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Expert Report of David Kaye with Exhibits 1 to 13 Case 1:16-cv-01423-ABJ Document 42-15 Filed 03/22/18 Page 1 of 217 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CATHLEEN COLVIN et al., Civil No. 1:16-cv-01423 (ABJ) Plaintiffs, v. SYRIAN ARAB REPUBLIC, Defendant. EXPERT REPORT OF DAVID KAYE, UNITED NATIONS SPECIAL RAPPORTEUR ON THE PROMOTION AND PROTECTION OF THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION Case 1:16-cv-01423-ABJ Document 42-15 Filed 03/22/18 Page 2 of 217 TABLE OF CONTENTS Page Contents I. INTRODUCTION .............................................................................................................. 1 II. QUALIFICATIONS & BASIS FOR OPINION................................................................. 2 A. Qualifications .................................................................................................................. 2 B. Basis for Opinion ............................................................................................................ 5 III. As Part of Its Crackdown Following the 2011 Uprising, the Syrian Government Engaged in a Systematic Pattern and Practice of Violently Persecuting Journalists and Curtailing Freedom of Expression and Opinion .................................................................................. 6 A. Media Crackdown: the Syrian Government’s Anti-Media Rhetoric ............................ 11 B. Media Crackdown: the Syrian Government’s Policy of Censorship and Interference with Media Work .......................................................................................................... 14 C. Media Crackdown: the Syrian Government’s Pattern of Torture, Detention, and Extrajudicial Killing of Media Workers and Their Sources ......................................... 18 IV. The Deliberate Targeting of Non-Combatant Journalists Constitutes a Violation of International Law .............................................................................................................. 26 A. The Deliberate Targeting of Non-Combatant Journalists Is a War Crime Under International Humanitarian Law .................................................................................. 27 B. International Human Rights Law Prohibits the Targeting of Journalists in Conflict Zones ............................................................................................................................ 33 APPENDIX A: CURRICULUM VITAE OF DAVID KAYE .......................................................38 APPENDIX B: INDEX OF MATERIALS CITED IN EXPERT REPORT OF DAVID KAYE ............................................................................................................................................53 APPENDIX C: SUMMARY OF FORMAL COMMUNICATIONS WITH THE GOVERNMENT OF THE SYRIAN ARAB REPUBLIC INVOLVING THE SPECIAL RAPPORTEUR ON THE PROMOTION AND PROTECTION OF THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION ..........................................................................64 i Case 1:16-cv-01423-ABJ Document 42-15 Filed 03/22/18 Page 3 of 217 I, David Kaye, hereby declare pursuant to 28 U.S.C. § 1746 as follows: I. INTRODUCTION 1. I am the United Nations (“UN”) Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (“Special Rapporteur on the Freedom of Expression” or “Special Rapporteur”). As Special Rapporteur, I am mandated by the UN Human Rights Council—the central human rights body of the UN system—to, among other missions, gather information on the threat or use of violence against persons seeking to exercise their right to freedom of expression and opinion. Pursuant to that mandate, I have studied the precarious situation of media workers around the world, including in Syria. 2. In this Report, I address matters relevant to the Syrian government’s treatment of journalists (as well as of other media workers and their sources) following the popular uprising that began in March of 2011. My expertise to do so derives from my work as Special Rapporteur and from the knowledge of and expertise in international law that I have acquired through decades of research and legal practice at the U.S. Department of State (“State Department”) and in academia. Plaintiffs’ counsel requested that I independently assess and opine on two issues: (i) any practices adopted by the Syrian government towards journalists and other media workers after the start of the 2011 uprising, including any discernable motivations for such treatment; and (ii) whether such practices violate existing obligations of the Syrian government under international law to abstain from perpetrating abuses against the media and to safeguard freedom of expression, including as practiced by journalists. 3. It is my opinion, based on my expertise and for the reasons detailed below, that Syria’s military and security forces have been engaged in a pattern and practice of violently censoring the media and suppressing freedom of expression in response to the widespread 1 Case 1:16-cv-01423-ABJ Document 42-15 Filed 03/22/18 Page 4 of 217 protests that began in March of 2011. This pattern and practice by the Syrian military and security forces consists of, inter alia, subjecting journalists, media workers, and their sources to intimidation, arrest, detention, torture, and extrajudicial killing. Further, it is my opinion that by committing such actions, the Syrian government is in violation of its obligations under international law. 4. My qualifications and opinions are set out in greater detail below. I have not received nor will I receive any compensation from Plaintiffs or their counsel for serving as an expert in this case. Should I incur reasonable expenses tied to the provision of my services in this case, I may be reimbursed for such costs. I have not testified as an expert witness at trial or by deposition personally or in my capacity as a Special Rapporteur in any previous case. Consistent with my mandate as Special Rapporteur and its corresponding Code of Conduct,1 I came to the conclusions set forth in this report independently. II. QUALIFICATIONS & BASIS FOR OPINION A. Qualifications 5. My expertise on the issues addressed in this Report is based on my long career in public international law, my educational background, the knowledge I have acquired as a scholar on the relevant subject matter, and my experience as UN Special Rapporteur on the Freedom of Expression. My curriculum vitae, including a full list of publications, is appended as Appendix A; I recount my most relevant experiences below. 1 See Comm’n on Human Rights Res. 1993/45, Right to Freedom of Opinion and Expression Mandate, U.N. DOC. E/CN.4/RES/1993/45 (Mar. 5, 1993), ap.ohchr.org/documents/E/CHR/ resolutions/E-CN_4-RES-1993-45.doc; see also Human Rights Council Res. 5/2, Code of Conduct for Special Procedures Mandate-Holders of the Human Rights Council, U.N. DOC. A/HRC/RES/5/2 (June 18, 2007), http://www.ohchr.org/Documents/HRBodies/SP/ CodeOfConduct.pdf. 2 Case 1:16-cv-01423-ABJ Document 42-15 Filed 03/22/18 Page 5 of 217 6. Upon graduating from the University of California’s Boalt Hall School of Law at Berkeley in 1995, I began serving as an attorney-adviser in the State Department’s Office of the Legal Adviser, handling such matters as international claims and investment disputes, nuclear nonproliferation, and international humanitarian law; I continued in this role until 2002. From 2002 to 2005, I served as deputy legal counselor for the Embassy of the United States in The Hague, The Netherlands, serving as U.S. liaison to the International Criminal Tribunal for the former Yugoslavia, the Permanent Court of Arbitration, and other legal institutions. During my time at the State Department, I earned four Superior Honor Awards and one Meritorious Honor Award. 7. I also developed a parallel career in academia. I was an Adjunct Professor at Georgetown University Law Center in 2002, teaching a seminar on international humanitarian law. From fall 2005 to summer 2007, I was a Visiting Assistant Professor at Whittier Law School, teaching first-year and advanced international law courses. Between fall 2007 and summer 2012, I served as the Founding Executive Director of the International Human Rights Law Program and the Founding Director of the International Justice Clinic at the UCLA School of Law. As such, I taught human rights law and focused my research and clinical projects on accountability for serious human rights violations. Since 2012, I have been a Clinical Professor of Law at the University of California, Irvine School of Law; I also direct the law school’s International Justice Clinic. 8. I have authored numerous publications relating to freedom of expression and international humanitarian law, including over twenty articles and thirty short essays and op-ed pieces. All are listed in my curriculum vitae. I also regularly present on topics addressing international human rights law. My scholarship and teaching focus on public international law, 3 Case 1:16-cv-01423-ABJ Document 42-15 Filed 03/22/18 Page 6 of 217 specifically international human rights law, international humanitarian law, accountability for violations of human rights, and international law governing the use of force. 9. In tandem with these professional and academic commitments, I have been serving as Special Rapporteur on the Freedom of Expression by appointment of the UN Human Rights Council since August of 2014. In this role, I carry out functions defined by a mandate first established by the Council’s predecessor body, the
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