Since Russia invaded Ukraine, Putin has struggled to keep his own people from joining the rest of the world in protesting the war. Following demonstrations, Putin heightened censorship of news media and journalists in Russia. Stifling dissent is a way for Putin to maintain control over the narrative of the war in Ukraine within Russia; if he can control the narrative, then he is more likely to remain in power. Censorship and control of information has been a hallmark of the Putin regime for years, but newly enacted laws have enhanced these measures to extremes not seen since the Cold War. This article will examine the new censorship regime, what it means for Russian journalists and Russian citizens, and the human rights legal implications.
The new censorship laws:
There are three central new laws that have been passed since the invasion of Ukraine aimed at cracking down on the free flow of information about the war. The Criminal Code of Russia, in article 207.3, provides that disseminating “false information” about the use of the Russian military can be punished with up to 15 years in prison and a fine of up to 5 million rubles. This law prevents anyone in Russia from using the word “war” to describe Russia’s conflict with Ukraine. Article 280.3 criminalizes “public activity aimed at discrediting the use of the Russian military” and imposes harsher sentences for “legal entities” than for individuals, meaning that newsrooms would face harsher punishments than lone protestors. Article 284.3 criminalizes supporting any sanctions or criticisms of Russia, Russian individuals, or Russian entities.
Taken together these laws stand to severely punish anyone who shares information that contradicts Putin’s official characterization of the war, or even demonstrates support of the retaliatory measures being taken by the rest of the world. In addition to these three laws, a Russian court banned Facebook and Instagram because several posts called for violence against Russian soldiers. Social media websites offer Russian people a way to communicate, share information, organize protests, and express dissent. Blocking these websites further isolates Russians from the truth of the war and silences any expression against the war.
Impact on Russian journalism:
Independent Russian news outlets have all been closed down or taken over by state entities and dissent within Russia has been completely stifled, leaving the Russian people in an information blackhole.
The last independent Russian television station, TV Rain, had previously struck a balance between accurate reporting and not drawing attention to itself for overtly oppositional content. However, on March 3rd, TV Rain aired its last newscast after receiving a letter ordering them to be shut down, because they allegedly spread “false information about the nature of the special military operation in Ukraine” and had encouraged the Russian public to protest. TV Rain’s final broadcast ended with video of Tchaikovsky’s Swan Lake, referencing the Soviet era practice of playing Swan Lake on loop during media blackouts. Similarly, the liberal radio station Echo of Moscow was taken off the air on March 1st and taken over by the state run radio channel, Radio Sputnik. The station had been reporting on western sanction and anti-war protests.
Many journalists have fled Russia after being labeled “foreign agents” or out of fear of rumors Putin will impose martial law and abrogate civil rights. Some reports estimate 150 journalists have fled Russia. It is not only journalists suffering the consequences of the information control regime. As of March 9th, 13,500 anti-war protestors have been arrested, and many activists are fleeing Russia. Russia is silencing any and all forms of dissent within its borders.
For the people of Russia, this means they are living in an “information blackout” where there is only one narrative and source of information. Independent United Nations human rights experts said this information blackout amounted to “gagg[ing] and blindfold[ing]” the whole country.
Russia’s Human Rights Obligations:
Russia is violating its human rights obligations under the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which oblige member states to protect freedom of expression. This section will examine Russia’s obligations to uphold the freedom of expression under the ECHR and how it is likely violating those rights, then briefly address the same issue regarding the ICCPR.
Article 10 of the ECHR provides for the freedom of expression, including freedom of the press and broadcasting media. The European Court of Human Rights (the Court) determines when a member state’s restrictions on the freedom of expression violate article 10. The Court has found state actions violate article 10 of the ECHR when they restrict a person’s ability to freely express opinions or share information; some restrictions on expression may be permissible if they are lawful under the state’s domestic laws, have a legitimate aim, and are necessary and proportionate to the legitimate aim. The Court has established that journalists are afforded substantial protection of their freedom of expression, because of their role in contributing to open debate, and facilitating the public’s right to access to information.
Russia’s suppression of dissent from the media and protestors violates article 10 of the ECHR by restricting Russian citizens’ ability to express their opinions about the war against Ukraine and by restricting the freedom of broadcast media. Even though Russia’s actions (arresting protestors and shutting down media outlets) are technically lawful under the newly enacted domestic laws, these actions still violate article 10 of the ECHR. They have no legitimate aim and are not necessary nor proportionate to the legitimate aim.
Article 10, paragraph two, defines “legitimate aims” for the purposes of restricting the freedom of expression. Generally, legitimate aims include those that help maintain democracy, national security, and public safety. Russia’s new censorship laws do not accomplish any of these aims. The laws have already shown to create fear, deter the sharing of reliable information, and stifle valid criticisms of the government. When determining whether a state’s actions have violated the ECHR, the Court has found that lack of a legitimate aim can itself amount to a violation, without having to further inquire whether the act was necessary and proportionate to achieving that aim. Here, if the Court believes the heightened criminalization of dissent serves no legitimate aim, that alone may amount to a violation of article 10.
Russia’s restrictions on journalism are not necessary and proportionate to any alleged aim under the precedent established by previous cases before the Court. Most notably, when determining whether a state’s restriction on expression is necessary and proportionate to some legitimate aim, the Court will consider the nature and severity of sanctions. Here, the criminal punishments include violators being sentenced to up to 15 years in prisons and millions of rubles, as well as the potential for enhanced sentencing for news outlets.
The Court would likely find Russia is violating its human rights obligations under the ECHR article 10 because these restrictions on the freedom of expression serve no legitimate aim, are not necessary and proportionate to any alleged legitimate aim. These new censorship rules do not align with the Court’s broad interpretation of article 10, which affords journalisms the broadest freedom of expression.
Russia’s human rights obligations under the ICCPR closely mirror its obligations under the ECHR. Article 19 of the ICCPR requires that member countries protect the right to freedom of expression, including freedom to seek, receive, and impart information in any media form. This right may only be infringed where infringement is required by law and reasonably necessary to protect others’ rights, national security, or public health or morals. These obligations and limitations are analogous to the language of the ECHR article 10. Here too, Russia lacks any legitimate reason to so severely punish independent journalists and stifle dissent.
Conclusion: Potential for accountability
The suppression of free journalism is not the only human rights violation Russia must be held accountable for as it wages a devastating war against Ukraine, but ensuring the Russian people are aware of the reality of the war in Ukraine will be essential to hold Putin accountable and help the Russian people eventually reconcile with this war.
Individuals can bring claims against state governments for violating the ECHR at the European Court of Human Rights. However, it is unlikely the Court will be able to accept new complaints against Russia because on March 16th Russia was expelled from the ECHR as a reaction to its invasion of Ukraine. Russia will fully cease to be a member of the ECHR in September, so the ECHR can conclude ongoing issues, but may not take on new cases. As far as the ICCPR is concerned, Russia has ratified an optional protocol which allows individuals to submit complaints concerning violations of the ICCPR to the United Nations. United Nations investigators would need permission to enter Russia to gather evidence for any charges, reports, or recommendations, and it is unlikely Russia would allow such an investigation. These already existing treaty regimes seem unlikely to impose material consequences on Putin’s oppressive regime. The global community has taken unprecedented steps to hold Russia and Putin accountable for their human rights violations in Ukraine, including initiating an ICC investigation and imposing harsh sanctions. In addition to these measures, international organizations and world leaders cannot ignore the suppression of rights against the Russian people, which enables the violence in Ukraine.
Author Biography: Meredith Gusky is a 2L at the George Washington University Law School and graduate student at the Elliott School for International Affairs. She received her undergraduate degree from the University of Oregon where she majored in International Studies and minored in Spanish and European Studies. Meredith serves as a senior moderator for ILPB and is a member of the International Law in Domestic Courts Journal.Tweet