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When Broadcast Freedom Should Yield to Genocide Prevention

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When Broadcast Freedom Should Yield to Genocide Prevention Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 7-2010 Killing the Microphone: When Broadcast Freedom Should Yield to Genocide Prevention Carol Pauli Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Law Commons Recommended Citation Carol Pauli, Killing the Microphone: When Broadcast Freedom Should Yield to Genocide Prevention, 61 Ala. L. Rev. 665 (2010). Available at: https://scholarship.law.tamu.edu/facscholar/372 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. ALABAMA LAW REVIEW Volume 61 2010 Number 4 KILLING THE MICROPHONE: WHEN BROADCAST FREEDOM SHOULD YIELD TO GENOCIDE PREVENTION Carol Pauli* ABSTRACT When powerful radio broadcasts exhort listeners to kill their neigh- bors, may outside nations or international organizations legally interrupt the signals to prevent genocide? Internationallaw has no legalframework for assessing and responding to such broadcasts. This Article attempts to create one. The Article draws on empirical research in the field of com- munication to identify conditions in which media messages become so po- werful that they can mobilize audience members. Using this research, it constructs a framework for determining when speech constitutes incitement to genocide such that it loses any protection under internationallaw and perhaps even triggers an affirmative duty on the part of other states to intervene. The proposedframework is unique. Unlike current definitions of incitement to genocide, it is not concerned with convicting the criminal, but aims entirely at preventing the crime. It is also unique in bringing this interdisciplinaryapproach to this compelling goal. ABSTRACT. ............................................................ 665 INTRODUCTION ....................................................... 666 I. DEFINING INCITEMENT TO GENOCIDE ............................. 670 * Westerfield Fellow, Loyola University New Orleans College of Law; Assistant Professor of Communication, Marist College, Poughkeepsie, NY; J.D., Benjamin N. Cardozo School of Law; M.S., Columbia University Graduate School of Journalism. I am grateful for the comments and con- tributions of Mary S. Alexander, Mitchell F. Crusto, Gregory S. Gordon, Shaheed Mohammed, Monroe E. Price, and members of the Loyola University New Orleans Junior Law Faculty Works-in- Progress Workshop, especially Carter Dillard, Caroline Fayard, Stephen Higginson, Johanna Kalb, John Lovett, and Karen Sokol. I would also like to thank Rosetta Francois for her proofreading assis- tance and Alice LeMaistre, former U.S. Public Affairs Officer in Rwanda, for providing the opportu- nity to work with journalists in that country in 1997. 665 666 Alabama Law Review [Vol. 61:4:665 A. History ......................................... 670 B. The RILM Cases ................................. 671 II. PREDICTING INCITEMENT: A FRAMEWORK BASED ON COMMUNICATION RESEARCH .............................. 672 III. USING THE FRAMEWORK TO ANALYZE THE PRECEDENT CASES .... 677 A. Media Environment ............................... 679 B. Political Context ..................................... 680 C. Characteristicsof the Audience ....................... 682 D. Authority of the Source ........................ ..... 682 E. Content of the Message ........................ ...... 683 F. Channel of Communication ...................... 685 G. Overt Act. ...................................... 686 IV. APPLYING THE FRAMEWORK TO THE CASE OF RWANDA, 1994......687 A. Media Environment ............................... 688 B. Political Context ..................................... 689 C. Characteristicsof the Audience ....................... 689 D. Authority of the Source ........................ ..... 690 E. Content of the Message ........................ ...... 691 F. Channel of Communication ...................... 692 G. Overt Act. ...................................... 693 V. HYPOTHETICAL APPLICATIONS OF THE PROPOSED FRAMEWORK... .693 VI. JAMMING BROADCASTS ...................................... 695 CONCLUSION.. ................................................... 699 INTRODUCTION As Radio-T616vision Libre des Milles Collines (RTLM)l was orches- trating the Rwandan genocide in 1994, the United States considered jam- ming its broadcast signals but rejected this form of intervention,2 citing "international telecommunications law and international conventions re- garding the freedoms of information and expression." 3 The virulent broad- casts continued to reach their listeners. In the space of approximately 100 1. Milles Collines, in French, means a thousand hills, a description of the Rwandan landscape. 2. For further accounts of the United States' decision, see SAMANTHA POWER, "A PROBLEM FROM HELL": AMERICA AND THE AGE OF GENOCIDE 370-73 (New Republic 2002) and William A. Schabas, Hate Speech in Rwanda: The Road to Genocide, 46 MCGILL L.J. 141, 148 (2000). 3. Jamie Frederic Metzl, Rwandan Genocide and the InternationalLaw of Radio Jamming, 91 AM. J. INT'L L. 628, 635 (1997). Metzl describes international law as a small, but significant reason for inaction. Other motives were more pragmatic. Among declassified documents obtained by the Washington Post under the Freedom of Information Act, a memo from May 5, 1994, records that Defense Secretary William Perry and National Security Adviser Tony Lake discussed the possibility of jamming, but that the Pentagon found it to be "ineffective and expensive," requiring $8,500 per hour to operate a special airplane. Glenda Cooper, Memos Reveal Rwanda Delay; U.S. Had Early Notice of Genocide; Pentagon Rejected Action, WASH. POST, Aug. 23, 2001, at A20. 2010] Killing the Microphone 667 days, in a country of fewer than 8,000,000 people,4 an estimated 800,000 were killed.' RTLM is cited as having incited thousands of civilians with no criminal histories to commit acts of unspeakable brutality.6 The agony' of Rwanda has prompted calls for a re-examination of the legal arguments against international jamming of broadcast signals,' and for a further development of international norms in order to clarify when broadcast speech constitutes incitement to genocide such that it loses any protection under international law9 and perhaps even triggers an affirma- tive duty on the part of other states to intervene. 10 The current definition of incitement to genocide does not aim at prevention. It aims at determining culpability after the fact and, therefore, includes the element of specific criminal intent. This is the same requirement that has kept the Internation- al Criminal Court from including genocide in the charges against Sudan's President Omar Hassan al-Bashir, even while accusing him of issuing a general call to Janjaweed militia to attack hundreds of thousands of civi- lian members of the Fur, Masalit, and Zaghawa groups, systematically subjecting them to rape, torture, and extermination. 12 Preventing genocide requires, not merely convicting the inciter, but first-and more urgently-interrupting the incitement.13 The criteria for one are not entirely suitable for the other. In convicting two leaders of RTLM of incitement to commit genocide,14 the International Criminal Tri- bunal for Rwanda (ICTR) laid out criteria determining when broadcast speech may be punished," but some free speech advocates worry that 4. GtRARD PRUNIER, THE RWANDA CRISIS: HISTORY OF A GENOCIDE 264 (Columbia Univ. Press 1995). 5. Id. at 265. 6. One man, imprisoned for the beating deaths of two six-year-olds, recalled, "Things were strange. Can you imagine the radio saying, 'Go kill these people'? The message got to the local authorities. They mobilized the soldiers and the militias, and they were going to the villages getting civilians to kill people. We accepted. They said we were fighting for the country." Alan Zarembo, Judgment Day, HARPERS MAG., Apr. 1997, at 68, 70. 7. The use of the word agonies, in Ren6 Lemarchand, Rwanda and Burundi, Genocide, in 2 ENCYCLOPEDIA OF GENOCIDE 508 (Israel W. Charny ed., 1999) helped as the author struggled for the right word. 8. Metzl, supra note 3, at 636. 9. Eric Blinderman, International law and Information Intervention, in FORGING PEACE: INTERVENTION, HUMAN RIGHTS AND THE MANAGEMENT OF MEDIA SPACE 104, 126 (Monroe E. Price and Mark Thompson eds., 2002). 10. Beth Van Schaack, Darfur and the Rhetoric of Genocide, 26 WHITTIER L. REV. 1101, 1103 (2005). 11. Marlise Simons & Neil MacFarquhar, Court Issues Arrest Warrantfor Sudan's Leader, N.Y. TIMES, Mar. 4, 2009, at A6. 12. Prosecutor v. Bashir, No. ICC-02/05-01/09, Warrant of Arrest (Mar. 4, 2009). 13. For examples of continuing uses of radio to incite ethnic killing see Crackles of Hatred: Radio Propaganda,ECONOMIST, July 25, 2009, at 60. 14. Prosecutor v. Nahimana, Barayagwiza, & Ngeze, Case No. ICTR 99-52-T, Judgment and Sentence, 1 1033-34 (Dec. 3, 2003), available at http://www.ictr.org/ENGLISH/cases/Ngeze/judgement/ Judg&sent.pdf. 15. Recent Cases: International Law-Genocide-U.N. Tribunal Finds that Mass Media Hate 668 Alabama Law Review [Vol. 61:4:665 these criteria, if used for the purpose of prevention, may weaken speech protections in international law. 16 Misapplications already have occurred. For example, in dozens of incidents, African
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