On January 29, 2020, former senior official for Jaysh al-Islam Majidi Mustafa Ne’ma (known by his nom de guerre as Islam Alloush) was arrested in Marseille, France. Two days later, he was indicted by the war crimes unit of the Paris Tribunal de Grande Instance for torture, enforced disappearances, enlistment of child soldiers, and complicity in such crimes. As a spokesman, Alloush was alleged to be instrumental in Jaysh al-Islam’s reign of violence in Eastern Ghouta for nearly six years through a propaganda campaign, radicalizing the minds of followers in order to commit grave atrocities against the people of Syria. Following precedents established by international tribunals, French prosecutors have the ability to achieve justice for victims of Jaysh al-Islam by prosecuting him for instigating the noted crimes. But these types of cases show that connecting a propagandist to the crimes may be challenging.
Alloush’s indictment marks the first investigation into crimes committed by Jaysh al-Islam, the Saudi-funded Islamist rebel group. The group of more than 20,000 fighters joined the resistance against Syrian President Bashar al-Assad in 2011, controlling Eastern Ghouta and subsequently committing international crimes against civilians living there until it lost control in April 2018. Since Jaysh al-Islam has not been designated as a terrorist organization by the United Nations, European Union, or France, this removes the possibility of prosecution of Alloush and other Jaysh al-Islam members based solely on their membership in a terrorist organization in France. However, undeniably cruel acts committed by the group still demand justice, forcing France to look for alternative means of liability.
In his former role as a senior official, Alloush allegedly served as the spokesman of Jaysh al-Islam until 2017. Thus, following his arrest and conviction, France now faces the difficult task of connecting Alloush’s position as a spokesperson with the criminal acts carried out by the group in order for the Tribunal to find him responsible for the convicted crimes.
Some precedents are instructive. The Nuremberg Tribunal was the first to address the role of media in the perpetration of international crime in a series of propaganda cases. Amongst them was the trial of Julius Streicher, the editor-in-chief of Der Stürmer, an-anti Semitic newspaper which incited violent contempt for Germany’s Jewish citizens. Through this medium, Streicher was found guilty of persecution as a crime against humanity as a result of his incitement to murder and extermination. In subsequent cases of Hans Frtizsche, head of the Radio Division of Joseph Goebbels’s Propaganda Ministry, and Otto Dietrich, the Third Reich’s Press Chief, were also convicted, showing the relationship between hate speech and large-scale human rights violations.
Six decades later, the International Criminal Tribunal for Rwanda followed suit in “The Media Case,” wherein members of the radio station RTLM and the Kangura newspaper were convicted for direct and public incitement to genocide, a codified crime under Article 3(c) of the Genocide Convention of 1948. The case examined the role of the radio station RTLM and newspaper Kangura in the proliferation of violence during the 1994 genocide in Rwanda—namely how words used in the media can be a complement to bullets in their incitement to killing. In using media, they disseminated hatred and violence and caused the deaths of thousands. The Court recognized the freedom of expression guaranteed by human rights law, but considered that the statements of the accused were so egregious as to be criminal.
Even if members of the media do not bear the instruments of killing, they can be held accountable for international crimes they incite, regardless of whether the incitement was successful or whether other factors that may have influenced perpetrators. Nonetheless, other cases have faltered due to strong protections for freedom of expression. When a spokesman for the Democratic Forces for the Liberation of Rwanda (FDLR), Callixte Mbarushimana, was accused of incitement to genocide, French authorities defended his freedom of expression and the ICC ultimately dismissed his case for insufficient proof. He continues to be suspected of other charges.
While charging Alloush with the crime of incitement similar to Streicher presents one path to prosecution, the crime of incitement has customarily been limited to incitement to genocide. In the absence of a genocide charge, Alloush’s alleged calls for the commission of crimes by Jaysh al-Islam may alternatively be considered from the perspective of instigation. Finding Alloush responsible for the crimes of Jaysh al-Islam as their spokesmen through this mode of liability presents a greater challenge because in prosecutions for war crimes, proof of inflammatory statements is not enough; proof of underlying harm (i.e. torture, recruitment of soldiers, etc.), and Alloush’s connection to and prompting of the harm, is required.
To be clear, there is reason to believe that Islam Alloush’s involvement exceeded merely that of a spokesperson and that he was part of the senior leadership of Jaysh al-Islam. He may further have been responsible for the disappearance of numerous Syrian civilians. He should be prosecuted for the full extent of his criminality. Authorities should also take this opportunity to ascertain the fate of those kidnapped by Jaysh al-Islam.