The Protection of News Providers in Armed Conflict
Total Page：16
File Type：pdf, Size：1020Kb
Bravery or Bravado? The Protection of News Providers in Armed Conflict <UN> International Humanitarian Law Series Editors-in-Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman IHUL 45 The titles published in this series are listed at brill.com/ihul <UN> Bravery or Bravado? The Protection of News Providers in Armed Conflict by Nina Burri LEIDEN | BOSTON <UN> The present book constitutes an updated version of the author’s doctoral thesis, which was accepted by the Faculty of Law of the University of Zurich, Switzerland, on 5 March 2014 (summa cum laude). Library of Congress Cataloging-in-Publication Data Burri, Nina, author. Bravery or bravado? : the protection of news providers in armed conflict / Nina Burri. pages cm. -- (International humanitarian law series) Based on author’s thesis (doctoral-University of Zurich, 2014). Includes bibliographical references and index. ISBN 978-90-04-28884-3 (hardback : alk. paper) -- ISBN 978-90-04-28885-0 (e-book) 1. War correspondents--Legal status, laws, etc. 2. Combatants and noncombatants (International law) I. Title. KZ6525.B73 2015 341.6’7--dc23 2015005129 This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1389-6776 isbn 978-90-04-28884-3 (hardback) isbn 978-90-04-28885-0 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper. <UN> To my parents ∵ We spoke, we chose to speak of war and strife – a task a fine ambition sought – and some might say, who shared our work, our life: that praise was dearly bought. Drivers, interpreters, these were our friends. These we loved. These we were trusted by. The shocked hand wipes the blood across the lens. The lens looks to the sky. Most died by mischance. Some seemed honour-bound to take the lonely, peerless track conceiving danger as a testing ground to which they must go back till the tongue fell silent and they crossed beyond the realm of time and fear. Death waved them through the checkpoint. They were lost. All have their story here.1 ∵ 1 Memorial, Poem by James Fenton, a political journalist, drama critic, book reviewer, war cor- respondent and columnist. This poem in engraved alongside the bbc memorial for dead war correspondents Breathing on the rooftop of the bbc’s headquarters in London. <UN> Contents Acknowledgements xi List of Abbreviations xiii Glossary xvii Introduction 1 I Increasing Death Toll of News Providers in Armed Conflicts 1 II Relevance of War Reporting 5 III Purpose and Methodology 10 1 Purpose 10 2 Methodology 11 3 Literature Review 13 IV Scope and Limitations 16 1 War Reporting in the 21st Century 19 I Combat Environment and Political Context 19 1 The Chameleon of War 19 2 The Trinity of the Media, the Public and the Military 25 3 Essence of Part I 36 II Circumstances, Methods and Means 36 1 Case Studies 36 A Iraq (2003–8) 37 B Libya (2011) 44 C Gaza (2008/2012) 49 D Syria (2011–14) 56 2 Common Features 62 A Journalism Meets the Market 62 B Digitalisation and Acceleration 66 C Civilianisation of the News 68 D Military Attempts to Control the Flow of Information 71 III Conclusion I: Key Challenges of War Reporting in the 21st Century 72 1 Agent-Focused Attacks 73 2 Activity-Focused Attacks 75 3 General Atmosphere of Impunity 78 2 Definitions and Applicable Law 79 I Defining Armed Conflict 79 1 Normative Pillars of the Notion of Armed Conflict 79 <UN> viii Contents 2 Common Basis of Legal Scholarship 80 3 Merger or Phantasmagoria of a New Age? 83 4 Approach of this Study 86 II Applicable Law During Armed Conflict 89 1 International Humanitarian Law and International Criminal Law 89 2 The Applicability of Human Rights in Armed Conflicts 92 3 Approach of this Study 100 III Defining News Providers 103 1 Communication Sciences 106 2 Legal Theory and Practice 108 3 What Matters: Intent, Activity or Content? 111 3 The Personal Protection of News Providers in International Law 116 I Scope of the Personal Protection 116 1 Unequal Protection in International Humanitarian Law 116 A Dichotomy of News Providers in International Armed Conflicts 116 B Equivalent Protection in Non-International Armed Conflicts 129 2 Strong Backdrop of Human Rights Law 134 A Right to Life 135 B Right to Personal Liberty 144 C Right to Physical and Psychological Integrity 147 3 Essence of Part I 149 II Limitations of the Personal Protection 149 1 ‘Bad Luck’ or Collateral Damage 150 A Proportionality Relating to News Providers 150 B Military Necessity and Advanced Warning Relating to News Providers 154 2 Targeting News Providers 158 A Legitimacy of Deliberate Lethal Force against Selected Civilians 159 B Notion of ‘Direct Participation in Hostilities’ 164 C Direct Participation in Hostilities through ‘Providing News’? 166 D Direct Participation in Hostilities of News Providers by Actions Other than Aggressive Speech 187 3 Detention and Internment of News Providers 191 A Prohibition of Arbitrary Detention and Right to a Fair Trial 191 <UN> Contents ix B Detention in International Armed Conflicts 192 C Detention in Non-International Armed Conflicts 200 D News Providers before Military Tribunals 201 III Conclusion II: Strengths and Lacunae of the Personal Protection 202 4 The Functional Protection of ‘Providing News’ in International Law 206 I Scope of the Functional Protection 207 1 Freedom of Expression 208 A Direct Protection of Freedom of Expression 210 B Indirect Protection of Freedom of Expression 210 2 Right to Information 216 A Freedom of Expression as the Basis for the Right to Information 218 B A Right to Truth as the Basis for the Right to Information 224 C Collective Dimension of the Right to Information 230 3 Beyond Orthodoxy: A Right to Receive News? 239 4 Essence of Part I 242 II Limitations of the Functional Protection 244 1 General Limitations of Human Rights during Armed Conflict 244 2 Restrictions on Access to the Conflict Zone 255 3 Espionage and Dissemination of Military Secrets 259 4 Protection of Protected Persons from Public Curiosity 262 5 Criminal Liability for Speech 265 A Incitement to Genocide 267 B Hate Speech 273 C Propaganda for War 282 6 Targeting Media Facilities 286 A Contradictory Norms 287 B Purpose and Use of Media Installations 288 C Borderline Between Legitimate and Illegitimate Use 290 D Military Advantage of Targeting Media Installations 311 7 Testimonial Privileges before International Tribunals 312 8 Essence of Part II 336 III Conclusion III: Strengths and Lacunae of the Functional Protection 336 <UN> x Contents 5 Potential and Concepts for Reform 339 I Legislative Changes 343 1 Unification of the Personal Protection under International Humanitarian Law 343 2 Creation of a Special Emblem for the Media 344 3 Normative Strengthening of the Functional Protection 348 4 Creation of a New International Crime 349 5 An International Convention for the Protection of News Providers 351 6 Political Leverage through Soft Law 355 7 Essence of Part I 356 II Institutional Changes 356 1 Prevailing Responsibilities within the International Community 357 2 Quest for an Appropriate Global Forum 362 3 Institutional Design on the National Level 371 4 Precondition for Institutional Changes: Allocation of Adequate Resources 374 5 Essence of Part II 377 III Practical Changes 377 1 Raising Awareness 378 2 Education and Training 379 3 Crisis Management and Equipment 384 4 Shared Responsibility 390 5 Essence of Part III 392 IV Conclusion IV: New Rules – New World? 393 Concluding Observations 395 I Convergence of Legal Regimes 395 II Is It Bravery, or Is It Bravado? 396 Table of Treaties and Legislation 399 Table of Cases 402 Bibliography 412 Other Materials 434 Index 446 <UN> Acknowledgements The concept and scheme of this book emerged during my employment as a research assistant at the Institute for International Public Law and Foreign Constitutional Law at the University of Zurich. It was approved as a doctoral thesis by the Faculty of Law of the University of Zurich in March 2014. First and foremost I would like to thank my supervisor Professor Daniel Thürer. It was he who triggered my interest in international public law as early as my first semester of law studies at the University of Zurich. During my stud- ies and the process of writing this book, he was a constant source of inspiration who taught me to think beyond orthodoxy and pose legal questions in the wider context of moral equality and justice.