg, also fits this pattern. By now it is familiar that the IMT concluded that only those crimes against humanity that demonstrated a nexus to aggressive war were justiciable. As a result of this holding, the tribunal refused to consider German on German crimes perpetrated before the Wehrmacht crossed the Polish frontier on September 1, 1939. The practical consequences of this ruling might have been negligible as the overwhelming majority of the Nazis’ most egregious crimes against humanity occurred after the start of the war. But the conceptual importance of the nexus requirement remains. Certainly Chief Allied Prosecutor Robert Jackson, who acknowledged, “[w]e have some regrettable circumstances at times in our own country in which minorities are unfairly treated,” was concerned that the absence of a nexus requirement could potentially open Jim Crow laws to the scrutiny of some future international jurist.8 Yet more to the point, the nexus requirement reflected the larger jurisprudential vision of Nuremberg that conceived of international crimes in the quite literal and altogether convincing sense as crimes between legal entities called nation-states. If the IMT empowered international law and international courts to shatter the prerogatives of the sovereign, it was toward the conservative end of preserving, not supplanting, the larger system of sovereign nation-states.9 The incrimination that remained most volatile or unstable vis-à-vis this conservative ambition was the crime against humanity. Even before the end of the IMT, Control Council Law No. 10 (CCL 10), the Allied document that set forth the legal basis for each occupying power to conduct war crimes trials in its respective zone of occupation, had supplied a definition of crimes against humanity that differed from the definition framed by the IMT in two notable respects.10 First, CCL 10 expanded the range of crimes against humanity to include “atrocities and offenses” such as “imprisonment,” “torture,” and “rape”—acts not mentioned in Article 6(c) of the IMT Charter. Second, and more significantly, CCL 10 severed the nexus requirement that conditioned the justiciability of crimes against humanity to their link to crimes against peace. The practical significance of the severance of the nexus requirement should not be overstated. It appears that many of the judges in the subsequent trials before the Nuremberg Military Tribunal (NMT) failed to appreciate the significance of this change and continued to hew

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narrowly to the IMT precedent. Telford Taylor, chief prosecutor for the NMT, acknowledged this point in his Final Report, diplomatically noting, “For the most part, the tribunals established under Law No. 10 were reluctant under any circumstances to adopt a broader construction of these definitions than the IMT had applied in its judgment.”11 On the other hand, the change was not entirely lost on the subsequent tribunals. In his opening statement in the Einsatzgruppen case, Benjamin Ferencz specifically called attention to the difference: The London Charter restricted the jurisdiction of the International Military Tribunal to crimes against humanity connected with crimes against peace or war crimes. This restriction does not appear in the Control Council enactment, which recognizes that crimes against humanity are, in international law, completely independent of either crimes against peace or war crimes. To deny this independence would make the change devoid of meaning.12 The NMT trials represent, then, an unmistakable, if not always fully articulated, shift away from the IMT aggressive war paradigm and towards what I will call the “atrocity paradigm.” By this I mean that the NMT trials focused far more explicitly on crimes of atrocity: acts of extermination, genocide, systematic murder of civilian populations and other crimes against humanity. Of the 12 NMT trials, crimes against peace appear as a formal charge in only four cases. By contrast, crimes against humanity appear as a charge in all 12. In the IMT proceeding, crimes against humanity were treated as interstitial offenses, covering a relatively narrow range of crimes that technically could not be enfolded within the ambit of war crimes. Before the NMT, by contrast, crimes against humanity emerge as the principal crime in the Medical trial (No. 1), the RuSHA case (No. 8) and the Einsatzgruppen case (No. 9). Even in those trials nominally organized around the IMT paradigm of aggressive war, such as the High Command case (No. 12), crimes against humanity came to play a central role in the proceeding, as acts of atrocity came to the fore of the prosecutors’ case.13 The development of the atrocity paradigm was strengthened by the United Nations Convention on the Prevention and Punishment of Genocide 1948, which recognized genocide as a crime independent from crimes against humanity. As we recall, the term genocide was the creation of Raphael Lemkin, a Polish-Jewish jurist who, long before the Nazi extermination of the Jews, had agitated for international legal recognition of Turkish atrocities perpetrated against the Armenians, and who, in 1943, coined the neologism to name the Nazis’ techniques of administrative massacre directed against the Jewish population of Europe.14 The term made its first appearance in a legal document in the IMT indictment—albeit as a description of war crimes, not as a crime against humanity—and found scant mention during the trial (although it did surface in the statements of both British and French prosecutors). The neologism gained far greater circulation in the NMT trials. In the RuSHA case, Prosecutor James McHaney used the term as the

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sharpest way to characterize and designate the Nazis’ most extreme crimes against humanity, although McHaney’s formulations still hark back, in part, to the IMT paradigm—“. . . genocide was part of the Nazi doctrine of total warfare.”15 More revealing was its use in the Einsatzgruppen case, where Judge Michael Musmanno, in his judgment, spoke sardonically of the “development of the fine art of genocide.”16 And Benjamin Ferencz, in his opening statement for the prosecution, described the “crime of genocide”17—though the term as had yet to gain independent legal status—and specifically decoupled it from the logic of warfare: “. . . the killing of defenseless civilians during a war may be a war crime, but the same killings are part of another crime, a graver one if you will, genocide – or a crime against humanity.”18 The ascendency of the atrocity paradigm—exemplified in the severing of the IMT’s nexus requirement, the eclipse in the importance of the crime of aggression, and in the development of the jurisprudence of crimes against humanity and genocide—finds further elaboration in the recent jurisprudence of war crimes. The ongoing work of the ICTY and the ICTR, as well as the early operations of the permanent ICC clearly demonstrate the predominance of the atrocity paradigm. The IMT’s focus on aggressive war remains, despite recent attempts at revival, largely moribund; what now dominates international criminal law is the focus on genocide, systematic extermination and ethnic cleansing. The principle first articulated in CCL 10, that international law no longer required a nexus between crimes against humanity and aggressive war—a principle imperfectly understood by many NMT judges—is now well settled in international criminal law.19 In the IMT paradigm, war crimes stood second to the crime of aggression as the paradigmatic international crime, as such offenses arose in the context of armed conflict between sovereign nations. In one of its most important rulings, the ICTY concluded in its Tadic´ decision that a conflict need not be strictly international in character to give rise to violations of the laws of war justiciable in an international court.20 Perhaps the most dramatic example of the rejection of the IMT paradigm is supplied by the NATO air war waged against the Federal Republic of Yugoslavia in the spring of 1999. The war, as we recall, was launched without authorization of the UN Security Council, and thus, under the terms of the UN Charter, arguably constituted an act of aggression. NATO, of course, argued that military intervention was necessary in order to stop Serbian acts of ethnic cleansing that were tantamount to crimes against humanity and genocide. However we might feel about the particulars of the case, it represents the clearest triumph of the NMT paradigm over the IMT approach, or to put it somewhat differently, of the atrocity paradigm over the aggressive war paradigm. Indeed, the NATO air war does not simply represent the priority of atrocity over aggressive war in contemporary international law. Stated somewhat tendentiously, it stands for the more remarkable proposition that acts of atrocity arguably warrant the waging of aggressive war.21 Thus although crimes against humanity, genocide and war crimes today stand as the paradigmatic international crimes, the very term “international” is something of

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a misnomer. For the conduct that they name and reach need not have the character of depredations committed between nations; on the contrary, the acts they denote and make criminal can, and often will, direct themselves against groups or populations controlled within the territorial bounds of a coherent nation-state. This remarkable trend—toward severing “international crimes” from any connection to conduct between states—has been largely overlooked by scholars of international law. And yet its importance cannot be ignored. Although Nuremberg continues to be viewed as the most important precedent in international criminal law, the developments in the field post-Nuremberg have largely dismantled its basic paradigm. The crime of aggressive war—the focus of the Nuremberg trial and the incrimination with the clearest connection to international conduct—has become largely a curiosity, and in its stead we find the development of a rich jurisprudence of three international crimes—crimes against humanity, genocide, and war crimes—which have largely severed Nuremberg’s connection to the core meaning of the concept of “international.”

The supranational crime We can better understand these crimes as transcending the nation-state, or as “supranational,” “cosmopolitan” or “universal”—although none of these terms is entirely adequate. “Supranational” and “universal” tempt us to overlook that the crimes so designated may often assume an entirely intrastate quality, while “cosmopolitan crimes” suggest an offense against the decorous consumption of latte. Still, these terms succeed in reminding us that the traditional fixation on the nation-state as the relevant unit of analysis has receded in importance. That many international jurists would resist this analysis does not undercut its force. Luis Ocampo, Chief Prosecutor of the ICC, has sought to locate the international character of atrocities in the Democratic Republic of Congo by appeal to the spillover effect: inasmuch as such crimes threaten to spill over national boundaries, they threaten to destabilize the entire region.22 While I do not doubt that Ocampo may be correct in certain cases, I find more notable his effort to preserve the Nuremberg idiom to describe a rapidly evolving jurisprudence that has largely rendered it obsolete. Indeed, it sounds impoverishing as well as conceptually flawed to insist that it is only the promise of spillover that renders intrastate genocide or crimes against humanity international crimes. The terms supranational, cosmopolitan and universal thus capture an essential aspect of these crimes missed by lumping them with other international crimes, such as hijacking, trafficking, laundering and piracy. As opposed to the latter, the former crimes permit shields of sovereignty to be punctured, but not toward the larger end of protecting the system of nation-states. Toward what end then? To answer this question, the repair to Kant has been all but inevitable, although appeals to Kantian universalism have the consequence of collapsing the conceptual difference between morality, the logic of which pushes to the universal, and the legal, which tolerates, and often insists upon, the character of the local and

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positive. This, however, is less a criticism than an observation, as the contemporary invocation of Kant in general, and the appeal to his concept of hospitality in particular, has fueled the effort to supplant a Westphalian theory of sovereignty with what Seyla Benhabib calls “liberal international sovereignty”—apparently without appreciation for its oxymoronic ring.23 Both Arendt and Jaspers, indebted as they were to Kant, sought to ground universalism by explicating the core idea of “humanity” contained in the term “crimes against humanity.” That the very drafters of the term seem not to have known exactly what it meant is perhaps worth mentioning: at the IMT, for example, there was a split between those who parsed the term “crimes against humanity” to refer to some notion of humaneness and those who thought it referred to a collective ideal of humanity. One finds this ambiguity reflected in official translations prepared by the IMT; German documents at times refer to “Menschlichkeit” (humaneness) and at others to “Menschheit” (humanity).24 Arendt, who famously parsed the term in this latter sense, understood the crime as an assault on the human status as such.25 More recently, David Luban has attempted to identify the crime as, at its core, an attack on the human status as a political animal.26 I will return to this later, but for now I want to note that both Arendt’s and Luban’s efforts share the unusual feature of trying to tease out the meaning of a name chosen through a process that was largely fortuitous. In this regard, the theoretical writing on crimes against humanity has been peculiarly influenced by the very name of the incrimination. Had the crime named and defined in Article 6(c) of the IMT Charter been called “crimes against civilian populations” or “crimes against communities,” the very theory of this incrimination would be, I believe, dramatically different. The three supranational, cosmopolitan crimes—crimes against humanity, genocide and war crimes—are extraordinary in another sense. It is no exaggeration to say that they explode law’s spatio-temporal coordinates. Most crimes are controlled by statutes of limitations, but with the Convention on the Non-Applicability of Statutory Limitations of 1968, the international legal community agreed that these supranational crimes should be controlled by no prescriptive period.27 Thus, as was the case with Maurice Papon, the former Vichy official and French Minister of Finance, who was convicted of complicity in crimes against humanity in 1998, prosecutors are authorized to pursue perpetrators many decades after the commission of their crimes. Equally remarkable is the spatial dimension. The IMT, as I have mentioned, continues to be lauded as the watershed moment in international criminal law, its reputation stronger today than at the time of its staging; the Eichmann trial, by contrast, remains unfairly neglected as an important precedent in the development of international law. This overlooks a crucial legal legacy of the Eichmann trial—its jurisdictional profile. The Eichmann court established jurisdiction over the accused by invoking a theory of universal jurisdiction, that is, jurisdiction conferred exclusively by the nature of the crime. Eichmann’s crimes, it was argued, were so extreme as to authorize any court, anywhere, to sit in judgment on the former Nazi official. In the decades following the Eichmann trial, universal jurisdiction seemed to be little more than a moribund

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juridical curiosity, only to experience a remarkable—if, as I will argue, ultimately problematic—revival with the Pinochet affair, the prosecution of Serbs in Germany for atrocities in the Balkans, and the passion of Belgium prosecutors to seek indictments against a slew of the world’s most prominent statespersons.28 Law’s contact with atrocity has led, then, to the articulation of supranational crimes that explode law’s spatio-temporal dimensions. It has also led I believe to a shift in the jurisprudence of criminal procedure. It is fair to say—particularly in Anglo-American circles—that criminal procedure has largely sought to protect the rights of the accused. To borrow Herbert Packer’s classic formulation, this jurisprudence has been closely allied with a due process model geared toward protecting the dignitary rights of the accused by placing brakes upon the prosecutorial zeal of the state.29 This orientation makes sense in terms of the model of deviance that I mentioned at the outset. Inasmuch as the process of accusation pits the individual against the centralized coercive powers of the state, criminal procedure should plausibly be geared toward shielding the accused from this withering mobilization of force. Shift the perspective from domestic national courts to trials involving supranational or cosmopolitan crimes, and the outlook is quite different. Here I would observe that the concern has shifted toward facilitating prosecution and protecting the rights of victims. This is not to denigrate the quality of justice dispensed by international tribunals: certainly the rules of evidence and proof adumbrated by the ICTY and the ICTR include detailed protections of the rights of the accused— rights designed both instrumentally to support accurate verdicts and deontologically to protect the dignity and autonomy of the accused. Likewise, the ICC is controlled by extensive norms meant to protect the rights of the accused. That said, it is still fair to say that the larger shift has been toward facilitating the power of prosecutors while recognizing and promoting victims’ rights.30 This again marks a move away from the IMT paradigm. Following the strategy outlined by Justice Jackson, IMT prosecutors structured their case around captured documentary evidence, material considered harder and more reliable than eyewitness testimony. By the conclusion of the trial, Jackson was able to report to President Truman, “the case . . . against the defendants rests in large measure on documents of their own making, the authenticity of which has not been challenged.”31 The IMT’s aggressive war paradigm supported the “trial by document,” as few witnesses, let alone members of victims groups, could offer any insight into the motives, planning and preparations of the war of aggression, while highly incriminating documents abounded. As a consequence, the prosecution unfolded largely absent the testimony of witnesses, depriving the trial of an “affirmative human aspect” and turning it into, to borrow Rebecca West’s memorable formulation, a “citadel of boredom.”32 The failure of the prosecution to call more than a token number of victims, and the virtual absence of testimony from Jewish survivors, disappointed victims’ groups and eroded support for the trial within victim communities.

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The atrocity paradigm, by contrast, has come to place the narrative and testimony of the survivor-victim at the center of the legal proceeding. Here again the NMT proceedings can be seen as constituting a critical moment of transition. In the Medical trial, for example, prosecutors used advertisements to search for victims willing to testify, and, after a process of vetting to select the sturdiest and most articulate survivors, organized their cases, at least in part, around their testimony.33 Prosecutors also discussed the creation of a fund meant to compensate witnesses; although this came to naught, it anticipated devices incorporated into more recent international tribunals. The most outstanding example of the use of testimony in an atrocity trial remains the Eichmann trial, another overlooked legacy of that proceeding. However much Arendt might have lamented Gideon Hausner’s courtroom histrionics,34 the Israeli Attorney General and lead prosecutor succeeded in his aim of capturing the hearts and minds of the public by organizing the prosecution’s case around survivor testimony.35 If we look at the work of the ICTY and the ICTR, we see that it now becomes possible to speak of victims’ rights in international cases. These latter rights include matters of voice and of control, and embrace everything from a protection of the interest that victims have in telling their stories told in court; to a relaxation of the norms that conventionally protect the defendant’s rights of confrontation; to a recognition of the right of civil interveners to represent victims’ groups in the trial process.36 And the ICC, as Amnesty International recognizes, specifically “enshrines” three key principles relating to victims’ rights: “(1) victim participation in the proceedings, (2) protection of victims and witnesses and (3) the right to reparations.”37 Of relevance to facilitating prosecution are important innovations in the principles of criminal accountability. These principles must not be confused with substantive supranational incriminations; instead, they serve as theories of liability specifically designed to facilitate proving the substantive guilt of persons or groups accused of committing supranational crimes. A confounding if not ineluctable feature of such crimes is that their principal architects are often organizationally far removed from the atrocities on the ground, a fact that complicates the legal process of establishing liability. Nuremberg attempted to address this problem through two techniques. First, the prosecution sought to rely heavily on the notion of conspiracy, though, consonant with the Nuremberg paradigm that I described earlier, the IMT interpreted the conspiracy charge as applying only to the crime of waging aggressive war. Second, Nuremberg pioneered the theory of criminal organizations in international law.38 In its judgment, the IMT issued individual determinations of guilt and also declared specific organizations, such as the Gestapo, criminal. This declaration had no bearing on the judgments rendered against the trial’s defendants, but it was meant to facilitate guilty verdicts against hundreds of thousands of other possible defendants brought before Allied courts under CCL 10. Since the IMT, neither theory has played a robust role in jurisprudence of supranational crimes. The statute of the ICC, for example, makes no mention of the idea of criminal organizations, which largely has been repudiated

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as a discredited example of collective punishment—this notwithstanding the fact that it touches one of the crucial features of the supranational crime, namely its corporate nature. But if conspiracy and the theory of the criminal organization have fallen into disfavor, they have been replaced by other powerful theories of liability, most notably the JCE. Articulated almost exclusively through the case-law of the ICTY, the JCE has proved itself to be an elastic and versatile theory of liability through which prosecutors can seek to convict a wide range of perpetrators for crimes they did not physically commit. If it has shown one limitation, it is that ICTY judges appear reluctant to return verdicts of guilt in genocide cases based on a theory of JCE—a point suggested in the ICTY’s judgment in the Krajisˇnik case and one that underscores the problems with using theories of extended liability to prove crimes of specific intent.39 Along with the JCE, ICTY and ICTR prosecutors have structured indictments around the theory of command responsibility, and the related notion of superior responsibility; again, these must be seen as additional devices designed to make possible the imputation of liability to persons often far removed from the atrocities on the ground.40 In describing the remarkable innovations in law designed to establish a workable jurisprudence of atrocity, final mention should be made of the commitment of institutional resources. The ICTY currently has a staff of 1,000 and an annual budget of over US$300 billion.41 The ICTR has secured a score of convictions at the cost of well over US$1 billion. The fledgling ICC, which was established has yet to complete a single trial, already has a staff of 600 and an annual budget in excess of 100 million euros.42 These figures may seem miniscule compared to the costs of a full-scale military campaign, but they still represent a commitment of resources that would have been unthinkable a generation ago.

The problem of the sanction Let us for a moment stand back and take stock. We have seen that the contact with atrocity has led to remarkable innovations in the fabric and processes of law. We first saw how the idea of international crimes pioneered at Nuremberg punctured the shield of sovereignty. Next we saw how the subsequent development of incriminations such as crimes against humanity and genocide in the years following exploded the very paradigm of international crimes created at the IMT. I have argued that name notwithstanding, these offenses can be better understood as supranational crimes, crimes whose character is now divorced from any substantial connection to relations between nations. We have also seen how these supranational crimes explode spatio-temporal limitations on prosecution, as they are governed by no prescriptive periods and can be tried under universal jurisdiction. Finally, we have noted how the effort to prosecute perpetrators of these crimes has led to a prosecution-facilitating, victim-centric jurisprudence supported by theories of liability such as the JCE and command responsibility.

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We are now, then, in the position to pose the question that this inventory assumes already answered: What is the purpose behind these extraordinary acts of the legal imagination and of institutional will? The obvious answer—to bring perpetrators of atrocity to justice—does less to settle the matter than to beg the question. For what does it mean to bring a perpetrator of atrocity to justice? Again, the answer may appear obvious: it means placing a perpetrator on trial, and in cases in which guilt has been established beyond a reasonable doubt, putting the perpetrator in prison. This is not to insist that the criminal trial is the sole means of addressing the legacy of atrocity. Truth and reconciliation commissions, civil reparation policies, national educational and commemoration initiatives: all of these can complement perpetrator trials as means of coming to terms with the legacy of atrocity. But when it comes to the core idea of justice, the criminal trial plays a necessary if not sufficient role.43 That said, it is hard to deny a troubling disconnect between the radical and creative efforts to gain legal dominion over acts of atrocity and the deeply conventional outcome of the process: incarceration. This disconnect becomes more troubling when we recall that theories of penology do not defend incarceration as an end unto itself; its efficacy must be weighed in terms of its power to advance broad social purposes such as correction, removal from circulation, deterrence and retribution. How well do these purposes align with the task of doing justice to crimes of atrocity? American prisons are today referred to as correctional institutions, but however fanciful, if not Orwellian, the designation, it plays no role in the logic of incarcerating architects of atrocity. The IMT experience is suggestive. Of the 21 defendants in the dock at Nuremberg, 11 were sentenced to death, three were acquitted, and seven were sent to Spandau, the castle-like prison fortress in the environs of Berlin. Allied jurists gave shockingly little thought to the how and why of incarcerating Nazi war criminals. Small matters, such as the work, recreational and visitation privileges available to the inmates became matters of major international squabbling among the American, British, French and Soviet administrators of the prison. And while Spandau might have created a fascinating crucible in which Cold War tensions were enacted over, say, the proper daily caloric intake of the prison’s inmates, it was never conceived of as a place to “correct” the seven Nazi war criminals housed there.44 Thus whatever we hope to gain by incarcerating perpetrators, it is not their reform. What of simply taking them out of circulation? This is a more plausible purpose, though it is far from clear that a political solution such as the one that sent Napoleon to his island retreat, or Idi Amin to Saudi Arabia, would not be equally efficacious. Spandau, run by its four squabbling partners, may have been unique in the astonishing inefficiencies of its administration, but the fact that, as I have mentioned, the ICTR has spent well over US$1 billion to secure a score of convictions, reminds us that international justice does not come on the cheap. The continuing controversies surrounding the indictment of Sudanese president Omar Hassan al Bashir by the ICC remind us that many diplomats believe the threat of prosecution frustrates the goal of a negotiated settlement, as strongmen with their

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backs to the wall have less incentive to bargain than those offered a cushy retirement in a beachfront retreat. Finally, it is worth noting that persons convicted by the ICTY and the ICTR are handed over to a designated host country to serve their terms, an arrangement that places the convict under the parole policy of the host country; in the case of Sweden and Germany, two host countries, these policies are very liberal, indeed. Bracketing the question of the fairness of such an arrangement, we must ask whether liberal parole policies—created in the crucible of ordinary criminal law—can be reconciled with the goal of removing perpetrators of atrocity from circulation. Then, of course, there is the classic utilitarian goal of punishment: deterrence. Deterrence is specifically mentioned as a goal in the ICC Statute as well as in the Charter of the Yugoslav and Rwandan tribunals. Whether the trial and incarceration of perpetrators of crimes of atrocity serves the ends of deterrence remains, however, an open question. It seems dreadfully obvious that the Nuremberg and Eichmann trials did little to deter Pol Pot, and that the work of the ICTY and ICTR has done little to put a brake on genocide in Darfur. This might simply be a consequence of the fact that perpetrator prosecutions have until now been extremely rare, and as institutions of supranational justice gain greater traction, their deterrent effects will become more visible. But even this seems highly questionable. Even in the case of conventional domestic crimes, deterrence—which, after all, is a negative effect—is notoriously difficult to measure; in the case of supranational crimes, involving complex organizations if not direct state sponsorship, it may be altogether impossible. Deterrence as a justification for punishment crimes of atrocity remains, then, almost entirely speculative and aspirational. Then, of course, there is the classic Kantian purpose of punishment as retribution. Here at least we find an open recognition of the vexatious nature of the problem, as opposed to a bewildering obliviousness that a problem even exists. At the time of the IMT proceeding, Hannah Arendt famously wrote to Karl Jaspers, “The Nazi crimes, it seems to me, explode the limits of the law; and that is what constitutes their monstrousness. For these crimes, no punishment is severe enough.”45 Arendt, prescient as ever in her thinking, saw the IMT in a manner different from the trial’s own self-understanding—that is, as an atrocity proceeding whose greatest contribution to international law was the adumbration of the crime against humanity, a point she explicitly made years later in Eichmann in Jerusalem. Indeed, in Eichmann in Jerusalem, Arendt faulted the Israeli court for failing to build on the one distinctive achievement of the IMT—the juridical recognition of crimes against humanity.46 Yet here too, she returned to the retributive dilemma of the jurisprudence of atrocity: that no punishment appears proportional to crimes of atrocity. In his summation before the court, Israeli Attorney General and lead prosecutor Gideon Hausner himself conceded, “It is not always possible to apply a punishment which fits the enormity of the crime.”47 This issue continues to vex the work of the ICTY and ICTR, and will most certainly plague the ICC, as well. As Mark Drumbl has painstakingly documented, the sentencing practices of international and quasi-international tribunals reveal

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the absence of any clear guidelines, standards, or logic;48 in conversations with numerous participants associated with the ICTY, I heard time and again concerns raised about the unseemliness of sentencing a convicted perpetrator of crimes against humanity to, say, 11 years in prison. Needless to say, these disparities appear all the more grotesque when compared to sentences meted out by domestic national courts in trials involving conventional crimes: how can we reconcile, for example, the sentencing of a juvenile killer to a mandatory life term in an American court with the 25-year-term given a perpetrator of genocide in an international tribunal?

The didactic value of the atrocity trial Perhaps the best way to solve the problems that arise from applying conventional theories of punishment to the atrocity trial, is to see the atrocity proceeding as, in the first instance, a didactic exercise. Punishment, in this calculus, serves more a symbolic end, helping to communicate the pedagogic or tutelary lessons of the trial.49 The atrocity trial, so understood, can serve several distinct ends: it can deliver a tool of political-legal legitimation by making visible the sober operation of the rule of law; it can promote a reckoning with the past by clarifying a history of horror often obscured in rumor, denial and silence; it can establish a baseline account of traumatic history that may serve the interests of democratic transition; and it can confer public recognition upon the memories of survivors and honor upon the memory of victims. While some scholars have expressed serious doubts about the value of atrocity trials as tools of historical instruction and memory construction,50 I would insist that legal didactics are a necessary feature of the justificatory logic of any jurisprudence of atrocity. Indeed, it is no coincidence that many of the principal participants in atrocity trials have openly embraced their didactic function. Robert M.W. Kempner memorably defended the Nuremberg trials as the “world’s greatest research institute,”51 and Michael Musmanno, in his judgment in the Einsatzgruppen case, likewise saw the trial as a pedagogic exercise: Judicial opinions are often primarily prepared for the information and guidance of the legal profession, but the Nuernberg judgments are of interest to a much larger segment of the earth’s population. It would not be too much to say that the entire world itself is concerned with the adjudications being handed down in Nuernberg.52 Taylor himself offered the strongest defense of the NMT program as a didactic exercise: Nowhere can these records be put to more immediate or better use than in Germany; the reorientation of German thought along democratic lines must ultimately be accomplished by the Germans themselves. But the least we can

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do is to insure that the documents which expose the true nature of the Third Reich are circulated throughout Germany. The Nuernberg documents must be utilized to the full in writing German history, if the Germans of today are to grasp the truth about the past.53 Didactic legality, of course, has its risks, but even the failures remain emblematic. The NMT experience makes clear that an atrocity trial cannot succeed as a didactic exercise in the absence of a commitment of resources and supporting acts of political will. Taylor’s concluding remarks in his summary report betray his frustration with the absence of coordinated support for the NMT program: A failure to disseminate the Nuernberg records and judgments in Germany, accordingly, is not only a failure to make use of their contents to promote the positive aims of the occupation. It is a failure to put the necessary “ammunition” in the hands of those Germans who can make use of the documents presented and testimony given during the trials in reconstituting a democratic German society.54 Had the USA invested the requisite money and energy toward disseminating the NMT records and judgments, there is no way of knowing whether Taylor’s didactic ambitions would have met with success. History by counterfactual is always a tricky enterprise, and there is no clear recipe for orchestrating the successful reception of an atrocity program. But if we cannot confidently chart the path to success, we certainly know the way to failure. The unwillingness or inability to use political tools to support the juridical lessons of an atrocity trial will certainly doom its reception, especially given the opposition that such proceedings inevitably arouse. In this case, the failure to “get the word out” played into the hands of a well-organized campaign of opposition within Germany that was able to cast the entire Nuremberg trial program as a tool of victors’ justice.55 This is a lesson the ICTY, with its underfinanced outreach program, failed to master, and that must be mastered by the ICC.

The symbolic purpose of punishment Granted, many scholars question the didactic value of the atrocity trial. Yet if we agree that the punishment of perpetrators of atrocity bears an uncertain relationship to correction, retribution and deterrence, then we might be all the more prepared to accept the trial as a didactic exercise. Indeed, we might go further still and insist that legal didactics are a necessary feature of the justificatory logic of any jurisprudence of atrocity. Put a bit differently, the perpetrator trial emerges as a wasteful, vexed and possibly incoherent project if we fail to appreciate its didactic function. Here, however, one might insist that I have blundered into a contradiction by running together the didactic purposes of the trial with the symbolic function of

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punishment. Recall that in the final pages of Eichmann in Jerusalem, Arendt turns from journalist to judge in order to pronounce judgment on the defendant.56 She does so not in the name of the Israeli judiciary; rather the “we” for which she speaks is the outraged moral conscience of all humanity. Her judgment is a declaration from humanity to Eichmann whom she addresses directly in the second person, explaining the reasons why we—humanity—cannot share the same earth with you, the perpetrator. Arendt defends the appropriateness of putting Eichmann to death, dissenting from arguments of thinkers such as Jaspers and Martin Buber who urged a commutation of sentence.57 For Arendt, the death penalty serves as a form of radical lustration, and, as such, as a faute de mieux for her desired punishment—global outlawry, planetary exile and ostracism from the fold of humanity. From this understanding, we can better understand why the failure to try Eichmann before an international tribunal constituted, in Arendt’s mind, the greatest shortcoming of the Jerusalem trial. Because, in her mind, Eichmann’s crimes were an attack on humanity writ large, and because the death sentence was meant to declare Eichmann’s exclusion from membership in humanity’s fold, Arendt understandably insisted that only an international court could have done justice to the global semiotics of the historic trial.58 Arendt’s position appears to have the strength of offering a unified theory of venue, incrimination and punishment, demanding, as it does, that international courts vindicate the interests of humanity writ large by purging the human community of the pollution of the perpetrator. By contrast, my defense of the didactic function of the trial appears to push in the opposite direction, creating a dissonance between the theory of the supranational crime—as an offense against humanity—and the theory of the trial—as staged for particular groups. Yet by way of answering the Arendtian challenge, I would insist the punishment of supranational crimes need not be understood as a symbolic declaration of Kantian universalism. To the contrary, these crimes can be better understood as crimes against plurality, directed against identifiable groups and communities. While it is true that Arendt herself, at times, speaks of the crime against humanity as a crime against plurality, her concept of plurality is characteristically Kantian: abstract, void of thickness and particularity.59 An examination of the definition of these crimes shows that they concern themselves with a far thicker and less attenuated concept of plurality and community than Arendt was prepared to accept. This is clearest in the crime of genocide, which by definition, criminalizes behavior directed toward the destruction of a group qua group, be it terms of its ethnicity, religion, race or national character.60 Far from a crime against a thin version of community that admits all humans, genocide is a crime against a more thickly constituted notion of identity. By “focusing on a nonindividualized feature of the victim,”61 genocide represents the ultimate negation of our human status, not as members of a global collective, but quite to the contrary, as specific thickly constituted individuals. A similar observation may be made about crimes against humanity. Certainly that subset of crimes against humanity which deals with persecution-type offenses

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presupposes that those crimes will be directed against persons by virtue of their inclusion in groups or communities, be they defined in terms of race, ethnicity, religion or political beliefs.62 Perhaps the only challenge to my reading of the nature of supranational crimes comes from the proposition that crimes against humanity also reach systematic attacks on “any civilian population.” Here one might rightfully observe that a civilian population is not a community or group in any meaningful sense; it is simply an aggregate of persons who share nothing more than the thin bond of geographic proximity. Against this challenge, I would insist that the very experience of atrocity transforms a “civilian population” into a group—that is, one defined by the common experience of historical trauma. Moreover, the requirement of systematicity built into the definition of the crime against humanity suggests a civilian population targeted for reasons not unrelated to thicker aspects of its identity and composition. Thus I believe we can find a basic agreement between the symbolic purpose behind the punishment of the supranational crime—as a defense of collective existence as expressed in the attachments of group and community—and the didactic function of the trial as a tool of collective history and memory. For how else do bonds of a kin, community, and group find expression than in the shared terms of history and memory? This link—between the symbolic purpose of the punishment of crimes of atrocity and the didactic function of the trial—helps us to bridge the disconnect I noted earlier: between the creative efforts to gain legal dominion over atrocity and the disappointingly unimaginative literature on the appropriate sanction for supranational crimes. But in insisting that legal didactics must play a role in the justificatory logic of the perpetrator trial, my aim is to do more than simply solve a conceptual conundrum. For the conclusion also helps better appreciate a critical problem raised by the jurisprudence of atrocity: the situ of justice.

The situ of justice Legal scholars rightly emphasize that impartiality and independence are critical features of the act of judging. These norms are not identical: independence refers to the judge’s structural insulation from political pressure; impartiality, by contrast, specifies the judge’s emotional and evaluative distance from the issues of the case. The judges in the trial of Saddam Hussein, for example, lacked both.63 The tribunal experienced withering political pressure as witnessed by the resignation of the first presiding judge and the veto lodged against his replacement. The judge who finally took the reins, Raouf Rasheed Abdel-Rahman, frequently got into shouting matches with the defendants and curtailed the calling of defense witnesses, turning the trial into a partisan, and not a judicial exercise—this, even before the grotesque spectacle of Saddam’s execution. The Hussein trial lacked what the norms of independence and impartiality share: a sense of enabling distance. To engage in justice, the judge must be structurally removed from political interference and cognitively and emotionally removed from the issues of the case.

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But if justice is impaired by insufficient distance, can it also be impaired by too much distance? Can a case be so far removed as to erode the efficacy, if not the possibility, of justice? This is the issue raised by universal jurisdiction and, in part, by international courts such as the ICTY. Universal jurisdiction, as we have observed, found an early precedent in the Eichmann trial, but that case remains anomalous, inasmuch as the most serious challenge to the authority of the court raised by Eichmann’s attorney, Robert Servatius, went to the question of the tribunal’s impartiality. More recent invocations of universal jurisdiction—those that began with and followed the Pinochet affair—raise the opposite problem, however. Here we find the reductio of the theory that would comprehend supranational crimes as offenses against humanity writ large, as domestic national courts claim the authority to judge acts to which they lack virtually all connection, or, as in the case of Belgium’s trial of Rwandans or Spain’s efforts to judge Pinochet, only the dim connection that comes in the form of the lingering ghost of colonial domination. This is not to deny the thrilling aspects of the Pinochet affair, but the fact that Magistrate Baltasar Garzon was permitted to investigate the crimes of the former colony, but not the crimes of Franco Spain suggests something perverse about the uses of universal jurisdiction.64 Likewise, the trials of Serbs in Germany for Balkan crimes, also bridge a troubled past over which pass not the ghosts of colonial domination but the more recent footfalls of Nazi atrocities in Yugoslavia. When judgment becomes more a gesture of domestic expiation for a nation’s own displaced crimes, or when it reaches far and wide to grandly defend the interests of all humanity, then the act of judgment threatens to turn into something arrogant, arid and imperial. The Milosˇevic´ trial invites similar observations. Consider an incident at the trial involving a prosecution witness named Morten Torkildsen, an expert in tracing financial transactions. Torkildsen had been called to the stand by the prosecution to testify about transfers of funds that took place between the Serb Republic and the Republika Srpska, the breakaway Bosnian Serb territory, between the years 1991 and 1995. The International Court of Justice’s judgment in the genocide suit brought by Bosnia against Serbia, though disappointing in many respects, did specifically highlight the critical importance of these financial transfers. Without this financial support and flow of funds, the International Court of Justice noted, the Republika Srpska would never have been able to perpetrate the atrocities that it did. But during his time on the stand at the Milosˇevic´ trial, Torkildsen was asked a bizarre question. One of the judges, who later would become the presiding judge at the trial, asked Doctor Torkildsen if he had compared these financial transactions to transfers between the Serb Republic and the Republika Srpska from an earlier period, say 1985–91.65 The witness, visibly stunned, politely informed the judge that that would be difficult inasmuch as an independent Serbia and the Republika Srpska did not exist at the time. This incident was brought to my attention by Mirko Klarin. To those who have followed the work of the ICTY, Klarin is a legendary figure. For more than a decade, he has encamped himself in a small windowless office at the court in

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Schevingen, chain-smoking and tirelessly compiling and watching videotapes of the various proceedings. Originally a print journalist from Serbia, Klarin was one of the first figures to call for a Nuremberg-style response to the unfolding catastrophe in the Balkans. A defender of the Court over the years, Klarin told the Torkildsen story with resignation, as emblematic of the larger failings of the Court. For it was not isolated. From others, I learned of the story of the prosecutor who after being briefed on the Banja Luka crimes approached a staffer in the OTP and growled, “Banja Luka, Banja Luka—why haven’t we indicted Banja Luka!”— only to be told that Banja Luka was a town, not a person. The fact that not a single Milosˇevic´ prosecutor had even a reading knowledge of BCS only underscores these problems. Commenting on the work of Milosˇevic´’s chief prosecutor, a Serbian researcher observed, “It is like listening to a very accomplished and brilliant pianist who is technically very good, but unfortunately the whole song is wrong.” One might insist that these anecdotes highlight nothing more than idiosyncratic problems with the ICTY. After all, prosecutors are not historians, and even in the case of Eichmann, we now know that the prosecutors were largely ignorant about many details of the Final Solution in the early stages of the case. One upshot of this discussion might be to challenge my entire defense of the didactic function of the trial. If prosecutors are experts in law and not history, is this not all the more reason to heed the insistence of various scholars that history be left out of the courtroom? But I do not believe this is an option. Cases involving crimes of atrocity inevitably and necessarily usher complex histories into courtrooms. This is in part a result of the larger social expectations that come with staging a trial involving spectacular supranational crimes. But the problem also inheres in the nature of the crimes themselves, which almost inevitably deal with large communities and actions perpetrated over broad swaths of space and time. As a result, one cannot hope to hide from this problem by erecting an untenable divide between law and history. The question then is not whether to deal with history, but how to deal with it responsibly. The experience of the ICTY, perhaps most visibly in the Milosˇevic´ prosecution, makes clear the difficulties of achieving didactic success when the tribunal lacks any organic connection to the history and memory of the communities caught up in the web of crimes. Consider as well the organization of space and spectatorship at the Milosˇevic´ trial. Many of the most famous photographs associated with the Eichmann trial, at least at the time of its staging, were not the images of the man in the glass booth. Rather, they were shots of the spectators at the trial reacting to the testimonial drama in the courtroom, their faces caught in expressions of grief, disbelief, anger and horror. If at the Eichmann trial the glass booth made the defendant into a specimen of display and scrutiny, the spectators themselves remained integrated into the proceeding. Their gasps, snickers and occasional violent outbursts were part of the trial and constituted a crucial point of primary reception for the journalists following the case. The contrast to the Milosˇevic´ trial could not be greater. There it was the court itself that sat in the glass booth, sealed

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from the gallery of spectators by sheets of glass thick enough to repel rocket propelled grenades. The glass was also soundproof; the only sounds that the spectator could hear were those broadcast over the headsets made available to each observer; the court was likewise sealed from any sounds from the spectators. As a consequence, there was no interaction between the court and the spectators— usually no more than a handful, though on occasion filling the gallery. For the observer, the feeling was akin to watching an elaborate psychology experiment through one-way glass, with the spectator entirely invisible to the Tribunal. The spectator gallery was supplied with TV monitors that tracked the proceeding; observers often found themselves watching the monitors instead of the courtroom—as powerful a trope as any for the formal removal of the court from the region in which the crimes took place. In an attempt to create a neutral venue, the ICTY succeeded in creating a thoroughly de-natured and un-situated courtroom— as if Beckett had staged a drama in the nonexistent space of Kantian universalism or behind Rawls’ veil of ignorance. I do not mean naively to suggest that Milosˇevic´ should have been tried in Serbia. Clearly this was not an option, though it is worth noting that the ICTY has, under the terms of its authorizing statute, removed some less high-profile defendants back to the region for trial.66 But these observations do challenge the alacrity with which many human rights lawyers champion international courts. Against this misplaced enthusiasm, I believe my larger jurisprudential argument delivers powerful support for the political pragmatics that undergirds the ICC: that international courts should be used only as courts of last resort. As I have tried to argue, this jurisprudential argument makes two principal claims. First, it insists that the separation of proceeding from people and place fails to do justice to the crimes of atrocity, because supranational crimes are less attacks on humanity writ large than they are attacks on the idea that human life is an enterprise organized in terms of group attachments, collective identities and community allegiances. The trial process and the act of judgment must then be attentive to the history of concrete communities—as composed both of victims and perpetrators—a project likely to fail in the absence of the intimate connections between proceeding, people and place. In the absence of these connections, the jurisprudence of atrocity that I have sketched insists that judgment becomes problematic in a second sense. For as I have tried to show, conventional theories of punishment fail to offer a coherent justification for the extraordinary commitment of judicial resources necessary to bring perpetrators of atrocities to justice. I have suggested that the best way out of this conundrum is comprehend punishment as a symbolic gesture and the trial as a didactic exercise serving the interests of history and memory. From this perspective, courtroom didactics are not an ancillary or supplemental purpose of the perpetrator trial. Rather, they lie at the heart of the enterprise and render it coherent.

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Answering the challenge of atrocity The contact with atrocity has dramatically, radically and irrevocably changed the law. It has led to new substantive incriminations, novel jurisdictional theories, innovative theories of liability, new procedural hybrids and bold institutional commitments. But in the laudable effort to submit acts of atrocity to legal judgment, the law must not forget the intimate connections between proceeding, place and public that give the act of rendering judgment meaning. In the face of crimes against collective life, community attachment and group belonging, the very ambition to do justice requires that courts do no further violence to these connections.

Notes 1 The classic treatments are T. Hobbes, Leviathan, Cambridge: Cambridge University Press, 2004; and J. Bodin, On Sovereignty, Cambridge: Cambridge University Press, 1992. 2 On the barriers that sovereignty posed to the development of international criminal law, see J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, Oxford: Oxford University Press, 1954. For a discussion of precedents to the IMT, see A. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment, Chapel Hill, NC: University of North Carolina Press, 2005. 3 See, for example, L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives, Oxford: Oxford University Press, 2004. 4 K. Jaspers, Wohin treibt die Bundesrepublik?, Munich: Reprint, 1988. 5 See M. Weed, “International Criminal Court and the Rome Statute: 2010 Review Conference” Congressional Research Service 7-5700, R41682, March 10, 2011. See also, W. Schabas, An Introduction to the International Criminal Court, Third Edition, Cambridge: Cambridge University Press, 2007. See also M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression, Aldershot: Ashgate, 2004; and L. May, Aggression and Crimes against Peace, Cambridge: Cambridge University Press, 2008. 6 J. Bush, “‘The Supreme . . . Crime” and Its Origins: The Lost Legislative History of the Crime of Aggressive War’, Columbia Law Review, vol. 102, 2002, pp. 2324–2424. 7 See R.K. Woetzel, The Nuremberg Trials in International Law, New York, NY: Praeger, 1962, pp. 226–232. Also C. Schmitt, Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz “Nullum crimen, nulla poena sine lege”, H. Quaritsch (ed.), Berlin: Duncker & Humblot, 1994. 8 Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945, Washington, DC: US Government Printing Office, 1949 (henceforth Jackson Report), p. 333. 9 See L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust, New Haven, CT: Yale University Press, 2001, pp. 41–53. 10 For a full text of CCL 10, see T. Taylor, Final report to the Secretary of the Army on the Nuernberg war crimes trials under Control Council Law No. 10, Washington, DC: US Government Printing Office, 1949, Appendix D. 11 Taylor, Final Report, p. 107. 12 Case 9, Opening Statement for the Prosecution, Trials of War Criminals before the Nuremberg Military Tribunal under Control Council Law No. 10, Washington, DC: US Government Printing Office, 1949–53 (henceforth TWC), IV, 49

Crimes of atrocity, the problem of punishment and the situ of law 289 13 The use of forced labor, a crime against humanity, also played a key role in the three industrialists trials; experiments and slave labor also stood at the heart of the Milch case. 14 R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress, Washington, DC: Carnegie Endowment, 1944, p. 79. 15 Case 8, Opening Statement of the Prosecution, TWC, IV, 622. 16 Case 9, Opinion and Judgment, TWC, IV, 450. 17 Case 9, Opening Statement for the Prosecution, TWC, IV, 32. 18 Case 9, Opening Statement for the Prosecution, TWC, IV, 48. 19 See generally, G. Werle, Principles of International Criminal Law, Second Edition, The Hague: TMC Asser, 2009. 20 See L. Maresca, ‘Case Analysis: The Prosecutor v. Tadic´ , The Appellate Decision of the ICTY and Internal Violations of Humanitarian Law as International Crimes’, Leiden Journal of International Law, vol. 9, 1996, pp. 219–233. 21 For a critical comment on this novel doctrine of intervention, see T. Todorow, ‘Right to Intervene or Duty to Assist?’, in N. Owen (ed.), Human Rights, Human Wrongs, Oxford: Oxford University Press, 2002, pp. 28–48. 22 O. Fiss, ‘Within Reach of the State’, and L. Moreno-Ocampo, ‘Massive crimes are never simply domestic’, Boston Review, 2007. Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). 23 S. Benhabib, Another Cosmopolitanism, Oxford: Oxford University Press, 2008. 24 See D. Segesser, ‘Der Tatbestand “Verbrechen gegen die Menschlichkeit”’, in K. Priemel and A. Stiller (eds), Verhandelte Vergangenheit: Deutsche und amerikanische Perspektiven in den Nuremberg Military Trials, 1946–1949, manuscript under submission. 25 H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, New York, NY: Penguin Books, 1992, pp. 268–272. 26 D. Luban, ‘A Theory of Crimes Against Humanity’, Yale Journal of International Law, vol. 29, 2004, pp. 85–167. 27 Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). 28 See Reydams, Universal Jurisdiction. 29 See H. Packer, The Limits of the Criminal Sanction, Palo Alto, CA: Stanford University Press, 1968. 30 See M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, Human Rights Law Review, vol. 6, 2006, pp. 203–279. 31 Jackson Report, p. 6. 32 R. West, A Train of Powder, New York, NY: Viking Press, 1955, p. 3. 33 See P. Weindling, Nazi Medicine and the Nuremberg Trials, Basingstoke: Palgrave Macmillan, 2006. 34 Arendt, Eichmann in Jerusalem, p. 5f. 35 Douglas, The Memory of Judgment, pp. 104–113. 36 Bassiouni, ‘International Recognition of Victims’ Rights’, pp. 203–279. 37 ‘Victims’ Rights’. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). ‘Fact Sheet Four 2007–2008’, Program for International Justice and Accountability. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011).

290 Propaganda, War Crimes Trials and International Law 38 See S. Pomorski, ‘Conspiracy and Criminal Organizations’, in G. Ginsburgs and V. Kudriavtsev (eds), The Nuremberg Trial and International Law, Dordrecht: Kluwer, 1990. 39 C. Farhang, ‘Point of No Return: Joint Criminal Enterprise in Brđanin’, Leiden Journal of International Law, vol. 23, 2010, pp. 137–164. 40 For a critical discussion, see K. Ambos, ‘Joint Criminal Enterprise and Command Responsibility’, Journal of International Criminal Justice, vol. 5, 2007, pp. 159–183. See also A. Cassese, ‘The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise’, Journal of International Criminal Justice, vol. 5, 2007, pp. 109–133. 41 Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). 42 Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). 43 See D. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, Yale Law Journal, vol. 100, 1991, pp. 2537–2615. 44 See N. Goda, Tales for Spandau: Nazi Criminals and the Cold War, Cambridge: Cambridge University Press, 2008. 45 L. Kohler and H. Santer (eds), Hannah Arendt-Karl Jaspers Correspondence 1926–1969, trans. R. Kimber and R. Kimber, New York, NY: Houghton Mifflin, 1992, p. 54. 46 Arendt, Eichmann in Jerusalem, pp. 271–272. 47 The Trial of Adolf Eichmann: Record of the Proceedings in the District Court of Jerusalem, Jerusalem: Yad Vashem, 1992–95, vol. 5, p. 2214. 48 M. Drumbl, Atrocity, Punishment, and International Law, Cambridge: Cambridge University Press, 2007. 49 For a more general discussion, see L. Douglas, ‘The Didactic Trial: Filtering History and Memory into the Courtroom’, in D. Bankier and D. Michman (eds), Holocaust and Justice: Representation and Historiography of the Holocaust in Post-War Trials, Jerusalem: Yad Vashem, 2010, pp. 11–22. Also generally, Douglas, The Memory of Judgment. 50 See, for example, M. Marrus, ‘History and the Holocaust in the Courtroom’, in R. Smelser (ed.), Lessons and Legacies IV: The Holocaust and Justice, Evanston, IL: Northwestern University Press, 2002. Also D. Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory, New York, NY: Oxford University Press, 2003. 51 R. Kempner, ‘The Nuremberg Trials as Sources of Recent German Political and Historical Materials’, American Political Science Review, vol. 44, 1950, pp. 447–459, 447. 52 Case 9, Opinion and Judgment, TWC, IV, 413. 53 Taylor, Final Report, p. 106. 54 Ibid., p. 111. 55 See N. Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration, New York, NY: Columbia University Press, 2002. 56 Arendt, Eichmann in Jerusalem, pp. 277–279. 57 Arendt, Eichmann in Jerusalem, pp. 251–252. 58 Arendt, Eichmann in Jerusalem, pp. 268–275. 59 Arendt, Eichmann in Jerusalem, pp. 268–269. 60 See Article 6 of the Rome Statute. Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). 61 L. May, Genocide: A Normative Account, Cambridge: Cambridge University Press, 2010.

Crimes of atrocity, the problem of punishment and the situ of law 291 62 See Article 7 of the Rome Statute. Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). 63 See M. Newton and M. Scharf, Enemy of the State: The Trial and Execution of Saddam Hussein, New York, NY: St. Martin’s Press, 2008. 64 R. Minder, ‘Spain: Noted Judge Charged with Abuse of Power’, New York Times, April 8, 2010. Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). 65 The Prosecutor of the Tribunal Against Slobodan Milosˇevic´, Case No. IT-02-54, 10 April 2003, 19048-19049. Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). 66 Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011).

Bibliography Ambos, K. ‘Joint Criminal Enterprise and Command Responsibility’, Journal of International Criminal Justice, vol. 5, 2007, pp. 159–183. Arendt, H., Eichmann in Jerusalem: A Report on the Banality of Evil, New York, NY: Penguin Books, 1992. Bassiouni, M.C., ‘International Recognition of Victims’ Rights’, Human Rights Law Review, vol. 6, 2006, pp. 203–279. Benhabib, S., Another Cosmopolitanism, Oxford: Oxford University Press, 2008. Bloxham, D., Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory, New York, NY: Oxford University Press, 2003. Bodin, J., On Sovereignty, Cambridge: Cambridge University Press, 1992. Brierly, J.L., The Law of Nations: An Introduction to the International Law of Peace, Oxford: Oxford University Press, 1954. Bush, J., “‘The Supreme . . . Crime” and Its Origins: The Lost Legislative History of the Crime of Aggressive War’, Columbia Law Review, vol. 102, 2002, pp. 2324–2424. Cassese, A., ‘The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise’, Journal of International Criminal Justice, vol. 5, 2007, pp. 109–133. Douglas, L., ‘The Didactic Trial: Filtering History and Memory into the Courtroom’, in Bankier, D. and Michman, D. (eds), Holocaust and Justice: Representation and Historiography of the Holocaust in Post-War Trials, Jerusalem: Yad Vashem, 2010. Douglas, L., The Memory of Judgment: Making Law and History in the Trials of the Holocaust, New Haven, CT: Yale University Press, 2001. Drumbl, M., Atrocity, Punishment, and International Law, Cambridge: Cambridge University Press, 2007. Farhang, C., ‘Point of No Return: Joint Criminal Enterprise in Brđanin’, Leiden Journal of International Law, vol. 23, 2010, pp. 137–164.

292 Propaganda, War Crimes Trials and International Law Fiss, O., ‘Within Reach of the State’, and Moreno-Ocampo, L., ‘Massive crimes are never simply domestic’, Boston Review, 2007. Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). Frei, N., Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration, New York, NY: Columbia University Press, 2002. Goda, N., Tales for Spandau: Nazi Criminals and the Cold War, Cambridge: Cambridge University Press, 2008. Hobbes, T., Leviathan, Cambridge: Cambridge University Press, 2004. Jackson, R., Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945, Washington, DC: US Government Printing Office, 1949. Jaspers, K., Wohin treibt die Bundesrepublik?, Munich: Reprint, 1988. Kempner, R., ‘The Nuremberg Trials as Sources of Recent German Political and Historical Materials’, American Political Science Review, vol. 44, 1950, pp. 447–459. Kochavi, A., Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment, Chapel Hill, NC: University of North Carolina Press, 2005. Kohler, L. and Santer, H. (eds), Hannah Arendt-Karl Jaspers Correspondence 1926–1969, trans. R. Kimber and R. Kimber, New York, NY: Houghton Mifflin, 1992. Lemkin, R., Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress, Washington, DC: Carnegie Endowment, 1944. Luban, D., ‘A Theory of Crimes Against Humanity’, Yale Journal of International Law, vol. 29, 2004, pp. 85–167. Maresca, L., ‘Case Analysis: The Prosecutor v. Tadi´c, The Appellate Decision of the ICTY and Internal Violations of Humanitarian Law as International Crimes’, Leiden Journal of International Law, vol. 9, 1996, pp. 219–233. Marrus, M., ‘History and the Holocaust in the Courtroom’, in R. Smelser (ed.), Lessons and Legacies IV: The Holocaust and Justice, Evanston, IL: Northwestern University Press, 2002. May, L., Aggression and Crimes against Peace, Cambridge: Cambridge University Press, 2008. May, L., Genocide: A Normative Account, Cambridge: Cambridge University Press, 2010. Minder, R., ‘Spain: Noted Judge Charged with Abuse of Power’, New York Times, April 8, 2010. Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). Newton, M. and Scharf, M., Enemy of the State: The Trial and Execution of Saddam Hussein, New York, NY: St. Martin’s Press, 2008. Orentlicher, D., ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, Yale Law Journal, vol. 100, 1991, pp. 2537–2615. Packer, H., The Limits of the Criminal Sanction, Palo Alto, CA: Stanford University Press, 1968. Politi, M. and Nesi, G. (eds), The International Criminal Court and the Crime of Aggression, Aldershot: Ashgate, 2004. Pomorski, S., ‘Conspiracy and Criminal Organizations’, in Ginsburgs, G. and Kudriavtsev, V. (eds), The Nuremberg Trial and International Law, Dordrecht: Kluwer, 1990. Reydams, L., Universal Jurisdiction: International and Municipal Legal Perspectives, Oxford: Oxford University Press, 2004.

Crimes of atrocity, the problem of punishment and the situ of law 293 Schabas, W., An Introduction to the International Criminal Court, Third Edition, Cambridge: Cambridge University Press, 2007. Schmitt, C., Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz “Nullum crimen, nulla poena sine lege”, H. Quaritsch (ed.), Berlin: Duncker & Humblot, 1994. Segesser, D., ‘Der Tatbestand “Verbrechen gegen die Menschlichkeit’”, in Priemel, K. and Stiller, A. (eds), Verhandelte Vergangenheit:Deutsche und amerikanische Perspektiven in den Nuremberg Military Trials, 1946–1949, manuscript under submission. Taylor, T., Final report to the Secretary of the Army on the Nuernberg war crimes trials under Control Council Law No. 10, Washington, DC: US Government Printing Office, 1949. Todorow, T., ‘Right to Intervene or Duty to Assist?’, in Owen, N. (ed.), Human Rights, Human Wrongs, Oxford: Oxford University Press, 2002. Weed, M., ‘International Criminal Court and the Rome Statute: 2010 Review Conference’, Congressional Research Service 7-5700, R41682, March 10, 2011. Weindling, P., Nazi Medicine and the Nuremberg Trials, Basingstoke: Palgrave Macmillan, 2006. Werle, G., Principles of International Criminal Law, Second Edition, The Hague: TMC Asser, 2009. West, R., A Train of Powder, New York, NY: Viking Press, 1955. Woetzel, R.K., The Nuremberg Trials in International Law, New York, NY: Praeger, 1962.

Documents and transcripts Rome Statute of the International Criminal Court. Publishing on the Internet. Online. Available HTTP: (accessed 2 February 2011). The Prosecutor of the Tribunal Against Slobodan Milosˇevic´, Case No. IT-02-54, 10 April 2003, 19048-19049. Available HTTP (accessed 2 February 2011). The Trial of Adolf Eichmann: Record of the Proceedings in the District Court of Jerusalem, Jerusalem: Yad Vashem, 1992–95. Trials of War Criminals before the Nuremberg Military Tribunal under Control Council Law No. 10, Washington, DC: US Government Printing Office, 1949–53. “Victims’ Rights”. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011). “Fact Sheet Four 2007-2008” Program for International Justice and Accountability. Publishing on the Internet. Online. Available HTTP: (accessed 1 January 2011).

Table of cases Case 9, Opening Statement for the Prosecution, Trials of War Criminals before the Nuremberg Military Tribunal under Control Council Law No. 10, Washington, DC: US Government Printing Office, 1949–53, IV, 49.

294 Propaganda, War Crimes Trials and International Law Case 9, Opening Statement of the Prosecution, TWC, IV, 622. Case 9, Opinion and Judgment, TWC, IV, 450. Case 9, Opening Statement for the Prosecution, TWC, IV, 32. Case 9, Opening Statement for the Prosecution, TWC, IV, 48. Case 9, Opinion and Judgment, TWC, IV, 413.

Index

Abdel-Rahman, Raouf Rasheed 284 academicians 121, 178–9, 186–8, 193 accomplices 118–36, 146, 153–64, 222–3, 236, 241, 255 accountability 126, 248, 277 accused, rights of the 276 acoustic blasts 82–3 actus reus 92, 124–5, 204, 237–8 advertising 1–2 African National Congress (ANC) 182 age groups 57–8 Age of Propaganda. Pratkanis, Anthony and Aronson, Elliot 2 aggression 231–2, 271–4, 276, 277 aiding and abetting 118–36, 146, 153–64, 222–3, 236, 241, 255 Akayesu, Jean-Paul 7, 20, 83–4, 148, 157–9, 221, 254, 259 Al Qaeda 183–4 ‘all things considered’, Davidsonian ideal of 92 alternative possibilities 92–101 alternative sources of information 38–9, 75, 189, 263 Amen, John H 205 Amin, Idi 279 Amnesty International (AI) 121 analysis of propaganda 18–19, 21, 34, 39–40, 45–6, 58, 73–5 anchor position 54–5 ancient ethnic hatreds 57, 178 anomie 41–2, 48 Anscombe, GEM 72 anti-Semitism and treatment of Jews: actions 176; conspiracy theories 2, 14, 175, 208; content analysis of ethnic discourse 175–6; derogatory terms 175; eliminationist solutions to threats 176;

Final Solution 9, 217, 286; France 175–6; genocide and mass killings 175–6; Germany 175–6; hate speech 175–6; Italy 175–6; Jew or Jewish, semantic or conceptual implications of words 80–1; Jewish Question 11, 14–15; labelling 175–6; language 85; Madagascar, proposal for Jewish state in 218; military command and state authority 184; Nazi regime 85, 176, 184, 194; Nazi regime and Final Solution 9, 217, 286; Nazi regime and Jewish Question 11, 14–15; Nazi regime and Nuremberg Military Tribunal 20, 80–1, 98, 126, 203–23; Nazi regime and Protocols of the Learned Elders of Zion 2; negative stereotyping 175–6; newspapers 175–6; Nuremberg Military Tribunal 20, 80–1, 98, 126, 203–23; positive statements 176; Protocols of the Learned Elders of Zion 2; ritual murder allegations 209–10; Romania 175–6; threat propaganda 175–6 ; United Kingdom 175–6; virus 14; world domination conspiracy theory 2, 14, 175, 208 Anzulovic´, Branimir 187 Arab racism in Darfur 180 Araki, Sadao 11–12 Arendt, Hannah 17, 275, 277, 280, 283 Aronson, Elliot 2 art 3–4, 79, 87–8 assimilation 54, 107, 134, 174, 193, 215 Association of Serbian Writers. Kosovo 1389–1989 88–9 Atran, Scott 183 atrocity trials: bottom-up approach/ perspective 18–19, 21, 34–5, 45, 53; didactic value of atrocity trials 21–2,

296 Index 281–4, 286; distancing 284–7; impartiality 284–5; independence 284; international criminal law 269; resources 278, 287; sanctions/ punishment 278–81; situ of justice 284–7; spectators at trials 286–7; staff 278; Tokyo Military Tribunal 5, 6, 12–13; top-down approach/perspective 18–19, 34–40, 53; universal jurisdiction 275–6, 278, 285 see also International Criminal Court (ICC); International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former Yugoslavia; Nuremberg International Military Tribunal Austin, John 53, 73, 81–2 authority 10–11, 120, 132, 184–5, 194, 263 autobiographical memory 76 Babic´, Milan 7, 95 Bacˇevic´, Ljiljana 57 Bachelard, Gaston 36, 51 backtracking method of speech acts 83, 95 Bagilishema, Ignace 162 Balkan Wars see former Yugoslavia, conflict in; International Criminal Tribunal for the former Yugoslavia; Serb nationalism Bandura, Albert 183 bandwagon techniques 175 Bangamwabo, François 163–4 Barayagwiza, Jean-Bosco 13, 17, 161, 221–2 Bargh, John A 87 baseline and referential points 56–8 Bashir, Omar Hassan Ahmad Al 119, 279 Battle of Kosovo 87–9, 187 Beckett, Samuel 287 behavioural patterns 7, 36, 38–9 behavioural sciences 36 Belgium 153, 276, 285 Benesch, Susan 21 Benhabib, Seyla 275 Bernays, Edward L 33 Biddle, Francis 219 Bikindi, Simon 7, 11, 122, 171, 259, 261 biological weapons 15 biology 36 Birkett, Norman 219 birth rates 50, 87, 174, 193 Bollens, Scott 181 Bolsheviks 2

Bonaparte, Napoleon 279 Booth-Butterfield, Steve 56 Borges, JL 99, 101 brainwashing/mind-control 5, 16 Brankovic´, Srbobran 42, 46 Brđanin, Radoslav 7, 95, 125, 126–7, 130–2, 235–6, 238 Brown, Roger 34 Browning, Christopher 184 Brundage, Avery 205, 207 Brustein, William 175–6 Buber, Martin 283 burning of bridges 46 butterfly effect 87 Bytwerk, Randall 2, 211 campaigns of national mobilization 7–8, 40–50 Canada 260 cartoons 210 Cassese, Antonio 6, 8, 72–3 Catholic Church 3 causation 254–64: aiding and abetting 255; alternative possibilities 92–101; alternative sources of information, availability of 263; apparent mental causation 101; authority 263; circumstantial evidence 257; cognitive linguistic approach to analysis of open source evidence 91–6; content of speech acts 264; correlation 37–8; decisions to act 96, 98–9; definition 92; evidentiary feedback loop 95–6, 102; fit problem 95; forking paths, garden of 99, 101; free will 96, 99–101; freedom of expression 257, 264; genocide 21, 254–64; Genocide Convention 255–6, 259; hate speech 254–64; heuristics 38; imputation 38; incitement and instigation 91–3, 21, 254–64; indicators 262–3; indirect or coded language 260; individual criminal responsibility 101, 255; inducement 37–8; information age 38; instigation 92, 95, 98; intention 19, 93–101; international criminal law 254–64; International Criminal Tribunal for Rwanda 98, 221–2, 254–5, 257, 259–64; International Criminal Tribunal for the former Yugoslavia 99; kill or be killed 99–100; likelihood 256, 262; manipulation 92–3; media 14–15, 254, 257, 259, 262–3; Media Trial 254, 257, 259; mens rea 95; mental causality 19,

Index 297 92–101; mental fingerprints 95–6, 102; metaphorical thinking 14–15; mode of transmission 264; Nuremberg Military Tribunal 98, 206, 208, 217, 255; physical causality 19, 92–3; proof 254–5; push pull lesson 92; rationality 94, 101; responsibility, concept of 93; Serb nationalism 95–6; self-forming actions 99–101; socio-historical context 264; time factors 262; war crimes 91–6 Causation in the Law. Hart, HLA and Honoré, Tony 91 censorship 134–5, 204, 231 Cˇerkez, Mario 234 choice of accused and events 119–20 choice of the working propaganda theory 53–6 Chrétien, Jean-Pierre 10 chronologies 131 circumstantial evidence 132–6, 257 civilians: campaigns of national mobilization 50; combatants, distinguished from 50; concept of protection of citizens 9, 12, 17; crimes against humanity 284; group, defined as a 284; International Criminal Tribunal for the former Yugoslavia 237; media 13; methods and means of warfare 17; terror, crime of 237; war crimes, definition of 6; widespread or systematic attacks against civilians 125, 284 civilization, preservation of 119 coded words and messages 17, 60, 85, 148, 154, 233, 260, 264 coffee, use of word 90–1 cognitive conditioning 3 cognitive dissonance 41, 53–4, 55 cognitive linguistic approach to open source evidence 19, 71–102; causation 91–6; conceptual framing or priming 81–90; conceptual relativity 81; conceptual resonance 81; cultural rim 78–9; definition of open source evidence 71; discourse, differences in value and importance in type of 79–80; evidence 71, 79–80, 102; framing 81–90; free will 91–6; gap of framing paths 91–6; hate triangle 85–6; immediate linguistic environment 80; incitement and instigation 71, 102; intent 71–3, 79–80, 91–102; international law 71–3; leadership cases 71; mens rea 102; methodology 73–81, 101–2; organized

crime 79; priming 81–90; semantic analysis 81–5; speech acts 81–5; war crimes 19, 71–102; word scene investigations 19, 71–102; words as actions 73 cognitive science 5–6, 14–16, 21, 72–3, 77, 87, 102 collective intentionality 13, 88 collective memory 284, 286 collective myths 8 collective mind 40, 46–7 colonialism 153, 285 command responsibility theory 242, 278 commemoration initiatives 279 commission 124–30 communicative action, theory of 53 complicity in genocide 240 concepts and ideas, connection between 39 conceptual problems facing international criminal law 21–2 condonation 182 consciousness 16 conspiracy 204–5, 216 conspiracy theories 2, 14, 48, 52, 175, 208, 231–2, 277 contempt 12 content analysis of ethnic discourse 174–80 context: causation 264; circumstantial evidence 133; embedded contexts 56; European Court of Human Rights 123; evidence 84; freedom of expression 17, 123; incitement and instigation 130–1; International Criminal Tribunal for Rwanda 84, 122, 133; Kinyarwanda language 156–8, 161–5; Nuremberg Military Tribunal 126; political context 122–4; prosecutors and propaganda as a crime under IHL122–4; ‘Shiptar’, use of term 52; socio-historical context 264; Srebrenica massacre 130–1 contrast effect 54 Conversation in Hell Between Machiavelli and Montesquieu. Joly, Maurice 2 correlation and causation 37–8 cost-benefit analysis 39 cosmopolitan crime 274, 275–6 counselling 91–2 counter-propaganda 38–9, 134 crimes against humanity: actus reus 204; aggression 271–3; civilians defined as a group 284; definition 275, 284; genocide 272–3; hate speech 6, 125–6; individual

298 Index criminal responsibility 233; International Criminal Court 233; International Criminal Tribunal for the former Yugoslavia 6, 234, 240, 242, 246–8; international, use of term 273–4; Kenya 233; Nazi regime 271; Nuremberg Military Tribunal 126, 203–4, 212–13, 217–23, 231–2, 255, 270–3, 275, 278, 280; Nuremberg rallies 6; persecution 6, 234, 246, 283–4; proportionality of sentences 281; radio 233; sanctions/punishment 281–2; state sovereignty 270–1, 273–4; status 233; supranational crimes 275, 278, 283–4, 285; systematicity 284; universalism 275 criminal organizations in international law concept 277–8 criminal procedure 276 criminal responsibility 91–3: ‘all things considered’ 92; causation 93; command responsibility theory 242, 278; concept of responsibility 93; foreseeability 92; incitement and instigation 91; knowledge 92; mens rea 92; superior responsibility concept 278; voluntariness 92 see also individual criminal responsibility criminal states 270 crisis frame 8, 12–13, 188, 193 critical linguistics 50 cross-examination 83, 147–51, 212–16, 220 cryptomnesia (hidden memories) 76–7 culture: cognitive linguistic approach to analysis of open source evidence 78–9; ecology 39; family traditions 8; genetics 47; International Criminal Tribunal for Rwanda 20, 85, 122; International Criminal Tribunal for the former Yugoslavia 80; Kinyarwanda language 20, 146–8, 150–1, 157–8, 165; Kosovo and Metohija 88; media 39; nation/ethos 47; Northern Ireland 185; prosecutors and propaganda as a crime under IHL122; Serb nationalism 80, 87–90, 179, 192; social sciences 78–9; speech acts 84–5; violent cadres 185; war crimes 78–9 customary international law 235, 237 Czech Republic, opposition rallies in 192

Dallaire, Roméo 84 Damasio, Antonio 77, 83 Darfur, Sudan 180, 185, 194, 280 Davidson, Donald 14–15, 77–8, 82, 89, 92, 94, 96 de la Brosse, Renaud 10 death culture 183–4 death penalty 222, 223, 283 deception 5, 16, 33, 172, 232 decisions 12, 85, 96, 98–9 defences 136, 173, 178, 218–20, 210, 274 definition of propaganda 1, 4–5, 7, 14, 33–4, 127, 172, 177 dehumanization 174, 177, 178, 184 Democratic Republic of the Congo 274 demographic threats 50, 87, 174, 193 demonization 75, 119, 174, 177, 181, 209 Denitch, Bogdan 178, 187 Dennett, Daniel 93 deportations see forced transfers and deportations Der Stürmer 2, 10, 21, 80–1, 98–9, 126, 203–4, 206, 209–10, 213–19, 221, 255 Derrienic, JP 174 des Forges, Alison 10, 84 Descartes, René 16 desire 5, 10, 13, 82, 88, 93–4, 96, 109, 221 deterrence 280, 282 didactic value of atrocity trials 21–2, 281–4, 286–7 Đilas, Aleksa 179 discourse analysis 173 discourse, differences in value and importance in types of 79–80 discrimination 123, 131–2, 174–5, 255 dissonance 41, 53–4, 55 distancing 57–8, 284–7 distortion 5, 13, 54 documentary evidence 80, 121, 276 DNA 37 Dojcˇinovic´, Predrag 18–19, 21 double meanings 154, 162–3 Douglas, Lawrence 21–2 Drumbl, Mark 280–1 due process 276 East Germany, opposition rallies in 192 Eastwood, Margaret 20 Eco, Umberto 90 econometrics 259 Edelman, Gerald 77

Index 299 education: aggravating factor, education of accused as an 11; initiatives to address legacy of atrocities 279; literacy 75; media 75; prosecutors and propaganda as a crime under IHL 122–4 effectiveness of propaganda 129–30, 192–3 ego-involvement 54 Eichmann, Adolf 22, 276, 277, 280, 283, 285, 286 Eizo¯ , Koyama 2–3 elections 187–8, 190, 191–2 electronic media 42–5, 74–5 eliminationist solutions to threats 174–8, 180, 182, 193–4 Ellul, Jacques 13–14, 72–3 embedded contexts 56 enemy in Kinyarwanda language 135, 143, 146, 151, 153–64 epistemology 39–40, 51 Erdemovic´, Drazˇen 99–100 ethics 49–50 ethnic cleansing: hate speech 172; ideology 181–2; International Criminal Tribunal for the former Yugoslavia 273; language 173; Muslims 189; political discourse 174–5; Serb nationalism 172–3, 176, 184, 188–9, 248, 273; violent cadres 183 ethnic discourses 175–80 ethnic distancing 57–8 European Convention on Human Rights 123, 129 evidence: authority 10; campaigns 8; causation 95–6, 102, 257; chronologies 131; circumstantial evidence 132–6, 257; cognitive linguistic approach to analysis of open source evidence 71, 79–80, 102; commission 126; complexities 19; conflicts of evidence 122; context 84, 133; didactic interpretation 84; documentary evidence 80, 121, 276; experts 17, 20, 35–7, 83–4, 145–6, 154, 156–9, 163; explore of explain 19; feedback loop 19, 78, 95–6, 102; hack or crack 19; identification 18–19; incitement and instigation 130–1; intent 79, 124; international criminal law, breach of 19; International Criminal Tribunal for Rwanda 83–4, 133–4, 132–4, 222; International Criminal Tribunal for the former Yugoslavia 83, 240, 242, 244–5;

international humanitarian law, breach of 19; investigation of massive crimes, challenges to 119–22; joint criminal enterprises 126; legal and forensic analysis of material 19; legal framework 120–1; linkage evidence 10; location and review 120–1; media 10; mens rea 79; metaphors 15; non-governmental organisations 75–6; Nuremberg Military Tribunal 205–6, 208, 210, 212–18, 220; Nuremberg rallies 83; open source intelligence 18–19, 75–8; persecution 125; plans 120–1; pre-trial phases 19; prosecution 7, 8, 124–32; quality control 122; relationships between war crimes, propaganda and international law 7; retrieval 19; revision 122; trial phases 19; war crimes 7, 71, 79–80, 102; widespread or systematic attacks against civilians 125; words or actions 19 see also witnesses evolutionary theory 48 experts 17, 20, 35–7, 83–4, 145–6, 154, 156–9, 163 explore or explain 19 expression, freedom of see freedom of expression faith 3 false claims and misinformation: crisis frame 13; definition of propaganda 5, 127, 177; fanaticism and zealotry 17; intent 16, 72; international conflicts 12; International Criminal Tribunal for the former Yugoslavia 241, 245–6; irrationality 86; political discourse 173; reciprocity 119; rhetorical exaggerations 178–9; Serb nationalism 88–9, 128, 177–9, 189, 190–1, 193; threat propaganda 128, 193; virtual reality 3 family traditions 8 fanaticism and zealotry 17, 183, 219 Far East, International Military Tribunal for the 5, 6, 12–13 fear propaganda: framing 89; hate, triangular theory of 12; International Criminal Tribunal for the former Yugoslavia 234–5, 238–9, 241, 243–4; irrational hatred 86; joint criminal enterprises 238–9, 241, 243–4; leaderships 234, 243–4; media 194; Muslims 42, 80, 178–9, 188–91, 241–3, 248; Nuremberg Military Tribunal 205;

300 Index persuasion 175; political discourse 173–5; priming 89; repetition 16; Serbian nationalism 89, 125, 178–80, 184–8, 193, 234–44, 248; threat messages 173–4, 188, 193 feedback loop 19, 78, 95–6, 102 Feldman, Jerome 87 Ferencz, Benjamin 272–3 figurative meanings 154 Fillmore, Charles 83, 85 films 43 Final Solution 9, 217, 286 finance 285 Fisˇer, Nenad 18–19 fit problem 95 folk psychology 36 forced transfers and deportations: aiding and abetting 131–2; commission 125, 127–9; defences 136; hate speech 244; incitement and instigation 130; India, Hindi-Muslim violence in 182–3; International Criminal Court 240; International Criminal Tribunal for the former Yugoslavia 127–32, 235–6, 238–42, 244–6; joint criminal enterprises 238–40, 245–6; Muslims 127–31, 184, 191, 235, 238–42; political discourse 174–5; security, right to 125; Serbian nationalism 125, 176, 178; threat propaganda 128; witnesses 125 foreseeability 12, 92, 205, 218, 262 forking paths, garden of 99, 101 former Yugoslavia, conflict in: age groups 57–8; analysis of propaganda 18–19, 34; bottom-up approach/perspective 18–19, 34; campaigns of mobilization 40–6, 50; coffee, use of word 90–1; collective myths 8; ethnic distancing 57; field of influence 19; financial support 285; Germany, prosecution of Serbs in 276; International Court of Justice 285; media 13–14; non-governmental organisations 8; open-source information 19; primordial schools 57; ‘Shiptar’, use of term 51–2; silence or inaction 8; social sciences 20; spillover of internal conflict into international conflict 9; top-down approach/ perspective 18–19, 34 see also International Criminal Tribunal for the former Yugoslavia; Serb nationalism framing 8, 12–13, 19, 81–90, 174, 188, 193

France, anti-Semitism in 175–6 Franco, Francisco 285 Frank, Wolf 212, 214 Frederick, Howard H 38 free will 19, 40, 49, 86, 91–6, 98–101 freedom of expression 11–13: causation 257, 264; coded messages 17; context 17, 123; hate speech or hate crime 17–18, 20, 257, 264; hate, triangular theory of 86; International Criminal Tribunal for Rwanda 20; media 13; Nuremberg Military Tribunal 219; prosecutors and propaganda as a crime under IHL 122–3; treaties 122; Universal Declaration of Human Rights 17, 122–3 freedom of the press 219 freedom of thought, conscience and religion 122–3 Frésard, JJ 118 Fritzsche, Hans 219, 232, 255 fugitives, long-term 119 Galic´, Stanislav 236–8 Garzon, Baltasar 285 Gaudreault-DesBiens, Jean Francois 38, 51 Gaussian curve 41–2 generalizations 77, 154–5, 158, 172–3, 260 genetics 46–7, 49 Geneva Conventions 6, 237–8 genocide and mass killings: atrocity paradigm 272; causation 255–6, 269; complicity 240; crimes against humanity 272–3; Genocide Convention 203, 221, 222, 232, 255–6, 259, 272; hate speech 171–95; human status, negation of 283; identity, notion of 283; incitement 9, 20–1, 98, 125–6, 145–65, 172, 194, 203, 211–23, 231–3, 240, 254–64; International Criminal Tribunal for the former Yugoslavia 6, 240, 278; international, use of term 273–4; joint criminal enterprises 126, 278; Muslims 240–2; Nuremberg Military Tribunal 20–1, 125–6, 203, 208, 211–23, 231–2, 270–3, 278; Srebrenica massacre 89, 99–100, 127–31; state sovereignty 270, 273–4; supranational crimes 275, 278; term ‘genocide’, creation of 272–3 see also Rwanda, genocide in; Kinyarwanda language in Rwandan genocide Germany 175–6, 276 see also Nazi Germany

Index 301 Gilbert, Gustave 214, 218–19 Gil-White, Francisco 56 Glenny, Misha 186 Goati, Vladimir 189 Goebbels, Joseph 2, 4, 9–10, 17, 38, 204 Goering, Hermann 174, 204 Good and Evil, conflicts between 119 Gotovina, Ante 248 Greater Croatia concept 10–11 Greater Serbia concept 10–11, 94–6, 97, 178 Gregory XV, pope 3 Grice’s Cooperative Principles 150 Griffith-Jones, Mervyn 206, 208–16, 219 group dynamics 41–2 Gukora (to work) 146, 156, 164–5 Gvero, Milan 127–9, 238, 244–7 Habermas, Juergen 53 Habimana, Kantano 161 Habyarimana, Juvénal 153–5 hack or crack 19 Hagan, John 180 half-truths 5, 12, 16 Hart, HLA 72, 91–2 Hashimoto, Kingoro 11–12 hate speech: anti-Semitism 175–6; Arab racism in Darfur 180; bans on hate discourse 194; birth rates 174; causation 254–64; commission 125–6; content analysis of ethnic discourse 175–80; crimes against humanity 6, 125–6; criminalization 172, 194–5; definition of propaganda 172; demographic threats 174, 193; eliminationist solutions to threats 174–5, 176–8, 180, 182, 193–4; ethnic advocacy hatred 171–2, 175–80; ethnic cleansing 172; forced transfers 244; freedom of expression 17–18, 20; genocide 21; incitement 21, 171, 194, 247; India, Hindu-Muslim communal violence in 182–3; indicators, set of 21; intention 96; International Tribunal for Rwanda 20, 122, 171, 232–4, 259, 261–2; International Criminal Tribunal for the former Yugoslavia 233, 234–8, 241–4, 247, 248; irrational hatred 86; Kinyarwanda language 20, 145, 156, 159–61, 259; leaders 181–3; mass killings 171–95; media 171, 185, 194; Nuremberg Military Tribunal 20–1, 231, 255; organization of ethnic violence 181–5, 194; persecution, crime of 125,

236; political discourse 172–5; prevention of genocide 21; public opinion 185; radio 171; revenge and aggression 174; security, right to 125; Serb nationalism 176–9, 185–93; social sciences 172; songs 122, 171, 259, 261–2; stereotyping 174, 180, 193–4; status of persons 171; terminology 33; terrorism 194–5; threat propaganda 86, 174–5, 182, 193–4; triangular theory of hate 12–13, 85–6; United Kingdom, criminalisation of hate speech in 194–5; violence cadres 183–5, 194–5 hate, triangular theory of 12–13, 85–6 Hausner, Gideon 277, 280 Hazlitt, William 86 Heidegger, Martin 50 Hess, Rudolf 204 heuristics 38 hidden memories (cryptomnesia) 76–7 Hiemer, Ernest 210, 214 hierarchy, position of suspects in the 120 Hilal, Musa 180 history: campaigns of national mobilization 46–9; causation 264; collective mind 46–7; context 122; determinism 49; didactic value of atrocity trials 284, 286, 287; ethnic groups 47; hate speech 21; incitement to genocide 264; International Criminal Tribunal for Rwanda 122; Kinyarwanda language 151–3, 157–8; nation/ethnos 46–8; prosecutors and propaganda as a crime under IHL 122–4; romantical history 47; socio-historical context 21, 264; us and them perspective 49 Hitler, Adolf 2–4, 9–11, 14, 17, 94, 98, 204, 205, 211, 214, 217, 220, 223, 232 Hobbes, Thomas 269–70 Holz, Karl 210, 216–17 Honoré, Tony 91–2 Horowitz, Donald 182 hospitality, theory of 275 Human Rights Watch (HRW) 121 humanitarian law see international humanitarian law humanity, crimes against see crimes against humanity Humphrey, Nicholas 16, 22 ICC see International Criminal Court (ICC) Icyitso (accomplices) 83, 146, 155

302 Index ideas and concepts, connection between 39 identity, notion of 283 Illusion of Conscious Will. Wegner, Daniel 101 imagery 3–5 impartiality 284–5 implicit, coded or tacit meanings 17, 60, 85, 148, 154, 233, 260, 264 imprisonment 279–80 impropaganda 33–4 incarceration 279–80 inchoate crimes 38, 256 incitement and instigation: authority 263; causation 21, 91–3, 95, 98, 254–64; circumstantial evidence 133; commission 125; content of speech acts 264; counselling 91–2; criminal responsibility 91; customary international law 235; definition 254, 259–61; European Court of Human Rights 123; free will 92; genocide 9, 20–1, 98, 125–6, 145–65, 172, 194, 203, 211–23, 231–3, 254–64; Genocide Convention 255–6, 259; hate speech 21, 172, 194, 247, 254–64; International Criminal Tribunal for Rwanda 20, 91, 98, 171, 221–3, 232–3, 254–5, 257, 259–64; International Criminal Tribunal for the former Yugoslavia 234–6, 240, 242, 247–8; inchoate crimes 256; indicators, test of 21; indirect or coded language 260; International Covenant on Civil and Political Rights 255; international criminal law 21; International Criminal Tribunal for the former Yugoslavia 91; Kinyarwanda language 20, 80, 145–65, 259; likelihood 256, 262; mode of transmission 264; Nazi regime 9; Nuremberg Military Tribunal 20–1, 125–6, 203, 211–23, 231–2; persuasion 91–2; physical perpetration of crimes 16; prevention 21; private incitement 256; prosecutors and propaganda as a crime under IHL 129–31; prototypes 45; self-defence 264; socio-historical context 264; status of persons 171; time factors 57, 262; Tokyo Military Tribunal 12 independence of judges 284 independent voters 175 India, Hindu-Muslim communal violence in 182–3, 194

indictable propaganda 34, 39, 41 indirect or coded language 17, 60, 85, 148, 154, 233, 260, 264 individual criminal responsibility: aiding and abetting 255; causation 101, 255; commission 124–9; crimes against humanity 233; defences 136; incitement and instigation 129–30; International Criminal Court 233; International Criminal Tribunal for the former Yugoslavia 99, 124, 233, 240, 248; investigation of massive crimes, challenges to 119–22; media 13; proof 124–32; prosecutors and propaganda as a crime under IHL 119–36; war crimes, definition of 6 indoctrination 107–8, 183–4, 185, 194 inducements 37–40 in-group cohesion 13 Inkotanyi (RPF members) 80–1, 83–5, 146, 153–62, 164 innuendo 5 innumeracy 37 insincerity 5 instigation see incitement and instigation institutional facts 19, 88 institutional resources 278, 287 intellectuals and academicians 178–9, 186–8, 193 intelligence see open source intelligence (OSINT) intent: action 5, 73; aiding and abetting 132; bare intention 72; brain-washing 16; campaigns 7; causation 19, 93–101; cognitive linguistic approach to open source evidence 71–3, 79–80, 91–102; collective intentionality 13, 88; commission 127–9; deception 16; decisions to act 96, 98; definition of propaganda 7; direction of specific behaviour 71; evidence 79, 124; false claims 16, 72; half-truths 16; hate speech 96; International Criminal Tribunal for the former Yugoslavia 127–9; international law 72–3; joint criminal enterprises 95–6; Kinyarwanda language 157–8, 161; manipulation 16; media 10; mind-control 16; misinformation 16; Nazi regime 9; persuasion 71, 73; prosecutors and propaganda as a crime under IHL 124; psychological operations 16; result 73; Searlian gap 96, 98; Serb nationalism 95–6; social sciences 94–5;

Index 303 terror 16–17; war crimes 71–3, 79–80, 91–102 see also mens rea internal and external audiences, border between 38–9 internal armed conflicts 6, 9, 13, 274 international armed conflicts 6, 9, 12–13, 274 International Committee of the Red Cross 118–19, 237 International Convention Concerning the Use of Broadcasting in the Cause of Peace 38 International Court of Justice (ICJ) 285 International Covenant on Civil and Political Rights 255 International Criminal Court (ICC): accused, rights of the 276; commission 130; co-perpetration through joint control 130; crimes against humanity 233; criminal organizations in international law concept 277–8; deterrence 280; didactic value 22; Elements of Crime 240; forced transfers 240; individual criminal responsibility 233; joint criminal enterprises 130; Kenya 233; last resort, as a court of 287; Libya 233–4; means, perpetration by 247; negotiated settlements, frustration of 279–80; peace, crimes against 6, 270; Rome Statute 6, 16, 233, 236, 278–80; sanctions/punishment 280–1; staff 278; victims, rights of 277; war crimes, definition of 6, 16 international criminal law: atrocity, crimes of 269; causation 254–64; conceptual problems 21–2; criminal organizations in international law concept 277–8; didactic aspects of war crimes 21–2; evidence, identification and retrieval 19; incitement to genocide 21, 254–5; International Criminal Court 22; International Criminal Tribunal for Rwanda 22, 248; International Criminal Tribunal for the former Yugoslavia 22, 231–8, 248; international, use of term 273–4; legal didactics 22; Memory of Judgment. Douglas, Lawrence 21; Nuremberg Military Tribunal 21, 248; shifts 21–2; silence and denial 22; state sovereignty 269–74; terror, crime of 9, 16–17, 236–8, 247 see also crimes against humanity; genocide; war crimes

International Criminal Law. Cassese, Antonio 72–3 International Criminal Tribunal for Rwanda: accountability 248; accused, rights of the 276; aiding and abetting 255; analysis of propaganda 21; atrocity paradigm 273; campaigns, use of term 7; Canada, deportation from 260; causation 98, 221–2, 254–5, 257, 259–64; circumstantial evidence 132–4; commission 126; conspiracies, warnings against 14; context 84, 122, 133; counter-ideas, limits on 134; culture 20, 85, 122; deterrence 280; econometrics 259; education as an aggravating factor 11; evidence 83–4, 132–4, 222; experts 83–4; freedom of expression 17, 20; Genocide Convention 221, 232; hate speech 20, 122, 171, 232–4, 259, 261–2; historical context 122; incarceration 280; incitement and instigation 20, 91, 98, 171, 221–3, 232–3, 254–5, 257, 259–64; international law 21, 248; joint criminal enterprises 10, 126; Kangura newspaper 133–4, 222; Kivumy meeting 171; language 20, 81, 83–4; media, control of 10, 15, 133–4; Media Trial 13, 15, 20, 81, 98, 132–3, 222, 257, 259–61; mens rea 221; parole policies of host countries 280; persecution 221–3, 236; political context 122; popularity 11; press 133–4, 222; radio 75, 171, 222, 257, 259, 260–1; rape 83–4; sanctions/punishment 280–1; songs 122, 171, 259, 261–2; staff 278; Statute 5–7, 280; Ten Commandments 133, 261; time factors 262; trial records 21; usages of term ‘propaganda’ 7; victims, rights of 277; war crimes, definition of 5–6 see also Kinyarwanda language in Rwandan genocide International Criminal Tribunal for the former Yugoslavia 6–9, 231–48: accused, rights of the 276; actus reus 238; aiding and abetting 131–2, 236, 241, 255; analysis of propaganda 21; atrocity paradigm 273, 278; campaigns, use of term 7–8; causation 99; choice of accused and events 119–20; circumstantial evidence 132; civilians, violence against 237; command responsibility theory 278; commission 126–9; complicity in genocide 240;

304 Index conspiracies, warnings against 14; crimes against humanity 6, 234, 240, 242, 246–8; culture 80; customary ; international law 235, 237; deterrence 280; didactic value 22; discrimination 132; distance 286–7; ethnic cleansing 273; evidence 20, 83, 132, 240, 242, 244–5; expert witnesses 20; failings of court 285–6; false claims 241, 245–6; fear propaganda 234–5, 238–9, 241, 243–4; forced transfers 125–9, 131–2, 235–6, 238–42, 244–6; framing 86–90; freedom of expression 17; Geneva Conventions 6, 237–8; genocide 6, 240, 278; goals of Serbian people 127; Greater Croatia concept 10–11; Greater Serbia concept 10–11, 94–6, 97; guidance on investigations 119–20; hate speech 233, 234–8, 241–4, 247, 248; incarceration 280; incitement and instigation 91, 130–1, 234–6, 240, 242, 247; individual criminal responsibility 99, 124, 233, 240, 248; instigation 235–6, 242, 248; institutional resources 278; intention 127–9, 240, 246, 278; international law 21, 95, 231–8, 248; investigation of massive crimes, challenges to 119–20; joint criminal enterprises 10–11, 95–6, 126–9, 233, 238–47, 278; kill or be killed 99–100; Kosovo and Metohija 86–90; language 7–8, 81, 86–90, 123–4; laws of war, breach of 6; leadership 239, 241, 245, 247; means, perpetration by 234–5, 247; media 10, 13–14, 234–5, 238–41, 245–6, 248; mode of liability, propaganda as 235–8; NATO air strikes 128, 273; Office of the Prosecutor 19; parole policies of host countries 280; persecution 234–6, 241, 246; prosecutors and propaganda as a crime under IHL 123–4; psychological warfare 237–8; poetio-military complex 233; priming 86–90; print media 235, 238; radio 235, 238; remorse 99–100; sanctions/punishment 280–1; Serb nationalism 20, 175–85, 234–5, 238–9, 241–5, 248; social sciences 20; space, organisation of 286; specific intent 278; spectators 286–7; Srebrenica massacre 89, 99–100, 127–31; staff 278; Statute 5–7, 280, 287; Strategic Plan 127; superior responsibility concept 278; television 235, 238; terror, crime of

236–8, 247; threat propaganda 236; trial records 21; usages of term ‘propaganda’ 7; victims, rights of 277; war crimes 5–6, 236–8, 247–8 international humanitarian law: evidence, identification and retrieval of 19; prosecutors and propaganda as a crime 118–36; war crimes, definition of 6 international law 7–18: civilians, concept of protection of 9, 12, 17; cognitive linguistic approach to analysis of open source evidence 71–3; control, concept of 9; customary international law 235, 237; humanitarian law 6, 19, 118–26; intent 72–3; internal armed conflict, concept of 9; international armed conflict, concept of 9; International Criminal Tribunal for Rwanda 21, 248; International Criminal Tribunal for the former Yugoslavia 21, 95, 231–8, 248; methods and means of warfare 9, 14–17; military personnel, protection of 9, 12, 17; social and cognitive instrument 8–9; terror, concept of 9, 16; war crimes 71–3; war, law of 6, 118–36, 237–8 see also international criminal law International Military Tribunal for the Far East 5, 6, 12–13 international tribunals see atrocity trials; International Criminal Court (ICC); International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former Yugoslavia; Nuremberg International Military Tribunal Internet 43–5, 74–5 intertextual analysis 50–1 intimacy, negation of 12, 85 investigation of massive crimes, challenges to 119–22: authority of accused 120; avenues of investigations 121; choice of accused and events 119–20; clarity of questions to be answered 120; conflicting evidence, consideration of 122; dismissal of charges 122; documentary evidence 121; elements of crime 120–1; evidence gathering 119–22; fugitives, long-term 119; hierarchy, position of suspects in the 120; individual criminal responsibility 119–22; International Criminal Tribunal for the former Yugoslavia 119–20; language 120, 122;

Index 305 legal framework 120–1; media reports 121; notoriety of accused 120; periodic reviews 122; plans 120–2; reports of NGOs 121; role of suspects 120; schedule for completion 122; seriousness of crimes 120; speeches, effect of 121; sub-investigations 121; summaries of what is known 121; tasks, list of 121–2; termination of investigations 122; witnesses 119, 121 Inyenzi (cockroaches; rebels) 81, 83, 85, 146, 148, 151–9, 161–4 IRA (Irish Republican Army) 194 Irish nationalism 181 irrationality/rationality 16–17, 86, 94, 101 Italy, anti-Semitism in 175–6 Jackendoff, Ray 81 Jackson, Robert H 204, 223, 271, 276 Janjaweed 180 Japan 2–3 Jaspers, Karl 270, 275, 280, 283 Jews see anti-Semitism and treatment of Jews Johnson, Mark 15, 89 joint criminal enterprises (JCE): accountability 126; actus reus 238; command responsibility theory 242, 278; commission 126–9; defences 136; effectiveness 129; evidence 126; fear propaganda 238–9, 241, 243–4; forced transfers 238–40, 245–6; genocide 126, 278; Greater Serbia concept 10–11, 95–6; incitement and instigation 130; intention 95–6; International Criminal Court 130; International Criminal Tribunal for Rwanda 10, 126; International Criminal Tribunal for the former Yugoslavia 10–11, 95–6, 126–9, 233, 238–47, 278; leadership 239, 241, 245, 247; means, perpetration by 247; media 238–9, 241, 245–6, 248; physical prosecution 126; Serb nationalism 176, 238–9, 241–5; superior responsibility concept 278 Joly, Maurice. Conversation in Hell Between Machiavelli and Montesquieu 2 Jowett, Garth S 4–5, 72, 78–9 Judah, Tim 184 judges, impartiality and independence of 284 justification for violence 49–50

Kadijevic´, Veljko 193 Kajelijeli, Juvénal 163 Kane, Robert 99–101 Kangura newspaper 10, 15, 133–4, 145, 159, 222 Kant, Immanuel 49, 274–5, 280, 283, 287 Kanyarukiga, Gaspard 164–5 Karadzˇic´, Radovan 95, 125, 128–9, 248 Karera, François 159, 165 Karera, Sylvere 157 Karlobag-Ogulin-Karlovac-Virovitica line 95 Kaufman, Eric 216 Kaufman, TN 214 Kayishema, Fulgence 158 Kearney, Michael G. Prohibition of Propaganda for War in International Law 21 Kempner, Robert MW 281 Kenya 233 kill or be killed 99–100 Kinyarwanda language in Rwandan genocide 145–65: accomplices 146, 153–64; Belgium colonizers, ethnic quotas introduced by 153; code words 154; context 156–8, 161–5; crossexamination of witnesses 83, 147–51; culture 20, 146–8, 150–1, 157–8, 165; definition of key terms 146, 154–65; distance, notion of 147–8, 149–50; double meanings 154, 162–3; enemy 135, 143, 146, 151, 153–64; ethnic groups, historical background to 151–3; experts 83–4, 145–6, 154, 156–9, 163; figurative meanings 154; generalizations 154–5, 158; genocidal intent 157–8, 161; Grice’s Cooperative Principles 150; Gukora (to work) 146, 156, 164–5; hate media 20, 145, 156, 159–61, 259; historical background 151–3, 157–8; Hutus, socio-cultural and historical background 151–3; Icyitso (accomplices) 83, 146, 155; identity cards 153; implicit or tacit meanings 154; incitement and instigation 20, 80, 145–65, 259; Inkotanyi (RPF members) 80–1, 83–5, 146, 153–62, 164; intent 157–8, 161; interviews 83; Inyenzi (cockroaches; rebels) 81, 83, 85, 146, 148, 151–9, 161–4; Kangura newspaper 145, 159; key terms, understanding 20, 80–1, 83–5, 145–65; media 20, 145, 156, 159–61, 259; Media Trial 145, 159;

306 Index polysemy 20, 146–7, 151, 154, 156, 158–9, 161–5; print media 145, 147, 149, 161; radio 161, 259; RPF members 80–1, 83–5, 146, 153–62, 164; Rwandan Armed Forces 153; socio-political background 151–3, 157–8; standard of proof 145; stereotypical traits 151–3; time, notion of 147–50; true meanings 154; Tutsis derogatory terms for 80, 153–9; Tutsis, socio-cultural and historical background of, 151–3; Tutsis, stereotypical traits of 151–3; Twas 151, 153; Umwanzi (enemy) 143, 146, 156; underlying meanings 154; veiled references 154; witnesses 83, 145–51, 156–65; work 146, 156, 164–5 Kipphan, Klaus 204, 208, 218–19 Klarin, Mirko 285–6 Klemperer, Victor 73, 80–1 knowledge 12, 42, 44, 92 Kony, Joseph 119 Kordic´, Dario 234, 236 Kosovo 51–2, 55, 86–90, 107, 177–8, 186–9, 191 Kosovo 1389–1989. Association of Serbian Writers 88–9 Krajisˇnik, Momcˇilo 238, 240–3, 278 Krstic´, Radislav 239–40 Kushner, Barak 73 labelling 5, 172, 174–8, 185, 189 Lakoff, George 15, 85, 89 Lamarckian evolution 47–8 language: analysis 50–1; anti-Semitism 85; background processes 52; Balkans, national mobilizations in the 50; coded language 17, 60, 85, 148, 154, 233, 260, 264; cognitive linguistic approach 71–102; conjoined terms 52; conspiracies 52; critical linguistics 50; cultural rim 79; ethnic cleansing 173; experts 83–4; International Criminal Tribunal for Rwanda 20, 81, 83–4; International Criminal Tribunal for the former Yugoslavia 7–8, 81, 86–90; intertextual analysis 50–1; investigation of massive crimes, challenges to 120, 122; Kosovo and Metohija 86–90; metaphors 51; Muslims 90–1, 123–4, 132; non-standard variants 51; open source evidence in war, cognitive linguistic approach to 19, 71–102; process-oriented approach 57;

prosecutors and propaganda as a crime under IHL 120, 123–4; rape 83–4; research 50; self-defence 173; semantic analysis 19; Serb nationalism 51; Shiptar’, use of term 51–2; statistics 36–7, 50; value-loaded 50; war crimes 19, 71–102 see also hate speech; Kinyarwanda language in Rwandan genocide last resort, international courts as courts of 287 Lawrence, Geoffrey 214, 216 leaders: authority 11; campaigns of national mobilization 48–9; cognitive linguistic approach to analysis of open source evidence 71; commission 125–6; Darfur, Sudan 185; fear propaganda 234, 243–4; genocide and mass killings 181–3; hate speech 181–3; India, HindiMuslim violence in 182–3; International Criminal Tribunal for the former Yugoslavia 239, 241, 245, 247; joint criminal enterprises 239, 241, 245, 247; military leaders 11, 125–6, 184–5, 194; Nazi regime 184–5; organization of violence 182–5; political leaders 11, 125–6; prosecutions 125–6; reality 48–9; religion 185; Rwanda, genocide in 182, 185; Serb nationalism 184–5; state authority and military command 184–5, 194; status 11; threat propaganda 182; violent cadres 184–5, 194 Leave None to Tell the Story: Genocide in Rwanda. des Forges, Alison 10 Lebensraum 11, 94 legal proceedings see atrocity trials; International Criminal Court (ICC); International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former Yugoslavia; Nuremberg International Military Tribunal; prosecutions legality, state of locus of 269–70 Lehrer, Jonah 76 Lemkin, Raphael 272 Ley, Robert 218 Libya 233–4 lies see false claims and misinformation Lili Marlene 4 Lilic´, Zoran 192 Lindblom, Charles 173 literacy 75 living space 11, 94, 96

Index 307 locus of legality, state of 269–70 Lords Resistance Army 119 lower stratum approach/perspective 18–19, 21, 34–5, 45, 53 Luban, David 275 Lynch, Aaron 4 Madagascar, proposal for Jewish state in 218 Malcolm, Noel 87–8 manipulation: causation 92–3; cognitive 5; definition of propaganda 33; free will 40; inducements 39–40; intent 16; legal 5; media 175; mind 14, 92–3; object 92–3; political discourse 173, 175; self-esteem 49 Mann, Michael 181–2 Markovic´, Mira 188 Martens, Frederick T 79 Babic´, Milan 238, 243–4 Marx, Hermann 220 mass crimes see genocide and mass killings; investigation of massive crimes, challenges to Mass, Peter 191 mass rallies 3, 6, 49–50, 187, 192 Maxwell-Fyfe, David 212–13 Mazowiecki, Tadeusz 189 McHaney, James M 273 McLuhan, Marshall 38–9 means, perpetration by 234–5, 247 media and information systems: analysis of propaganda 18, 73–5; anti-Semitism 98; Arab racism in Darfur 180; authority 10–11; bans 194; campaigns of national mobilization 40–9; causation 14–15, 254, 257, 259, 262–3; civilians, protection of 13; collective mind 40; communication research 175; control 9–15, 133–4, 189–90, 235; counterpropaganda 38–9; culture ecology 39; discourse, differences in value and importance in type of 80; elections 187–8, 190, 191–2; electronic media 42–5, 74–5; fear propaganda 194; films 43; freedom of expression 13; freedom of the press 219; genocide and mass killings 171, 185, 194; historical determinism 49; ideas 39; individual criminal responsibility 13; information age 38–9; intent 10; internal and external audiences, border between 38–9; internal armed conflicts 13;

international armed conflicts 13; International Convention Concerning the Use of Broadcasting in the Cause of Peace 38; International Criminal Tribunal for Rwanda 10, 132–4, 161, 221–3, 232–3, 236, 248, 254; Kinyarwanda language 145, 159; Media Trial 13, 15, 20, 81, 98, 132–3, 222, 257, 259–61; International Criminal Tribunal for the former Yugoslavia 10, 13–14, 234–5, 238–41, 245–6, 248; Internet 43–5, 74–5; investigation of massive crimes, challenges to 121; Irish nationalism 81; joint criminal enterprises 238–9, 241, 245–6, 248; Kinyarwanda language 20, 145, 156, 159–61, 259; linkage evidence 10; literacy and education 75; manipulation 175; mass behaviour 38–9; monopolies 189–90, 193; Muslims 127, 241, 243, 246; Nazi regime 9–10, 38, 98; neural networks 40; Nuremberg rallies 38; open source information 40, 73–6; organization of ethnic violence 181–2; personal ontology 40; persuasion 190–1; phenomenology 58; purges 191; regional control 9–10; regulation 38; Serb nationalism 10, 40, 42–4, 186–93, 235, 238–9, 241; ‘Shiptar’, use of term 51–2; smoking gun 18; social sciences 20; submessages 39; television 38, 43–4, 187–8, 189–90, 235, 238; threat propaganda 191, 193–4; types of media and communication channels, influence of 42–4; us/them dichotomy 42, 49; victims, state of mind of 42; violent cadres 185; witnesses 75–6; World Wide Web 43 see also print media Mein Kampf. Hitler, Adolf 2, 204 memory: autobiographical memory 76; collective memory 284, 286; didactic value of atrocity trials 281, 284, 286, 287; factual memory 77; hidden memories (cryptomnesia) 76–7; open source intelligence 76–7; post-traumatic stress disorder 76; procedural memory 77; recategorization 77–8; redescriptions 77; witnesses 76–8 Memory of Judgment. Douglas, Lawrence 21 mens rea: aiding and abetting 132; causation 95; cognitive linguistic approach to analysis of open source

308 Index evidence 102; criminal responsibility 92; evidence 79; International Criminal Tribunal for Rwanda 221; Nuremberg Military Tribunal 203–4, 220, 223; prosecutors and propaganda as a crime under IHL 124; war crimes 102 see also intent mental causality 19, 92–101 mental fingerprints 95–6, 102 Merridale, Catherine 134–5 Mertus, Judith 186 metaphors 14–15, 51, 89, 173–4 methods and means of warfare 9, 14–17 military command, violent cadres and 184–5, 194 military leaders 11, 184–5, 194 military personnel, protection of 9, 12, 17 Mill, JS 18 Milosˇevic´, Slobodan 8, 10, 13–14, 42, 51, 55, 75, 90, 95–6, 186–7, 190, 192–3, 234, 241, 285–7 Milton, John 38 mind-control/brainwashing 5, 16 misinformation see false claims and misinformation missionaries 3 Mladic´, Ratko 80, 89, 119, 130–1, 241 mobilization campaigns 7–8, 40–50 mode of liability, propaganda as a 235–8 mode of transmission 21, 264 Montaigne, Michel de 86 Moore, Michael S 95 Morse, Samuel 38 Milutinovic´, Milan 192 Mugesera, Léon 260, 262, 264 Munyandamutsa, Vincent 165 Muslims and Serb nationalism: discrimination 132; ethnic cleansing 189; fear and resentment of of 42, 80, 178–9, 188–91, 241–3, 248; forced transfers 127–31, 184, 191, 235, 238–42; genocide 240–2; killings 89, 99–100, 120, 127, 130–1, 240–2; language 90–1, 123–4, 132; media 127, 241, 243, 246 Musmanno, Michael 273, 281 myths 1, 8, 89–90, 187–8 Nahimana, Ferdinand 7, 13, 15, 17, 20, 98, 161, 221–3, 232–3, 236, 248, 254 name-calling 5 nation/ethos 46–50 nation states 182, 270–1, 274

national mobilization campaigns 7–8, 40–50 nationalism: Irish nationalism 181; social sciences 20 see also Serb nationalism NATO strikes 128, 273 Nazi regime: allies, war crimes by 9; anti-Semitism 2, 4, 11, 14–15, 85, 98, 176, 184, 194, 286; conspiracies, warnings against 14; crimes against humanity 271; Final Solution 9; incitement to genocide 9; intent 9; Lebensraum 11, 94; media 9–10, 98; military command and state authority 184–5; passive participation 14; resistance movements 9; spillover of internal conflict into international conflict 9; Übermensch 49; violent cadres 184–5, 194; ‘we did not know’ justification 14 see also Nuremberg International Military Tribunal; Streicher case at Nuremberg Military Tribunal negligence 12 negotiated statements, tribunals as frustrating 279–80 neural networks 40 neurobiology 85–6 newspapers: anti-Semitism 175–6; campaigns of national mobilization 43–4; Der Stürmer 2, 10, 21, 80–1, 98–9, 126, 203–4, 206, 209–10, 213–19, 221, 255; Kangura newspaper 10, 15, 133–4, 145, 159, 222; Serb nationalism 187–8, 190 Newton, Isaac 36 Ngeze, Hassan 10, 13, 17, 132–4, 221–2, 254, 257 Nicolai, Cees 246 Nietszche, Friedrich 48 Nilus, Sergei 2 Niyitegeka, Eliézer 158 Nkusi, L 146 no punishment without law 270 non-governmental organisations (NGOs) 8, 75–6, 121 Northern Ireland 185, 194 notoriety of suspects 120 nulla crime, nulla poena sine lege 270 Nuremberg International Military Tribunal: accountability 277; aggressive war, crime of 231–2, 271–4, 276, 277; atrocity paradigm 269–73, 277, 278, 280; causation 255; Charter 5–6, 272,

Index 309 275; conspiracy 231–2, 277; crimes against humanity 231–2, 270–3, 275, 278, 280; criminal organizations in international law concept 277–8; ‘criminal state’ 270; didactic value of atrocity trials 281–2; documentary evidence 276; genocide 231–2, 270–3, 278; hate speech 231; incitement to genocide 231–2; no punishment without law (nulla crime, nulla poena sine lege) 270; peace, crimes against 6, 232, 270–2; persecution 232; precedent 274; prosecutions 270–1; spillover effect 274; state sovereignty 270–4, 278; universal jurisdiction 275–6; victor’s justice 281; war crimes 5–6, 231, 270–3; witness testimony 276–7 see also Streicher case at Nuremberg International Military Tribunal Nuremberg rallies 3, 6 Nzamurambaho, Frédéric 163 Oberschall, Anthony 7–8, 20, 21, 176, 178 Ocampo, Luis 274 O’Donnell, Victoria 4–5, 72, 78–9 open source intelligence (OSINT): accessibility 74–5; analysis of propaganda 19, 73–5; campaigns of national mobilization 40; cognitive linguistic evidence 19, 71–102; electronic media 74; evidence 19, 71–102; hidden memories (cryptomnesia) 76–7; identification and retrieval of medicine 19; intelligence cycle 73–4; Internet, influence of 74–5; media 73–6; methodology 73–8; nongovernmental organisations 75–6; print media 74–5; suspects 78; war crimes investigations 71–102; witnesses 75–8 opposition: counter-propaganda 38–9, 134; rallies 8; resistance movements, spillover and 9; Serb nationalism 187–8, 190, 192 ordinary man hypothesis 183–4, 185 organization of ethnic violence 181–5, 194 organized crime 79 Orwell, George 173, 279 OSINT see open source intelligence (OSINT) ostracism 283 Overy, R 205 Oxford Companion to International Criminal Justice. Cassese, Antonio 6

Packer, Herbert 276 Pantic´, Dragomir 58 Papon, Maurice 276 paralysis, causing 12–13, 16 Parker, John F 219 parole policies of host countries 280 patriarchy 8, 75 Paulos, John Allen 37 peace, crimes against 6, 217, 232, 270–2 Peace of Westphalia 270 peace walls in Northern Ireland 181 peacetime frame 188 Pecˇjak, Vid 58 peer consensus (vox populi, vox dei) 172–4 perlocutionary acts 53 persecution: commission 125–6; crimes against humanity 6, 283–4; evidence 125; hate speech 6, 125, 236, 255; International Criminal Tribunal for Rwanda 221–3, 236; International Criminal Tribunal for the former Yugoslavia 234–6, 241, 246; Kosovo and Metohija 89–90; Nuremberg Military Tribunal 125–6, 203–4, 208–12, 216, 218, 220–1, 223, 232; war crimes, definition 6; widespread or systematic attacks against civilians 125 personal ontology 40 persuasion 5, 33–4, 54–5, 71, 73, 91–2, 172–5, 190–1 Peterson, Marilyn B 73–4 phenomenology 58 physical causality 19, 92–3 Pinker, Stephen 14 Pinochet, Augusto 276, 285 Plavsˇic´, Biljana 95, 184, 188, 191, 241 Pocar, Fausto 236 poison metaphors 14–16 Pol Pot 280 political discourse 123, 172–5 polysemy 20, 146–7, 151, 154, 156, 158–9, 161–5 Ponge, Francis 93 Popovic´, Vujadin 236 Popper, Karl 39 popularity 11, 132, 171 poster-type propaganda 40–1 post-traumatic stress disorder (PTSD) 76 Pratkanis, Anthony and Aronson, Elliot. Age of Propaganda 2 precedent 222–3, 274 prevention 21, 46 priming 19, 56, 81–90

310 Index primordial school 57 print media: accessibility 74–5; campaigns of national mobilization 43–5; International Criminal Tribunal for Rwanda 133–4, 222; International Criminal Tribunal for the former Yugoslavia 235, 238; Kinyarwanda language 161, 259; open source intelligence 74–5; Serb nationalism 187–9, 190; traditional or poster-type propaganda 40–1 see also newspapers private campaigns 8, 255–6 private lives 210 Prlic´, Jadranko 248 Prohibition of Propaganda for War in International Law. Kearney, Michael G. 21 Propaganda – the Formation of Men’s Attitudes. Ellul, Jacques 72 proportionality of sanctions 280–1 prosecutions and prosecutors: actus reus 124–5; aiding and abetting 131–2; armed conflict law, breach of 118–36; Belgian prosecutors 276, 285; circumstantial evidence 132–6; commission 124–9; context 122–4; culture 122; defences 136; discrimination 123; education 122–4; European Court of Human Rights 123; evidence 7, 8, 19, 124–32; freedom of expression 122–3; historical context 122–4; ideological premises to justify violation of IHL 118–19; Germany, prosecution of Serbs in 276; individual criminal responsibility 119–36; instigation 129–31; intent 124; International Criminal Tribunal for the former Yugoslavia 123–4; international humanitarian law, criminalization of propaganda under 118–36; international law 18; investigation of massive crimes, challenges to 119–22; language 120, 123–4; leaders 125–6; mens rea 124; Nuremberg Military Tribunal 270–1; political context 122–4; proof 124–32; strategies for prosecutors 118–36; theories for prosecutors 118–36; thought, conscience and religion, freedom of 122–3; treaties 122; trial records 18; Universal Declaration of Human Rights 122–3 Protocols of the Learned Elders of Zion 2 prototypes 45

psychology: commission 125; experts 36; Geneva Conventions 237–8; hard science 37; International Criminal Tribunal for the former Yugoslavia 237–8; manipulation 14; mass behaviour 36; operations 3, 16; social psychology 36, 57–8; soft science, as 36–7; tangibility 36; terror, crime of 17, 237–8; time dimension 57; warfare 237–8 public opinion 39, 42, 44, 56, 133, 173, 185–8, 190–1, 212, 232, 244 punishment see sanctions/punishment push pull lesson 92 Putnam, Hilary 81–2 Qadafhi, Saif al-Islam 234 Quine, WVO 82 radio: campaigns of national mobilization 43–4; crimes against humanity 233; genocide and mass killings 171; hate speech 171; International Convention Concerning the Use of Broadcasting in the Cause of Peace 38; International Criminal Tribunal for Rwanda 75, 171, 222, 257, 259, 260–1; International Criminal Tribunal for the former Yugoslavia 235, 238; Kinyarwanda language 161, 259; Serb nationalism 189–91 rape 83–4 rationality/irrationality 16–17, 86, 94, 101 Rawls, John 287 Razˇnatovic´, Zˇeljko 241 reality 48–9 recategorization 77–8 reciprocity 119 recklessness 12 recruitment 183–4, 185, 194 Red Cross, International Committee of the 118–19, 237 redescriptions 77 referential and baseline points 56–8 relativity 81 religion: Catholic Church 3; leaders 185; missionaries 3; thought, conscience and religion, freedom of 122–3 see also Muslims and Serb nationalism remorse 99–100 reparations 279 repetition 4–5, 16, 172–3 reprisals 95, 188

Index 311 repulsion and disgust 12 research institutions 121 resistance movements 9 resonance 4, 9, 81, 83–7 resources 278, 287 responsibility see criminal responsibility retorsion 95 retribution 95, 177–8, 279–80, 282 revenge 174, 216–18 Riefenstahl, Leni 3–4 right to security 125 ritual murder allegations 209–10 Roman Catholic Church 3 Romania, anti-Semitism in 175–6 romantical history 47 Romaya, John Paul 85 Roots of Hate. Brustein, William 176 Rorty, Richard 83 RPF members 80–1, 83–5, 146, 153–62, 164 Rudenko, Roman 208–10 Ruggiu, Georges 221–3 Rukundo, Emmanuel 11 rumours 5, 43, 75, 281 Rupprecht, Philippe 210 Russia 2 Rust, Joshua 96 Ruzindana, Mathias 83–4, 157–8 Rwanda, genocide in: campaigns of national mobilization 7, 40–1; leaders 182; military command and state authority 185; traditional or poster-type propaganda 40–1; transparency 40–1; violent cadres 194 see also International Criminal Tribunal for Rwanda; Kinyarwanda language in Rwandan genocide Rymond-Richmond, Wenona 180 Saddam Hussein 284 Sageman, Marc 183–4 sanctions/punishment: atrocity, crimes of 279–80; crimes against humanity 281–2; death penalty 283; deterrence 280, 282; didactic value of atrocity trials 281; incarceration 279; International Criminal Court 280–1; International Criminal Tribunal for Rwanda 280–1; International Criminal Tribunal for former Yugoslavia 280–1; proportionality 280–1; resources 278, 287; retribution 280; symbolism 269, 281–4, 287

Sang, Joshua Arap 233 Saxon, Dan 18–19 Schabas, William 236 science 5–6, 14–16, 21, 36–7, 57–8, 72–3, 77, 87, 102 Searle, John 53, 88, 93–6 security, right to 125 segregation in Northern Ireland 181 selective exposure, selective attention, selective interpretation or selective retention 53–4 self-defence 173, 178, 210, 274 self-forming actions 99–101 Serb nationalism: Battle of Kosovo 187; case study 185–93; content analysis of ethnic discourse 176–80; crisis frame of ethnic relations 188, 193; culture 80, 87–90, 179, 192; dehumanization 177, 178; draft, evasion of 192–3; effectiveness, limits to 192–3; elections 187–8, 190, 191–2; electronic media 42; eliminationist solutions to threats 177, 178; ethnic cleansing 172–3, 176, 184, 188–9, 248, 273; ethnic relations before crisis, survey on 186, 191; false claims 88–9, 128, 177–9, 189, 190–1, 193; fear propaganda 89, 125, 178–80, 184–8, 193, 234–44, 248; forced transfers 125, 176, 178; framing 188, 193; genocide and mass killings 176–9, 185–93; Greater Serbia concept 10–11, 94–6, 97, 178; hate crime 176–9, 185–93; intellectuals and academicians 178–9, 186–8, 193; International Criminal Tribunal for the former Yugoslavia 20, 175–85, 234–5, 238–9, 241–5, 248; joint criminal enterprise 176, 238–9, 241–5; Karlobag-Ogulin-KarlovacVirovitica line 95; knowledge fabrication 42, 44; Kosovo 51, 55, 86–90, 107, 177–8, 186–9, 191; language 51; magazines 189; mass rallies 187; media 10, 40, 42–5, 186–93, 235, 238–9, 241; military command and state authority 184–5; Muslims 42, 80, 89–91, 99–100, 123–4, 127–32, 178–9, 184, 188–91, 235, 238–43, 248; myths 187–8; newspapers 43–4, 187–8, 190; open source information 40; opposition 187–8, 190, 192; peacetime frame of ethnic relations 188; persuasion 190–1; positive statements 177; print media 43–5, 187–8, 190; public opinion 44,

312 Index 185–8, 190–1; radio 43–4, 189–91; rallies by opposition 192; revival of nationalism 186–9; self-defence 178; sexual assaults, false claims about 186, 188; social sciences 20; stereotyping and labelling 177, 178, 185, 189; television 43–4, 187–8, 189–90; threat propaganda 54–5, 89, 131, 177–9, 186–8, 191, 193; Turk, use of word 80–1, 130; violent cadres 184, 194; war reporting 189; Zajedno alliance 192 Servatius, Robert 285 Sˇesˇelj, Vojislav 11, 13, 17, 20, 95, 174–80, 191–2, 233–4, 248 sexual assaults 83–4, 186, 188 Shahabuddeen, Mohamed 257 ‘Shiptar’, use of term 51–2 shiso¯sen (thought war) 2–3 silence or inaction 8, 22, 281 Simba, Aloys 163 Sindikubwabo, Théodore 165 single speech acts, definition of 256 situ of justice 284–7 Slapsˇak, Svetlana 188–9 smoking gun 18, 39, 45–6, 56–7 social entropy 41–2 Social Judgment Theory (SJT) 54–5 social psychology 36, 57–8 social sciences 18, 20, 78–9, 94–5 songs 122, 171, 259, 261–2 South Africa, ANC in 182 sovereignty 269–75 spatial considerations 275–6, 278 spectators at trials 286–7 speech act theory 15, 81, 83 spillover effect 9, 274 Sprecher, Drexel 204 Srebrenica massacre 89, 99–100, 127–31 staff of courts 278 Stakic´, Miomir 7, 238–40 state authority and military command 184–5, 194 state sovereignty 269–75 statistics 36–7, 40, 50 status 11, 171, 233, 283 stereotyping: anti-Semitism 175–6; Kinyarwanda language 151–3; political discourse 172–3, 174–5; Serb nationalism 177, 178, 185, 189 Sternberg, Robert and Karin 12–13, 85 Streicher case at Nuremberg International Military Tribunal 203–23 aiding and abetting 222–3; anti-Semitic propaganda

20, 80–1, 98, 126, 203–23; cartoons 210; causation 98, 206, 208, 217, 255; Charter 21 conspiracy 204–5, 216; context 126; crimes against humanity 126, 203–4, 212–13, 217–23, 255; cross-examination 212–16, 220; death sentence 222, 223; defence arguments ignored by tribunal 218–20; Der Stürmer 21, 80–1, 98–9, 126, 203–4, 206, 209–10, 213–19, 221, 255; evidence 205–6, 208, 210, 212–18, 220; fear propaganda 205; freedom of expression 219; freedom of the press 219; genocide 20–1, 125–6, 203, 208, 211–23; hate speech 20–1, 255; incitement to genocide 20–1, 125–6, 203, 211–23; indictment 204–6; international criminal law 248; Madagascar, proposal for Jewish state in 218; mens rea 203–4, 220, 223; peace, crimes against 217; persecution 125–6, 203–4, 208–12, 216, 218, 220–1, 223; precedent 222–3; pre-trial interrogations 204–5; racial laws 208–11; revenge 216–18; ritual murder allegations 209–10; self-defence 210; threat propaganda 208; trial records 80–1; victor’s justice 216–18 Streicher, Julius 2, 10, 14–15, 17, 20–1 sub-state entities 182 Sudan, Darfur in 180, 185, 194, 280 suicide bombers 183–4, 185 summaries of investigations 121 superior responsibility concept 278 supranational crimes 274–8, 280, 283–5 survival 41–2, 119 swastikas 3–4 symbols 3–4, 281, 282–4, 287 systematicity 284 Tadic´, Dusˇko 9, 234, 236, 273 tasking and negotiation 73 tasks, making a list of 121–2 Taylor, Philip M 72 Taylor, Telford 216, 272, 281–2 television 38, 43–4, 187–8, 189–90, 235, 238 terror, crime of 9, 16–17, 236–8, 247 terrorism: death culture 183–4; dehumanization 184; genocide and mass killings 194–5; hate speech 194–5; indoctrination 183–4; Northern Ireland 194; ordinary man hypothesis 183–4;

Index 313 recruitment 183–4; suicide bombers 183–4, 185; United Kingdom, criminalisation of hate speech in 194–5; violent cadres 183–4, 185 testimonials 172–5 Thompson, Mark 179 thought, conscience and religion, freedom of 122–3 threat propaganda: anti-Semitism 175–6; content analysis 174–8; discourse analysis 173; eliminationalist solutions 174–8, 180, 182, 193–4; false claims 128, 193; fear propaganda 173–4, 188, 193; forced transfers 128; genocide and mass killings 182, 193–4; hate speech 86, 174–5, 182, 193–4; International Criminal Tribunal for the former Yugoslavia 236; irrational hatred 86; leadership 182; media 191, 193–4; Nuremberg Military Tribunal 208; persuasion 173–5; political discourse 173–5; purpose of propaganda 12–13; Serb nationalism 54–5, 89, 131, 177–9, 186–8, 191, 193 time dimension 57, 262, 275–6, 278 Tito, Josip Broz 188 Tokyo Military Tribunal 5, 6, 11–12 top-down approach/perspective to trials 18–19, 34–40, 53 Torkildsen, Morten 285 traditional or poster-type propaganda 40–1, 74 transfer see forced transfers and deportations trial, theory of the 283 triangular theory of hate 12, 85–6 tribunals see atrocity trials; International Criminal Court (ICC); International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former Yugoslavia; Nuremberg International Military Tribunal Triumph of the Will 3–4 Truman, Harry S 276 truth and reconciliation commissions 279 Tuđman, Franjo 178, 188 Turk, use by Bosnian Serbs of word 80–1, 130 Turner, Mark 93 Übermensch 49 Uganda 119 Umwanzi (enemy) 143, 146, 156

United Kingdom: anti-Semitism 175–6; hate speech, criminalisation of 194–5; Northern Ireland 194; terrorism 194–5 United Nations (UN) 121 universal crimes 274–6, 278 Universal Declaration of Human Rights 17, 122–3 universal jurisdiction 275–6, 278, 285 universalism 84–5, 275, 278, 285 universities and academicians 121, 178–9, 186–8, 193 upper stratum of case structures 18–19, 34–40, 53 us and them perspective 42, 49 Ustasha 81, 85, 123, 178, 189, 234 Valentino, Benjamin 182 value judgments 34 van Dijk, Teun 173 Varshney, A 182–3 veiled references and coded messages 17, 60, 85, 148, 154, 233, 260, 264 victor’s justice 216–18, 281 victims: anomie 41–2, 48; campaigns of national mobilization 41–2; International Criminal Court 277; International Criminal Tribunal for Rwanda 277; International Criminal Tribunal for the former Yugoslavia 277; rights 276–8; social entropy 41–2; state of mind of propaganda victims 41–2; supranational crimes 276, 278; survival strategy 41–2; us/them dichotomy 42 violence cadres: death culture 183–4; dehumanization 184; ethnic cleansing 183; ethnic political culture 185; genocide 183–5, 194–5; hate speech 183–5, 194–5; India, Hindi-Muslim violence in 194; indoctrination 183–4, 185; IRA 194; leadership 184–5, 194; media 185; Nazi regime 184–5, 194; ordinary man hypothesis 183–4, 185; organization of violence 182, 184–5, 194; political ideologues 185; recruitment 183–4, 185, 194; religious leaders 185; Rwandan genocide 194; Serb nationalism 184, 194; state authority and military command 184–5, 194; suicide bombers 183–4, 185; terrorists 183–4, 185 virtual reality 3 virus metaphors 14–16

314 Index Voltaire 33 voluntariness 92, 101, 236 vox populi, vox dei (peer consensus) 172–4 Wagner, Richard 4 Wallace, David Foster 118 Waller, James 174 war crimes: aggression 273; breach of international humanitarian law 6; civilians, crimes against 6; cognitive linguistic analysis 19, 71–102; definition 5–7; evidence 19, 71–102; general public, meaning given by 5–6; Geneva Conventions 237; individual criminal responsibility 6; internal conflicts 9; international armed conflicts 9; International Criminal Court, Rome Statute of 6, 16; International Criminal Tribunal for Rwanda, Statute of 5–6; International Criminal Tribunal for the former Yugoslavia 5–6, 236–8, 247–8; international law 6, 7; international, use of term 273–4; legal meaning 6; Nuremberg Military Tribunal 5–6, 231, 270–3; Nuremberg rallies 6; open source evidence 19, 71–102; speech acts 15–16; state sovereignty 270–1, 273–4; supranational crimes 275; terror, crime of 236–7; Tokyo Military Tribunal, Charter of 5, 6 war, laws of: Geneva Conventions 6, 237–8; International Criminal Tribunal for the former Yugoslavia 6; prosecutors and propaganda as a crime under IHL 118–36 ‘we did not know’ justification 14 Wegner, Daniel 100–1

West, Rebecca 276 Westphalian theory 275 Wheaton, Kristan J 80 witnesses: atrocity paradigm 277; autobiographical memory 76; cross-examination 83, 147–51; factual memory 77; forced transfers 125; hidden memories (cryptomnesia) 76–7; interviews 121; investigation of massive crimes, challenges to 119, 121; Kinyarwanda language 83, 147–51, 156–65; media 75–6; memory 76–8; Nuremberg Military Tribunal 276–7; open source intelligence 75–8; post-traumatic stress disorder 76; procedural memory 77; recategorization 77–8; redescriptions 77; terror 17 Wittgenstein, Ludwig 93 word scene investigations 19, 71–102 ‘work’ in Kinyarwanda language in Rwandan genocide 146, 156, 164–5 world domination conspiracy theory 2, 14, 175, 208 World Wide Web 43 Yanagizawa-Drott, David 259 Yeats, WB 82 Yugoslavia see former Yugoslavia, conflict in; International Criminal Tribunal for the former Yugoslavia; Serb nationalism Zajedno alliance 192 zealotry and fanaticism 17, 183, 219 Zeki, Semir 85 Zˇizˇek, Slavoj 233