Propaganda and International Criminal Law

From Cognition to Criminality

Predrag Dojčinović

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138335639
• eBook ISBN: 9780429812842
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This book addresses the conceptual and evidentiary issues relating to the treatment of propaganda in international criminal law.

Bringing together an interdisciplinary range of scholars, researchers and legal practitioners from Africa, Australia, Europe and the United States, the book provides an in-depth analysis of the nature, position and role of the concept of propaganda in mass atrocity crimes trials. A sequel to the earlier Propaganda, War Crimes Trials and International Law: From Speakers' Corner to War Crimes (Routledge, 2011) this book is the first to synthesize the knowledge, procedures and methods of international criminal law with the social cognitive sciences. Including a comprehensive overview of the most relevant case law, jurisprudence and scientific studies, the book also offers a series of practical insights and strategies for both academics and legal professionals.

An invaluable resource for those working in the area of international criminal law, this book will also be of interest to academics, practitioners and students with relevant interests in legal theory, politics, linguistics and psychology.

Part I

Law to science

Chapter 1

The cognitive and linguistic implications of ISIS propaganda

Proving the crime of direct and public incitement to commit genocide*

Mohamed Elewa Badar and Polona Florijančič

Introduction

The self-declared Islamic State (ISIS/ISIL/IS/Da’esh) spread their propaganda far and wide through radio stations, television, social media, online forums, physical distribution of writings, and so on.¹ When assessing whether this propaganda constitutes the international crime of direct and public incitement to commit genocide, one must consider utterances which directly fulfil the necessary actus reus and mens rea of said crime as well as the propaganda techniques used in the surrounding narrative which prepares the audience to become susceptible to carrying out such calls.

Dealing with the crime of incitement to genocide itself is unique in the sense that it requires the expertise of linguistics in order to determine the meaning of the words uttered in their geographical, cultural or religious contexts. For example, in determining whether incitement to genocide took place, the International Criminal Tribunal for Rwanda (ICTR) was faced with the challenging task of understanding the Kinyarwanda language.² None of the judges and very few lawyers in the prosecution and defense teams spoke the language.³ Alexander Zahar argues that the tribunal was thinking in English semantics rather than Kinyarwanda semantics.⁴ Essentially, thinking in different semantics and through the prism of a different culture or tradition can result in a failure to accurately determine the intent of the speaker as well as how the targeted audience perceived a certain discourse, both essential elements of establishing the crime of incitement to genocide.⁵

* This work was originally presented by Prof. Mohamed Badar at a conference on ‘The role of parliamentarians in addressing the threat of foreign terrorist fighters and associated challenges’ co-organized by the United Nations Office on Drugs and Crime’s Terrorism Prevention Branch (UNDOC/TPB), and the House of Representatives of Egypt, the Inter-Parliamentary Union and, the United Nations Office of Counter-Terrorism, 26–28 February 2019, Luxor, Egypt. It was also presented during a workshop on ‘Drafting the Bill on Digital Evidence to the benefit of Iraq’ as part of UNODC/TPB’s Global project on ‘Strengthening the legal regime against terrorism in Iraq after the liberation of Mosul (2018–19), 24–25 February 2019, Sharm El Sheikh, Egypt.

This chapter thus analyzes the key concepts and labels employed by ISIS by placing them in their linguistic, historical, religious and ideological contexts. By doing so it will convey the intended implications of the discourse on the part of the speaker as well as its likely perception on the part of the audience. It is important to note that in order to appeal to their audiences, ISIS rely heavily on culturally and religiously well-established Islamic concepts; thus, even when writing or speaking in other languages, they refer to such concepts in their original Arabic form. A clear understanding of the meanings behind the words uttered is further essential for a finding of the requisite mens rea in lieu of excessive reliance on a causal link with subsequent crimes committed for this purpose.⁶

This chapter further analyzes the cognitive implications of ISIS propaganda by looking at how they employ various media, imagery, music and sound effects in order to make their polarizing messaging more effective. In ISIS Al Hayāt Media Centre’s⁷ own words, their aim is to “convey the message of the Islamic state in different languages with the goal of unifying the Muslims under one flag.”⁸ While essentially the same themes run through their various media, each one serves to achieve a different psychological effect on the audience with the main aim of creating a black-and-white picture of the world. The audience are either presented with a choice of being with the ISIS and following their strict interpretations of Islam, including the necessity of killing and terrorizing everyone who remains outside the group, or are themselves branded unbelievers and therefore a lawful target for killing. The demarcation between the in-group and out-group is thus constructed entirely on a very specifically defined religious belief and practices with absolutely no room for leniency or compromise with regard to variations in said belief or approach to the ‘other.’ ISIS tap into mainstream Muslim expectations and beliefs, sentiments and grievances, to structure a convincing narrative of hatred and the denial of any dignity of the out-group.

Building a case against ISIS and putting together evidences proving incitement to genocide is very timely, particularly in light of the adoption of the United Nations Security Council Res. 2379 (2017), which established an investigative team to promote accountability for Da’esh/ISIL crimes (UNITAD, i.e., United Nations Investigative Team to Promote Accountability for Da’esh/ISIL Crimes) and to ensure that perpetrators of those heinous crimes be brought to justice.⁹ Since Iraq has ratified the Genocide Convention on 20 January 1959,¹⁰ individuals sufficiently involved in ISIS media organs could be prosecuted for the crime of direct and public incitement to commit genocide before Iraqi courts.

ISIS ideology and its embeddedness in Jihādi-Salafı̄sm

The ISIS jihādi campaign is a mixture of Salafīsm and Qutbism.¹¹ The term Salafı̄sm is a form of Islamic revivalism which seeks to bring society back to the practices of the first three generations of Muslims, the salaf.¹² This idea as well as the rest of the core Salafı̄ theological corpus was adopted from the medieval scholar Ibn Taymiyyah (d. 1328), a controversial figure of his time, who has become one of the most influential medieval writers in contemporary Islam.¹³ According to Taymiyyah, the correct method of interpreting the Qur’ān was crucial. He attacked what was known as ‘tafsı̄r al-Qur’ān bi-al-ra’y (interpretation based on personal opinion) and contended that even if one arrived thus at the true divine meaning of the Qur’ān, such an interpretation would have to be rejected since it was done through the wrong method.¹⁴ According to him, one is strictly bound in their interpretation of the Qur’ān to the Qur’ān itself, the Sunnah (the Prophet’s acts and words) and the interpretations of the salaf, considering them more knowledgeable due to their proximity to the revelation.¹⁵ While the medieval exegetical tradition refused to succumb to such a radical restriction on the authority of the exegete,¹⁶ Taymiyyah’s radical hermeneutics, nevertheless, resonates with a segment of the Muslim population. As is the case for all Muslims, the fundamental component running through the belief of Salafı̄sm is the doctrine of God’s oneness (tawhı̄d).¹⁷ However, Salafı̄s principally criticize other Muslims for what they see as denying tawhı̄d by corrupting the faith with beliefs and practices that are not Islamic. The idea that most Muslims despite professing tawhı̄d do not follow or even understand it was also espoused by Mohamad bin Abdel Wahhab, the founder of the Saudi, and arguably more radical, version of Salafı̄sm pejoratively called Wahhabism.¹⁸ In this sense, Saudi Salafı̄sm presented itself as a correction to widespread jahiliyyah (ignorance) declaring anyone else an infidel.¹⁹

Salafı̄sm evolved in the twentieth century, with the emergence of Hassan al-Banna’s Society of the Muslim Brotherhood (al-Ikhwān al-Muslimı̄n). A legendary speaker himself, Banna carefully chose other individuals with oratorical capabilities for high positions within the society, created his own press and played heavily on the emotions of people to win support.²⁰ Most importantly, he organized mass meetings for strengthening loyalties, proclaiming aloud the facts of unity, universality and power, and creating an atmosphere of internal strength and hostility to the outside world.²¹ These propaganda techniques were highly effective, and the Brotherhood became the ideological and institutional epicenter of fundamentalism in the Arab sphere and the Islamic world.²²

ISIS echo these divisive propaganda techniques and the Salafı̄st ideology in the aggressive assertion that their view is the only pure and authentic interpretation of the worship of God. To give legitimacy to this claim, they purport to follow the so-called prophetic methodology (‘ala minhaj al-nubuwwa). They have produced a video on the topic,²³ and all major decisions and laws promulgated are claimed in their press pronouncements and on billboards, license plates, stationery and coins to adhere to said methodology.²⁴ Unsurprisingly, they also call their political creation the ‘Caliphate on the prophetic methodology’ and claim that all the Shari‘āh institutions therein, training camps and even the kindergartens, are on the methodology of prophethood.²⁵ This propaganda...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication Page
• Table of Contents
• List of figures
• List of tables
• List of contributors
• Acknowledgments
• List of abbreviations
• Table of cases
• Introduction
• Part I Law to science
• Part II Science to law
• Bibliography
• Index