PART A: ARTICLES

THE PROHIBITION OF PROPAGANDA FOR WAR

IN THE INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS

MICHAEL KEARNEY*

Abstract

The prohibition of propaganda for war as set forth in Article 20(1) of the International
Covenant on Civil and Political Rights represents a key provision of international law, albeit
one which has been grossly neglected, both by States parties and legal commentators, since its
adoption by the General Assembly in 1966. The object of this article is to direct attention towards
a provision which has the potential to play a major role in the prevention of war. Drawing on
the travaux préparatoires of both Articles 19 and 20 of the Covenant, the reservations and
declarations entered with regard to Article 20(1), the pertinent General Comments of the
Human Rights Committee and the periodic reports submitted by States parties to the Committee,
the article seeks to clarify the meaning of the provision and to dispel assumptions that either it is
an unwarranted restriction on the right to freedom of expression or both legally and politically
untenable.

1. INTRODUCTION

Although history has recorded the use of propaganda from earliest times, the 1789
French Revolution and its repercussions may be taken as representing: ‘the
beginning of world consciousness of international propaganda’.1 Modern propa-
ganda for war can be traced to the First World War where the widespread use of
radio and the press for the dissemination of propaganda resulted from the
realisation that modern warfare required the mobilisation of the totality of the
economic and industrial life of the nation. The greater sacrifices thus asked of the
civilian population meant that the morale of the nation at war was of vital
importance, hence: ‘the attention given by all belligerents to the importance of
propaganda, for if armies are mobilized by orders, it is not too much to say that
civilians are mobilized by propaganda’.2 The League of Nations sought to regulate
such propaganda and sponsored an intergovernmental conference which led to the

* Ph.D. Candidate, Irish Centre for Human Rights, National University of Ireland, Galway, BCL
(University College Cork), L.L.M. (NUI, Galway). The author wishes to acknowledge the funding
received from the Irish Research Council for The Humanities and Social Sciences in the form of a
research scholarship.
1
Martin, L. John, International Propaganda: Its Legal and Diplomatic Control, University of Minnesota
Press, Minneapolis, 1958, p. 6.
2
Whitton, John B. and Larson, Arthur, Propaganda: Towards Disarmament in the War of Words, Oceana
Publications, Dobbs Ferry, 1964, p. 31.

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 Michael Kearney

Convention Concerning the Use of Broadcasting in the Cause of Peace, 1936.3

Whilst this Convention was ratified by few States and never applied, it was
nevertheless: ‘a model, a kind of authoritative code of good conduct (...) Hence its
historical significance and moral influence should not be underestimated.’4
Following the Second World War, the General Assembly of the United Nations
was to revisit the issue passing several resolutions both condemning propaganda for
war5 and asserting the right to freedom of information.6 These resolutions were to
set the basis for the discussions which led the Third Committee of the General
Assembly to adopt Article 20 of the ICCPR which states that:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law.

This article shall focus on the meaning of Article 20(1). Section 2 shall examine the
drafting history of the provision, which was discussed both under the rubric of
Article 19 on the right to freedom of opinion, expression and information and
Article 20 which was initially concerned solely with the prohibition of advocacy of
hatred. Section 3 examines the reservations and declarations entered by States
parties to the ICCPR with regard to Article 20(1). Section 4 analyses the General
Comments of the Human Rights Committee (HRC) which address the meaning and
scope of the provision, whilst section 5 shall examine States Reports to the HRC in
order to shed light on the manner in which States have interpreted their obligations
under Article 20(1).

2. THE DRAFTING HISTORY OF ARTICLE 20(1)

Perhaps the most significant conclusion which may be drawn from a study of the
travaux to Article 20(1), is that there was widespread, if not universal, acceptance of
the principle that propaganda for war was contrary to the aims and goals of the UN
as set forth in the Charter and the Declaration. Rather than set forth a subjective
right, the provisions of Article 20 limit the right to freedom of expression as
enumerated in Article 19. That the right to freedom of expression as set forth in the
ICCPR should contain a reference to propaganda for war was first proposed by Dr
Malik, the UN Rapporteur on Freedom of Information, in 1947.7 He suggested that
when the draft texts on the right to freedom of expression were referred by the
Working Group on Human Rights to the Sub-Commission on Freedom of

3
Convention Concerning the Use of Broadcasting in the Cause of Peace, Registered No. 4319. See
League of Nations, Treaty Series, Vol. 186, p. 301; Vol. 197, p. 394; and Vol. 200, p. 557; 17 League of
Nations O. J. 1438 (1936).
4
Whitton, John B., ‘Aggressive Propaganda’, in: Bassiouni, M. Cherif and Nanda, Ved P. (eds),
International Criminal Law: Vol. I, Charles C. Thomas, Springfield, 1973, pp. 238-272, at p. 262.
5
‘Measures to be taken against propaganda and the inciters of a new war’, GA Res. 110(II),
3 November 1947; ‘Condemnation of propaganda against peace’, GA Res. 381(V), 17 November
1950.
6
‘Strengthening of peace through the removal of barriers to free exchange of information and
ideas’, GA Res. 819(IX), 11 December 1954.
7
Commission on Human Rights, 2nd Session, Working Group on Convention on Human Rights,
9 December 1947, Geneva, UN Doc. E/CN.4/AC.3/SR.6, pp. 5-6.

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Information and of the Press and the International Conference on Freedom of

Information, these two bodies should take into account General Assembly
Resolution 110(II), ‘Measures to be taken against Propaganda and the Inciters of
a new War’.8 This proposal was unanimously adopted.9
At the Third Committee of the General Assembly, in 1950, the Lebanese
delegate asserted that limitations on the right to freedom of expression would be
ineffective in combating propaganda since they accorded the State the potential
power to control the flow of all information. He stressed that restrictions on the
right to freedom of expression, even in the guise of a prohibition of propaganda for
war, would not help the human rights situation.10 Delegates from the Soviet bloc
lobbied for such a provision however. Poland for example, argued that the
formulation of the right to freedom of expression required a clause stressing the
peaceful nature all information should have, emphasising that: ‘[s]uch information
should furthermore counteract propaganda of aggression, and national, religious
and racial hatred’.11 Eleanor Roosevelt, the US delegate at the Commission’s 8th
session in 1952, noted her opinion that proposals to prohibit propaganda for war
under the ICCPR were tantamount to a means for legalising censorship and control
of the press.12 Challenging this position, the Polish delegate noted that
international agreements had been concluded in the past to prohibit the use of
the press for immoral purposes, and that the US itself was signatory to two
conventions prohibiting the dissemination of obscene publications. He failed to see
therefore, how the US could consider such publications: ‘more dangerous than war
propaganda, the incitement of hatred among the peoples, racial discrimination and
the dissemination of slanderous rumours, or how it could consent to the
suppression of the former but not of the latter’.13
At the Commission’s 6th session, the UK delegate had proposed that the question
of propaganda for war be moved from the provision relating to the right to freedom
of expression, to draft Article 26 (which was to become Article 20) concerning the
prohibition of the advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence.14 Although the initial phase of
debates on this provision had eschewed any mention of propaganda for war, at the
Third Committee of the UNGA in 1954, the USSR delegate argued that the
provision should state that the right to free expression of opinion should not be
used for: ‘war propaganda, incitement to hostility among nations, racial discrimina-
tion or the dissemination of slanderous information’.15 Argentina’s delegate
considered each element of this provision to seriously threaten the principle of
freedom of information. Noting that while most delegates would condemn the
advocacy of hostility of any kind, he doubted whether they could be defined with
sufficient precision for an international treaty, warning that: ‘such a prohibition

8
GA Res. 110(II), 3 November 1947.
9
Commission on Human Rights, 2nd Session, Working Group on Convention on Human Rights,
9 December 1947, Geneva, UN Doc. E/CN.4/AC.3/SR.6, p. 7.
10
UNGA, Third Committee, 5th Session, 19 October 1950, A/C.3/SR.289, pp. 111-112, para. 6.
11
UNGA, Third Committee, 5th Session, 20 October 1950, A/C.3/SR.290, p. 117, para. 5.
12
Commission on Human Rights, 8th Session, 18 June 1952, UN Doc. E/CN.4/SR.320, pp. 6-7.
13
Commission on Human Rights, 8th Session, 17 June 1952, NYC, UN Doc. E/CN.4/SR.321, pp. 5-6.
14
Commission on Human Rights, 6th Session, 28 April 1950, UN Doc. E/CN.4/SR.162, p. 10, para. 34.
15
Mr Fomin, UNGA, Third Committee, 9th Session, 27 October 1954, A/C.3/SR.565, p. 110, para. 32.

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would entail acceptance of totalitarian control over all forms of expression’.16

Similarly, the Canadian delegate stated that it was impractical to define the terms of
this article, especially ‘incitement to hatred and violence’, asserting moreover, that
the purpose of the article was achieved by the limitations set forth in the draft article
on the right to freedom of expression.17
It was not until the 16th session of the Third Committee of the General Assembly,
that the issue of whether a provision prohibiting propaganda for war would be
included in the ICCPR, and if so, under what article, was decided. Delegates first
considered propaganda for war as a limitation on the right to freedom of expression,
focusing on amendments submitted by India18 and the USSR.19 The US opposed the
proposed additional limitations, stating that they were unnecessary since:
‘propaganda and prejudice could be overcome only by the freest possible flow of
information making the facts available to the people’.20 Nevertheless, the US was to
submit an amendment to Article 19(3) which contained limitations on the right to
freedom of expression,21 which, in the opinion of the UK delegate: ‘overlapped
sufficiently with the Soviet proposal concerning prevention of war propaganda to
obviate the necessity for including such a separate concept in the third paragraph’.22
Chile proposed that immediately after considering Article 19, the Committee
should take up Article 26, which could then become Article 20.23 The Chilean
delegate said that ‘the modern phenomenon of propaganda’ was dealt with most
strongly in Article 26, and suggested that the two distinct problems of protecting the
right to freedom of expression and of prohibiting incitement to enmity and
discrimination should be dealt with in separate articles.24 He argued that if the
prohibition was to be made absolute, it should not be listed among the restrictions
provided for in Article 19, which was otherwise couched in basically positive terms
and gave States an option to impose restrictions, but in the article concerning the
prohibition of the advocacy of national, racial or religious hatred that constitutes

16
Mr Calvez, UNGA, Third Committee, 9th Session, 1 November 1954, A/C.3/SR.568, p. 124, para.
15.
17
UNGA, Third Committee, 9th Session, 2 November 1954, A/C.3/SR.570, p. 133, para. 4.
18
‘The exercise of the rights provided for in the foregoing paragraph carries with it duties and
responsibilities. It may, however, be subject only to such necessary restrictions as are clearly defined
by law and applied in accordance with the law in respect of (...) systematic dissemination of false
reports harmful to friendly relations among nations and of expressions inciting to war...’; A/C.3/
L.919.
19
The USSR amendment provided for restrictions ‘as are necessary: 1. for the prevention of war
propaganda, incitement to enmity among nations, racial discrimination, and the dissemination of
slanderous rumours.’; A/C.3/L.921.
20
UNGA, Third Committee, 16th Session, 12 October 1961, A/C.3/SR.1071, p. 58, para. 12.
21
Article 19(3): ‘The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order (ordre public),
public health or morals or the rights and freedoms of others, to prevent incitement to violence by
fostering national, racial or religious hatred, and are consistent with the other rights recognized in
this Covenant. However, these limitations shall not be deemed to justify the imposition by any State
of prior censorship of news, comments and political opinions and may not be used as grounds for
restricting the right to criticize the Government.’; A/C.3/L.925.
22
UNGA, Third Committee, 16th Session, 16 October 1961, A/C.3/SR.1074, p. 73, para. 20.
23
Mr Casaneuva, UNGA, Third Committee, 16th Session, 13 October 1961, A/C.3/SR.1073, p. 68,
para. 46.
24
UNGA, Third Committee, 16th Session, 12 October 1961, A/C.3/SR.1071, p. 59, para. 22.

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incitement to discrimination, hostility or violence, which was more suitable, since it

required States to prohibit certain forms of propaganda.25 The Committee adopted
this proposal,26 and the Chairman noted that it had been agreed that subject to the
approval of the other members of the Committee, Article 26 might contain a
mention of propaganda for war or incitement to war, as well as of incitement to
racial discrimination and national enmity.27
When the Chairman invited the Committee to vote on the three paragraphs of
Article 19 and the amendments thereto, the Committee voted on the first part of the
USSR amendment,28 up to and including the words ‘racial discrimination’ rejecting
it 42:25 and 23 abstentions.29 The chairman decided, in view of that result not to put
the second part of the amendment to the vote. Paragraph 3, containing no reference
to propaganda for war, was adopted 71:7 and 12 abstentions and Article 19 as a
whole was adopted 82:1 and 7 abstentions.30
When debates on draft Article 26 opened at the Third Committee, it became
apparent that many of the newly independent and non-aligned countries supported
a prohibition of propaganda for war since they felt that they were unable, due to lack
of resources, to compete adequately in the international marketplace of ideas, and
were fearful of cultural and information domination.31 Advocating the inclusion of
such a prohibition the Chilean delegate cited as legal precedents:

...the action of the League of Nations; the judgements of the Nuremberg

Tribunal, some of which had been rendered in cases involving solely the
dissemination of Nazi propaganda; the two historic decisions of the General
Assembly contained in resolution 110(II), entitled ‘Measures to be taken against
propaganda and the inciters of a new war’ and resolution 381(V) entitled
‘Condemnation of propaganda against peace’; the draft Convention on
Freedom of Information, which dealt with the question of propaganda in some
detail; and, the provisions on propaganda contained in the laws and constitu-
tions of many States.32

Following heated debates a ‘four-Power amendment’ proposed replacing the text of

Article 26 with the following:

Any propaganda for war and any advocacy of national, racial and religious hatred
inciting to violence shall be prohibited by law.33

25
UNGA, Third Committee, 16th Session, 12 October 1961, A/C.3/SR.1072, pp. 62-63, para. 24.
26
UNGA, Third Committee, 16th Session, 13 October 1961, A/C.3/SR.1073, pp. 68, para. 49.
27
UNGA, Third Committee, 16th Session, 18 October 1961, A/C.3/SR.1076, p. 84, para. 41.
28
A/C.3/L.921.
29
UNGA, Third Committee, 16th Session, 19 October 1961, A/C.3/SR.1077, p. 91, para. 57.
30
Ibidem, para. 58.
31
According to the Cameroun delegate: ‘The nations which had recently thrown off the yoke of
colonialism and those which were still under some form of servitude had great need of the
safeguards afforded by article 26’. UNGA, Third Committee, 16th Session, 20 October 1961, A/C.3/
SR.1079, p. 100, para. 35.
32
UNGA, Third Committee, 16th Session, 19 October 1961, A/C.3/SR.1078, p. 94, para. 14.
33
Saudi Arabia, Philippines, Lebanon and Thailand; A/C.3/L.932.

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The Chilean delegate suggested that it was the idea of ‘incitement to violence’ that
introduced a juridical element into propaganda, and such incitement should be
duly condemned, as in the four-Power amendment.34 Although still concerned that
Article 26 could be used to facilitate unwarranted restrictions on the right to
freedom of expression, the Netherlands delegation stated that they would co-
operate with the majority of the Commission, should they wish to retain Article 26,
by not opposing it.35 Similarly, the UK’s delegate stated that she was not now
pressing for the deletion of Article 26, but that her inability to vote for the article
remained unchanged.36 The US delegate stated that she continued to be interested
in ‘an appropriate wording’ of Article 26,37 and considered the four-Power
amendment, and in particular the phrase ‘inciting to violence’, as solving the
difficulties of her delegation. This amendment, she felt, set out the principle her
delegation supported: ‘in a straight-forward and lucid manner (...) while not leaving
the way open for abuse’.38 The Iraqi delegate noted that not a single delegation had
spoken against the principles set forth in Article 26 and the amendments, and that
the points of disagreement lay exclusively in the differences between the legal
concepts of the various countries.39 Cambodia’s delegate stated that he was not
surprised by the shift in the attitude of the UK and US, given that: ‘those delegations
had realised that there was no possibility of their point of view being accepted and
that it was in their own interest to support the text that was closest to it’.40
The Chairman then drew the Commission’s attention to the sixteen-Power
amendment.41 The text had been prepared by a working group consisting of the
sponsors of the nine-Power amendment42 and the four-Power amendment,43 both
of which had now been withdrawn, as well as other interested delegations.44 This
amendment read as follows:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law.45

Brazil’s delegate stated that since there seemed to be a very strong feeling in the
Committee that a very clear condemnation of propaganda for war had been made,
the sponsors of the joint amendment had decided to devote a separate initial
paragraph to the matter.46 He explained that the final words of the amendment,
‘prohibited by law’, meant that the actions covered by the article would be

34
UNGA, Third Committee, 16th Session, 23 October 1961, A/C.3/SR.1081, p. 107, para. 40.
35
Mr Beaufort, ibidem, p. 106, para. 15.
36
Lady Tweedsmuir, UNGA, Third Committee, 16th Session, 23 October 1961, A/C.3/SR.1080, p.
104, para. 17.
37
Mrs Tillett, ibidem, para. 19.
38
Idem.
39
UNGA, Third Committee, 16th Session, 23 October 1961, A/C.3/SR.1081, p. 109, para. 58.
40
Mr Chau Seng, ibidem, para. 60.
41
A/C.3/L.933.
42
A/C.3/L.930/Rev.2.
43
A/C.3/L.932.
44
UNGA, Third Committee, 16th Session, 25 October 1961, A/C.3/SR.1082, p. 111, para. 1.
45
A/C.3/L.933.
46
UNGA, Third Committee, 16th Session, 25 October 1961, A/C.3/SR.1082, p. 111, para. 3.

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prohibited by the domestic law of the countries acceding to the Covenant.47

According to the Yugoslav delegate, moving the reference to propaganda for war
into a separate paragraph, served both to bring it to the foreground, and to meet the
objections of those delegations which had regarded the linking of propaganda for
war with incitement to violence, as implying the possibility of propaganda for war
which did not incite to violence.48
The US delegate said that she would have been able to accept the expression
‘propaganda for war’ only if it had remained linked, as in the four-Power
amendment with the precise legal concept of incitement to violence.49 She again
stated that the term ‘propaganda for war’ was ill-defined and could lead to abuses of
the right to freedom of expression.50 The Committee was then invited to vote on the
two paragraphs of the sixteen-Power amendment.51 Paragraph 1 was put to a roll-call
vote and adopted 53:21 and 9 abstentions.52 A vote on the phrase ‘to discrimination,
hostility or’ in paragraph 2 was also adopted,53 and paragraph 2 as a whole was
adopted 50:18 and 15 abstentions.54 The Chairman then put the version proposed
by the sixteen-Powers as a whole to a roll-call vote55 and Article 26, to be renamed as
Article 20, was thus adopted 52:19 and 12 abstentions.56

47
Ibidem, para. 7.
48
Ibidem, para.10.
49
UNGA, Third Committee, 16th Session, 25 October 1961, A/C.3/SR.1083, p. 116, para. 15.
50
Ibidem, para. 16.
51
A/C.3/L.933.
52
UNGA, Third Committee, 16th Session, 25 October 1961, A/C.3/SR.1083, p. 119, para. 55. In
Favour: Yemen, Yugoslavia, Afghanistan, Albania, Brazil, Bulgaria, Burma, Byelorussian SSR,
Cambodia, Cameroun, Central African Republic, Ceylon, Chad, Chile, Congo (Brazzaville), Congo
(Leopoldville), Cuba, Czechoslovakia, Dominican Republic, Ethiopia, Ghana, Guinea, Haiti,
Hungary, India, Indonesia, Iraq, Israel, Lebanon, Liberia, Libya, Mali, Mexico, Morocco,
Nicaragua, Niger, Nigeria, Pakistan, Peru, Philippines, Poland, Romania, Saudi Arabia, Spain,
Sudan, Thailand, Togo, Tunisia, Ukrainian SSR, USSR, United Arab Republic, Upper Volta,
Venezuela; Against: Argentina, Australia, Belgium, Canada, Denmark, Ecuador, Federation of
Malaya, Finland, France, Iceland, Ireland, Italy, Japan, the Netherlands, New Zealand, Norway,
Sweden, Turkey, UK, USA, Uruguay; Abstaining: Austria, China, Colombia, Cyprus, Greece, Iran,
Panama, Portugal, South Africa.
53
43:21 and 19 abstentions. UNGA, Third Committee, 16th Session, 25 October 1961, A/C.3/
SR.1083, p. 119, para. 57.
54
Ibidem, para. 58.
55
A/C.3/L.933.
56
UNGA, Third Committee, 16th Session, 25 October 1961, A/C.3/SR.1083, pp. 119-120, para. 59. In
Favour: Dominican Republic, Ethiopia, Ghana, Guinea, Haiti, Hungary, India, Indonesia, Iraq,
Israel, Lebanon, Liberia, Libya, Mali, Mexico, Morocco, Nicaragua, Niger, Nigeria, Pakistan, Peru,
Philippines, Poland, Romania, Saudi Arabia, Sudan, Thailand, Togo, Tunisia, Ukrainian SSR,
USSR, United Arab Republic, Upper Volta, Venezuela, Yemen, Yugoslavia, Afghanistan, Albania,
Brazil, Bulgaria, Burma, Byelorussian SSR, Cambodia, Cameroun, Central African Republic,
Ceylon, Chad, Chile, Congo (Brazzaville), Congo (Leopoldville), Cuba, Czechoslovakia; Against:
Denmark, Ecuador, Federation of Malaya, Finland, Iceland, Ireland, Italy, Japan, the Netherlands,
New Zealand, Norway, Sweden, Turkey, UK, USA, Uruguay, Australia, Belgium; Abstaining: France,
Greece, Iran, Panama, Portugal, South Africa, Spain, Argentina, Austria, China, Colombia, Cyprus.

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3. RESERVATIONS AND DECLARATIONS TO ARTICLE 20(1)

There have been thirteen reservations57 and five declarations58 submitted with
regard to Article 20(1). All but the most recent one, an interpretative declaration
submitted by Thailand, have been on the behalf of Western liberal democracies, a
geopolitical imbalance which is not surprising considering that the majority of the
liberal democracies voted against the provision at the Third Committee in 1961.
Whilst most States raised several distinct issues in their respective reservations, five of
the thirteen noted that Article 20 must be interpreted in conformity with the rights
of political liberty as set forth in Articles 19, 21 and 22, and reserved the right not to
introduce any further legislation on the matter.59 Australia justified its decision to
enter a reservation on account that it had already, ‘legislated with respect to the
subject matter of the article in matters of practical concern in the interest of public
order (ordre public)’,60 adding that it also interprets Article 20 as consistent with the
rights conferred by Articles 19, 21 and 22 of the Covenant. Malta61 and the UK62 also
reserved the right not to introduce further legislation, adding that they interpreted
Article 20 as being consistent with Articles 19 and 21. New Zealand stated that it had
legislated towards the requirements of Article 20(2) and reserved the right not to
introduce any legislation prohibiting propaganda for war.63 Both Denmark and
Iceland entered a reservation voicing concern that the prohibition of propaganda
for war threatened freedom of expression, stressing that they had voted against draft
Article 20(1) at the General Assembly’s 16th session in 1961. The US, strongly
opposed to the inclusion of a prohibition of propaganda for war in the ICCPR,
entered a reservation stating: ‘[t]hat article 20 does not authorize or require
legislation or other action by the United States that would restrict the right of free
speech and association protected by the Constitution and laws of the United
States’.64 Switzerland reserved the right not to adopt further measures to ban
propaganda for war despite acknowledging in its reservation that propaganda for
war is prohibited under the ICCPR,65 whilst the Netherlands entered a reservation
stating simply that it did not accept Article 20(1).66 The final reservation is that of
the Republic of Ireland which is notable insofar as it stated that although Ireland
accepted the principle that propaganda for war was prohibited under international
law:

57
Australia, Denmark, Iceland, Ireland, Liechtenstein, Malta, the Netherlands, New Zealand, Norway,
Sweden, Switzerland, United Kingdom, United States of America.
58
Belgium, Finland, France, Luxembourg, Thailand.
59
Australia, Malta, New Zealand, the United Kingdom and the United States of America.
60
Website of the Office of the High Commissioner of Human Rights, www.ohchr.org/english/
countries/ratification/4_1.htm (United Nations Treaty Series, Vol. 1197, p. 411).
61
Website of the Office of the High Commissioner of Human Rights, www.ohchr.org/english/
countries/ratification/4_1.htm.
62
Idem.
63
Idem.
64
Idem.
65
Idem.
66
Idem.

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 The Prohibition of Propaganda for War in the ICCPR

Having regard to the difficulties in formulating a specific offence capable of

adjudication at a national level in such a form as to reflect the general principles
of law recognised by the community of nations as well as the right to freedom of
expression, Ireland reserves the right to postpone consideration of the possibility
of introducing some legislative addition to, or variation of, existing law until such
time as it may consider that such is necessary for the attainment of the objective
of paragraph 1 of article 20.67

It would appear that Ireland’s ‘reservation’ is in fact a ‘declaration’, since it does not
seek to exclude or modify the legal effect of the treaty in its application to the State,
but rather offers an ‘understanding’ – or perhaps a lack of understanding – of
Article 20(1).
Statements by a number of other States bring further confusion to the regime of
reservations and declarations to Article 20(1). Belgium, Finland and Luxembourg
for example, declared that they did not consider themselves obligated to enact
legislation in the field covered by Article 20(1). These are, in fact, reservations to
Article 20(1) as they purport to exclude the entire provision from those States’
obligations. That part of the French declaration which asserts its understanding that
the meaning of the word ‘war’ (guerre) in Article 20(1), is war in contravention to
international law, is a valid declaration in light of both the travaux préparatoires of the
ICCPR and the HRC’s General Comment on Article 20.68
It may be incorrect to suggest that all of the opposition to the limitations on
expression as set forth in Article 20 is intractable. Liechtenstein69 and Switzerland,70
for example, withdrew their reservations to Article 20(2) on the occasion of their
accession to the International Covenant on the Elimination of Racial Discrimination
(the ICERD).71 That these States found the political will to retract their reservations
to a provision which affects the right to freedom of expression in a manner not
dissimilar to Article 20(1), suggests a recognition that international law has a role to
play in combating speech that is directed at the violation of human rights. For now
views remain entrenched however, and Liechtenstein used the occasion to reassert
its claim to the right not to adopt further measures to ban propaganda for war.72
What can be drawn from these ‘reservations’ and ‘declarations’ is that, beyond a
disregard for the form which they are supposed to take, several of the States’
objections appear unjustified and lack legal determinacy under international law

67
Idem.
68
General Comment No. 11: Prohibition of propaganda for war and inciting national, racial or
religious hatred (Article 20) (Nineteenth session, 29 July 1983), UN Doc. HRI\GEN\1\Rev.1, at 12
(1994).
69
28 April 2000, www.ohchr.org/english/countries/ratification/4_4.htm.
70
16 October 1995, www.ohchr.org/english/countries/ratification/4_4.htm.
71
Article 4(a) of which provides that States parties: ‘Shall declare an offence punishable by law all
dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as
well as all acts of violence or incitement to such acts against any race or group of persons of another
colour or ethnic origin...’ International Convention on the Elimination of All Forms of Racial
Discrimination, GA Res. 2106 (XX), Annex, 20 UN GAOR Supp. (No. 14), at 47, UN Doc. A/6014
(1966), 660 United Nations Treaty Series 195, entered into force 4 January 1969.
72
On 28 April 2000, the Government of Liechtenstein informed the Secretary-General of the UN that
it had decided to withdraw its reservation to Article 20(2) of the Covenant made upon accession.
The text of the reservation read as follows: ‘The Principality of Liechtenstein reserves the right not
to adopt further measures to ban propaganda for war, which is prohibited by article 20, paragraph 1

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 Michael Kearney

thus having little effect on the States’ obligations under the ICCPR. The political
motivation behind these objections are notable since the willingness of States which
have cited concerns about freedom of expression as the reason for their refusal to
implement Article 20(1), nevertheless embrace the restrictions on freedom of
expression required under Article 20(2), either directly or in accordance with
obligations they have accepted upon ratification of the ICERD.

4. GENERAL COMMENTS OF THE HUMAN RIGHTS COMMITTEE

Four General Comments of the Human Rights Committee directly address the
meaning of the prohibition of propaganda for war under Article 20(1). General
Comment 6, published in 1982, was the first to refer to Article 20(1), and it did so in
a striking fashion.73 This General Comment concerned Article 6 of the ICCPR which
enunciates the right to life. Therein the HRC describes the right to life as: ‘the
supreme right (...) which should not be interpreted narrowly’.74 Noting that under
the UN Charter the threat or use of force by any State against another State, except
in exercise of the inherent right of self-defence, is already prohibited, the HRC went
on to assert that, ‘the most important condition and guarantee for the safeguarding
of the right to life’,75 is the effort made by States to avert the danger of war. The HRC
continued to note that in this respect there is a particular connection between
Article 6 and both subparagraphs of Article 20, thus suggesting that the effective
implementation of Article 20, may be one of the most valuable tools for reducing the
arbitrary loss of life, resulting from war and genocide, available under the ICCPR.
General Comments 1076 and 1177 relating to Articles 19 and 20 respectively were
published by the HRC at its nineteenth session in 1983. General Comment 10 is
notable insofar as it contains no reference to Article 20. General Comment 11
consists of just two paragraphs, the first of which criticises the failure of States to give
sufficient detail of the measures which they had undertaken, or which they intended
to undertake, to implement the obligations contained in Article 20. Paragraph 1 of
the General Comment outlined the prime concerns of the HRC:

Not all reports submitted by States parties have provided sufficient information
as to the implementation of article 20 of the Covenant. In view of the nature of
article 20, States parties are obliged to adopt the necessary legislative measures
prohibiting the actions referred to therein. However, the reports have shown
that in some States such actions are neither prohibited by law nor are
appropriate efforts intended or made to prohibit them. Furthermore, many

of the Covenant. The Principality of Liechtenstein reserves the right to adopt a criminal provision
which will take into account the requirements of article 20, paragraph 2, on the occasion of its
possible accession to the Convention of 21 December 1965 on the Elimination of All Forms of
Racial Discrimination’.
73
General Comment No. 6: The right to life (Article 6) (Sixteenth session, 30 April 1982), UN Doc.
HRI\GEN\1\Rev.1, at 6 (1994).
74
Ibidem, para. 1.
75
Ibidem, para. 2.
76
General Comment No. 10, The right to freedom of expression (Article 19) (Nineteenth session,
29 July 1983), UN Doc. HRI\GEN\1\Rev.1, at 11 (1994).
77
General Comment No. 11, supra note 68.

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reports failed to give sufficient information concerning the relevant national

legislation and practice.78

Thus, in addition to criticising the failure of many States parties to fulfil their
reporting obligations in full – necessary if the HRC is to adequately monitor
implementation of the ICCPR – the HRC reiterated the requirement set forth in the
provision itself that States parties are required to legislate against propaganda for
war, as well as any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence. Given that this is such a
fundamental attribute of the provision, and considering the further stress laid on its
implementation by General Comment 6 in regards to the ICCPR as a whole, it
reinforces the view that many of the declarations and reservations, particularly to
Article 20(1), may not be valid.
Paragraph 2 of the Comment begins by confirming that the prohibitions
required by Article 20: ‘are fully compatible with the right of freedom of expression
as contained in article 19, the exercise of which carries with it special duties and
responsibilities’. This view is shared by Downey who considers Article 20(1) to
represent a good compromise between the rights to information and expression and
recognising legitimate interests in suppressing propaganda for war.79 Similarly,
Partsch, paying due regard to Article 5(1) of the ICCPR,80 concludes that: ‘a
state may do under article 20 only what is strictly required by that article and is also
compatible with article 19(3)’.81 The Comment continues to address another issue
raised both in reservations and declarations and in States’ reports, namely the
question of what does ‘war’ mean for the purposes of Article 20. The HRC stated
that:

The provisions of article 20, paragraph 1, do not prohibit advocacy of the

sovereign right of self-defence or the right of peoples to self-determination and
independence in accordance with the Charter of the United Nations.82

Nevertheless, can ‘war’ correctly be understood in the context of Article 20(1) as

meaning international armed conflict, or does it also prohibit propaganda for a ‘civil
war’ that is, an internal armed conflict? The General Comment states that:

The prohibition under paragraph 1 extends to all forms of propaganda

threatening or resulting in an act of aggression or breach of the peace contrary
to the Charter of the United Nations, while paragraph 2 is directed against any
advocacy of national, racial or religious hatred that constitutes incitement to

78
Ibidem, para. 1.
79
Downey, Elizabeth A., ‘A Historical Survey of the International Regulation of Propaganda’, Michican
Yearbook of International Legal Studies, Vol. 5, 1984, p. 341, at p. 348.
80
Article 5(1): ‘Nothing in the present Covenant may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at the destruction of any of
the rights and freedoms recognized herein or at their limitation to a greater extent than is provided
for in the present Covenant.’
81
Partsch, Karl J., ‘Freedom of Conscience and Expression, and Political Freedoms’, in: Henkin,
Louis (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights Columbia
University Press, New York, 1981, pp. 209-245, at p. 230.
82
General Comment No. 11, supra note 68, para. 2.

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 Michael Kearney

discrimination, hostility or violence, whether such propaganda or advocacy has

aims which are internal or external to the State concerned.83

Nowak has stated that internal ‘civil wars’ were not meant to fall within the scope of
Article 20(1)’s application: ‘so long as they do not develop into an international
conflict’.84 Similarly, Partsch interprets the term ‘war’ as meaning only ‘war of
aggression’.85 Whilst such an interpretation appears to be prima facie correct, and is
in keeping with the avowed intentions of the drafters,86 the HRC appear to have
muddied the waters somewhat by linking subparagraph 2 – primarily intended to
deal with advocacy that would negatively affect human rights within a State – with
subparagraph 1, primarily intended to deal with propaganda which would have an
external effect. They did so by stating that: ‘[t]he prohibition applies (...) whether
such propaganda or advocacy has aims which are internal or external to the State
concerned’.87 This may be interpreted to mean that propaganda intended to incite
‘internal armed conflict’ is also prohibited under Article 20, as the HRC did not state
that propaganda for internal war was not prohibited in the same fashion as they had
addressed the advocacy of wars of self-defence or self-determination. Such an
interpretation would be to stretch the intentions of the drafters however, who
stressed that it was conflict between States which was the subject of the provision. An
alternative explanation could be that by this statement the HRC, satisfied that ‘war’
meant war of aggression and not ‘internal armed conflict’, simply wanted to ensure
that States were obliged to prohibit ‘propaganda for war’ directed to both domestic
and/or foreign audiences. This appears to be the most satisfactory interpretation, as
the permissible purposes for interference with the right to freedom of expression as
set forth in Article 19(3), such as ‘national security’ and ‘public order’ are intended
to deal with incitement to violence within the State. Given the intentions of the
drafters as expressed in the travaux regarding the respective roles of Articles 19(3)
and 20(1), it is submitted that this is the correct view.
The statement that the prohibition extends to ‘all forms of propaganda’
coincides with the intentions of the drafters who recognised that propaganda can be
spread not only through speech or print but also through actions such as military
parades or other forms of incitement. Similarly, in Article 19 no differentiation is
made among the media used to seek, receive, and impart information.88 The HRC
did not define propaganda but, of particular note, it applied the term ‘advocacy’
rather than ‘propaganda’ when speaking of the right to self-defence and self-
determination. Whilst presumably the HRC wished to avoid using a term widely
regarded as pejorative for actions which are permissible under international law, it
implies that both terms have the same meaning for the purposes of Article 20(1).
Given that ‘advocacy’ in subparagraph 2 means advocacy that constitutes an

83
Idem.
84
Nowak, Manfred, U.N. Covenant on Civil and Political Rights: ICCPR Commentary, 2nd ed., NP Engel,
Kehl, 2005, p. 473.
85
Partsch, loc.cit. (note 81), at p. 227.
86
For example, Pakistan’s delegate responded to a question at the Commission on Human Rights 9th
session as to whether propaganda in one country, inciting to violence against another, was covered
by the provision, by stating that that was its whole object. Commission on Human Rights, 9th
Session, 19 October 1953, Geneva, UN Doc. E/CN.4/SR.379, p. 12.
87
General Comment No. 11, supra note 68, para. 2.
88
Partsch, loc.cit. (note 81), at p. 217.

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 The Prohibition of Propaganda for War in the ICCPR

incitement, it is submitted that a similar interpretation must be ascribed to advocacy

that constitutes propaganda for the purposes of subparagraph 1. Both the travaux
and States reports used the terms propaganda and incitement interchangeably,
whilst Partsch also considered the term ‘propaganda’ to mean: ‘materials that (...)
advocate or incite to war’.89 Finally the horizontal nature of the obligation is
confirmed in the Comment’s conclusion which notes that States parties which have
not yet done so should enact legislation: ‘making it clear that propaganda and
advocacy as described therein are contrary to public policy (...) and should
themselves refrain from any such propaganda or advocacy’.90
General Comment 22 concerned Article 18 of the ICCPR which proclaims the
right to freedom of thought, conscience and religion. Issued in 1993 this comment
confirmed what is apparent from the travaux, namely that ‘propaganda for war’ may
be manifested in several guises and should not be viewed solely as a fourth
paragraph to Article 19. Citing General Comment 11, this Comment noted that:
‘[i]n accordance with Article 20, no manifestation of religion or belief may amount
to propaganda for war or advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence’.91
General Comment 29 on Article 4 concerning permissible derogations to the
ICCPR was issued in 2001 and is the most recent to refer to Article 20(1).92 The
derogations mechanism of the ICCPR allows for a State party to unilaterally, but
temporarily, derogate from a part of its obligations under the Covenant. Before a
State moves to invoke Article 4, two fundamental conditions must be met: the
situation must amount to a public emergency which threatens the life of the nation,
and the State party must have officially proclaimed a state of emergency. Derogation
from Covenant obligations in emergency situations is clearly distinct from the
regime of declarations and reservations mentioned above which may apply under
any circumstances and is of far greater impact on the enjoyment of human rights
since in such circumstances the State can enact far-reaching limitations on the rights
of the individual and the community in whole or in part. Article 4(2) of the
Covenant sets forth those articles from which no derogation may be made. The HRC
stressed that the derogation provision does not mean that other articles in the
Covenant may be subjected to derogations at will, even where a threat to the life of
the nation exists. Paragraph 13 of the Comment expands this point and gives several
‘illustrative examples’ of those provisions of the Covenant that are not listed in
Article 4(2), but of which, in the HRC’s opinion, there are elements that cannot be
made subject to lawful derogation under Article 4. Paragraph 13(e) demonstrates
the importance attributed to Article 20 by the HRC, in its assertion that:

No declaration of a state of emergency made pursuant to article 4, paragraph

1, may be invoked as justification for a State party to engage itself, contrary to
article 20, in propaganda for war, or in advocacy of national, racial or religious
hatred that would constitute incitement to discrimination, hostility or violence.93

89
Ibidem, at p. 227.
90
General Comment No. 11, supra note 68, para. 2.
91
General Comment No. 22, The right to freedom of thought, conscience and religion (Article 18),
30 July 1993, para. 7.
92
General Comment No. 29, States of Emergency (Article 4), UN Doc. ICCPR/C/21/Rev.1/Add.11
(2001).
93
Ibidem, para. 13(e).

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 Michael Kearney

A 1983 study by the International Commission of Jurists termed Article 20 to be a

non-derogable right which should be included in Article 4(2),94 and whilst the strict
necessity of extending non-derogable rights in this manner has been questioned,
the significance of General Comment 29 may properly be regarded as lying in: ‘the
express recognition that certain essential rights of the human being and his or her
dignity that are particularly endangered in emergency situations may not be
restricted in any circumstances’.95 It should be stressed however, that the practical
application of this particular statement is severely limited considering there is little
precedent of any government actually arguing that propaganda for war is ever
permissible.

5. STATES REPORTS TO THE HUMAN RIGHTS COMMITTEE

State reports are the primary and most up to date indicator of both the manner in
which Article 20(1) is being interpreted by States parties to the ICCPR, and of
the main obstacles to its application. Many, but not all States have employed the
reporting procedure to detail the steps they have taken to fulfil their obligation to
prohibit propaganda for war under domestic legislation. A study of these reports
demonstrates that the forms of propaganda thus prohibited are manifold and that
there exists a disparate approach on the part of many States to their obligation
under Article 20(1).
Rather than focusing directly on their obligation to prohibit by law propaganda
for war, several States’ reports have instead referred to domestic legislation enacted
to combat the activities of paramilitary, racist or fascist groups. Colombia for
instance, notes the enactment of legislation which prohibits: ‘civil organizations,
and hence political organizations, from carrying out activities or propagating
thoughts or opinions that violate human rights’.96 Italy simply referred to its
ratification of the International Convention against the Recruitment, Use,
Financing and Training of Mercenaries to suggest that it had fulfilled its obligations
under Article 20(1).97 Portugal (Macau) refers to its Penal Code’s prohibition of,
‘armed, militarytype, militarized or paramilitary associations and organizations
which adopt Fascist ideology’,98 and in a similar vein, Uzbekistan has partially
implemented its obligations under Article 20(1) by constitutionally prohibiting: ‘the
formation and activities of political parties and other public associations dissemina-
ting propaganda for war’.99 The Macedonian Constitution provides that: ‘program-
mes and activities of associations of citizens and political parties may not be directed
towards (...) encouragement or incitement to military aggression, or stirring up
national, racial or religious hatred or intolerance’.100 Furthermore, Macedonia’s
Law on Broadcasting: ‘does not permit programmes of broadcasting companies

94
International Commission of Jurists, States of Emergency, Their Impact on Human Rights, Geneva, 1983,
p. 440.
95
Nowak, op.cit. (note 84), p. 95.
96
Columbia – ICCPR/C/103/Add.3 (4).
97
Italy – ICCPR/C/103/Add.4 (4).
98
Article 46(4); Portugal (Macau) – ICCPR/C/70/Add.9 (3).
99
Uzbekistan – ICCPR/C/UZB/99/1 (1).
100
Article 20(3); The former Yugoslav Rep. of Macedonia – ICCPR/C/74/Add.4 (1).

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which are directed towards the violent overthrow of the constitutional system or
towards encouragement or incitement to military aggression, or stirring up national,
racial or religious hatred and intolerance’.101
Several States have claimed that by committing themselves to the object of peace,
either through their constitution or domestic legislation, they have implicitly
satisfied the obligations of Article 20(1). Gabon for example, has cited a provision of
its Constitution which reserves the right to declare war to the National Assembly, as
an example of having satisfied the requirements of Article 20(1).102 That such
claims arise in the reports of States which had advocated for the inclusion of
Article 20(1) in the ICCPR again highlights the oftentimes political, rather than
legalistic interpretation, given to the provision. For example, a Syrian report states
that:

Advocacy of a war of aggression is prohibited as a matter of principle since it

would constitute interference with a view to changing the Constitution of
another State and violating the rights of the latter’s citizens, which would be
incompatible with Syria’s public policy as can be inferred from its general legal
provisions.103

Likewise, a Sri Lanka report suggested that it is in compliance with Article 20(1)
insofar as:

The Directive Principles of State Policy and Fundamental Duties under the
Constitution of Sri Lanka state that it is the duty of every person to defend the
constitution and the law, and to further the national interest and to foster
national unity (Article 28).104

States have also claimed that they have satisfied the obligation to prohibit any
propaganda for war by enacting legislation directed towards the prevention of
internal disturbances and civil war. Examples of such claims include a Macedonian
report which referred to the ‘crime of calling for a violent change of the
constitutional system, according to article 318 of the Criminal Code’,105 and a
Chilean report which states that the State Security Act:

...punishes anyone who by means of the spoken or written word or any other
medium spreads or foments doctrines aimed at the violent destruction or
alteration of the social order or the republican and democratic form of
government (art. 4 (f)) and anyone who promotes doctrines advocating crime or
violence in any form as a means of bringing about political, economic or social
change (art. 6 (f)).106

101
Article 35; The former Yugoslav Rep. of Macedonia – ICCPR/C/74/Add.4 (1).
102
Article 49; Gabon – CCPR/C/128/Add.1.
103
Syrian Arab Republic – ICCPR/C/SYR/2000/2 (2).
104
Sri Lanka – ICCPR/C/LKA/2002/4.
105
The former Yugoslav Rep. of Macedonia – ICCPR/C/74/Add.4 (1).
106
Chile – ICCPR/C/95/Add.11 (4).

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A Hong Kong report similarly states that:

...if such propaganda, or its manner of presentation, were such as to bring the
sovereign Government into hatred or contempt or generally to create disorder,
discontent or disaffection, it might amount to sedition under the current law, at
least if there was an intention to provoke a breach of the peace.107

It is submitted that provisions such as these do not adequately satisfy States’

obligations under Article 20(1). It is clear from the travaux and the General
Comments of the HRC that expression which is detrimental to public order within a
State, is to be considered under the rubric of Article 19(3), and not under
Article 20(1). States retain under Article 19(3) the option to place certain
limitations on the right to freedom of expression in this regard whilst
Article 20(1) explicitly requires a prohibition of propaganda for war. Of note is a
Venezuelan State report which, after stating that propaganda for war is
constitutionally prohibited, notes that ‘propaganda for war or incitement of war’
is also characterised as a crime under the Venezuelan Criminal Code. Although this
legislation refers explicitly to ‘civil war’, the State report asserts that this provision is
interpreted as a general prohibition and characterisation of the crime of
propaganda for war in its general sense.
There is no specific requirement under the ICCPR that propaganda for war be
made a criminal offence, and Partsch has stated that a provision explicitly
mentioning ‘propaganda for war’ is not necessary as long as: ‘the act of propagating
war comes under a general prohibitory clause in the penal or other law’.108 Several
States have nevertheless implemented criminal legislation in this regard. The
Armenian Constitution for example, which prohibits the exercise of rights and
freedoms ‘for purposes of violent overthrow of the constitutional order, instigation
of national, racial or religious hatred or propaganda for violence and war’,109 is
accentuated by a provision of the Criminal Code which provides that: ‘propaganda
for war, in whatever form it may be conducted, shall be punished’.110 A Romanian
State report mentions that in the light of the recommendations and comments of
the HRC, propaganda for war, is considered one of the most serious offences under
the domestic Penal Code, and is thus listed alongside genocide under the heading of
‘Crimes against peace and humanity’.111 The Moroccan Penal Code stipulates that
‘any propaganda for war is prohibited by law’,112 and the Kyrgyz Republic’s Criminal
Code provides that any form of advocacy of war is punished by loss of liberty for a
period of three to eight years.113 Similarly, the Croatian Criminal Code provides

107
China (Hong Kong) – ICCPR/C/HKSAR/99/1 (1). China is not a State party to the ICCPR, but has
assumed responsibility for reporting on the implementation of ICCPR in relation to the Hong
Kong Special Administrative Region.
108
Partsch, loc.cit. (note 81), at p. 228.
109
Article 48; Armenia – ICCPR/C/92/Add.2 (1).
110
Article 66; Armenia – ICCPR/C/92/Add.2 (1).
111
Title XI; Romania – ICCPR/C/95/Add.7(4).
112
Morocco – ICCPR/C/115/Add.1 (4).
113
Article 65; Kyrgyzstan – ICCPR/C/113/Add.1 (1).

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that: ‘whoever calls or instigates a war of aggression shall be punished by

imprisonment from one to ten years’.114
The Ukrainian Penal Code provides that: ‘public calls for an aggressive war or a
decision to unleash a military conflict are punishable by imprisonment of from three
to eight years or correctional work for up to two years’.115 Azerbaijan’s Criminal
Code, states that it is an offence to disseminate war propaganda in any form,116 while
the Georgian Criminal Code categorises as criminal offences: ‘public incitement to
the conduct of a war of aggression, including through the media or committed by a
person holding State political office’.117 Moldova’s Criminal Code stipulates that war
propaganda of any kind shall be punished by imprisonment.118 Vietnamese
legislation prohibits propaganda for war under no less than three separate pieces
of legislation including The Law on the Press, The Law of Publication and The Penal
Code.119
Portugal’s Penal Code punishes incitement to war by establishing that any
person who, publicly and on several occasions, is guilty of incitement to hatred
against a people for the purpose of starting a war is liable to a sentence of
imprisonment.120 Planning, preparing for, embarking on or conducting a war of
aggression, and public incitement to embark on a war of aggression, are punishable
under the Russian Criminal Code121 whilst the Criminal Law prescribes liability for
public incitement to commence a war of aggression or a military conflict.122 Finally,
the Criminal Code of Serbia and Montenegro prescribes a penalty of one to ten years
in prison for advocating war or for war-mongering activities that are considered to be
criminal offences.123
A number of States’ reports demonstrate that certain States have limited the
prohibition of propaganda for war to that form of propaganda which leads to acts of
aggression against that State, but not by that State against others. Instances of such
legislation include the Jamaican Treason Felony Act which provides that:

If any person or persons whosoever (...) move or stir any foreigner or stranger
with force to invade this Island, and shall express, utter, or declare, by publishing
any printing or writing, or by open and advised speaking, or by any overt act or
deed, such compassing, imaginations, inventions, devices, or intentions, or any
of them, every person so offending shall be guilty of felony.124

114
Article 157(4); Croatia – ICCPR/C/HRV/99/1(1).
115
Article 63; Ukraine – ICCPR/C/UKR/99/5 (5).
116
Article 64; Azerbaijan – ICCPR/C/AZE/99/2 (2).
117
Article 405; Georgia – ICCPR/C/GEO/2000/2 (2).
118
Article 68; Republic of Moldova – ICCPR/C/MDA/2000/1 (1).
119
Viet Nam – ICCPR/C/VNM/2001/2 (2).
120
Article 236; Portugal – CCPR/C/PRT/2002/3.
121
Articles 353 and 354; Russia – CCPR/C/RUS/2002/5.
122
Article 77; Russia – CCPR/C/RUS/2002/5.
123
Serbia and Montenegro – CCPR/C/SEMO/2003/1.
124
Section 3; Jamaica – ICCPR/C/42/Add.15 (2) (emphasis added).

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Anyone who induces a foreign power to declare war on Chile is punishable under
that country’s Penal Code,125 while Israel claimed that it had satisfied its obligation
under Article 20(1), through penal legislation which provides that:

A person who, by making a speech in a public place or at a public gathering or by

publishing any writing, endeavours to incite hostile acts against the government of a
friendly State is liable to imprisonment for three years.126

Several liberal democracies noted that they had not introduced any legislation
prohibiting propaganda for war, but that they were in favour of the principle and
would be prepared to introduce such legislation if they deemed it necessary.127
Japan claimed that ‘it is almost inconceivable that any propaganda for war could
actually be carried out [in Japan]’,128 yet stated that: ‘should there emerge a danger
of a harmful effect of propaganda in future, legislative measures would be studied, as
the occasion demands, with careful consideration for freedom of expression’.129
Though Australia has entered a reservation to Article 20, its third State report
referred to the prohibition of propaganda by ‘enemy aliens’ and the selective use of
censorship during the Second World War. Despite stating that it has some difficulty
with the vagueness of the term ‘propaganda for war’, Australia has not ruled out the
possibility that such legislation could be enacted, although it: ‘would only be
prepared to prohibit propaganda of this nature if a clear need for such action
arose’.130 Tanzania, a State host to many refugees, does not specifically prohibit
propaganda for war under its domestic law, yet partially applies the principle, insofar
as it reports that refugees: ‘are informed that no kind of military training or
propaganda for genocide or war shall be entertained while on Tanzanian soil’.131
India reports that not only is propaganda for war not permissible, but that: ‘the
State can impose restrictions on the freedom of speech and expression in the
interests of friendly relations with foreign States under the Indian Constitution’.132
India failed to secure support for incorporating such a principle into the ICCPR and
this restriction would appear to be contrary to the intentions of Article 20 and
possibly in violation of the Article 19 guarantee of freedom of expression. Such an
unwarranted expansion of the interpretation of Article 20(1) only serves to justify
the opposition to the provision voiced by many States during the drafting of the
ICCPR. Likewise, the Press Act of Belarus criminalises, without specific reference to
propaganda for war, the: ‘publication of information that is not objective and does
not correspond to the facts’.133 Interpreting Article 20(1) to include the
dissemination of false news threatening friendly relations between States as opposed

125
Article 106; Chile – ICCPR/C/95/Add.11 (4).
126
Penal Law 5737-1977; Israel – ICCPR/C/81/Add.13 (1) (emphasis added).
127
In a similar manner, New Zealand’s response to concerns expressed by the HRC that New Zealand’s
Human Rights Act contained no prohibition of the advocacy of religious hatred, reported that
there was ‘no evidence to suggest that New Zealand is experiencing difficulties in this area’. New
Zealand – ICCPR/C/NZL/2001/4 (4).
128
Japan – ICCPR/C/115/Add.3 (4).
129
Idem.
130
Australia – ICCPR/C/AUS/98/3 (3).
131
United Republic of Tanzania – ICCPR/C/83/Add.2 (3).
132
India – ICCPR/C/76/Add.6 (3).
133
Article 40; Belarus – ICCPR/C/84/Add.4 (4), (Add. 7), para. 31.

568
 The Prohibition of Propaganda for War in the ICCPR

to expressions intending to lead to war, also appears to be an unwarranted and

oppressive restriction on freedom of expression. Such fears are compounded by the
assertion by Belarus, that: ‘as a rule, violations of these articles are committed by
non-State publications’.134
Whilst the majority of States reports deal quite perfunctorily with Article 20(1),
two of particular interest are those of Costa Rica and Finland. Notable for having
constitutionally abolished its armed forces in 1949, Costa Rica’s State report states
that propaganda for war is an offence under the Penal Code which penalises:

...anyone who puts on public display, or publishes in the press, or knowingly

allows the circulation of a document inciting hatred against a definite person or
institution.135

The Penal Code specifically seeks to ensure that this does not compromise the
individual’s right to freedom of expression however, and continues to assert that:

Documents that, although capable of leading to the discrediting of an

institution, are aimed at rational criticism of it in connection with public
interests shall not be considered to be of that nature; nor shall documents
dealing with election candidates that are aimed at discussion of their merits
without making use of harmful or libellous concepts.136

Despite having consistently voted against the adoption of Article 20(1) and
subsequently entered a reservation to the effect that it would not introduce
legislation with regard to propaganda for war, Finland modified its approach in a
State report137 which highlighted a government Bill which proposed penalisation of
the following acts:
(a) incitement to aggression;
(b) public dissemination of statements designed to influence public opinion to
turn in favour of acts of aggression;
(c) dissemination of false information about Finland’s defence and military
policy; or
(d) an unlawful act of violence towards a foreign State in such a manner as to
increase the risk of Finland becoming a target of military action.138

The State report asserted that: ‘[l]iterally speaking, the criminalization of

propaganda for war does not entail banning all war propaganda. However, it
criminalizes any propaganda for war which increases the risk of war during a crisis or
when a crisis is imminent, in other words, the most dangerous forms of war
propaganda’.139 The emphasis in this proposal is thus on the context in which a
certain expression is made, a crucial factor in determining whether the expression
actually constitutes an incitement to violence. Presenting its Fifth periodic report in

134
Belarus – ICCPR/C/84/Add.4 (4), (Add. 7), para. 31.
135
Costa Rica – ICCPR/C/103/Add.6 (4).
136
Idem.
137
Finland – ICCPR/C/95/Add.6 (4).
138
Idem.
139
Idem.

Netherlands Quarterly of Human Rights, Vol. 23/4 (2005) 569

 Michael Kearney

2004 the Finnish representative confirmed that the Penal Code had been amended
and that propaganda for war during military action or an international political
crisis concerning Finland was a criminal offence. The delegation also noted that
consideration had been given to the withdrawal of Finland’s reservation. The
question is therefore, whether a prohibition of propaganda for war, which is limited
to the reaching of a particular threshold of geo-political or military crises, rather
than an outright prohibition be considered as satisfying the obligations of
Article 20(1)? The article does not prescribe what form the prohibition must take
other than it must be in the form of legislation (‘by law’), which the HRC has
stressed must be implemented immediately and not deferred indefinitely. Thus it is
likely that the above provision which prohibits, inter alia, incitement to
aggression, may be regarded as fully satisfying the Article 20(1) obligation.
Despite its commitment to ensuring the implementation of every aspect of the
ICCPR, the HRC has not systematically addressed each provision of the Covenant,
nor even each provision that is referred to in States reports, focusing instead on the
particular issues which it views as being of primary concern in individual cases.
Whilst the HRC has regularly commented upon States obligations vis-à-vis the right
to freedom of expression, the series of Concluding Observations rarely refers to
States obligations or enacting measures relevant to the prohibition of propaganda
for war. This may be because the HRC considers its treatment of Article 20 in its
General Comments as having sufficiently informed States as to their duties and
obligations under Article 20. However, given the frequently indifferent attitude
displayed with regards to Article 20(1) both by States and other commentators, it is
necessary that the HRC revisit the provision with renewed vigour. It is necessary that
States are held accountable for their obligations under Article 20 and that the HRC
begin to utilise its Concluding Observations platform to repeatedly highlight the
importance of the full implementation of Article 20 by States parties.

6. CONCLUSION

Of all the provisions set forth in the ICCPR, the prohibition of propaganda for war is
perhaps the one of which there is the least awareness. The issue of propaganda for
war however, has rarely been accorded such attention as in the past several years,
notably as a result of the discord created by widespread public unease as to the
nature of the justifications proffered by the governments of the Western liberal
democracies with regard to the necessity of commencing an armed conflict with
Iraq. The importance of this debate in civil society ought not to be understated since
discussions concerning propaganda for war and the necessity of the use of force in
international relations go directly to the root of international human rights law. On
an international level it is incumbent upon those States that have entered
reservations or declarations to Article 20(1) to reconsider their positions,
particularly since those positions were forged in the political and ideological
conflicts of the Cold War. Drawing on the sources reviewed in this article it is clear
that the prohibition of propaganda for war does not constitute an unwarranted
infringement on the right to freedom of expression. Conversely, it is submitted that
propaganda for war serves only to restrict enjoyment of that right by manipulating
public discourse away from a critical and free analysis of the alternatives open to the
community at large, in order to ensure that the advocates of war can secure support
for what would likely be an otherwise untenable proposal.

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