War, “Incendiary Media,” and International Law (Part III)

Newspapers

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This third Part of my comments focuses on media intervention and re-development in post-conflict Iraq, examining the legal environment with which post-war Iraqi newspapers, television, and radio are being created and regulated. I will limit my observations on the media intervention activities conducted by the interim government before the more recent establishment of the permanent constitution.

Rebuilding the Media Space in Post-Invasion Iraq: New Dilemmas

Shortly after Bush declared victory in Iraq, a transitional government was set up (the Coalition Provisional Authority (CPA)). As a governing body headed by L. Paul Bremer, the CPA helped establish the Governing Council of Iraq on 13 July 2003, pursuant to Security Council Resolution 1483. Meanwhile, the UN Security Council also established the United Nations Assistance Mission for Iraq (UNAMI) through Resolution 1500 (adopted on 14 August 2003). A foundation for legal governance was thus erected in Iraq. As with former interim governing bodies and UN-authorized assistance missions in Bosnia, Kosovo, and the like, the media field was very much on the agenda of reform. The CPA was particularly sensitive about media activities; this was understandable given the unrelenting violence that continued to threaten basic stability and safety in the country. In May 2003, the CPA established the Iraqi Media Network (IMN) to replace the defunct Iraqi Information Ministry. The IMN included a TV channel, two radio stations and the newspaper Al-Sabah. The television network reached about two-thirds of Iraqi homes.

As Occupying Power, the US-led governing body utilized the Fourth Geneva Convention of 1949 to protect civilians and suppress any public activities that were deemed to incite violence. On June 5 and June 10 of 2003, the CPA issued ‘Public Notice Regarding Public Incitement to Violence and Disorder’ and ‘Public Notice: Towards a Responsible Iraqi Media’ respectively. The first public notice prohibits any individual making a ‘prohibited pronouncement in a public place or distributing or attempting to distribute any prohibited material in whatever form’. The second public notice reiterates the concern for inciting violence but targets media broadcasting. It is noted that this second notice was issued in the context of a feverish boom of the media in the country. However, the journalistic quality and political independence of the newspapers that mushroomed during that period were highly questionable. The end of repressive rule meant that the Iraqi media space was left without regulation. It was alleged that anyone with US$1,000 could publish his/her own newspaper, assign him/herself the job of the editor-in-chief, prominently display his/her photo on the front cover, and run the newspaper without any prior knowledge of journalism. As a result, in this unregulated space, benign bad journalism was mixed with a more sinister journalism manipulated by various political factions to create misinformation and even incite disturbance.

The CPA’s public notice regarding public incitement to violence and disorder authorized the security forces to ‘immediate detention’ of any one found to violate the notice’s order, the detained being held as a security internee under the Fourth Geneva Convention. This was so even though the CPA defined public notices as ‘hav[ing] no penal consequence’ (as opposed to Orders and Regulations). As for the public notice regarding the conduct of the media, a violation would result in the withdrawal of license, closing of operation, confiscating the property, and sealing the premises of the media organization. This was done even though Iraq’s media commission would not be formally established until a year after the issuance of the public notice. But even with the establishment of such a commission, the question of whether it would be vetted with legal authority to prosecute media organizations was itself an open question. The problem of the CPA’s self-expanded legal power was becoming more apparent as time went by.

It was soon discovered that the CPA’s administration of Iraq was alienating the Iraqi public. While it continued to fail to keep the country’s security situation under control – it was reported that Bremer’s top priority was economics, not security – it also failed to tackle basic problems of daily life. Meanwhile, over 2003-2004, the Governing Council and then the elected Prime Minister exercised censorship of the media in contradiction to the Constitution. The banning of Qatar-based Al-Jazeera and Dubai-based Al-Arabiya satellite-transmitted programmes in Iraq in 2003, the closing down of Al-Jazeera‘s Baghdad office in 2004, and the arrest of around 60 journalists at gunpoint from a hotel in Najaf, including reporters from the BBC, Guardian, Independent, Time and Telegraph, were a few high-profiled acts of aggression against media organizations and personnel who were not part of the media sector controlled by the post-war government. In sum, as the professional and ethical conduct of Iraqi journalists were uneven, to say the least, in an environment of free-wheeling publication and broadcast, and as the interim government was bent on outright censorship and intimidation of journalists, how could public interest be served? And how was this situation different from the repressive era?

Man With Camera

Formal Decrees and Proposals for Media Reform

On 20^th March 2004, the CPA issued formal Order 65 for the establishment of the Iraqi National Communications and Media Commission (NCMC) and Order 66 for regulating Iraqi Public Service Broadcasting. Formal Orders, unlike the Public Notices mentioned above, were binding instructions or directives that carried penal consequences or had a direct bearing on the way Iraqis are regulated, including changes to Iraqi law. Order 66 was a fairly standard media standards document aimed at creating a public platform for broadcasting that covered political, economic, health, cultural, educational, scientific, religious, ecological, sporting and other developments in Iraq. As for Order 65, a more detailed discussion is needed.

Order 65

Order 65 was not only a blueprint for developing a democratic media space in Iraq, it also served to promote a capitalistic media space in the country. The stated purpose of establishing the NCMC was to balance the interest of creating a pluralistic media environment with commercial and investment interests in telecommunications. In other words, the NCMC would double as a regulatory agent and a free speech promulgator. In Section 9 of Order 65, the NCMC was empowered to enforce sanctions, including: (a) issuing warnings; (b) requiring publication of an apology; (c) requiring mitigation or repair of harm to consumers; (d) imposing financial penalties and placing liens on relevant bank accounts, if the penalties are not paid on time; (e) suspending licenses; (f) seizing equipment for which access into the licensee’s premises is granted hereby; (g) suspending operations; (h) closing operations; and (i) terminating or withdrawing licenses. In addition, Section 9(2) empowered the NCMC to enlist police and coalition forces support when carrying out its mandate. It must be noted that the power to enforce the sanctions listed above and the power to enlist law enforcement and military forces, essentially positioned the NCMC as an adjudicating body in civil and criminal proceedings. The constitutionality of this positioning of the NCMC, as well as the legality of other regulatory provisions proposed by the NCMC, has been questioned by critics.

The London-based independent organization promoting freedom of speech rights, ARTICLE 19, has examined the various codes of practice proposed by Iraq’s NCMC. These include a Code for Media during Elections; an interim Broadcasting Programme Code of Practice; and an Interim Media Law. In their report, ARTICLE 19 expresses a number of detailed concerns regarding the specific content and other rules in the interim media law and the broadcasting and election codes. There are concerns, for instance, about the vagueness of the documents, in which phrases like ‘standards of decency’, ‘exercise care and consideration’, or ‘incitement to violence’ are not defined at all. The draft code of practice also gives little concrete details about standards that would be useful for practical daily operations.

More troubling is the restriction on free speech proposed in the Interim Media Law. Section 2.1 states the ground for restriction:

It shall be an offense for the Media Outlet to publish, broadcast or otherwise disseminate any material that, by its content or tone:

(a)Carries the clear and immediate risk of inciting imminent violence, ethnic or religious hatred, civil disorder or rioting among the people of Iraq or advocates terrorism, crime or criminal activities (particular care is required where a programme carries the views or transmits the messages of people or organizations who use or advocate terrorism or the use of violence or other criminal activity in Iraq); or

(b) Carries a clear and immediate risk of causing public harm, such harm being defined as death, injury, damage to property or other violence, or the diversion of police, medical services or other forces of public order from their normal duties.

While Section 2.1 realistically referenced the kinds of everyday terror experienced by ordinary Iraqis, and while it might even be appropriate to link the media to these types of unrest, it had not complied with international law since it exceeded the exceptions to freedom of speech provided by Article 19 of the ICCPR. Subsection (b), for instance, made ‘diversion of police, medical services or other forces of public order from their normal duties’ a ground for restriction of speech. It clearly exceeded the ‘legitimate aims’ stated in Article 19(2). Moreover, the principle of proportionality was not observed in subsection (a), whereby the media’s carrying or transmitting of violence-inciting views belonging to others was considered an equal offence as the media’s advocating the subversive view. The European Court of Human Rights has indeed ruled, in Jersild v. Denmark, that the prosecution of journalists who merely relay others’ hate speech violates the journalists’ freedom of expression: ‘The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest’.

The NCMC’s Interim Media Law was most troubling when it accorded the NCMC itself the role of judicial enforcement. ARTICLE 19 states that the NCMC was not appropriately constituted to act as a ‘court’, for to recognize it as acting as judicial body violates both Article 14 of the ICCPR and Iraq’s own transitional constitution (the Law of Administration for the State of Iraq for the Transitional Period, or TAL). Article 14 of the ICCPR designates that a fair and public hearing be conducted by ‘a competent, independent and impartial tribunal established by law’. This means a lawful appointment of judges, and matters of substantial judicial qualifications and duration of judicial experience. Unless safeguards are made as to the careful and legal appointment of members of the NCMC according to strong evidence of judicial experiences and qualifications, the regulatory body does not qualify to adjudicate cases. Besides, the TAL also states in Article 43 that ‘[t]he judiciary shall enjoy exclusive competence to determine the innocence or guilt of the accused pursuant to law…’ This effectively rules out a regulatory agency as an enforcement body.

In fact, the European Court of Human Rights has repeatedly warned against excessive use of national security laws to restrict freedom of expression. It considers that states ‘cannot, with reference to the protection of territorial integrity or national security or the prevention of crime or disorder, restrict the right of the public to be informed by bringing the weight of the criminal law to bear on the media’.

Just when those in the media field were working to adapt to professional codes transplanted from outside, they were met with an interim administration that does not appear to be more egalitarian or less draconian in its policies than those in the Hussein era. The interim authority’s heavy-handedness was ironically preserving the old culture of totalitarianism. Concepts of freedom, fairness, pluralism, and even human rights might be perceived as empty promises, or worse, as codes of neo-colonialism. The interpretation of neo-colonialism must be taken seriously, as Iraq’s history demonstrates a collective misgiving toward, and mistrust of, the very notions of ‘freedom’ and ‘liberty’ underlined by western capitalism. In the context of a media boom in Iraq after the invasion, and more importantly in the context of continued daily terror in the country, a delicate balance between the promotion of a free and independent press in line with human rights norms and an appropriate intervention into the media space to halt
rampant spread of misinformation and of incendiary speech, is not easy to achieve.

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Notes

See CPA-Iraq.org. Due to the dissolution of the CPA, the site for the CPA-Iraq Coalition is no longer being updated. It will remain available for historical purposes until June 30, 2006.

By mid-2003, it was estimated that in Baghdad alone newsstands held about 90 newspapers between the daily, bi-weekly, and weekly ones. In the rest of the country the number of publications had also mushroomed, with small radio and TV stations joining in. Meanwhile, the main
political groups within Iraq have set up or revived publications, such as Al-Adala of the Supreme Council for the Islamic Revolution in Iraq and Al-Manar (which was very critical of the occupying power). In addition, Al-Ittihad, organ of Jalal Talabani’s Patriotic Union of Kurdistan (PUK), and Taakhi(Brotherhood), of the Kurdish Democratic party of Massoud Barzani, were the two Arabic-language Kurdish papers distributed in Baghdad. In the field of print news, the most credible as well as the biggest in size was Azzaman (The Times), founded in London by an exiled journalist formerly working under Hussein, selling 30,000 copies in Baghdad. Countless shops were selling TV satellite dishes, receiving foreign all-news stations as well as Arab stations such as Al-Jazeera, Al-Arabyia and LBC-Al Hayat. The TV station set up by the Iraqi Media Network (IMN) broadcast soap operas, Iraqi folk songs, and football matches. Programmes were interspersed with announcements by the Coalition authorities and the UN. While the IMN had a virtual monopoly of non-satellite TV in Baghdad, radio broadcasting in Baghdad was more diverse; the IMN station had an AM and an FM station broadcasting around the clock. But the BBC, Radio Sawa and RMC-Moyen-Orient (RMC-MO) were the most listened-to stations.

See, e.g., Arab Press Freedom Watch Final Report of its Fact Finding Mission to Iraq, ‘Working with Iraqi journalists: Towards a free and independent media’, available at AFPW; Khalid Serhan Hurrat, Lisa Isabel Leidig, ‘Iraq’, in Mass Media in the Middle East: a comprehensive handbook 96-108 (Yahya R. Kamalipour and Hamid Mowlana eds., 1994); Richard Keeble, ‘The myth of Saddam Hussein: new militarism and the propaganda function of the human interest story’, in Media Ethics 66-81 (Matthew Kieran ed., 1998).

Luke Harding, ‘Iraq extends Al-Jazeera ban and raids offices’, The Guardian, September 6, 2004.

See CPA-Iraq.org.

See ARTICLE 19, Memorandum on Draft Iraqi Media Laws, November 2004.

Jersild v. Denmark, 25 September 1994, Application No. 15890/89, para. 35.

Erdogdu and Ince v. Rurkey, 8 July 1999, Application Nos. 25067/94 and 25068/94, para. 54.

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2. Man With Camera

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