Media in Post-Conflict Transitions: Balancing Protection Against Violence and Freedom of Expression

Antoine Buyse1

Abstract

Media are a crucial battleground in post-conflict reconstruction. On the one hand media may ignite tensions and induce renewed violence by spreading dangerous expressions. On the other hand free and diverse media underpin a society that tries to shift from authoritarianism to democracy. From a human rights perspective, the freedom of expression is pitted against the right to life, related to the protection of people against violence. This chapter investigates how these tensions work out in practice by focusing on two case studies: Bosnia and Herzegovina and Kosovo.

Key words

Media – freedom of expression – violence – conflict escalation – Bosnia and Herzegovina - Kosovo

1. Introduction

“I would prefer that we completely cleanse eastern Bosnia of Muslims. When I say cleanse, I hope no one will understand my words literally and think I’m talking about ethnic cleansing. But they have turned a perfectly natural phenomenon into a term called ethnic cleansing and labelled it as some crime.”2

These are words from an interview with Biljana Plavšić. She was, at the time of the interview from which the quote is taken, one of the highest political leaders of the Bosnian Serbs as well as a member of the supreme command of the Bosnian Serb army. Labelling ethnic cleansing as a natural phenomenon could be qualified as strange at the very least in times of peace, but in the midst of an armed conflict such remarks can be lethal. Nature knows no guilt and therefore the words of Plavšić can be regarded as a barely disguised endorsement for the ousting or even killing of people from certain parts of Bosnia. The apparent nuance – the “hope” that no one understands her words literally – is devoid of sense in the context of full-fledged war. Inflammatory public speeches of

1 Dr. Antoine Buyse is Associate Professor and Senior Researcher at the Netherlands Institute of Human Rights (SIM), Utrecht University. This contribution was written as part of his VENI research project on conflict dynamics and free speech, funded by the Netherlands Organisation for Scientific Research (NWO). The author wishes to thank Roos Molendijk and Tomas Königs for their research assistance. Email: A.C.Buyse@uu.nl

2 Center for Antiwar Action, Hate Speech. An analysis of the Contents of Domestic Media in the first part of 1993 (Belgrade 1994), p. 18.

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politicians, often broadcast through mass media, were one of the first steps in the armed conflicts that made the former Yugoslavia fall apart in the 1990s. Even before a single shot was fired, the minds were primed for “necessary” violence to protect one group against the aggression of another. All kinds of propaganda were used to break down peacetime norms on the limitation of violence.3

The usual emphasis in scholarship on the links between utterances through the media, of which the Plavšić interview is an example, and violence lies on both the situation before and during armed conflict. Both international organisations and national authorities, however, have invested a lot in the immediate post-conflict regulation of the media, in transitions from armed conflict to peace. As the media are deemed to have been instrumental in the escalation of many conflicts, monitoring and even interfering with the media have become part and parcel of post-conflict reconstruction. Key considerations are often the instability and volatility in the country concerned.

The risks of such interferences are obvious: media regulation can be abused to censor opposition voices. Such regulation should therefore always be performed in line with human rights standards, with the freedom of expression at the forefront. The most interesting situations to study in this respect are those in which international organisations have a formal mandate in post-conflict transitions. It confronts these international actors directly with a number of dilemmas. First, the balancing between freedom of expression, particularly of the media, and the right to life – in the prevention of violence. Secondly, a broader dilemma of interference and oversight, with on the one hand the risk of too much encroachment on independence and self-determination and, on the other hand, giving too much leeway to media and local authorities with the risk of renewed conflict escalation. Thirdly, the role of international legal standards may guide normatively in theory, but pragmatic considerations may determine to what extent these are brought to the fore in practice. This chapter will assess how the media have been regulated in post-conflict Bosnia and Herzegovina and Kosovo in instances in which a risk of violence was deemed to be present. The policy goal of restoring order and security is thus studied in relation to international legal norms of the right to life and the freedom of expression – rights which themselves pull in different directions in this context.

The post-conflict phase has been chosen as a focal point both because the run-up to both conflicts and the role of speech in these has already been extensively studied and because international institutions were given an important role in the implementation of peace in both states. The two countries present intriguing case studies since they were characterised by some of the most intense media oversight since World War II4 and because the media interventions chronologically

3 For an elaborate analysis of the role of the media before and during the conflict in the former Yugoslavia, see: Article 19, Forging War. The Media in Serbia, Croatia and Bosnia-Hercegovina (Avon: Article 19, 1994).

4 Monroe Price & Mark Thompson (eds.), Forging Peace: Intervention, Human Rights, and the Management of Media Space (Bloomington: Indiana University Press 2002) p. 2.

followed shortly after one another. They thereby offer insightful case studies of post-war media regulation. After an overview of the role of the media in post-conflict transitions, both the Bosnian and Kosovar situations will be assessed. These reflect how law and policy interacted and how key events triggered changes in this respect.

2. The Media in Transitions from War to Peace

In post-WWII Europe, acute awareness of the media’s role in wartime propaganda triggered, in that sector of society, some of the most “radical and sweeping” purges.5 At the same time, academic thinking traditionally paid relatively little attention to the role of the media in post-conflict transitions.6 The 1990s, however, saw a renewed interest in the effects of the media on violent conflict escalation. The genocide in Rwanda and the conflicts in the former Yugoslavia triggered this attention. During the Rwandan genocide, for example, a so-called information intervention in the form of jamming the signals of genocidal radio stations was openly advocated by some in order to stop the violence from spreading further.7 One of the main conclusions international institutions drew from the conflicts after the end of the Cold War was that as part of the democratizing and opening up of societies, a free and pluralistic media should be developed which should and would be less easily controlled by politicians seeking to incite violence. The promotion of free media thus became part of peace-building efforts around the globe.8 This included an emphasis on professionalization of journalists. Thus, not only the content of what the media were saying, writing, or broadcasting was perceived as important, but also the transparency as a product of independently covering the news. This transparency in itself is an important factor in reducing uncertainty between groups and thereby the potential for violence.9

5 Ruti Teitel, Transitional Justice (Oxford: OUP 2000) p. 162.

6 The above quote is, tellingly, one of the relatively few references to the media in Ruti Teitel’s seminal work on transitional justice.

7 Price and Thompson (2002) p. 42.

8 Roland Paris, At War’s End. Building Peace After Civil Conflict (Cambridge: CUP 2004) p. 39.

9 Yusuf Kalyango and Fred Vultee, ‘Public Attitudes Toward Media Control and Incitement of Conflicts in Eastern Africa, Media, War & Conflict, vol. 5, no. 2 (2012) pp. 119-137, at p. 122.

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For some, this meant that the media can and should take an active part in the promotion of values of peace. In Bosnia and Kosovo, for example, international funders helped to set up moderate media that favoured reconciliation.10 This so-called peace journalism builds on insights from peace and conflict studies on the de-escalation of violence and the countering of prejudice. It is an acknowledgement that not just violence itself, but the representation of violence is a key factor for exercising power.11 It aims, amongst others, to change war discourse into peace discourse.12 The media are also a forum for accounts of the functioning of transitional justice mechanisms, thereby playing an important role in how these mechanisms are perceived and contributing to the degree of their success or failure.13 They may, in addition, offer alternative narratives to the official ones of truth commissions or judicial proceedings, contributing to discussions on the past and potentially even helping to implement the right to truth in a different way than state institutions can. These functions of the media fall outside of the scope of this chapter, which will rather focus on the media’s perceived role in threatening security and promoting violence in post-conflict transitions.

It is in that latter context that a paradox arises. In a post-conflict transition, fostering free media is often seen as part of a necessary effort to put in place watchdogs to critically follow what the state does. The move towards democracy and peace is then supported, ideally, by an active media sector. This would require a high degree of freedom of expression for journalists. On the other hand, the aim of preventing renewed calls for violence, or more indirectly preparing the ground for it, may call for intervention with the media, partly curtailing unfettered free speech. Practice seemed to require the latter, as in many situations the media did not change overnight to angels of democracy but rather continued to spread prejudice, hatred or fear and remained in the same hands.14 A ceasefire or peace agreement often meant that for the antagonists in the conflict 10 Krishna Kumar, ‘International Assistance to Promote Independent Media in Transition and Post-Conflict Societies’, Democratization, vol. 13, no. 4 (2006) pp. 652-667, at p. 664.

11 Jake Lynch & Annabel McGoldrick, ‘Peace Journalism’, in: Charles Webel & Johan Galtung (eds.), Handbook of Peace and Conflict Studies (London: Routledge 2007) pp. 248-264, at pp. 248-249.

12 See generally: Ranko Bugarski, ‘Discourses of War and Peace’, Folia Linguistica, vol. 34, nos. 3-4 (2000) pp. 129-146.

13 Lisa J. Laplante and Kelly Phenicie, ‘Media, Trials and Truth Commissions: ‘Mediating’ Reconciliation in Peru's Transitional Justice Process’, International Journal of Transitional Justice, vol. 4 (2010) pp. 207-229.

14 Laplante and Phenicie (2010) p. 214.

using the media became a continuation of war with other means. Or, when one side had clearly won out, the censuring of any alternative views which could threaten the status quo of those in power. The framing of the recent violent past was key: the ways in which this happened helped to shape in public perception who did what during the previous period of war, who was guilty, and what should be done with the perpetrators. De-legitimizing violence would be crucial in the transformation of conflict from violent to peaceful, as insights from conflict studies show.15 By contrast, presenting violence as an inevitable and acceptable tool of action is one of the most dangerous messages.16 This does not only happen through hate speech, but also by instilling existential fear of the other group.17

As the word paradox indicates, the contradiction is to some extent only an apparent one. First, freedom of expression is obviously not an absolute right, but one that can be legally restricted without automatically leading to a violation. The interference should have a legal basis, pursue a legitimate aim and be shown to be necessary as well as proportional.18 This human rights framework thus allows for a balancing of the freedom of expression of the media with other rights and interests. In the context of the escalation of violence, this first and foremost relates to the right to life. Proponents of media interventions to prevent violence have argued that giving precedence to freedom of expression in such situations leads to an imbalance “likely to benefit to wrong people.”19 A second important consideration is that the idea of a free press as the watchdog of democracy and as crucially beneficial for open societies does not always apply to societies in transition. One reason is that the much-hallowed free marketplace of ideas is even less of a reality in democratizing states than in full democracies. When the media do not function (yet) as open platforms for debate where different views confront each other and no corrective mechanisms such as regulators or press councils are functioning effectively, more free speech can lead to a “hijacking” of public discourse by nationalist myth makers.20 In such a context more media does not lead inevitably to more diversity. In effect, elites may each control highly segmented parts of the media market which

15 Jolle Demmers, Theories of Violent Conflict (London: Routledge 2012) p. 137.

16 Cees J. Hamelink, ‘Media Between Warmongers and Peacemakers’, Media, War & Conflict, vol. 1, no. 1 (2008) pp. 77-83, at p. 81.

17 Anna Simons, ‘Correspondence. The Dynamics of Internal Conflict’, International Security, vol. 24, no. 4 (2001) pp. 187-190. See also: Demmers (2012) pp. 28-29.

18 See espcially chapter 10 of: D.J. Harris, M. O’Boyle, E.P. Bates, and C.M. Buckley, Harris, O’Boyle and Warbrick. Law of the European Convention on Human Rights (Oxford: OUP 2009), 2nd Ed., pp. 443-513.

19 Mark Thompson, ‘Incitement, Prevention and Media Rights’, in R. Provost and P. Akhavan (eds.), Confronting Genocide (Dordrecht: Springer 2011) pp. 97-103, at p. 102.

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prevent people from being exposed to alternative ideas in other media.21 To assess media diversity one should thus not only look at the number of media outlets, but also at the actual access audiences have to a variety of media.22

The above shows that democratization, moving towards peace and security, and increasing the freedom of expression and freedom of the media are not processes that proceed self-evidently in parallel. Difficult trade-offs exist between these various aspects of moving societies in transition towards becoming more open. Applying standard ideas about media freedom, derived from established democracies, may be outright naïve and even dangerous in post-conflict transitions.23 To complicate matters further, states in transitions may be bound by international or regional human rights standards, limiting and channelling their options: both in the extent to which they can limit freedom of expression in the media and in the duty to protect people against harmful speech. Interferences with the media as part of post-conflict governance have understandably elicited a lot of debate. Such interferences with the media can take many forms, from prosecuting journalists or closing down specific outlets to a full-fledged disconnecting of digital networks.24 In that sense, both traditional mass media and social media can be targeted.

In the following section, media interventions in Bosnia and Herzegovina and Kosovo respectively will be assessed in the post-conflict phase to illustrate these dilemmas and dynamics. For Bosnia this means the period since 1995, for Kosovo since 1999. In each case study an

20 Jack Snyder and Karen Ballentine, ‘Nationalism and the Marketplace of Ideas’, International Security, vol. 21, no. 2 (1996) pp. 5-40, at p. 7.

21 During the conflict in Sri Lanka, for example, due to the segmentation of the media by language, different population groups learned very different things about the conflict: Lisa J. Laplante and Kelly Phenicie, ‘Mediating Post-Conflict Dialogue: The Media’s Role in Transitional Justice Processes’, Marquette Law Review, vol. 93, no. 1 (2009) pp. 251-284, at p. 257.

22 Ibid., 14-18

23 Tim Allen and Nicole Stremlau, ‘Media Policy, Peace and State Reconstruction, LSE Crisis States Research Centre Discussion Paper, no. 8 (2005) p. 4 (retrieved on 5 August 2013 from: eprints.lse.ac.uk/28347/1/dp08.pdf)

24 On the latter, see: Philip N. Howard, Sheetal D. Agarwal, and Muzammil M. Hussain, ‘When Do States Disconnect Their Digital Networks? Regime Responses to The Political Uses of Social Media’, APSA 2011 Annual Meeting Paper, ssrn.com, paper no. 1902981.

emphasis will be put on what are seen as turning point events that triggered more intense interference with and regulation of the media by international actors.

3. Post-Dayton Bosnia: Struggling With the Media

The media in Bosnia played an important role as a conduit for propaganda in the run up to the war that initiated the demise of Yugoslavia. In the Spring of 1992, months before the outbreak of actual hostilities, troops loyal to Slobodan Milosevic occupied a number of television transmitters in Northern and Eastern Bosnia, mostly but certainly not entirely Serb-populated areas. They blocked the signal of Bosnian television to these areas and set up specific Bosnian-Serb broadcasts. The unity of Bosnia’s broadcast space was thus already destroyed shortly before the war. The broadcasters began emitting hateful speech about Bosnia’s other two main ethnic groups, the Croats and the Bosniaks (i.e. Bosnian Muslims). For their part, Croatian media – which also had Bosnian Croats as their audience – began stirring up fear for a Greater Serbia that threatened the Croats.25 During the war itself the propaganda from all sides intensified, the threats and fears now supported by violence on the ground. Most media, rather than being independent watchdogs or scrutinizing and criticizing the violence, openly supported or were even directly controlled by the political leadership of the ethnic group whose views they put forward. Very few genuinely trans-communal media remained.

With the propagation of hatred, fear, and violence having been so present in the media, one could have expected that the General Framework Agreement for Peace (more commonly known as “Dayton”26) of December 1995 would have included clear rules on the media and inciting violence. The contrary was true. There were only a few references to communication and the media. Relating to elections, the parties bound themselves to ensuring freedom of the press.27 In the same context, a provisional election commission, under the auspices of the Organization for Security and Cooperation in Europe (OSCE), would have “the right to establish communications facilities”.28 25 Monroe Price and others, ‘The Experience of Intergovernmental and Non-Governmental Organizations. A Background Paper for the UNESCO World Press Day Conference in Geneva’, Cardozo Online Journal of Conflict Resolution, vol. 2, no. 1 (2000) pp. 1-55, at p. 5.

26 The peace agreements was initialled in Dayton, Ohio on November 21, 1995, and signed in Paris on December 14, 1995.

27 Article I(1) of Annex 3 to Dayton (Agreement of Elections).

28 Ibid., Article III(4).

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Within the context of the return of displaced people, the parties were committed to “the prevention and prompt suppression of any written or verbal incitement, through media or otherwise, of ethnic or religious hostility or hatred.”29 No enforcement mechanisms were specified for the latter.

These scarce provisions taken together were a far cry from a mandate for media oversight, let alone interference. This is all the more surprising for two reasons. First, Dayton represented one of the most extensive attempts of international governance of a whole state in decades. It included, amongst the involvement of a range of international organizations, a newly created position of a High Representative, answerable to a Peace Implementation Council (PIC) composed of a number of the most involved states and international organisations. The representative did not only coordinate the civilian part of the international presence but also wielded a wide range of so-called ‘Bonn Powers’ which allowed him to fire any elected or unelected public official in Bosnia and to introduce, change or abolish laws.30 The military task of making Bosnia more secure was given to stabilization force SFOR. Although Dayton included a wide array of human rights, it also cemented the war-time ethnic divisions that had been reflected in and strengthened by the media. Bosnia remained a weak state with very few central institutions and most powers in the hands of two so-called Entities, the Republika Srpska and the (Bosniak-Croat) Federation. Media policies and the power to legislate on media issues was placed with the Entities and within the Federation with the ethnically mostly monolithic regional units called cantons.

Secondly, it is unclear what caused this omission, apart from the time-pressure of putting the peace deal together in general. Some have suggested that it might have been a deliberate choice built on the hope that the media issue could be “addressed along the way”. Even the main American negotiator of Dayton, Richard Holbrooke, who had pointed to the pernicious role of the media, did not mention it as one of the various flaws he identified in the peace treaty afterwards. 31 It was an omission, which proved immediately problematic, however. The peace had entrenched local nationalist politicians in strongholds over which they held sway, also using the media under their control, and they had no interest in allowing for true media diversity (although the media outlets were numerous) or in halting sympathetic media to emit hate and fear speech about other ethnic groups – or within an ethnicity, against rival political factions. Political control which had existed for at least four decades in the former Yugoslavia continued unabated, albeit now along ethnic lines

29 Article I(3-b) of Annex 7 (Agreement on Refugees and Displaced Persons).

30 Bonn Peace Implementation Council Conclusions, 10 December 1997, retrieved from ohr.int/pic

31 Mark Thompson and Dan De Luce, ‘Escalating to Success? The Media Intervention in Bosnia and Herzegovina’, in: Monroe e. Price and Mark Thompson, Forging Peace: Intervention, Human Rights and the Management of Media Space (Edinburgh: Edinburgh University Press 2002) pp. 201-235, at p. 204.

rather than under unified communist control.32 This is what Price and Stremlau have dubbed a “market for loyalties”33 which successful political and social leaders have managed to segment to their own advantage. Some of the fundamental tools that had ignited the war in the first place thus stayed put in the post-conflict transition. The focal point in time in which this became most palpable was during election campaigns, since these were both the periods of the greatest risks of violence and permitted international actors to regulate the media based on the thin legal basis in Dayton in the specific context of elections. Relating to the media, Dayton under-regulated a sector rather than over-regulated it, as was the case with for example its discriminatory electoral provisions that the European Court of Human Rights later on found to be in violation of the ECHR.34

Dealing with risks of violence occurred along three lines, which partly influenced each other. The first was the somewhat haphazard development of media (self-)regulation. The second was the setting up and promoting of alternatives to ethno-nationalist media outlets. The third consisted of direct interferences with the media by international actors.35 The run up to the first postwar national elections of October 1996 saw the first actions of the international actors in Bosnia regarding the media. The realization dawned quickly that the divided and extremist media space would make it very difficult to have a free debate during the election campaigns and would be likely to enforce rather than weaken the power of the antagonists in the conflict. It was thus in the context of the elections that the OSCE set up a Media Experts Commission (MEC). The MEC created rules which required the media to “refrain from broadcasting incendiary programming”.36 A monitoring group was also set up under MEC. In addition, the Office of the High Representative (OHR) organized a workshop of journalists, in which it was indicated that war jargon should be avoided, which included terms such as “the Serb entity” and “the Muslim-Croat Federation”.37 Apart

32 Maureen Taylor and Michael L. Kent, ‘Media Transitions in Bosnia: From Propagandistic Past to Uncertain Future’, International Communication Gazette, vol. 62 (2000) pp. 355-378, at p. 371.

33 Monroe E. Price and Nicole Stremlau, ‘Media and Transitional Justice: Towards a Systemic Approach’, International Journal of Communication, vol. 6 (2012) pp. 1077-1099, at p. 1083.

34 ECtHR, Sejdić and Finci v. Bosnia and Herzegovina, 22 December 2009, Appl.nos. 27996/06 and 34836/06.

35 These three lines more or less correspond with three of the categories that Price and Stremlau have identified: law, subsidy, and force. They add a fourth category to it, negotiation.

36 Price a.o. (2000) p. 7.

37 David Chandler, Faking Democracy After Dayton (London: Pluto Press 200, 2nd ed.) p. 116

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from the irony that these very notions were used by international media when reporting on Bosnia, the most notable point is thus that the constant emphasis on the ethnic divisions in the country was in itself seen as dangerous. In addition, attempts to set up new and independent public radio and TV channels with balanced reporting and with state-wide reach failed because of open obstruction by nationalist local authorities.38 In the 1996 elections the nationalist parties won.

The election outcomes triggered a more robust approach by international actors than Dayton had originally provided for. The Peace Implementation Council decided in May 1997 to give the High Representative two key additional powers. One was drafted in the form of an obligation for Bosnian authorities at all levels to give the High Representative free access to news media, in effect giving him an opportunity to air his views on current affairs. The second was even more far-reaching: the High Representative was given a mandate to “curtail or suspend any media network or programme whose output is in persistent and blatant contravention of either the spirit or letter of the Peace Agreement.”39

The new powers were almost immediately put to the test, when internal power struggles within the Republika Srpska (RS) escalated in the wake of, this time, local elections. The two main factions were more radical nationalists united behind Radovan Karadzic in Pale and relatively more moderate nationalists under the leadership of RS president Biljana Plavsić, prepared to cooperate with the international presence in Bosnia. Her position was highly ironic in that during the war she had been known for her extremist views, as the quote at the start of this contribution illustrates. The strife also split the various production centres of Bosnian Serb television SRT. The main messages broadcast and reaching most people came from Pale. Apart from political propaganda against Plavsić – comparing her to Mussolini – and other opponents and continuing hateful speech against Islam, the Pope, and ethnic co-existence, the station also broadcast very negative messages about the peace agreement, in a documentary comparing SFOR troops with Nazi SS troops. The war of the words threatened to turn into real violence: when a US senator suggested that the SRT signals be jammed, the Bosnian-Serb information minister stated that such would be taken as an act of war.40 Eventually SFOR troops occupied a number of broadcast transmitters, upon the request of the High Representative. No backlash materialized.41

38 Emily Berman, ‘Democratizing the Media’, Florida State University Law Review, vol 35 (2008) pp. 817-892, at pp. 845-846. The Open Broadcasting Network set up in 1996 eventually even went bankrupt in 1999.

39 Peace Implementation Council Sintra Declaration, 30 May 1997, paras. 69 and 70 respectively.

40 Price (2000) p. 11.

41 Thompson and De Luce (2002) pp. 208-212.

The occupation of the transmitters was seen as a turning point in the international position concerning the media, as it seemed to show that there was a commitment to act against the most blatant forms of speech which could incite violence. It gave, at least for some time, an impetus to the effectiveness of media oversight since it was now supported by credible military clout. There are important factors which qualify this success, however. First, it shows that the trigger for the international actors was, in the end, hateful speech against themselves rather than the continuing ethnic hate speech. Secondly, as the transmitters were seized, local Serb radio stations, openly called for violence by asking their listeners to combat the occupiers and kick the internationals out.42 This showed that acting against one media outlet did not solve the issue for the whole sector. Although the TV programming became less infested with speech inducing violence and hatred, the sudden forcefulness of the international actors did not solve political control over the media. Shortly, the new Serb faction in power in the RS took fuller control of SRT.43

The intervention did trigger a structural change in a different way: the High Representative realized that such ad hoc interventions in combination with a lack of clear legislation on media freedom and the limits thereof was a perilous track to take. In effect, both the intervention itself and subsequent steps of regulation elicited very critical comments, also outside Bosnia, that the moves were induced by a desire of having a tame press and sanctioning criticisms of Dayton rather than fostering diverse media.44 In 1998 the Independent Media Commission (IMC) was set up as an interim body of partial international composition.45 In both respects, its temporary nature and its composition, it was clearly meant as an institution of a transitional nature. Its tasks were to issue broadcast licenses – which would submit all broadcasters to a licensing procedure and thereby reform the sector by freeing up licensing from political interference – and to regulate through codes of conduct the broadcast media. A separate Enforcement Panel would decide on grave violations of the codes of conduct. The written press became self-regulated through a voluntary code of ethics overseen by a press council, which later on expanded to cover electronic media such as online news websites.

42 Ibid., p. 210.

43 International Crisis Group, ‘Doing Democracy A Disservice’, ICG Balkans Report, no. 42, 9 September 1998, p. 11.

44 Ted Galen Carpenter, ‘Jackboot Nation Building: The West “Brings” Democracy to Bosnia’¸ Mediterranean Quarterly, vol. 11, no. 2 (2000) pp. 1-22, at pp. 7-8.

45 The basis for this were the Peace Implementation Council Bonn Conclusions of 10 December 1997.

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In its first year, the IMC issued a broadcasting code of practice, compliance with which was a requirement to get a license.46 The preamble indicated that the prevention of violence was one of the main reasons for the code in the first place. Its first article provided that media were bound not to broadcast material that carried a “clear and immediate risk of inciting ethnic or religious hatred among the communities of Bosnia and Herzegovina, or which by any reasonable judgement would incite to violence, disorder or rioting.”47 This provision seems to wed an American approach of relatively unfettered free speech except in the face of imminent harm (the first part) to a broader acceptance of restrictions (the second part). Indeed, the preamble also provided that the code was intended to conform with the freedom of expression, as laid down in the European Convention on Human Rights which allows for more restrictions than the American approach. Under the ECHR, a wide range of aims are considered legitimate in order to restrict freedom of expression. Article 10 ECHR provides that these include not just public safety or the prevention of disorder or crime, but also matters as the protection of morals or the reputation of others. The provision was elaborated upon in the IMC’s ‘Guidelines on the content of expressions related to violence’ which read as a barely disguised didactic book for responsible media.48. The IMC indicated it would expect the media to take precautions, such as downplaying and contextualizing in their reporting any statements which could incite to violence, depending “on the precise nature of the statement in question and the general level of tension in the community.”49 As part of a transition of powers to domestic institutions, the IMC merged with the telecommunications authority to become the new Communications Regulatory Agency in 2001 (CRA), retaining most of its functions. In a typical example of the uneasy relationship between national and international authorities, the 2003 Communications Law, which formalized the tasks and functions of the CRA, was originally imposed by the High Representative and soon after grudgingly adopted by Bosnian political institutions.50 Obstruction against CRA’s independence continued for years, most importantly by failing to appoint a director, with the result that the Agency remained under interim

46 Independent Media Commission, Broadcasting Code of Practice, 1 August 1998, amended in 1999 and 2000.

47 Ibid, Article 1.1.

48 Independent Media Commission, Guidelines on Reporting Provocative Statements, 9 June 1999 (Retrieved in April 2014 at: wu.ac.at/fowi/proje/geschlpro/rundf/bo ).

49 Ibid.

50 Interview with the director of Broadcasting of CRA, Helena Mandic, 19 June 2013, on file with the author.

guidance for a years. It was for a long time seen as a foreign implant,51 although it was in fact the first of Bosnia’s transitional structures that became entirely Bosnian in composition. The international interference also receded to the background in another respect: the High Representative issued no decisions relating to the media after 2002.52 The ad hoc approach had been replaced by an institutional and legal framework of media regulation.

Both the ad hoc interferences, especially the highly publicized military intervention against SRT, and the setting up of a media supervisor caused a lot of criticism. Unsurprisingly, this came from the media and their supporting political groups targeted. But very critical comments also originated from outside Bosnia. Harshly criticizing the whole attempt of regulation by international institutions in Bosnia, leading American newspapers such as the New York Times and the Wall Street Journal, warned for dangerous encroachments upon freedom of the press in articles with telling titles such as ‘Europe Should Leave the Balkan Media Alone’.53 The NGO World Press Freedom Committee issued a statement of concern pointing out that in states which were not fully democratic, media legislation and supervisory bodies have often been used to curtail the press.54

Notably, the criticism did not so much focus on the ad hoc interferences by the High Representative, but much more on the structural framework of media supervision. One could indeed have argued that rather than the ill-fitted and from, a human rights perspective, dangerously vague mandate of the High Representative to sanction broadcasts which went against the spirit and letter of Dayton, a clear framework should have been part and parcel of the peace agreement in the first place. Under a clearer legal regime with more safeguards, the interferences of the High Representative could have been justified as a restriction to the freedom of expression by using the justification of the pressing social need under the necessity test of Article 10 ECHR for example. Thus, one could at most say that a regulatory framework came too late, as several years of valuable time to act were lost immediately following the war.55 One could not, however, convincingly argue

51 Interview with director for media and policy research of the NGO Internews, Amer Dzihana, 18 June 2013, on file with the author.

52 According to the High Representative’s website at ohr.int (retrieved on 8 August 2013).

53 27 August 1999, Wall Street Journal. For these and other examples, see: Emily Berman, ‘Democratizing the Media’, Florida State University Law Review, vol. 35 (2008) pp. 817-892, at p. 856.

54 ‘World Press Freedom Committee Concerned About “Protection” Measure in BiH’, press release of 14 February 2000, www.ifex.org/fr/content/view/full/9577 (retrieved Apr 2014).

55 Berman (2008) p. 851.

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that no regulation should occur by invoking the freedom of the media, if the very purpose of the regulation was to wrestle local media from the grip of local politics and to make media outlets more accountable not to politicians but to transparent standards enforced in an independent way. The independence of the media had thus been under a very different threat (local) rather than the one the international criticism stressed (external). Moreover, media disagreeing with the decisions of the supervisor could always appeal them in court.

Once set up, the IMC and its successor CRA indeed worked independently and on the basis of a mandate clearly vested in human rights with sufficient procedural safeguards. The IMC, rather than being a dangerous encroachment on the freedom of the media as some critics warned it would be, was in practice rather seen as relatively timid at the start, by focusing on re-issuing licenses and setting up guidelines rather than constantly interfering with the media.56 In spite of the almost constant obstruction by local authorities and external criticism, the IMC (and later the CRA) continued its work. In its first three years, the supervisor dealt with approximately thirty cases of hate speech and violence-inducing broadcasting, after which the number declined. There were a few situations in which quick reactions were deemed necessary and orders were given to cease broadcasting immediately.57 One such example, was the IMC’s switching off, with SFOR support, of the TV signals of the company Erotel, which was illegally re-broadcasting Croatian television, a longtime vehicle of propaganda for the nationalist party HDZ.58 Another was the shutting down of the broadcasting of Radio Postaja Drvar for 90 days after it had played strongly nationalist songs associated with the armed conflict.59 The trigger for the supervisor to act was usually when broadcasts raised tensions and an imminent risk to public order and life was deemed to exist. Such an assessment was made on the basis a combination of riots or violence already happening fuelled by media reports.60 Thus both recent violence itself in combination with the framing of that violence

56 Thompson and De Luce (2002) p. 214.

57 Interview with Helena Mandic, supra note 47.

58 Thompson and De Luce (2002) pp. 217-218. This was also influenced by political changes in neighbouring Croatia, where the nationalist HDZ party was losing support: Price a.o. (2000) p. 14

59 Communications Regulatory Agency, Report on Cases of Violations of Rules and Regulations June 1998 – December 2001, p.14, at cra.ba (retrieved April 2014).

60 Interview with Helena Mandic, supra note 47.

in the media were relevant. On the whole, the regulator was eventually perceived as successful in combating the worst expressions of hatred, propaganda and violence-inducing speech in the broadcast media.61 This did not eliminate dangerous speech altogether, but it did put in place a system of rules and sanctions, albeit under continuing attacks on its independence. Ultimately these based themselves on the ECHR, which the Bosnian Constitution made directly applicable in the domestic legal order and which was given precedence over any other laws.62

4. Kosovo: Reiteration of Errors or Renewed Efforts?

The role of the media in the conflict in Kosovo had been different than in Bosnia, in the sense that antagonisms between the Serb minority and the Kosovar majority had been rising slowly during the decade of direct Serb rule since Slobodan Milosevic abolished Kosovo's relative autonomy in 1989. From then onwards the mass media were to a large extent taken over by Serbia, adding to a chorus of voices that painted the Kosovars very negatively as well as accusing them of terrorism against the Serb minority in Kosovo.63 As the situation turned into full-scale war in 1999, the media utterances on both sides became even more vehement. Once the armed intervention by NATO had succeeded, Kosovo became a territory under the governance of the United Nations in June 1999. The Security Council established an international civil presence, called UNMIK (United Nations Mission in Kosovo) awaiting a yet final status of Kosovo to be decided on later.64 As in Bosnia, the international governance structures were a constellation of various international organisations. This time, with the Bosnian media regulation experience still ongoing, the international organisations in Kosovo involved were keen to avoid the mistakes made in Bosnia. Vigorous regulation of the media was therefore one of the aims from the outset of international governance in Kosovo. However, these efforts would fail, partly because the context was different but also because of inter-institutional bickering. Both UNMIK, led by the Secretary-General's special representative Bernard Kouchner, and the OSCE saw a role for themselves in media reform and regulation. OSCE, whose mandate was democratization and the building of democratic institutions, wanted to develop and reform the media.

61 Tarik Jusic and L. Kendall Palmer, ‘The Media and Power-Sharing: Towards an Analytical Framework for Understanding Media Policies in Post-Conflict Societies. Public Broadcasting in Bosnia and Herzegovina’, Global Media Journal – Polish Edition, vol. 4, no. 1 (2008) pp. 110-139, at p. 128.

62 Article II-2 of the Constitution of Bosnia and Herzegovina, Annex 4 of ‘Dayton’.

63 Laura Palmer, 'A Very Clear and Present Danger: Hate Speech, Media Reform, and Post-Conflict Democratization in Kosovo', The Yale Journal of International Law, vol. 26 (2001) pp. 179-218, at p. 190.

64 United Nations Security Council, Resolution 1244, 10 June 1999, S/RES/1244.

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With the Bosnian experience in mind and with advice from experts who had worked on media in Bosnia, plans were made in the summer of 1999 to create a department of media affairs which would regulate and monitor the media, develop standards and support independent media. The primary focus in practice was on safety and security and easing tensions rather than on media diversity and freedom of expression as such. As this move coincided with regulation in Bosnia, it drew the exact same criticisms from certain international press freedom NGOs and American media mentioned in the previous section. The backlash in Kosovo of these criticisms was that the United Nations curtailed the prospective powers of the OSCE to sanction and penalise local media for transgressions such as incitement to hatred or violence. Whereas this may have avoided the fears of the international critics to materialise – an external censor in Kosovo – it did not in the least help to address the problem that the OSCE wanted to tackle. Many of the local media, especially the written press, virulently attacked all those criticising the new Kosovar politicians and even the international presence itself.65 It did finally lead to an act of regulation, when the UNMIK's head Kouchner promulgated an anti-hate speech regulation early in 2000 to counter speech inciting hatred against groups. Rather than halting negative or even dangerous statements in the press, it only changed the shape of such statements. Kosovar-Albanian media now targeted individual Serbs. OSCE could only issue public statements of warning but had no legal means at its disposal to curtail such utterances. One lethal incident in the Spring of 2000 became infamous in this regard, when within weeks of having been accused of war crimes in the newspaper Dita, a Serb UNMIK employee was found murdered. Dita had included his photo, home address and work schedule in the accusatory article.

The murder put media regulation back high on the agenda of the international community.66 It led to two new UNMIK regulations on the media, issued by Kouchner in June. Regulation 2000/36 installed a new functionary, the Temporary Media Commission (TMC) to develop and promote independent media and, importantly, to implement regulation of the media, for example by issuing broadcast licenses. This internationally appointed functionary did get the mandate to impose sanctions. The regulation also created a Media Appeals Board, to review his decisions, and specifically included rules on the issue that had triggered the regulation in the first place: “Radio and television operators shall refrain from broadcasting personal details of any person, including name, address or place of work, if the broadcast of such details would pose a serious threat to the life, safety or security of any such person through vigilante violence or otherwise.”67 The second regulation, 2000/37, established a similar rule for the print media and authorised the TMC to issue temporary codes of conduct.68 Both were meant as temporary solutions to address the most egregious and dangerous expressions in the media. They were also meant as a more systematic, law-based approach than the ad hoc reaction of Kouchner to the Dita incident: 65 Price a.o. (2000) pp. 33-34.

66 Palmer (2001) pp. 194/195.

67 UNMIK Regulation No. 2000/36 On the licensing and regulation of the broadcast media in Kosovo, 17 June 2000, article 5.1.

68 UNMIK Regulation No. 2000/37 On the conduct of the print media in Kosovo, 17 June 2000.

after the murder (rather than after the initial publication of the article) he had ordered the newspaper offices to be closed for over a week. That move in itself was heavily criticised by both international NGOs but also other local media. And even OSCE, although it publicly denounced irresponsible journalism, behind closed doors argued to Kouchner that such a measure was disproportionate.69 The new regulations posed problems of themselves, however. First, the TMC was to be independent but in the first month was the same person as the head of the OSCE Media Department. In addition, both regulations had an exception clause to the effect that it did not limit the head of UNMIK in any way to take action “as he may deem necessary for security reasons, to protect life, or to maintain civil law and order.”70 This gave Kouchner leeway, or in the eyes of his critics a dangerous carte blanche, to act swiftly in cases of possible escalation of violence triggered by the media. Finally, the lack of separation of powers was a weak point as the TMC would both issue develop a regulatory framework as well as supervise and enforce it. In the first months of its existence, the TMC was severely tested as the same journal, Dita, published more names of alleged war criminals, in open defiance of the new rules, and continued to do so even after the TMC imposed sanctions. Eventually, the newspaper was once more, but this time by the TMC, ordered to shut down for some time. The appeals mechanism put in place overruled this decision and held that there had been a lack of procedural safeguards.71 While this increased the trust in the appeals system, it still did not solve the underlying issues.

The TMC did start to issue codes of conduct for the broadcast and print media. Contrary to the earlier UNMIK regulations, these included more explicit and precise human rights language and came about after consultation with national and international media and human rights organisations. Both codes explicitly included the freedom of expression guarantees and the limitation system of Article 10 ECHR. They prohibited denigration of ethnic or religious groups, especially when such denigration implied that groups as such are responsible for crimes, and media utterances carrying the imminent risk of death, injury, damage to property or other violence.72 Incitement to hatred and violence were later also more generally prohibited in the Provisional Criminal Code of Kosovo of 2003.73 The codes complemented the UNMIK regulations. Internal rules of procedure were also put in place which guaranteed better procedural justice by way of a partly international hearings board and an appeals board.74

69 Julie Mertus and Mark Thompson, ´The Learning Curve: Media Development in Kosovo, in: Price and Thompson (2002) pp. 259-286, at p. 270.

70 Article 4.2 and 5.2 respectively of the two Regulations.

71 Mertus and Thompson (2002) pp. 274-275.

72 Council of Europe, UNMIK Report related to the Framework Convention on National Minorities, 2 June 2005, AFC(2005)03, p. 96

73 Ibid., p. 97.

74 Mertus and Thompson (2002) p. 277.

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As in Bosnia, media regulation was an issue specifically at times of potential heightened tension such as during election time. The UNMIK Central Election Commission issued rules in the summer of 2000, in the run up to that Autumn´s municipal elections. The rules provided for fair and equitable news coverage of all participating political parties and an explicit prohibition for political parties of incitement to hatred. A new TMC, with experience in Bosnia, was appointed. The elections did not see any violence, partly due to more moderation in the media.75 In the years after, however, incitement to hatred did still at times feature in the media.

The key turning point which finally sensitized most of the local media about the dangers of imprecise reporting were the March 2004 riots in Mitrovica, the Serb enclave in the north of Kosovo. When a group of Kosovar Albanian children played on the side of the river where Serbs lived, they were allegedly chased by a dog and while trying to escape through the river, three of them drowned. Although there was no proof that the Serbs had made the dog chase the children, the events were framed on the evening itself on national television as an ethnic Serbian attack against Albanians. This frame of events spread throughout the media and was reiterated for hours, without carefully checking witness accounts or awaiting official investigations. As a result, ongoing protests against UNMIK in the area grew greatly in size and turned violent. Across Kosovo Serb buildings and homes were attacked. Within two days almost twenty people from both sides had died, hundreds were injured and thousands had fled for protection to international military bases for shelter.76

Although external observers found that the media did not call for violence as such, they did point to the exacerbating effect of how the media, specifically Kosovar television reported on the events. As the OSCE Representative on Freedom of the Media stated, “without the reckless and sensationalist reporting on 16 and 17 March, events could have taken a different turn. They might not have reached the intensity and level of brutality that was witnessed or might not have even taken place at all.”77

The consequences of the riots for the media situation were twofold. Firstly and most importantly, it was seen as a watershed by the media themselves. Reporting on ethnic issues became much more moderate and restrained, leading even to self-censorship or an almost apathetic stance by the media.78 This effect shows how events beyond legal regulation can have an important impact on the behaviour of the media. This puts the potential reach of media rules and oversight into perspective.

75 Ibib. 278.

76 International Crisis Group, Collapse in Kosovo, Europe Report no. 155, 22 April 2004.

77 OSCE Representative on Freedom of the Media, The Role of the Media in the March 2004 Events in Kosovo (2004) p. 3.

78 Interview with Shkamb Qavdarbasha, researcher at NGO Institute for Policy Development, 30 May 2012, and interview with Agron Bajrami, editor in chief of newspaper Koha Ditore, 1 June 2012, both on file with the author.

Secondly, it put media reform and oversight once again high on the agenda of international governance in Kosovo. The transfer of supervision from international to national governance came in 2005. That year, the Independent Media Commission was created to be a Kosovar broadcast media supervisor. The same year saw the birth of the Kosovo Press Council, a self-regulatory body for the written press. Noticeably, negotiations between OSCE and local media on the setting up of the Press Council went smoothly and quickly. The reason for this can be found in the wish of the local press to get away from the rules and fines of the Temporary Media Commissioner. Another incentive was that a new defamation law included a clause that complainants should first go to the Press Council before turning to courts, if the complaint related to media who were members of the self-regulatory system. The written media themselves were thus given control through this mechanism of regulating excesses, with the court system as a backup.79 The Kosovo Press Council received almost no complaints about hate speech, potentially showing a change in the way media publish on these issues.80

Thus, even before the formal declaration of independence in 2008, media-related institutions had thus been transferred formally and practically from the international to the internal governance structures in Kosovo. Soon after the 1999 war, Kosovo´s media outlets popped up in large quantities, yielding a highly crowded media scene largely supported by external donors' wishes to increase media diversity after the conflict. With the donor money decreasing, viability of media is at stake. Persistent problems are threats and other forms of pressure exerted on journalists. Many outlets are now owned by businesses, affiliated sometimes to certain political parties. 81 Hate speech against ethnic groups is no longer a large scale problem in the mass media, but has popped up in online media, where user comments can contain extreme hate speech. In many ways, Kosovo has thus transitioned from a post-war media environment to one in which more common media problems play a role. International human rights norms, including the freedom of expression, have at least formally been included in the domestic legal order of post-independence Kosovo. The Constitution, just like the Bosnian one, makes international human rights such as those laid down in the ECHR directly applicable in the national legal order and gives them precedence over national legislation.82 Notably, the Constitution also provides that the human rights contained in it “shall be interpreted consistent with the Court decisions of the European Court of Human Rights.” 83 This entails that an interpretation of freedom of expression in the context of violence shall be closer to the European than the American approach.

79 Cees van Zweeden, ´The State of the Media in Kosovo´, Helsinki Monitor: Security and Human Rights, no. 2 (2007) pp. 138-149, at p. 140.

80 Interview with the director of the Kosovo Press Council, Nehat Islami, 30 May 2012, on file with author.

81 For a general overview, see: Institute for Development Policy, State of the Media in Kosovo (2012), www.indep.info (retrieved in April 2014).

82 Article 22 of the Constitution of the Republic of Kosovo.

83 Article 53.

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5. Conclusion

The experiences of international governance related to the media in Bosnia and Herzegovina and Kosovo show how extremely difficult it is to find the right balance between freedom of expression for the media and protection of life and limb of vulnerable groups against violence as a result of hate speech and violence-inducing reports in the media. From an international law point of view the right to life and the prohibition of discrimination are pitted against free speech norms. The former two can be regarded as legitimate goals for restricting freedom of expression in specific instances. They may entail a positive obligation to act for the state – or in specific instances international governance institutions – in order to prevent dangerous violence. Since neither of these norms are absolute, international law does not provide clear cut answers to practical instances in which this problem occurs. Rather, it always involves a balancing of two countervailing interests, each underpinned by specific human rights. Procedurally, any interferences with expressions in the media should be provided by law and should permit for review. Substantively, interferences should pass the necessity test which involves, under both European and international human rights law, a proportionality assessment.

These legal problems, complicated in themselves as they may be, are compounded by the specific challenge of post-conflict reconstruction. Especially if two varieties of transitions are intertwined: a shift from conflict to stable peace and a parallel shift of opening up and democratising authoritarian state systems. Simultaneously pursuing these two, a so-called double transition, in Bosnia and Herzegovina and Kosovo was extremely challenging. The first shift emphasizes the policy goal of order and security and thus gives precedence to the protection of the vulnerable and to the prevention of violence. The second shift aims to foster democracy by giving space to free media and thus tends to favour the freedom of expression as the underlying key right. The aims of media diversity in order to foster more open societies and responsible media behaviour, backed by state sanctions, are very difficult to pursue simultaneously. In situations of (semi-)international governance, such as the two Balkan case studies, these challenges are exacerbated by the perennial tension between external, international oversight and sanctioning on the one hand and ownership and self-regulation by domestic actors on the other hand. This may push international law to the fore or to the background, depending on the interest of the particular stakeholder at hand. The vicissitudes of the policies and laws in both Bosnia and Kosovo show that not only the internal pressures from below in the societies concerned matter, but also inter-institutional battles between the international actors involved as well as external, global criticism by media and NGOs. Even taking lessons learned from one situation of international oversight to another has proved to be very difficult. Finally, the limitations of legal regulation as such in post-conflict societies are illustrated by the large influence of singular events such as election coverage or the framing of riots by the media and the potential backlashes of these.

In any event, what has to be kept in mind is that media freedom as such in post-conflict situations cannot be automatically equated to the situation in more established democracies. Diversity and quantity of media outlets are important, but as long as media audiences remain highly segmented, for example along ethnic lines, the dynamics of a free flow and exchange of ideas

remain an ideal rather than a reality. In the short term this may necessitate more intrusive interferences with the media than would be acceptable in more stable states. However, even these more far-reaching interferences with the media should comply with international human rights standards. Reforming and fostering the media is not a short-term endeavour, however, and even once national governance structures or self-regulation have replaced international oversight, problems of media behaviour obviously may persist. Hate speech may shift focus. As it did in Kosovo, where it went from mainstream media to online outlets and from journalists´ utterances to user-comments. Or as it did in Bosnia, where hate speech in the media now targets business opponents of the owners of those media, or foreigners, or gay people. Both represent strange kinds of ´normalization´: within a decade after the wars concerned the characteristics of a post-conflict transition decrease, whereas those similar to a post-authoritarian transition increase. Ostensibly, the medium is not just the message but also the phase of the transition.

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