Russia’s “genocide disinformation” and war propaganda are breaches of the International Convention Concerning the Use of Broadcasting in the Cause of Peace and fall within the ICJ’s jurisdiction
Written by Talita de Souza Dias
On EJIL: Talk!
Notice of correction by the author, as reviewed by the editors: Russia has made a reservation to Article 7 of the International Convention Concerning the Use of Broadcasting in the Cause of Peace (the compromissory clause granting the PCIJ jurisdiction over the interpretation and interpretation of the Convention) upon ratifying the Convention. The reservation reads as follows: ‘The Union of Soviet Socialist Republics does not consider itself bound by the provisions of article 7 of the Convention under which any dispute that may arise regarding the interpretation or application of the Convention which has not been settled by means of negotiations shall be submitted to arbitration or to judicial settlement at the request of one of the Parties, and declares that, for the submission of such a dispute to arbitration or to judicial settlement, the agreement of all Parties to the dispute shall be essential in every separate case (emphasis added).’ This reservation means that, contrary to what was argued in the post, the ICJ would not have automatic jurisdiction to hear cases concerning Russia’s violation of the International Convention Concerning the Use of Broadcasting in the Cause of Peace, including its genocide disinformation and war propaganda with respect to Ukraine. Instead, all parties to any such a potential dispute, including Russia, would have to specifically consent to the ICJ’s jurisdiction to hear the case.
As readers may know from earlier posts on this blog (see here), Ukraine has recently filed an application before the International Court of Justice (ICJ) against Russia on the interpretation and application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). In this post, I argue that separately from this case, Russia’s false allegations of genocide as a pretext to invade Ukraine – which seem to lie at the heart of Ukraine’s ICJ application – amount to a violation of Articles 2, 3 and 4 of the International Convention Concerning the Use of Broadcasting in the Cause of Peace. Such a breach may be invoked by any state party to this convention, including before the ICJ.
Russian disinformation in Ukraine’s ICJ application under the Genocide Convention
In its ICJ application for provisional measures, one of Ukraine’s core arguments is that:
‘26. […] the Russian Federation’s declaration and implementation of measures in or against Ukraine in the form of a “special military operation” declared on 24 February 2022 on the basis of alleged genocide, as well as the recognition that preceded the military operation, is incompatible with the Convention and violates Ukraine’s right to be free from unlawful actions, including military attack, based on a claim of preventing and punishing genocide that is wholly unsubstantiated.’ (emphasis added)
Thus, Russian “genocide disinformation” seem to lie at the heart of Ukraine’s claim that Russia breached Article I of the Genocide Convention. Relatedly, Ukraine also asks the Court to:
Adjudge and declare that, contrary to what the Russian Federation claims, no acts of genocide, as defined by Article III of the Genocide Convention, have been committed in the Luhansk and Donetsk oblasts of Ukraine.
This request is akin to asking the Court to clear up Ukraine’s reputation, in line with Article III of the Genocide Convention. It also reads as a claim that Russia must refrain from engaging in disinformation about the commission genocide or war propaganda as a justification to prevent it.
Russia’s breach of Articles 2 to 4 of the International Convention Concerning the Use of Broadcasting in the Cause of Peace
Notwithstanding the merits of Ukraine’s case under the Genocide Convention, a different convention explicitly requires states to refrain from and prevent acts of this sort and entitles other states parties to enforce these negative and positive obligations. This is the often-overlooked International Convention Concerning the Use of Broadcasting in the Cause of Peace, adopted in 1936 under the auspices of the League of Nations. Specifically, Article 2 requires states parties to:
‘ensure that transmissions from stations within their respective territories shall not constitute an incitement either to war against another High Contracting Party or to acts likely to lead thereto.’
Similarly, Articles 3 and 4 provide that:
Article 3. The High Contracting Parties mutually undertake to prohibit and, if occasion arises, to stop without delay within their respective territories any transmission likely to harm good international understanding by statements the incorrectness of which is or ought to be known to the persons responsible for the broadcast. They further mutually undertake to ensure that any transmission likely to harm good international understanding by incorrect statements shall be rectified at the earliest possible moment by the most effective means, even if the incorrectness has become apparent only after the broadcast has taken place.
Article 4. The High Contracting Parties mutually undertake to ensure, especially in time of crisis, that stations within their respective territories shall broadcast information concerning international relations the accuracy of which shall have been verified – and that by all means within their power – by the persons responsible for broadcasting the information.
This Convention basically covers all instances of Russian disinformation, war propaganda and other information operations that ‘harm good international understanding’ between states parties. This is exactly what Russia has done with the false genocide allegations and its subsequent call for the invasion of Ukraine.
As the successor state to the Union of Soviet Socialist Republics, Russia is a party to the International Convention Concerning the Use of Broadcasting in the Cause of Peace. Though Ukraine is not a party to the Convention, several states that have condemned Russia’s military actions in Ukraine are parties thereto, including several members of NATO, such as Norway, Finland, Estonia, Denmark, Luxembourg, Latvia, Hungary, and Bulgaria (see here and here for the full list of ratifying states).
Importantly, Article 7 of the International Convention Concerning the Use of Broadcasting in the Cause of Peace includes a compromissory clause granting the Permanent Court of International Justice (PCIJ) jurisdiction to hear disputes over the interpretation or application of the Convention. And by Article 37 of the ICJ Statute, the ICJ inherits the jurisdiction of the PCIJ granted via compromissory clauses. Insofar as the Convention Concerning the Use of Broadcasting in the Cause of Peace arguably incorporates erga omnes obligations