Obligations and Constraints :Media Freedom in the Context of International Human Rights Norms

2004-10-14
The Universal Declaration of Human Rights guarantees freedom of information and expression. Article 19 in the UDHR states: '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.' Yet it also provides in Article 7 that, inter alia, all are entitled to protection against 'incitement' to any discrimination that is prohibited in the Declaration. Equally important is Article 29, which states that the exercise of rights and freedoms may be restricted 'for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.' The legal foundation of the UDHR thus warns that a right may be used as a weapon to threaten and even destroy others' rights, hence the permissible limits on a given right. The contemporary problem of 'hate media' demonstrates the need to explore the legality of international law for placing limits on the freedom of expression in nations that allow, even direct, hate media to hasten war, threaten public order, or even fan genocidal impulses.

Historical experiences of large-scale armed conflicts have precipitated a debate within human rights law and media studies, concerning how mass media have been used to propagate and incite violence, often leading to war and genocide, and as a result, how the media could be seized for counter-information campaigns for humanitarian and peace-promoting or restoring purposes. The Bosnian war and the massacre in Rwanda in the mid-1990s, to name the two most prominent examples in recent times, have seen the abuse of national and local media for stirring ethnic and religious hatred by dictatorial governments. Nationalistic and propagandistic constructions of ethnophobia in the media helped shape wars and justify mass violence, through pitching Serbs against Croats, Hutus against Tutsis, Muslims against Roman Catholics. The Nazis, of course, were the paradigmatic precedent in mid 20th Century. What these media-influenced atrocities have also made clear is that international law must be reexamined according to crisis conditions in which international intervention may be urgently called for.


Media in Humanitarian Crises

In legal terms, the media have been identified as an institution within civil society for the protection and exercise of the right to free speech. This includes not only the right to create messages, but also the right to disseminate and to receive messages without interference. In human rights terms, the media are seen to play the role of a watchdog, an integral role for exerting pressure to states so as to bring them to conformity to human rights obligations. In addition, the media play the role of asserting identities---ethnic, religious, gender identities---and therefore contribute to the assertion of collective rights. Therefore, the media are conceptualized simultaneously as (i) a space of meaning, persuasion, representation, even consciousness, (ii) an apparatus for human rights monitoring, as well as (iii) a cultural space of identity-formation (or, of the creation of 'imagined communities' in Benedict Anderson's term).

Some post-independent states, such as those in Eastern Europe, have used the mass media as a device to promote nationalism, thereby forging a close relationship between the media and political regimes in power. If fallen into the hands of nationalistic dictators, the media's second function--for human rights monitoring--would be overwhelmed by the first function, whereby the media could become a tool for shaping consciousness according to the dictator's political program. Here, the media's third function--of constructing identities--may be folded into the first function of consciousness-making, possibly leading to ethnocentrism, ethnophobia, and even ethnically-based hatred and violence. Such was indeed the condition in the Holocaust and the numerous civil wars in Cambodia, East Timor, Bosnia, Rwanda, and so on.

In the international community, especially in the eyes of the United Nations' Security Council, the prevention of ethnic conflict and other violence has been seen as a justifiable reason for humanitarian intervention, including the possibility of a lawful intercession into other states' media. The UN Charter can authorize Security Council resolutions to extend humanitarian aid to conflict-ridden zones. Such aid in the area of media intervention has sometimes been known as 'peace broadcasting'. Jamie Metzl, a strong proponent of media intervention, defines it as'any non-incendiary transmissions broadcast from an intervening state directly into a target state as part of the intervening state's attempt to prevent or stop a human rights crisis.'It is noted that non-incendiary transmissions broadcast has been seen as a legal practice as long as it satisfies humanitarian obligations. For instance, legal scholar Eric Blinderman has argued that it is possible to formulate a few bright-line rules regarding the legality of media intervention under the principle of humanitarian assistance. Citing Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) and other international norms, Blinderman asserts that the right to freely receive information regardless of frontiers means that a state cannot prohibit individuals or media organizations from receiving humanitarian assistance in the form of information assistance, such as peace broadcasting. He contends that 'any unilateral information intervention strategy that merely provides humanitarian assistance, whether financial, legal, or professional--including printing newspapers in an alternative country and giving them to local nationals to distribute within the target country, mass faxing, training, and even air dropping alternative newspapers or information supplies from airplanes flying into the target state's airspace--will not violate the non-intervention norm so long as it is given to media outlets or individuals that comply with basic human rights obligations.' A second rule, according to Blinderman, is that the information intervention must have the goal of preventing human suffering: 'The imminence or immediate suffering requirement of the “humanitarian assistance” exception to the non-intervention norm raises the legal threshold that must be met before an intervention based on this justification can occur.'


Legal Justifications for Media Intervention

Humanitarian intervention to prevent mass suffering has been justified legally in the past, by applying Article 20 of the ICCPR. Article 20(1) states that 'Any propaganda for war shall be prohibited by law,' while section (2) states that 'Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.' In broader terms, the International Convention on the Elimination of Racial Discrimination (1966) condemns all dissemination of ideas of racial superiority by individuals or organizations that incite racial discrimination. In still broader terms, the American Convention on Human Rights (1969) prohibits any advocacy of hatred that constitutes incitements to lawless violence 'on any grounds including those of race, color, religion, language, or national origin.' Further, the European Convention on Human Rights (1950) also puts restriction on freedom of expression should speech or any other activities are aimed at the destruction of other rights and freedoms set forth in the Convention (Article 17).

Undoubtedly, it is the Convention on the Prevention and Punishment of the Crime of Genocide (1948) that provides the strongest and clearest statement allowing humanitarian interventions and prescribing punishment. Article III (c) makes explicit a punishable crime to the 'direct and public incitement to commit genocide.' Formerly appearing under the name of 'crime against humanity' used in the Nuremberg trials, the crime of 'incitement' to commit genocide has been identified today largely with media outlets and practitioners. For instance, in the International Criminal Tribunal For Rwanda (ICTR), a series of high profile convictions were given to media personalities. These legal precedents speak volumes to the need for preventive, pre-emptive, and proactive measures to predict and intervene in potential mass suffering due in part to the role of incendiary media.

As we have seen, a whole legal architecture for media and information intervention exists in international public law today. To conclude, it may be useful to briefly summarize the differences between the two models for dealing with media freedom at the conceptual and legal levels as in the table below.

■John Nguyet Erni
Media & Cultural Studies,
City University of Hong Kong
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