The Nuremberg Tribunal prosecuted the propagandist Julius Streicher, the International Criminal Tribunal for Rwanda considered the “Media case”, where the founders and workers of the Rwandan radio were found guilty of incitement to genocide, and the Convention on the Prevention and Punishment of the Crime of Genocide, which deals with the responsibility of States, contains a separate violation – incitement to genocide. So, will it be possible, considering the diversity of historical experience, to finally bring Russia and its citizens, who are actively inciting hostility, to justice?
We believe that this should be done. Therefore, DSLU has prepared a mapping report on the qualification of disinformation within the framework of human rights law, public international law and international criminal law.
Mapping report. Responsibility for disinformation in wartime
Within the scope of this mapping we provided recommendations for Ukraine and other relevant stakeholders regarding the potential ventures for triggering the international responsibility of Russia, its citizens, and other persons involved in the coordinated disinformation campaigns within the armed conflict launched against Ukraine. The recommendations, in particular, address:
In the sphere of the international human rights law:
- Ukraine shall initiate the procedures against Russia in the HRC and CERD Committee concerning its non-fulfilment of obligations to prohibit and refrain from propaganda for war and hate speech under Article 20 of the ICCPR and Articles 4(a) and 4(b) of the CERD to obtain authoritative reports of Conciliation Commissions establishing authoritative findings for further use in litigation against Russia;
- Ukrainian civil society organisations shall coordinate with a view to submit a communication to the UN Human Rights Council on Russia’s non-fulfilment of its positive obligations to abstain from propaganda for war and hate speech to further appoint a UN Special Rapporteur on the matter;
- Ukraine shall work on a diplomatic track with the States Parties to the ICCPR to ensure proper implementation of Article 20 of the ICCPR, including the prohibition on propaganda for war, into the national legislation and the use of the prohibitions contained therein to prevent the spread of Russian disinformation.
In the dimension of the public international law:
- Ukraine shall enter diplomatic communication with the Parties to the International Convention concerning the Use of Broadcasting in the Cause of Peace concerning the potential application to the ICJ with regard to the violation by Russia of its provisions, as well as the invalidity of the Soviet Union’s reservation;
- Ukraine shall supplement its claim under the Genocide Convention with additional evidence regarding the commission of incitement to genocide by Russia and actors whose actions are attributable to Russia under the law on State responsibility;
- In case of the creation of a special tribunal for adjudicating the issues related to the armed conflict launched by Russia against Ukraine, Ukraine shall bring up the claims regarding the violation of the Geneva Conventions and Additional Protocols thereto and customary international law applicable in times of armed conflict concerning the dissemination of disinformation and related damage experienced due to such activities;
- Ukraine shall collect the evidence of speech crimes and internationally wrongful acts, as well as the proofs of attributability of such actions to Russia to further claim reparations for violation of international obligations by Russia.
In the area of the international criminal law:
- Ukraine shall conduct strategic diplomatic communication with the UN Member States regarding the adoption of the Resolution on establishing a special criminal tribunal over Russian propagandists. The Statute of the tribunal shall necessarily include incitement to international crimes as a separate crime, not as a mode of liability;
- Ukraine shall cooperate with the ICC with regard to war crimes and crimes against humanity within the scope of the ICC’s jurisdiction, providing the Office of the Prosecutor with the necessary evidence;
- Following the issuance of the arrest warrants by the ICC and the special tribunal, the States shall adequately cooperate with these bodies to apprehend and transfer individuals, mentioned in the arrest warrants to the relevant judicial bodies.
The criminal tribunal on propagandists and international courts against the aggressor-State are coming soon, so it’s high time to read the DSLU report and start drafting future statutes, preparing lawsuits and gathering evidence to bring those guilty to justice!
Mapping report. Responsibility for disinformation in wartime
The authors: Tetiana Avdieieva, Maksym Dvorovyi