5 November 2022
by Andrei Arkhangelsky, journalist and culture specialist
Source: Radio Svoboda
In the Hague, at the request of Ukraine and with the participation of international jurists, a special tribunal is being formed for a trial of Russia’s political leadership. Member of the Ukrainian working group on the creation of the special tribunal Oleg Gavrish says that Russian propagandists may also come before the court. Both Gavrish and Gyunduz Mamedov, Ukraine’s former deputy general prosecutor emphasize the main problem for these kinds of trials: they have to demonstrate the connection between words and criminal acts. History knows only two similar instances: the Nuremberg trial against the propagandists of the Third Reich; and the International Tribunal that punished war crimes in Rwanda (Radio of the Thousand Hills, genocide against the Tutsi ethnic group). Based on the example of these trials, we can predict the terminological difficulties the court will come up against, but we can also make use of the groundwork we already have.
Coming before the court in Nuremberg in 1945 were Julius Streicher, the publisher of Der Stürmer, and Hans Fritzsche, the head of the radio department in the Ministry of Propaganda. The basic problem Streicher and Fritzsche’s accusers faced was the need “to demonstrate a direct cause-and-effect connection between the propagandists’ activities and implementation of the policy of aggression and mass murder.” If no problems arose with the accusation against Streicher (23 articles published in his newspaper between 1938 and 1941 contained direct calls to exterminate the Jews), then the court’s decision in the Fritzsche case established an important distinction between hate language and incitement of hatred. Although there was anti-Semitism in his speeches, Fritzsche (who in his official capacity directed the radio program Hier Spricht Hans Fritzsche!) did not call directly for mass murders and so was acquitted on three of the charges, although he did not escape a prison sentence.
Russian propaganda has uttered millions of words that ooze hatred for Ukraine; it seems you can take any speech and not be mistaken. However, from the Nuremberg example we can note that the language of propaganda can be as unacceptable as you like from the standpoint of morality, but if it lacks direct calls for destruction (incitement of hatred), then it’s hard to prove the guilt of the words (and those who utter them). As historian Ivan Kurilla notes, after 24 February, the rhetoric of Russian propaganda changed as a whole. Now, it calls for the destruction not just of the “Kiev regime” but also of everyone who resists the “fraternal” aggression. In this sense, there have been significantly more examples in the propagandistic media of “incitement of hatred” specifically with respect to the people of Ukraine. On the whole, though, from the legal standpoint, what we call propaganda—the continuous stream of negatively coloured words—would more than likely present 99 percent as specifically “hate language.” Yes, this language is horrible, but even trials against propagandists are forced to reckon with a fundamental value of democracy: free speech. Which protects even the rights of those who are destroying freedom.
Comparisons and euphemisms are also punishable. The international tribunal on Rwanda established that calls to kill were made by anchors and journalists of Radio of the Thousand Hills with the use of euphemisms that, nonetheless, “were unambiguously understood by their Rwandan listeners.” For example, “cut down the tall trees” and “exterminate the roaches” (instead of the word “Tutsi,” they consciously used the word “inenzi,” roaches). The court equated the euphemisms to direct calls for violence. Russian propaganda has made active use with regard to Ukraine and Ukrainian citizens of the words “fascists,” “Nazis,” and “punishers,” which became common in Kremlin-controlled media beginning in 2014. What makes Russian propaganda unique is that for its current purposes it uses terminology that is 70 years old (“de-Nazification,” for instance, has come out of the Russian president’s mouth to justify the aggression against Ukraine). These words and expressions have an unambiguously negative connotation in the mass consciousness not just in Russia but throughout the world, inasmuch as Nazism is acknowledged to be a criminal ideology. These words are synonyms of “absolute evil,” and they symbolically strip the object of comparison of “the right to mercy,” driving it outside the bounds of normalcy. Can we, citing the experience of the tribunal in Rwanda, also call these words “unambiguously understandable” to listeners and viewers in Russia and, therefore, interpret them as “calls to destruction”?
The designation “atmosphere of hate” (created by the propagandists) is heard so often today that it seems all-sufficient. The problem is, yet again, that the expression is barely formalized in jurisprudence. Indeed, the word “atmosphere” itself is not entirely accurate. We are faced with something that is rather the reverse – a vacuum, a closed space, where literally no air penetrates (that is, no other opinions or points of view). It is more accurate to talk of a “vacuum of hate” than an “atmosphere” to describe the estrangement of information from civilised norms, which is being created in Putin’s Russia. Then again, historians and lawyers have encountered something similar before.
Let’s go back to the documents of the Nuremberg trial. “Through propaganda … Streicher devoted himself over a period of twenty-five years to creating the psychological basis essential to carrying through a programme of mass murder” and the court believed that “this alone would suffice” to accuse him of crimes against humanity.
“An atmosphere of hate” and the creation of a “psychological basis” are largely synonymous. Possibly work on a strict legal definition of the concept should precede any potential trial of propagandists. If this is formally adopted, the range of potential defendants will be significantly broader; after all, the propaganda was created not only by notorious presenters with familiar names but also by numerous service personnel, including technicians, engineers and lighting operators.
I will refer once again to the prosecution’s closing argument at the Nuremberg trial. It pointed out that the propaganda in Der Sturmer and other Streicher publications “was disseminated, moreover, in a country in which there was no free market of ideas; in which, in fact, as defendant Streicher well knew and approved, no countervailing argument could find public expression; and in which, therefore, the impact of such propaganda was of a clearly foreseeable and peculiarly sweeping force”. During the Rwandan genocide in 1994, the propaganda Radio of a Thousand Hills can also be said to have had a monopoly on the “market of ideas”.
Strange as it may seem, the issue of whether a “free market of ideas” existed in the Russian media space at the time the “words of hate” were uttered may be important from a legal point of view. Formally, it did. Novaya Gazeta was being published. The Ekho Moskvy and Radio Liberty radio stations and the Dozhd [Rain] television channel were in existence, exposing propaganda lies about Ukraine. However, the fact that the state closed or drove out even relatively free media outlets in Russia after 24 February 2022 (and almost entirely by April) may serve as an additional argument in a trial of the propagandists. In pronouncing their “words of hate” in a non-competitive information space, they were aware that such propaganda was “peculiarly sweeping”. Will the propagandists’ guilt be aggravated by the fact that freedom of speech had effectively been destroyed in Russia by 2022 and we are therefore dealing with not an authoritarian but a totalitarian regime, a dictatorship? Or, on the contrary, strange as it may seem, does this act as an exonerative argument for the propagandists (“we were speaking out of fear of persecution or a threat to life”)?
One more question arises in this connection: is it of legal significance that the propagandists work in state-owned media (and so express the state’s point of view) or that they have been “inciting hatred” on a private basis on a personal internet channel or a blog? Let us note that the Nuremberg Tribunal exonerated Fritzsche even though he was an official at the Propaganda Ministry but, at the same time, condemned Streicher who published in a private capacity. Formally, Rwanda’s Radio of a Thousand Hills was a privately owned station, albeit closely connected to the state. As regards the Russian propagandists, we may assume that it will not be their employment status that is of decisive significance but the words they have been using and continue to use.
Perhaps all these points will have to be taken into consideration before initiating legal proceedings against the Russian propagandists within the framework of international law in order to avoid emotion and deal solely with the facts. Although it is precisely emotions (the uncivilized, archaic, animal emotions that propaganda seeks to incite) – and herein lies a paradox! – that will ultimately be the main subject of any future legal proceedings.
Translated by Marian Schwartz and Melanie Moore