Freedom of expression in armed conflict : The silence between spaces

Abstract: This thesis investigates the relationship between international human rights law (IHRL) and international humanitarian law (IHL) in regards to the right to freedom of expression in armed conflict. Freedom of expression is a touchstone of other human rights and a cornerstone of democracy. Digital technology, social media and the internet have enormously facilitated the exercise of this right and completely changed how societies seek, receive and share information. These changes have significant impacts in situations of armed conflict, where the stakes of ensuring access to accurate information are raised even further. However, despite significant research on the relationship between the application of IHRL and IHL during armed conflict, freedom of expression remains an underexplored area. A deeper look on a normative level at the right to freedom of expression in armed conflict reveals a dynamic relationship between IHRL and IHL. This research shows that the protection and fulfilment of the right to exercise freedom of expression under IHRL is a core mechanism for fulfilling the obligations to respect and ensure respect under IHL. In addition, IHL provides complementary protections aimed at addressing the specific vulnerabilities of the exercise of freedom of expression presented by situations of armed conflict. The IHL provisions import lessons from history that those who speak out against atrocities and violence are often silenced and that the dominance of one narrative and interest can lead to further violations of international legal standards. Recourse can therefore be made to IHRL standards in interpreting these requirements under IHL. In such circumstances, IHRL may offer individuals an opportunity to secure their rights under IHL through IHRL enforcement mechanisms where these rights are complementary to the protection of freedom of expression under IHRL. Simultaneously, the application and interpretation of the right to freedom of expression can inform the implementation of other IHL obligations that impact the exercise of freedom of expression, such as addressing the spread of misinformation as a ruse of war or where the parties to the conflict block access to the internet and other information sources. Further, the situation of armed conflict changes the context in which the right to freedom of expression may be exercised. Depending on the nature of the interference with the right and particular facts, it is necessary to refer to IHL in order to understand how the right operates in the context of armed conflict. This cross-referencing between the two bodies of law is necessary to uphold the rights contained therein and to implement the corresponding obligations coherently. Doing so reveals opportunities and solutions to address issues raised in the concurrent application of both bodies of law. That said, unless the proper balance is achieved between these overlapping norms, the protections afforded under both risk being undermined. As freedom of expression is a cornerstone of democracy, understanding the legal framework applicable to its exercise in armed conflict is essential to keep the whole house from tumbling down.