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Download Report INDEPENDENT HIGH LEVEL PANEL OF LEGAL EXPERTS ON MEDIA FREEDOM Appointed by Lord Neuberger of Abbotsbury at the request of the Governments of the United Kingdom and Canada A Pressing Concern: Protecting and Promoting Press Freedom by Strengthening Consular Support to Journalists at Risk Drafted by: the Honourable Professor Irwin Cotler, PC, OC, OQ © International Bar Association 2020 A Pressing Concern: Protecting and Promoting Press Freedom by Strengthening Consular Support to Journalists at Risk An International Bar Association Human Rights Institute Report 16 November 2020 Drafted by: the Honourable Professor Irwin Cotler, PC, OC, OQ With the executive summary and recommendations endorsed by the members of the High Level Panel of Legal Experts on Media Freedom: Lord David Neuberger (Chair) Amal Clooney (Deputy Chair) Ms. Hina Jilani Professor Dario Milo Professor Sarah Cleveland Baroness Helena Kennedy Mr. Can Yeğinsu Ms. Karuna Nundy Ms. Galina Arapova Justice Manuel José Cepeda Espinosa Professor Kyung-Sin Park Baroness Françoise Tulkens Ms. Catherine Anite Judge Robert D. Sack, Adviser 2 International Bar Association Human Rights Institute Contents Endorsements 6 Executive summary 7 The importance and imperative of consular assistance as a tool to protect journalist nationals at risk abroad: towards a legal paradigm of home State obligation 9 A legal approach to consular assistance for journalists at risk abroad 10 Journalists’ underlying rights when working abroad 12 What can be done to protect journalists working abroad? 13 TOWARDS A CHARTER OF RIGHTS FOR DETAINED JOURNALISTS: A NEW RIGHTS-BASED PARADIGM 13 PROTECTING JOURNALISTS’ RIGHTS ABROAD: ENSHRINING A CODE OF CONDUCT FOR THE PROVISION OF CONSULAR ASSISTANCE BY THE HOME STATE 15 Global accountability through an international commissioner 17 I. Scope and acknowledgements 18 Institutions 18 Representatives of international organisations 19 Individuals 19 LEGAL 19 MEDIA 19 Personal history with consular assistance: consular assistance and protection in international law 20 CONSULAR ASSISTANCE AND PROTECTION FOR DETAINEES IMPRISONED ABROAD: PERSONAL REFLECTIONS AND LESSONS LEARNED THROUGH THE LOOKING GLASS OF CASE STUDIES 20 ROLE AS LAW PROFESSOR 21 ROLE AS INTERNATIONAL LEGAL COUNSEL TO POLITICAL PRISONERS AND TARGETED JOURNALISTS 21 ROLE AS PARLIAMENTARIAN ON BEHALF OF POLITICAL PRISONERS AND JOURNALISTS 26 ROLE AS MINISTER OF JUSTICE AND ATTORNEY GENERAL: MAHER ARAR AS A CASE STUDY 30 ROLE AS CHAIR OF RAOUL WALLENBERG CENTRE FOR HUMAN RIGHTS: CASES OF SAEED MALEKPOUR AND RAIF BADAWI, JOURNALISTS UNDER ARBITRARY DETENTION AND TORTURE 32 A Pressing Concern: Protecting and Promoting Press Freedom by Strengthening 3 Consular Support to Journalists at Risk II. Introduction A pressing concern 38 A free press protects human rights 38 The safety of journalists is at the core of a free press 40 Case study: Mohamed Fahmy 40 Who is a journalist? 42 Case study: Raif Badawi 44 War correspondents 48 III. Consular assistance and the protection of international journalists 49 Introduction 49 The importance of consular support as a tool to protect nationals abroad 50 Case study: Dawit Isaak 53 Consular support as a State right 56 Case study: Dr Wang Bingzhang, Huseyin Celil and Sun Qian 57 Traditional approach to consular support as a State obligation 61 Contemporary developments in consular support as a State obligation 63 MOVEMENT AWAY FROM THE VATTELIAN FICTION 63 Consular support as a home State obligation 65 Case study: the US 68 Case study: Declan Walsh 71 The particular situation of dual nationals 72 Case study: Nazanin Zaghari-Ratcliffe 74 IV. Underlying rights relevant to consular support for journalists 76 Introduction 76 Freedom of expression and freedom of the press 77 Case study: UN resolutions and declarations on media freedom 79 Case study: Maria Ressa 81 Arbitrary detention 84 Case study: Saeed Malekpour 84 Case study: Ekpar Asat 88 Torture and inhuman treatment 89 Case study: Maher Arar 93 4 International Bar Association Human Rights Institute V. Strengthening consular support for journalists at risk: recommendations and minimum standards 96 Introduction 96 TOWARDS A CHARTER OF RIGHTS FOR DETAINED JOURNALISTS: A NEW RIGHTS-BASED PARADIGM 96 GLOBAL ACCOUNTABILITY THROUGH AN INTERNATIONAL COMMISSIONER 100 PROTECTING JOURNALISTS’ RIGHTS ABROAD: ENSHRINING A CODE OF CONDUCT FOR THE PROVISION OF CONSULAR ASSISTANCE BY THE HOME STATE 101 Consular preparation 102 Consular training 103 Consular obligation to investigate 103 Provision of consular support 104 Ensuring accountability for the home State 106 ENDING IMPUNITY FOR THOSE WHO THREATEN A FREE PRESS 107 REFUSING TO ALLOW REPORTING TO BE SILENCED 108 Case study: Daphne Caruana Galizia 108 VI. Conclusion 110 A Pressing Concern: Protecting and Promoting Press Freedom by Strengthening 5 Consular Support to Journalists at Risk Endorsements Committee to Protect Journalists Felice Gaer, Director of the Jacob Blaustein Institute for the Advancement of Human Rights and Former Vice Chair United Nations Committee against Torture RSF RÉFÉRENCES COULEUR : LOGO EN R1 17/12/19 R=0 V=0 B=0 R=228 V=0 B=70 UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Irene Khan 6 International Bar Association Human Rights Institute Executive summary The importance and imperative of press freedom – and the particular salience of consular assistance in securing it – is exposed and expressed in the context of the current pandemic. While the world witnesses the rapid spread of Covid-19, there is an equally virulent pandemic of assaults on media freedom, underpinned by a crisis of democratic recession and global resurgence of authoritarianism. Consequently, journalists and media organisations have been increasingly targeted due to the crucial, though often under-appreciated, role they play in ensuring a free and informed society. To prevent the press from exposing human rights violations and promoting public scrutiny of government action, a growing number of States have engaged in both overt and covert efforts to censor, discredit and silence their work.1 Indeed, every day, journalists and media personnel around the world fall victim to arbitrary detention, violence or intimidation on account of their work.2 These attacks resonate beyond their individual cases, being not only attacks on free expression, but also exponential assaults that silence the subjects of the reporting and deprive the public of their stories. By threatening and targeting journalists, States seek to send a dissuasive message, suppressing those who would report on their wrongdoings. A free press is essential for exercising human rights and fundamental freedoms; it lies at the core of democratic values. In order for citizens to hold their governments to account, they need free and independent news sources to provide them with accurate information and informed analysis.3 Accordingly, any attempt to threaten the independence or safety of journalists is fundamentally anti-democratic.4 The States that interfere with the vital work of international journalists do so, most predictably, because they fear this free flow of information. They know that if journalists cannot report on their abuses, such crimes can continue with impunity. But while the global crackdown on media freedom may be more pronounced in authoritarian regimes, democracies are certainly not immune. According to the Committee to Protect Journalists (CPJ), between 29 May to 1 June 2020 at least 125 press freedom violations were reported throughout the United States by journalists and media workers covering the nationwide protests over the killing of George Floyd 1 A G Sulzberger, ‘The Growing Threat to Journalism Around the World’ (The New York Times, 23 September 2019). 2 See Amal Clooney, ‘The Use of Targeted Sanctions to Protect Journalists’ (IBA 2020) p 5; CPJ, Data of Journalists and Media Workers Killed between 2018 and 2020 (as of 17 January 2020) https://cpj.org/data/killed/?stat us=Killed&motiveConfirmed%5B%5D=Confirmed&type%5B%5D=Journalist&start_year=1992&end_ year=2020&group_by=year. 3 See ‘Statement by the Media Freedom Coalition on its first meeting’ (Government of Canada, 26 February 2020) www.international.gc.ca/world-monde/issues_development-enjeux_developpement/human_rights- droits_homme/2020-02-25-media_freedom-liberte_medias.aspx?lang=eng. 4 IBAHRI, Freedom of Expression Bulletin Issue 3 (IBA, 5 May 2020) p 12 www.ibanet.org/Document/Default. aspx?DocumentUid=0afd40bc-ab84-4cd6-9c7b-354387ec57f6. A Pressing Concern: Protecting and Promoting Press Freedom by Strengthening 7 Consular Support to Journalists at Risk by Minneapolis police.5 CNN journalists were arrested live on air while reporting on the protests in Minneapolis,6 and Australian journalists were attacked by police during a live newscast while covering the demonstrations in Washington, DC.7 As of 7 September 2020, the US Press Freedom Tracker counted a total of 746 press freedom incidents targeting journalists in the context of the George Floyd protests alone.8 The global decline in media freedom has been intensified by the coronavirus pandemic.9 As the United Nations High Commissioner for Human Rights has reported, ‘some States have used the outbreak of the new coronavirus as a pretext to restrict information and stifle criticism’.10 State actors are lashing out at journalists who are critical of their government’s crisis response, or who have merely referenced the extent of the
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