Propaganda, War Crimes Trials and International Law

From Speakers' Corner to War Crimes

Predrag Dojcinovic, Predrag Dojcinovic

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136588402
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

First Published in 2012. 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 Nuremburg trials initially, and the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda currently, 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 practioners, 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.

Part 1

Analysis, Investigations, Prosecutions

Chapter 1

The Indictable Propaganda: A Bottom-up Perspective

Nenad Fišer^*

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 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 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 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.

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 si...