I was in gorgeous, courageous Kyiv on Monday when the latest Russian missile shower hit Ukraine, murdering civilians and knocking out heat and light on the cusp of winter. Kyivans took it calmly. My meeting smoothly transferred from a cafe to the metro, where we chain-drank coffee and carried on under the sirens and occasional, reverberating booms of missile defence. On social media and Russian TV, the grotesque propaganda cast of state-controlled media, officials and tub-thumping pundits were their usual sadistic selves, celebrating the strikes and calling for more attacks on civilians and critical infrastructure.
For years, and especially since the invasion of 24 February, Russian state media has been calling to wipe Ukraine off the map, for killing Ukrainians en masse, and dehumanising its people, smearing them as “Nazis” who need to be “denazified”.
Examples are plentiful. In Russia’s state-run RIA Novosti news agency, the pro-Kremlin journalist Timofey Sergeytsev called for the destruction of Ukraine’s national identity and a campaign of brutal punishment of its people. He called for imprisonment, forced labour and death for those who refused to comply with the Kremlin’s rule in Ukraine. In the programme of the well-known propagandist Vladimir Solovyov, one of the guests stated the following: “Ukraine cannot be repaired. You cannot repair this construct. It has to be destroyed as it is anti-Russia, an entity that threatens Russia.”
As the cases of war crimes, crimes against humanity, crimes of aggression and genocide pile up against the Russian leadership and military, is there a way to hold members of the propaganda machine accountable as well? Are they protected by freedom of speech or is their role qualitatively different: not mere trumpeters of abhorrent opinion but facilitators of crimes? And what does it mean for other cases across the world: from Donald Trump using Twitter to (allegedly) egg on the rioters at the US Capitol on 6 January, to the Myanmar online peddlers of hate encouraging persecution of the Rohingya?
The question of the legal culpability of propagandists was one of the reasons for my visit: I had chaired a panel on the topic at the Lviv Book Forum. We’d discussed historical examples of propagandists found guilty in the dock. The author and lawyer Philippe Sands pointed out that at Nuremberg, Julius Streicher, the editor of the wildly antisemitic Nazi paper Der Stürmer and “Jew-baiter number one” in the words of the prosecution, was found guilty of inciting genocide and hanged. After the 1994 Rwandan genocide, presenters on Radio Mille Collines were found guilty of various crimes, including incitement to genocide.
But these examples are problematic too. Streicher was not just a journalist but also a political decision-maker, the Gauleiter of Franconia, who gave antisemitic speeches at Nazi rallies and took part in many anti-Jewish acts. However, Hans Fritzsche, the head of the Reichs Radio who was on air virtually every evening under the Nazis broadcasting frequent antisemitic speeches, was found not guilty. He was deemed a mere mouthpiece, with no control over events. One can imagine the clever lawyers of today’s Russian propagandists making the same case: however offensive their speech might be, they are pundits, not political decision-makers or generals.
Meanwhile, the presenters on the radio in Rwanda could be very specific in guiding violent actions. “You have missed some of the enemies,” one told his audience. “You must go back there and finish them off. The graves are not yet full!” Russian propagandists might try to weasel their way out by claiming that even their calls to murder Ukrainians are just rhetorical games, not concrete instructions. Genocidal rhetoric, Sands explained in Lviv, is not the same as intent to genocide, which has to be tied to specific acts and plans.
Perhaps it is for these reasons there have historically been relatively few cases that tried to bring propagandists to trial. But how useful are these historical examples in the light of how Russia uses propaganda in its military operations and domestic politics and in an era when technology has completely changed our information environment? Together with the lawyers Wayne Jordash of Global Rights Compliance and Toby Cadman of Guernica 37, I have spent the last weeks considering these new dimensions. Media in Russia is a vital tool in Vladimir Putin’s regime, inseparable from the workings of the state. Domestically, state-controlled TV and increasingly online media are used to persecute critical voices and help to undermine people’s access to alternative sources of information. The Russian media analyst Vasily Gatov describes the systemic overloading of disinformation as a sort of “censorship through noise”.
Russian military theory sees information operations as integral to military operations to an unprecedented extent – Russian state media managers even received military medals for their role during the annexation of Crimea in 2014.
And rather than just nasty words broadcast on radio or TV, information operations are now continued in tightly controlled digital campaigns with everything from online “troll farms” through to search engine optimisation, which rise and crest in tandem with military operations. If, for example, one can show that information campaigns purposefully spread lies that Ukrainian military are hiding in civilian areas such as hospitals in the advent of an attack, and encourage attacks on the areas, then these lies become more than just abhorrent, they become integral parts of aiding and abetting crimes. Cadman describes the propagandist as the getaway driver who brings the bank robbers to the location – and drives them off again; Jordash as the grey-haired consigliere who urges the criminal gang to leave no prisoners.
It felt apposite having this debate in Lviv, the city that produced the two legal geniuses, Lemkin and Lauterpacht, who in the early 20th century redefined accountability by developing the concepts of “genocide” and “crimes against humanity”. Today, we need similarly fresh thinking. Across the world, we see the powerful using a new information environment to suppress rights, and then hiding behind “freedom of expression”. Ukraine will be the place where we challenge this and delineate between the genuine right to even the nastiest types of speech and the use of information tools as part of a new form of enhancing repression and facilitating atrocities.