21 Jan Twitter’s Responsibility to Suspend Trump’s, and Rouhani’s, Accounts, Part 1
[Tara Van Ho is a Lecturer at the School of Law at the University of Essex.]
In the days following the assassination of Qassim Soleimani, US President Donald Trump took to Twitter to not only justify the killing but to threaten war if Iran retaliated for what most experts in international law believe was likely an unlawful killing that also violated Iraqi sovereignty. He first asserted:
Iran is talking very boldly about targeting certain USA assets as revenge for our ridding the world of their terrorist leader who had just killed an American, & badly wounded many others, not to mention all of the people he had killed over his lifetime, including recently….— Donald J. Trump (@realDonaldTrump) January 4, 2020
….hundreds of Iranian protesters. He was already attacking our Embassy, and preparing for additional hits in other locations. Iran has been nothing but problems for many years. Let this serve as a WARNING that if Iran strikes any Americans, or American assets, we have…..— Donald J. Trump (@realDonaldTrump) January 4, 2020
….targeted 52 Iranian sites (representing the 52 American hostages taken by Iran many years ago), some at a very high level & important to Iran & the Iranian culture, and those targets, and Iran itself, WILL BE HIT VERY FAST AND VERY HARD. The USA wants no more threats!— Donald J. Trump (@realDonaldTrump) January 4, 2020
He also tweeted:
The United States just spent Two Trillion Dollars on Military Equipment. We are the biggest and by far the BEST in the World! If Iran attacks an American Base, or any American, we will be sending some of that brand new beautiful equipment their way…and without hesitation!— Donald J. Trump (@realDonaldTrump) January 5, 2020
These Media Posts will serve as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back, & perhaps in a disproportionate manner. Such legal notice is not required, but is given nevertheless!— Donald J. Trump (@realDonaldTrump) January 5, 2020
Before launching a retaliatory attack, Iranian President Hassan Rouhani indirectly replied to Trump’s tweets:
Those who refer to the number 52 should also remember the number 290. #IR655— Hassan Rouhani (@HassanRouhani) January 6, 2020
Never threaten the Iranian nation.
Several scholars, on this blog and elsewhere, have explained that at the time of the Soleimani strike, the US and Iran were seemingly not in an armed conflict and the killing of Soleimani and the subsequent strike by Iran violated the UN Charter. The tweets took place in the middle of those two strikes, when there was no clarity as to whether the ‘first strike’ against Soleimani would result in an ongoing armed conflict, and at a time when neither state had a right to use force under the UN Charter.
In this two-part post, I am going to put forward the case that Twitter has a business and human rights responsibility, as defined by the UN Guiding Principles on Business and Human Rights, to suspend Trump’s and Rouhani’s Twitter accounts for engaging in propaganda for war. I will start by explaining why the tweets constitute propaganda for war before turning to Twitter’s business and human rights responsibilities to combat this, and conclude the two posts by considering the implications of this responsibility.
The International Human Rights Prohibition on “Propaganda for War”
The International Covenant on Civil and Political Rights (ICCPR), Article 20, contains a prohibition on “[a]ny propaganda for war.” Unlike ICCPR Article 19(3), which allows a state to balance conflicts between rights that can arise from the protection of free expression, Article 20 is one of strict prohibition and, as the Human Rights Committee has stated, operates as lex specialis against the protection of free expression in Article 19.
The US has attached a reservation to the ICCPR indicating it considers itself not bound by Article 20 where it conflicts with its own First Amendment. As I explain in Part 2, however, the US’s approach does not affect Twitter’s human rights responsibilities, which are instead defined by the ICCPR inclusive of Article 20.
The reason for the Article 20 prohibition is to ensure the greatest preservation of human rights as a whole. Propaganda for war threatens and undermines the enjoyment of various human rights: during an armed conflict, the right to life is defined by more lenient IHL standards and states may lawfully derogate from the full realization of other rights (including the right to free speech). The international community has determined that the costs and benefits of propaganda for war are such that there is no legitimate need to protect such speech or to place it in a balance against other rights. Instead, it constitutes such a severe threat to the public interest that it should be outright prohibited.
The Human Rights Committee issued authoritative guidance in 1983 on what is covered by Article 20:
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. … 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.
The Charter, in turn, contains a right of self-defense from attacks by another state and a prohibition on aggressive use of force, including “the threat” of such force. The Article 20 prohibition is therefore quite narrow: calling for, promoting, and instigating aggressive wars that that breach the UN Charter. Recruiting for military forces, supporting them, or promoting national security or defense would generally not meet the threshold.
Propaganda for War Crimes
The Committee did not address whether propaganda for war crimes is also prohibited. They likely never anticipated the need to be that explicit in 1983. During the Cold War, states did not advocate for a right to violate international law (they just did it and denied doing so). Yet, it is clear from the Committee’s General Comment that advocacy for war crimes falls within the Article 20 prohibition. War crimes cannot comply with the UN Charter because they cannot ever meet the threshold of necessity or proportionality in either attacks or self-defense required for Article 51. This specific type of advocacy for use of force violates the UN Charter as clearly as threats to use ‘normal’ aggressive force. While debates over whether something should be a war crime would still be protected speech, advocating for or threatening the commission of a specific war crimes in a specific conflict is not.
When considering the Trump and Rouhani tweets, we need to consider the context. As explained above, the consensus of leading authorities is clear: the use of force that we have seen does not comply with the UN Charter and subsequent resort to armed conflict would not either.
As Marko Milanovic explained, Trump’s first series of tweets contain a “clear and unambiguous violation of Article 2(4) of the [UN] Charter.” This tweet is therefore prohibited speech. Trump also uses these tweets to indicate an intention to commit war crimes. Proactively choosing 52 targets based on a symbolic relationship to the 1979 hostage crisis (itself a violation of international law) does not align with the necessary and proportionate standards of either jus ad bellum or jus in bello. By indicating that some of those sites are Iranian cultural sites, he suggest an intention to target civilian objects in violation of the Additional Protocol 1 to the Geneva Convention (Arts 48 & 52) and customary international law, and to target cultural property in violation of the Hague Convention of 1954 (Arts 2-4). Trump’s tweet therefore cannot be interpreted in any other way than propaganda for war and war crimes, triggering the ICCPR Article 20 prohibition.
The second tweet, in which Trump talks about using the US’s $2 trillion in military equipment against Iran, could be defensible but still raises concerns about the necessity and proportionality of an attack. On its own, this tweet would probably not trigger Article 20 but when taken together with the other tweets and the context it arguably rises to the level of prohibited speech.
Finally, in the third tweet, Trump suggests he’ll engage in further armed conflict war if Iran “strike[s] any U.S. person or target.” International law prohibits reprisals for past conduct; the international right states enjoy to self-defense applies only to imminent and grave threats to national security or actual incursions on state sovereignty. This tweet’s claim is simply too broad to justify use of force in line with the Charter. Trump removes any lingering doubt that this tweet is protected speech when he states – in his own words – that he is willing to undertake a disproportionate attack, which again is a war crime.
Rouhani’s January 6 tweet is a little less explicit than Trump’s but by suggesting that Trump “remember the number 290,” referring to the 290 Iranians killed when the USS Vincennes shot down an Iranian civilian plane, Rouhani is also suggesting a willingness to engage in unnecessary and disproportionate attacks, breaching the UN Charter and therefore engaging in prohibited speech.