Bravery or Bravado? The Protection of News Providers in Armed Conflict
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
by
Nina Burri
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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
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∵ 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.
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
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
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
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
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. I am furthermore indebted to Professor Oliver Diggelmann and to my for- mer colleagues at the Institute, with whom I had the benefit of sharing intellectually enriching dialogues and moments of great humour that enabled a stimulating working climate. In particular, I want to thank Nicole Bürli, Professor Thomas Burri, Jonatan Niedrig, Marianne Pfister, Valerio Priuli, Daniel Stadelmann and Annina Vogler. They have been mentors, cheerleaders and friends who provided me with their time, expertise and encouragement. During the process of preparing this book, I was fortunate to have the oppor- tunity of spending more than a year abroad: In spring 2011, I was given the chance to conduct research at the Institute of International Humanitarian Law in San Remo, a wonderful place gifted with an exotic garden and a view over the Italian Riviera. In particular, I would like to thank the librarian of the Institute, Shirley Morren, for her assistance and kindness during my stay. In 2012 and 2013 I spent half a year with the Division of Freedom of Expression and Media Development at unesco’s headquarters in Paris. During this time, I gathered many insights into the projects of unesco and other un agencies in the context of the protection of news providers. I want to thank Tarja Turtia and Sylvie Coudray for giving me this opportunity and an office with a view over Paris’s rooftops. And finally, the manuscript of this book was completed in 2013 during a research stay at the Lauterpacht Centre for International Law in Cambridge, uk, headed by Professor Marc Weller. The centre’s vibrant research atmosphere, with visitors from all over the world, makes it indeed a living embodiment of the international community. These pleasant surroundings contributed significantly to the successful finalisation of this book. However, these long periods of focus were only possible with the generous support of the Swiss National Science Foundation, to which I am truly grateful for allowing me these life-enriching experiences.
Undertaking a PhD is at core a solitary pursuit; a fight with words, wisdom and courage. Nevertheless, several people have contributed considerably to the final version of this book. I want to thank Martina Gasser, Lukas Herforth, Vanessa Holzer, Simone Hutter, Jonathan Pärli and Johan Rochel for providing valuable comments on separate chapters of this book. Furthermore, a special thanks goes to Samantha Eyler. Her feeling for language substantially enhanced the sound of these pages. Lastly, none of this would have been possible without the support of my family and friends. First, I want to thank my parents Katharina Burri-Bräm and Balz Burri for supporting me wholeheartedly in all my endeavours, for their boundless love and endorsement. They provided me with values for work and life which laid the foundation for the successful spring of my intellectual curi- osity. It is they to whom this book is dedicated. I also want to thank my grand- parents, in particular my grandmother Nelly Burri for giving me her love and showing me through her example that the world is yours, no matter if you are a girl or a boy. Furthermore, I thank my brother Samuel Burri who was always there when I needed a calming or encouraging voice. And last but not least I want to thank Stephan Kyburz. He gave me strength and respite, especially during the last months of this demanding process.
Nina Burri Zurich, October 2014
Amateur journalist Cf. citizen journalist Blogger Bloggers maintain personal Internet sites (either indepen- dently or in conjunction with a more established media entity) on which they post their own news reporting and commentary, as well as links to other published information. Bully syndrome The bully syndrome is a result of a flawed interpretation that in the face of colossal technological asymmetry the expecta- tion to apply all laws of war equally would no longer be fair for both parties. Citizen journalist Individual who intends to inform society by reproducing facts or occurrences by written, visual, audio or other elec- tronic means and making them accessible to others. cnn effect Concept to describe the effect of television coverage forcing policy on politicians and policymakers primarily in connec- tion with international conflicts. Facebook Facebook is a social networking service founded in 2004. Users – both individuals as well as corporate identities – can register and create a personal profile, connect with friends, exchange messages, share pictures and links to online sources and monitor updates to the profiles of their contacts (available at: www.facebook.com). Freelancer Freelancers are professional journalists who sell their work on a project basis and who are not permanently associated with a news agency or organisation. Fixer A fixer is someone hired by a foreign correspondent to help arrange a story. In most cases, this person is a local journalist or other local person with knowledge of the language and the political and social environment in the region. Flickr Flickr is an image- and video-hosting online service. Similar to Facebook, users can register, upload their pictures or video material and make it accessible to others (available at: www.flickr.com). Hashtag Twitter allows its users to create new digital meeting points, where information about a common subject runs together by using a so-called hashtag, which consists of the sign # plus a subject (e.g. #Rixos or #journosafe).
Hors de combat Hors de combat means in international humanitarian law a person who is no longer participating in hostilities, by choice or circumstance. Media support staff Individuals who assist a professional journalist in the acqui- sition or processing of information. Netizen The word ‘netizen’ is a portmanteau of the words ‘Internet’ and ‘citizen’. It refers to citizens or entities that are actively involved in virtual communities on the Internet. News providers All professional journalists, citizen journalists and media support staff. Professional journalist An individual who intends to inform society by reproducing facts or occurrences by written, visual, audio or other elec- tronic means, processing the gained information by journal- istic standards and making it accessible to others. Proxy server A proxy server is a computer application that acts as an intermediary for requests from clients seeking information or resources from other servers. Their use has many advan- tages, such as bypassing restrictions on websites, increasing speed or enhancing security. rss feed An rss feed is an online tool to publish frequently updated information (e.g. blogs, news, scientific results). Users can subscribe to the rss feed of a certain information source and thus quickly receive a full or summarised text of the updated data of this source. Thereby, the need to manually check the source is redundant. Skype Sk ype is an online service for communication purposes founded in 2003. The service enables registered users to call other registered users for free over the Internet, to exchange messages, photos and videos with them, or – for very cheap fees – to call to any other telephone extension worldwide (available at: www.skype.com). Stringer Cf. fixer Twitter Twitter is an online social networking and microblogging service that enables users to send and read messages, so- called tweets, which are text messages limited to 140 charac- ters. Twitter was founded in 2006, is today available in more than 20 languages and in 2012 counted 500 million registered participants who posted 340 million tweets per day (avail- able at: www.twitter.com). YouTube YouTube hosts the largest online collection of videos. In addition, since 2012, registered users are able to open their own video stream (available at: www.youtube.com).
Two years after the peak of the millennium, Hollywood-orchestrated pictures of an armada of tanks driving through the Iraqi desert toward Baghdad were screened in real time in living rooms all over the planet. Hundreds of journal- ists travelled in Operation Iraqi Freedom1 side by side with the troops and reported from ships, tanks and military camps about operational details and personal stories from the war. The public felt closer than ever to the battle- field. It seemed a new era of war reporting had begun. Journalists were no longer mere observers but practically actors in the war itself. However, ten years later, the picture of war reporters in the news has shifted dramatically. Reports are no longer full of cheerleading stories of embedded journalists. Stories of attacks on war reporters and of kidnappings and injuries prevail. The number of journalists killed in conflict zones is consequently higher than ever. The former heroic witnesses of war have become victims of their own story. This book is about the law that applies to this group of people when peace has failed and armed conflict reigns. It is about reporters, cameramen and pho- tographers; about translators, drivers and other media support staff. It is about the law that protects and restricts their work and about the lawful use of force in armed conflict against them. Despite the very old tradition of war reportage, interpretations of the legal norms applicable to this profession are still in need of significant clarification. Moreover, discussions about potential reforms of the relevant law started in the 1970s and have not paused since.
I Increasing Death Toll of News Providers in Armed Conflicts
On Tuesday 29 December 2009, two French journalists, Hervé Ghesquière and Stéphane Taponier, were kidnapped in Afghanistan. They were experi- enced war correspondents covering a story on road construction for the French tv channel France 3. Their kidnappers, members of the Taliban, held them hostage until June 2011, when they were finally released in exchange for
1 Operation Iraqi Freedom, a military offensive by a coalition of forces led by the United States into Iraq, began in 2003 and resulted in the overthrow of Saddam Hussein’s regime. See fur- ther Chapter 1, pp. 37ff.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004288850_002
2 Chrisafis, Stéphane Taponier and Hervé Ghesquière Tell of Afghan Ordeal, The Guardian, 30 June 2011; Les ex-otages Hervé Ghesquière et Stéphane Taponier libres et bientôt à Paris, Le Monde, 29 June 2011. 3 Cohen and Stelter, Iraq Video Brings Notice to a Web Site, nyt, 6 April 2010. 4 The video is still available on YouTube and has already been viewed more than 14 million times. See WikiLeaks, Collateral Murder, YouTube, available at:
In February 2012 another video of a journalist in a conflict environment con- quered the Internet.8 French journalist Edith Bouvier asked the international community for help after being seriously injured in a shell attack in Homs, Syria. She was not able to travel outside the country and had hidden in a Syrian cellar protected by sympathising fighters. In the same attack, two experienced and widely known Western war reporters were killed: Marie Colvin and Rémi Ochlik. Finally, in August and September 2014 fighters from the newly founded Islamic State produced two videos recording the executions of captured American journalists James Foley and Steven Sotloff; the videos then circu- lated around the Internet and shocked the world.9 Islamic State leaders delib- erately staged the executions of these two internationally known journalists to spread propaganda for their cause across global media. They even tried to blackmail the Obama administration with the threat to execute Sotloff in an attempt to stop us military action in Iraq.10 But international journalists are not the only victims of attacks. In May 2012 Bassel al-Shahade, a 28-year-old Syrian filmmaker and freelance journalist, was also killed in Homs. He and another cameraman were filming incursions of the Syrian security forces when a shell hit their car and killed them. Half a year later, the Israeli Defense Forces (idf) targeted two Palestinian cameramen who worked for Al-Aqsa tv in Gaza, claiming that they were ‘illegitimate journalists’.11 These incidents are examples of a much bigger and wider – though still subtle – trend. Starting at the cusp of the millennium, news providers have become a regular target of military operations. Statistics from the last 20 years show a high increase in the number of journalists killed while covering an armed conflict. According to the Committee to Protect Journalists (cpj), 713 journalists have been murdered and 221 killed in crossfire or combat since 1992.12 During the invasion in Iraq in 2003, the casualties among journalists
8 Bouvier, Syrie, Homs: sos d’Edith Bouvier, journaliste Française blessée, YouTube, available at:
counting casualties of news providers. A list of all journalists killed in the year 2012 is available at:
Facing these numbers, the international community has started to react, albeit slowly. In 2007 the un Security Council issued its Resolution 1738 reiter- ating to member states their obligations to protect journalists in armed con- flict.18 In 2011 unesco started a process aimed at fostering an international framework for the protection of journalists, the so-called un Plan of Action for the Safety of Journalists and the Issue of Impunity.19 And in 2012 the un Security Council finally inserted attacks against journalists in its list of ‘ongoing and emerging concerns of the protection of civilians in armed conflict’.20 Notwithstanding, many questions are still in need of further scrutiny and clari- fication: First and foremost, why did the numbers increase? Which journalists in what regions covering which jobs are affected most? Are there new chal- lenges and dangers of war reporting? Further, how does international law pro- tect journalists? Are there some lacunae in the law aiding this trend? And finally, is there a need for a reform of the current legal framework?
II Relevance of War Reporting
War coverage is of special relevance for democratic societies, going beyond mere entertainment of the audience. It is an essential condition for a sustain- able democracy. As the so-called ‘fourth power’ in the state, war reporting inves- tigates official behaviour and functions therefore as a control system representing the vigilant citizens. In times of war, the control of state power is more impor- tant then ever. In states of emergency – which are usually prompted by war itself – the balance of power between the state and its citizens usually shifts to the state, assigning the latter additional powers to restrict the rights and liber- ties of its citizens. The tracking of this shift and re-establishment of this balance at the end of an emergency are some of the core duties of the media as a public watchdog for a long-lasting and functioning democracy. Journalists, as represen- tatives of the media, thus have, besides their nature as human beings, a role within society that reaches beyond their personal status. They bear witness for the wider public: they are messengers and shapers of information, and ulti- mately guardians of the society’s right to information.21 Whenever a journalist or his work is attacked, therefore, society is indirectly attacked.
18 un sc res 1738 (2006). 19 unesco, un Plan of Action (2012). 20 un sg Report on Civilians in Armed Conflict (2012), paras 5, 14f. 21 For the legal analysis of this role and the right to information and knowledge, see Chapter 4, pp. 216ff.
War coverage is the basis for global awareness and consciousness about a conflict. It shapes public opinion, which ultimately reflects in politics.22 Historical examples provide a long testament of this powerful potential: Centuries ago, stories of war were not necessarily viewed as candid fact- finding in the battlefield, but rather were aimed at constructing benevolent historical images of certain persons or regimes. War was viewed emotionally, as a glorious enterprise legitimized by philosophers, poets and respected statesmen. The epic De bello gallico of Gaius Julius Caesar or Sun Tzu’s The Art of War are examples of such a mix of reality and fairy tale from an ancient age. However, the importance of independent witnesses eventually came to light. In 1854, the London paper The Times sent their first reporter into a war, the Crimean War. This reporter, William Howard Russell, was the first-ever war correspondent.23 As if he knew of the upcoming challenges, he called himself ‘the miserable parent of a luckless tribe’.24 There had been other correspon- dents before him, but indeed he was the first civilian correspondent that was explicitly sent by a news entity with the mandate of a journalistic coverage of a war.25 And even then, the power of war coverage to shape and influence the politi- cal process was felt. The decision to send a correspondent to the war was made in the face of an extreme euphoria in the British public, which saw the war against Russia as a glorified duty of their proud army. The public was hence hungry for news of progress. But due to strict censorship by the author- ities, Russell’s reports on the insufficiently equipped and educated British army could not be printed in their full extent in the paper. Instead, they were delivered and circulated in the British parliament. These letters had a strong impact on the opinions of the mps and their voting and ultimately influenced British politics.26 Consequently, one of Russell’s former colleagues described this new power of war coverage 50 years later:
22 See e.g. Kupfer Schneider, who understands media as the primary method through which the public and political leadership perceive and understand conflicts at home and abroad. Kupfer Schneider, International Media and Conflict Resolution, 2009, p. 1. 23 Knightley, The First Casualty, 2004, pp. xi, 1f. For further references see Thürer and Kempin, Kriegsberichtserstattung und humanitäres Völkerrecht, 2009, pp. 756f. 24 Cited in Knightley, The First Casualty, 2004, pp. xi, 1f. 25 Before, the British press had asked young officers to send letters from the frontline and report on what was happening there. But these officers were soldiers and saw it as their duty to mirror the military in a good light, which had a non-transparent impact on the selection of the news. Ibid. 26 Ibid, p. 16.
[C]orrespondence from the field really became a power before which generals began to quail… The appearance of the special correspondent in the Crimea…led to a real awakening of the official mind. It brought home to the War Office the fact that the public had something to say about the conduct of wars and that they are not the concern exclusively of sover- eigns and statesmen.27
Russell’s work brought The Times and himself a great deal of journalistic prestige. Consequently, the deployment of war correspondents became a com- mon practice.28 Only five years later, approximately 500 correspondents reported from the northern front of the American Civil War.29 At the same time, the introduction of the telegraph shortened the distance to the battle- field. News was no longer one week old upon publication, but arrived with a delay of only one day. The parallel emergence of a powerful press with mass distribution led to an independent branch of war journalism. Reporters from primarily British and American newspapers travelled by horse, donkey, train or sledge to emerging conflicts around the world. In those days, a paper could move five times more copies if it included a story about a battle.30 In Milan, for example, the boys who distributed the newspapers shouted the names of the correspondents instead of the name of the newspaper they sold.31 The period between the American Civil War and the First World War was therefore also called ‘the golden age of war correspondence’.32 Later in the 19th and 20th centuries, war coverage was mainly aimed at transferring information about the suffering of war to the home front and exposing unjust behaviour or abuse by the home forces. The novel A Memory of Solferino by Henry Dunant is a perfect example of that age.33 Dunant wit- nessed the deserted battlefield after a fight in Solferino and was shocked by the
27 Knightley, The First Casualty, 2004, p. 16. 28 Correspondents were sent to wars between Schleswig-Holstein and Denmark, the American Civil War and the Zulu War in 1879. For more details on Russell’s work, cf. ibid, pp. 3, 7ff. 29 The New York Herald sent 36 correspondents to the front, and the New York Tribune and New York Times approximately 20 correspondents each. Even the local press sent its own reporters. Most of the reporters were young, inexperienced adventurers who were not allowed to be soldiers for whatever reasons and who in most cases were chosen because they knew how to use a telegraph. Ibid, pp. 17, 19. 30 Ibid, pp. 23, 41, 44. 31 Ibid. 32 Ibid. 33 Dunant, Un souvenir de Solférino, 1862.
34 Cf. icj, Nuclear Weapons Case, dissenting opinion of Judge Weeramantry, p. 445. 35 Interestingly, Keith Murdoch was the father of the still-living media magnate Rupert Murdoch. 36 Knightley, The First Casualty, 2004, pp. 106ff. 37 Read the impressive story of Phan Thị Kim Phúc’s life as a poster child of the communist regimes in Vietnam and Cuba and her escape to Canada in Chong, The Girl in the Picture, 2001.
International Law should protect journalists because increasingly we are all that stands as an unbiased interface of communication between the armed actors of any given conflict and the public. It has long been so and
38 Vulliamy, ‘We Can’t Forget’, The Guardian, 1 September 2004; Vulliamy, ‘I Am Waiting. No One Has Ever Said Sorry’, The Guardian, 26 July 2008. 39 Ibid. 40 See e.g. Richard Goldstone, who wrote that there can be no doubt that it was media expo- sure that triggered the decision of the un Security Council to intervene in Bosnia. Goldstone, Crimes of War, 1999. This important role of the media was further confirmed in the The Prijedor Report, which finally led to the establishment of the International Criminal Tribunal for the former Yugoslavia (icty). Greve, Final Report on un sc res 780 (1994). And also Vulliamy, ‘We Can’t Forget’, The Guardian, 1 September 2004; Vulliamy, ‘I Am Waiting. No One Has Ever Said Sorry’, The Guardian, 26 July 2008. 41 See further on this relationship Chapter 1, pp. 25ff. 42 un sr FoEx, Annual Report 2008, para. 36.
journalists have always been at risk as the messenger-bearers in any soci- ety – now more than ever it is so in the Information Age.43
III Purpose and Methodology
1 Purpose The purpose of this book is to provide a contemporary and detailed analysis of the law concerning news providers reporting on armed conflict. I aim thereby to provide a solid foundation for decision-making by military commanders, policymakers, and news providers confronted with complex questions regard- ing the protection of the latter in armed conflict. This study is neither a political one, nor is it part of a lobbying campaign for the safety of journalists. My intention is to analyse the relevant law from the perspective of a neutral outsider. I follow an independent scientific (though not neutral when it comes to the law) approach; I look into current phenom- ena taking place in the international and national forum, the legal and practi- cal questions that arise from this phenomena and what answers international law offers to the questions posed. This level and kind of analysis is not available in the current literature and certainly not in one source. I conceive of law as dynamic, reactive and constantly responding to the mutating context in which it applies. At the same time, law is the regulatory consequence of political decisions and has the ability – through its design – to shape reality.44 Consequently, law has a twofold character: it creates but also responds. Throughout this research project, I aim to illuminate both sides of the character of law. I examine the social and historical context of the current law as a mirror of the political structures prevailing at the time of its creation; the consequences of this legal framework on today’s reality; and, in a further step, how the framework might be designed to shape a better reality in the future (‘better’, in the sense of an improvement of protection). In Cassese’s terms, I aim to assess the law from both perspectives, from the Utopian’s and the Technician’s: I do not only to access things as they are and accept them too complacently, I also aim to pay serious attention to what ought to be.45
43 Quote from Jon Lee Anderson cited in Ag, Talking International Law and Conflict Journalists, cpj Blog, 22 January 2013. 44 The 1995 Protocol on Blinding Laser Weapons, for example, addressed the use of a new tool of warfare in advance of its general fielding on the battlefield, and therefore changed its possible use on the ground and further investments in its invention. 45 See Cassese referring to Huxley in Cassese, Realizing Utopia, 2012, p. xvii.
It is also important to realise that the issues addressed in this study are not mere points of philosophical debate. As Judge Weeramantry noted in his sepa- rate opinion in the Nuclear Weapons Case:
By their very nature, problems in humanitarian law are not abstract, intellectual enquiries which can be pursued in ivory-tower detachment from the sad realities which are their stuff and substance. Not being mere exercises in logic and blackletter law, they cannot be logically or intellec- tually disentangled from their terrible context. Distasteful though it be to contemplate the brutalities surrounding these legal questions, the legal questions can only be squarely addressed when those brutalities are brought into vivid focus.46
Weeramantry’s eloquent finding is true not only for ihl but also for other branches of international law that are covered in this book. Therefore, I also endeavour to address the practical impacts and feasibility of international rules and new legal concepts.
2 Methodology For the inquiry and presentation of this study I applied established method- ologies and resources from the social sciences. The overall research question is threefold, with two parts expository and one part evaluative methodology. It asks first ‘What are the main risks of war reporting in contemporary con- flicts?’ and ‘What is the law on the protection of news providers in armed conflicts?’, two questions of an expository nature. In a second step it adds the question ‘How could this protection be enhanced?’, which follows an evalua- tive approach. To investigate these questions, different methods were applied. I have undertaken a comprehensive literature review of the relevant primary and sec- ondary sources of international law and a selection of national legislation. If my command of the language so permitted, I analysed texts using methods of judicial hermeneutics. This careful review enabled me to scrutinize the litera- ture and articulate the current law. I enriched this knowledge with case studies and completed it with personal observations and interviews with relevant actors. Along the way, I examined the penumbras of international law where trea- ties do not exist or do not help to answer certain questions. In the absence of a clear rule, states commonly respond with practice. The collection of such
46 icj, Nuclear Weapons Case, dissenting opinion of Judge Weeramantry, p. 444.
47 Schmitt, 21st Century Conflict, 2007, p. 447.
(niac). Throughout this book, four conflicts comprise the centre of the focus: Iraq, Libya, Syria and Gaza. All of them have been recognised as armed conflicts by the international community,48 whereas to examples of other armed conflicts, the application of ihl will be presumed. When examples of armed conflict are not available, the book also includes cases which occurred during peacetime. This method is, however, only used when the respective law in context is also applicable during peacetime, namely, if it considers the inter- pretation of human rights law. This study further follows the guidelines laid out in the book Research Methodologies in eu and International Law49 and the general citation recom- mendations of the Australian Guide to Legal Citation50 and the Oxford University Standard for the Citation of Legal Authorities (oscola),51 with minor modifications.
3 Literature Review The current literature in the area can be divided into six groups. The first group consists of commentaries and similar article-by-article analyses with annota- tions. These works are valuable resources because they offer a very detailed and specific interpretation of the law. However, this specification is also a dis- advantage because articles are looked at in isolation and their interrelation- ship with other parts of the same treaty or other branches of law are often left aside. Examples of this group are the commentaries to the Geneva Conventions or to their additional protocols.52 Even if not a perfect fit, the Customary Law Study (cl-study) of the icrc falls under this group. This study is the result of the launch of a worldwide effort to identify rules of customary international law applicable in armed conflict by the icrc in 1995. The intention of this proj- ect was to outline an ihl baseline that binds every state. Over a decade later, the icrc released a three-volume opus containing 161 rules and covering state practice of ihl.53 This collected edition is currently being updated in a joint project of the icrc and the British Red Cross at the Lauterpacht Centre for International Law in Cambridge, uk. The study has not been without critics.
48 See further Chapter 1, pp. 36 ff. 49 Robert et al., Research Methodologies in eu and International Law, 2011. 50 Australian Guide to Legal Citation, 2012. 51 oscola, Citation of Legal Authorities, 2012. 52 Pictet, Commentary on gcs I–IV, 1952–1960; Sandoz et al., Commentary ap I, 1987; Bothe et al., Commentary ap I and II, 2013; or also Nowak, iccpr Commentary, 2005. 53 Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009; Henckaerts and Doswald-Beck, Customary ihl, Practice, 2009.
The us, for instance, has formally notified the icrc that it is concerned about the methodology of the conducted research and is not in a position to accept the study’s conclusions that particular rules in fact reflect customary international law.54 At this point it is important to follow Henderson and distinguish between:
…a work that can be referred to as an authority on a particular point and something that is authorative on the point. A work that is an authority is a work that is to be taken seriously. An authorative work is a work that is determinative of the issue.55
Using this differentiation, the cl-study of the icrc is to be understood as an authority that is to be taken very seriously but not as an authorative work that is determinative on ihl–customary law. Following this approach, the study will be used as a tool to point out state practice regarding certain rules of ihl, especially during niac. The second group of literature consists of books on different aspects in the area. Besides classical legal monographs, books by historians, publicists and journalists are included. Phillip Knightley’s book The First Casualty: The War Correspondent as Hero and Myth-Maker from the Crimea to Iraq56 is a good example of this category and a very good resource for the different historical stages of war coverage. Nils Melzer’s book Targeted Killings in International Law57 and Ian Henderson’s book The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I58 were equivalent legal monographs of great value for this study. The third group of literature used comprises a significant number of journal articles dealing with various aspects of the protection of news providers in armed conflicts. They come in different forms and are written from different perspectives. Some deal with a specific legal question while others look at cer- tain conflicts or a particular case. They address generally a very specific but limited issue. Most of them are written from an academic point of view and
54 Letter from John B Bellinger III, Legal Advisor, Department of State, and William J Haynes, General Counsel, us Department of Defense, to Jakob Kellenberger, President of the icrc, dated 3 November 2006, cited in Schmitt, 21st Century Conflict, 2007, p. 459. See also Wilmshurst and Breau, Perspectives on the icrc Study, 2007. 55 Henderson, Targeting, 2009, p. 20. 56 Knightley, The First Casualty, 2004. 57 Melzer, Targeted Killings, 2008. 58 Henderson, Targeting, 2009.
59 ai, The Battle for Libya, 2011; ai, nato in Yugoslavia, 2000. 60 rwb, Two Murders and a Lie, 2004. 61 See e.g. Browne and Probert, Safety of Journalists Research Pack, 2012; Horsley et al., Initiative on Impunity and the Rule of Law, 2011. 62 Examples of this kind are e.g. Entführte italienische Journalisten sind frei, Spiegel, 25 August 2011; Peters, Freed Times Journalists Give Account of Captivity, nyt, 21 March 2011; Gadhafis Soldaten fortern bbc-Reporter, zeit, 10 March 2011; Gaddafi forces beat up bbc team, bbc, 10 March 2011; Charbonneau, Envoys Want nato Answers About Strike on Libyan tv, Reuters, 10 August 2011.
IV Scope and Limitations
In a book of this length, only certain matters can be covered. A very high percent- age of past killings of news providers had the hallmarks of premeditation. Despite this fact, it is important to distinguish between deliberately targeted journalists and battlefield killings in which legal responsibility is not clear. This study con- centrates on targeted and wilful attacks of journalists and other media workers or wilful interferences with and restrictions on their work in armed conflicts. Occurrences and attacks that are clearly not linked to the journalistic work of the affected person are therefore not covered. The scope of this study also excludes the discussion of all disputed aspects in the area. For example, the distinction between civilians and armed insurgents is not well defined in the law applying
63 As an example see Williams, Hotel Libya – Journalist Relives the Horror Story, Blog ‘insi’, 21 August 2012. 64 See e.g. the blog of the idf, available at:
The research question of this book focuses on the law protecting news providers during armed conflict. Yet, before scrutinizing the current legal framework and evaluating its accuracy, the background of the significantly increasing numbers of killings, incarcerations and other attacks on news providers shall be revealed. Therefore, I present first an overview on the real- ity of wars and of war coverage in the 21st century. To this end, three ques- tions are posed: First, has the combat environment changed significantly in recent years? Hence, are there now wars of a new kind? Second, what is the contemporary role of war reporting from a wider political perspective? And third, what are the contemporary circumstances, methods and means of reporting war? The first and second questions approximate the reality of the situation by determining abstract features of the context of contemporary war coverage, while the third question will be answered by a range of case studies. Throughout the whole chapter, I endeavour to employ a descriptive approach and refrain from detailed evaluations of the factual findings. A respective evaluation and legal analysis will later take place in Chapters 3 and 4. At the end of this chapter, a conclusion summarises the major risks and threats for news providers in contemporary conflicts and formulates legal questions that will be the guiding parameters for the chapters ahead.
I Combat Environment and Political Context
1 The Chameleon of War A great deal has been written about wars – about their cruelty, their designers and their victims. Looking at all of them together, there has never been one like another. Clausewitz described this famously when he said that war was way- ward and ‘chameleon-like in character, because it changes its colour in some degree in each particular case’.1 Nevertheless, some common characteristics and key challenges of contemporary warfare can be discerned: Overall, the
1 Von Clausewitz, On War, 1976/2007, para. 121. As a counterpart to Clausewitz, see Martin van Creveld’s 1991 vision of future wars, a vision that turned out to be more than accurate: Creveld, Die Zukunft des Krieges, 1991/2004, especially pp. 281, 284f, 288, 295f, 304, 310.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004288850_003
A Asymmetry The terrorist attacks of 9/11 made the world aware that mere boxcutters, if used to hijack airplanes and crash them into buildings and cities, can serve to shake a superpower to its foundations.3 This military strategy was a form of asym- metrical warfare that has been increasingly used in the last decades. However, the asymmetric approach has always been a preferred opera- tional doctrine.4 It is in the very nature of warfare to seek tactics and weap- ons that leverage one’s own strengths (positive asymmetry) and exploit the enemy’s weakness (negative asymmetry).5 A technologically and organisa- tionally superior military apparatus tends to accelerate the pace of war at different combat levels because this brings its superiority to bear.6 In turn, guerrilla warfare – as used, for instance, by Mao Zedong – uses a slow approach that decelerates the course of events, thus providing an opportu- nity for resistance against an enemy that is superior in terms of military technology and organization. In addition, guerrilla tactics use every possi- ble means to make the enemy pay the price of acceleration until the war becomes ultimately unaffordable.7 Guerrilla warfare is therefore also called the ‘long war of endurance’.8 And exactly this is what brings – in Muenkler’s terms – ‘post-heroic’ societies such great difficulties. In such societies, the sacrifice of life is no longer an ideal. On the contrary, the preservation of
2 Such intrastate conflicts started multiplying during the 1960s, peaked in the early 1990s and then declined again. After a worldwide peak of some 50 armed conflicts, they levelled out at a bit over 30 after 2000. Wenger and Mason, The Civilianization of Armed Conflict, 2008, p. 842. 3 Muenkler, Wars of the 21st Century, 2003, p. 10. See further also Thürer, ihl, 2011, p. 246. 4 Find a definition of asymmetry at Metz and Johnson, Asymmetry and us Military, 2001, pp. 5f; Muenkler, Wars of the 21st Century, 2003, p. 9. 5 Schmitt, 21st Century Conflict, 2007, p. 460. 6 Muenkler, Wars of the 21st Century, 2003, pp. 7f. 7 Ibid, p. 9. 8 Ibid.
9 Ibid, p. 12. 10 nato’s air campaign against Yugoslavia took 78 days; Coalition forces took control of Afghanistan in less than three months; the conventional phase of the Iraq conflict lasted three and a half weeks; the Israeli incursion into Lebanon against Hezbollah ended in 38 days and the most recent operation against Hamas in Gaza lasted only one week. 11 Article 37 (1) ap i; Article 8 (2) (b) (xi) icc statute; Rule 65 cl-study, pp. 221ff. 12 See the example of Iraq on the page above. This tendency of the weaker opponent to use the community as a cover and logistical base to conducts its attacks against the superior military apparatus was furthermore demonstrated in the conflict between Israel and the Hezbollah in Lebanon during 2006, between Israel and Gaza in 2008 and 2012 and finally in Syria since 2011.
B Commercialisation and Demilitarisation Contemporary conflicts regularly lead to immense and unpredictable long- term consequences and costs. Destruction of infrastructure, devastation of the
13 Schmitt, The Vanishing Law of War, 2006, p. 66. 14 Schmitt, 21st Century Conflict, 2007, p. 468. Referring to the same developments, while not under the term bully syndrome, Thürer, ihl, 2011, pp. 249f. 15 Schmitt, The Vanishing Law of War, 2006, p. 66. 16 Schmitt, 21st Century Conflict, 2007, p. 471. 17 Brown et al., DoD Detention Operations (2004), para. 85; Sassòli, The Role of Human Rights and ihl, 2011, p. 36. 18 Cf. Schmitt, The Vanishing Law of War, 2006, p. 67.
19 Cited in Muenkler, Wars of the 21st Century, 2003, p. 16. 20 See us Department of Defense, Defense Budget Priorities, 2012, p. 1. 21 Wan, China Makes Increased Military Spending a Top Priority as People’s Congress Meets, The Washington Post, 5 March 2013. 22 Wenger and Mason, The Civilianization of Armed Conflict, 2008, p. 840. 23 There has been a wide range of research by international lawyers on this subject, espe- cially focussing on questions of accountability: See for many Cameron and Chetail, Privatizing War, 2013; Tonkin, Private Military and Security Companies, 2011; Francioni and Ronzitti, War by Contract, 2011; Fischer, Militär- und Sicherheitsunternehmen, 2013; Lenhardt, Private Militärfirmen, 2010.
C Technological Progress and Cyberwar The fourth trend that frames wars in the 21st century is the technological prog- ress of the last two decades that shifts contemporary warfare ever more toward cyberwar. The competition of warships and atomic warheads is over. In the wars of the 20th century, technological advantage was measured in weapon systems with greater range, mobility, precision or firepower. Although these factors remain important, the gathering and processing of information has, in contrast, grown even more important than it used to be. Gathering, processing and reacting to information about the enemy and its surroundings already is and will be a decisive element in future warfare.28 Technology has already overcome many of the obstacles that traditionally masked activities of the enemy, such as night, poor weather and terrain. Now, the international satellite network, together with a fast-growing digital space, offers new possibilities to lift the curtain of formerly hidden enemy activities. Therefore, intelligence services and their knowhow and equipment will be more important than ever to make the behaviour of enemies as transparent as possible. Thus, apart from the battlefield, future wars will also be decided by digital superiority in cyberwar. And this war does not start with the classical armed attack. It starts much earlier, with the monitoring and eventual
24 For more background on the term citizen journalist, see Chapter 2, pp. 103ff. 25 Adhami, Internet in Modern Warfare, 2007, p. 872. 26 See Muenkler, Wars of the 21st Century, 2003, p. 18. 27 Goldstone, Ownership of ihl, 2013. Similar, Thürer, ihl, 2011, p. 55; Adhami, Internet in Modern Warfare, 2007, p. 872. 28 Schmitt, 21st Century Conflict, 2007, p. 461.
2 The Trinity of the Media, the Public and the Military As far back as 1791 James Madison revealed that ‘[p]ublic opinion sets bounds to every government, and is the real sovereign in every free one’.34 And he was right. Hence military decisions, like any other political decision, are bound by the support of the people – at least in democracies. The image of a war in the public is therefore very important for its success. And this image of war is to a large extent coined by the media’s depiction of a war. Two iconic images of the invasion in Iraq in 2003 illustrate
29 See, e.g. Boothby, The Law of Targeting, 2013, pp. 378ff. 30 Perlroth, Hackers in China Attacked The Times for Last 4 Months, nyt, 30 January 2013; Sanger, us Directly Blames China’s Military for Cyberattacks, nyt, 6 May 2013; Beech, Hack Attack: China and the us Trade Barbs on Cyberwarfare, 12 March 2013. 31 Wenger and Mason, The Civilianization of Armed Conflict, 2008. 32 See Adhami, Internet in Modern Warfare, 2007, p. 866. 33 Ibid, p. 868. 34 James Madison, Essay in the National Gazette on 19 December 1791, reprinted in Madison, Letters and Other Writings, 1867.
A The Media’s Influence on Military Decisions There is a multitude of studies on the impact of media on politics, with the majority of them focused on the American media.38 This is due to the fact that American media outlets, such as cnn, were the first to offer news on a 24-hour basis. In the 1990s, cnn showed the ability to travel to almost every place in the world and report from austere and hostile environments in real time. This flexibility of the media had an influence on the military’s ability to make well-thought-out decisions. In communication science, this influence was diagnosed the cnn effect.39
35 Cf. Knightley, The First Casualty, 2004, p. xiii. 36 Gasser, Right to Information, 2003, p. 384. 37 Most authors concentrate on critics of military media strategies, media complicity with the military, or the journalistic experience of war reportage. See e.g. Tumber and Palmer, Media at War, 2004; Tumber and Webster, Journalists under Fire, 2006; Matheson and Allan, Digital War Reporting, 2009; Keeble and Mair, Afghanistan, War and the Media, 2010; and for the interesting concept of a ‘diffused war’ between war and the media see Hoskins and O’Loughlin, War and Media, 2010. 38 Ibid. For further references see Gilboa, Effects of Global Television News, 2005. 39 Gilboa, Effects of Global Television News, 2005, pp. 4ff.
The term first appeared as part of the description of the psychological, eco- nomic and financial consequences of cnn’s war coverage during the First Gulf War. Commentators argued that this specific coverage forced the West to reverse its policy in the Kurdish rebellion against Saddam Hussein in the after- math of the First Gulf War and in Somalia.40 In the early analysis of this con- cept, other authors defined the same effect in a variety of different ways and called it the ‘cnn curve’, ‘cnn complex’ and ‘cnn factor’.41 Some of these con- cepts addressed only the policy-forcing effect on humanitarian intervention decisions or the loss of policy control to the media, whereas others suggested a whole new approach to foreign policymaking and world politics.42 In a further stage, the emergence of non-Western tv giants such as Al Jazeera and Al- Arabiya was included and the terminology expanded to the concepts of ‘media democracy’, ‘medialism’, ‘mediapolicy’ or ‘teledemocracy’.43 However, despite all these options, researchers and politicians have predominantly used the term cnn effect for the same basic phenomenon, namely, the effect of televi- sion coverage forcing policy on politicians and policymakers primarily in connection with international conflicts.44 Scientific studies on the cnn effect presented contradictory and confusing results.45 Some scholars concluded that the effect does not exist or has been highly exaggerated or may only occur in rare situations of extreme and dra- matic coverage merged with chaotic policymaking and a lack of leadership.46 Seib, for example, concludes that there is a certain logic to the theory and ‘it cheers journalists who like to think they are powerful, but there is a fundamen- tal problem: It just ain’t so, at least not as a straightforward cause-and-effect process’.47 In fact, several events can serve as a counterexample to the cnn effect. For instance, the constant pressure from media and public opinion on the Clinton administration during the 1990s regarding intervening in the war in Bosnia did not have an effect for several years. The same is true for the Rwandan genocide.
40 Ibid. 41 Livingston, cnn Effect, 1997. 42 Gilboa, Effects of Global Television News, 2005, pp. 4ff. with further references. 43 Ibid, p. 2. 44 Madeleine Albright, former ambassador to the un, used it, for instance, in a May 1993 talk about the humanitarian crises in Somalia and Bosnia, and former un Secretary General Boutros Boutros-Ghali referred to it when complaining, ‘cnn is the sixteenth member of the Security Council’. Ibid, pp. 2, 4, 5f. 45 Ibid, pp. 7ff. 46 Ibid, pp. 8f. 47 Cited in: Gilboa, Effects of Global Television News, 2005, p. 9.
On 11 April 1994, during the first moments of the genocide, British journalist Hick Hughes recorded a horrific scene in a dirty road in Kigali: His video begins by showing some quiet moments of a man and a woman praying in the street, when a group of men walk by and slaughter both with their machetes.48 This video was distributed around the world on cnn, Australian Broadcasting and zdf. Yet nothing happened; it did not make the world intervene. Looking at the case studies that will be outlined below, an effect of the media on political decisions can be both confirmed and denied. First, horrific pictures of us soldiers abusing Iraqi prisoners in the Abu Ghraib prison shocked the international community in spring 2004.49 The pictures were picked up fast and disseminated by the media, impacting how the war and the so-called liberation of the Iraqi people were perceived in the rest of the world. Seven years later, pictures, videos and eyewitness-accounts of the bombing of peaceful demonstrations in Libya circulated in international news. Strong pressure from the international media and its audience called for an immedi- ate reaction, and within very short time, the un Security Council adopted a resolution with the permission to intervene.50 Syria, on the other hand, can serve as a counterexample. Despite the Syrian government’s official news blockade for international media, a multitude of pictures and videos found their way into international news, with reports of cruel treatment of civilians and other severe human rights violations among different parties to the con- flict. But for a long time the international community did not intervene.51 Evidently, the conflict in Syria differs from others because of the severe safety situation for news providers.52 Hence, most of the information leaving Syria cannot be confirmed by quasi-neutral and independent observers and thus lacks reliability in terms of its objectivity. Nevertheless, since the beginning of the conflict, a number of countries had called for some (re)action, if not inter- vention. Yet the failure of all other attempts for a peaceful solution to the con- flict led to increasing frustration in both official political circles as well as civil society. From this situation ultimately emerged some kind of acceptance of non-intervention, along with widespread indifference about the further devel- opment of the conflict.
48 Thomson, The Father and Daughter We Let Down, The Star, 11 April 2009. 49 Shanker, The Struggle for Iraq: The Military; 6 G.I.’s in Iraq Are Charged With Abuse Of Prisoners, nyt, 21 March 2004. 50 See below, pp. 44ff. 51 However, the use of chemical weapons changed this to some extent, although only for a relatively short time. 52 See below, pp. 56ff.
In the face of the Syrian situation it must be stated that a cnn effect cannot be discerned at all. Was the whole concept thus a myth? Or was the effect this time unable to unfold its power, because independent reporting was not pos- sible and viewers were never entirely sure whether they could rely on what they read and saw? Or has the high-speed live and online news environment even reduced the effects of its own content? Unfortunately, time and space of this project are limited. Therefore, these questions must remain open and should be the subject of further research. In conclusion, it can be said that the complex relations between the media and political decisions are not as simple as the myth of the cnn effect suggests. The media alone may not be strong enough to alter political decision-making. However, it does change and create the environment in which policy is made. Additionally, the public is becoming increasingly aware of its enormous power to make its voice heard through media (especially social media). International media, therefore, constrains rather than deters policymaking.53
B Military Attempts to Influence Media Moving on from media influences on military decision-making, this section concentrates on the other side of the twofold relationship between the media and the military. It gives a glimpse into the perspective of the military and its different approaches to handling the enormous external influences of the power of information. For a long time, journalists were a natural extension of the military. Censorship was a common feature of war reporting and journalists propagated the message the military wanted them to promote.54 In recent decades, how- ever, democratic societies have come to disagree with absolute censorship.55 The military has thus sought other methods to influence the media. In military terms, the use of such methods is called media operations. Media operations are executed in accordance with the government-led information strategy, but are distinct from information operations, which are also part of the overall information strategy of a government, but are aimed at destroying the enemy’s
53 Similar, Gilboa, Effects of Global Television News, 2005, p. 9. 54 See Knightley’s accounts of the First and Second World War in Knightley, The First Casualty, 2004, pp. 83–364. 55 An example of this is the outcry in the American public after the revelation of untrue military statements and accounts of different us administrations about war progress in Vietnam with the publication of the Pentagon Papers leaked by Daniel Ellsberg, himself an employee of the Pentagon. The exposure of those lies and the misinformation fed to the American public later led to the Watergate scandal and finally to the resignation of former us president Richard Nixon.
‘will to fight’ on the battlefield. Information operations are partly aimed at undermining the legitimacy of the enemy‘s leadership and eroding the moral power and perceptions of civilians.56 Information operations are distributed, controlled and selected through political- or military-owned media, whereas media operations are distributed through independent media. However, the intent and intended recipient of the persuasive communication are the same.57 The goal of media operations is the skilful manipulation of the media. According to the us Army Field Manual of 2003, this can be achieved via the construction of ‘a plausible, but false, view of the situation, which will lead the deception target into acting in a manner that will accomplish the command- er’s goal’.58 The theory behind such media operations is today an important branch of contemporary warfare strategy. The us Army Field Manual of 2003 even describes it as a fundamental instrument of military art.59 There are plenty of past examples of such military operations aimed at deceiving the media. However, most of them were only revealed in the after- math of their execution, such as the following episodes that took place during the wars in Iraq and Afghanistan. In April 2008, the nyt published an exhaus- tive article titled ‘Message Machine’.60 It was a piece about the Bush adminis- tration’s information strategy starting in 2002, which was aimed at influencing the media by briefing its external experts and commentators, who were often military analysts (many of them retired generals). Early in the war, the admin- istration realised that there was extensive airtime to fill on several radio and television news networks reporting nonstop, and that military analysts, per- ceived to be independent and authoritative, often had more airtime than the actual reporters. David Barstow, who won the Pulitzer Prize for investigative
56 The 2013 us Field Manual defines information operations as ‘the integrated employment, during military operations, of information-related capabilities in concert with other lines of operation to influence, disrupt, corrupt, or usurp the decision-making of adversaries and potential adversaries while protecting our own Information’. us Dep of Defense, Inform and Influence Activities, 2013; Maltby, Military Media Management, 2012, pp. 21f. 57 Maltby, Military Media Management, 2012, p. 23. 58 us Dep of Defense, Information Operations, 2003. See also the us Army Field Manual of 2013, which uses a more subtle language: In this version, a heading titled ‘Inform and Influence Activities’ lists two lines of action, one to inform and one to influence media. us dep of defense, Inform and Influence Activities, 2013. See further on the issue Payne, Media as an Instrument of War, 2005, p. 85. For the priorities of such media opera- tions for British forces, see Maltby, Military Media Management, 2012, p. 25. 59 us Dep of Defense, Information Operations, 2003. 60 Barstow, Message Machine, Behind tv Analysts, Pentagon’s Hidden Hand, nyt, 20 April 2008.
61 Ibid. 62 The British military applied the same tactics, although it is not known to what extent. Richard Dannatt, head of the British Army, took Rebekah Wade, then still senior editor of the tabloid The Sun, and Sir Max Hastings, a famous and influential defence writer, on quick dashes around the battlefields. Wilesmith, Reporting Afghanistan and Iraq, 2011, p. 36. 63 Barstow, How the Pentagon Spread Its Message, nyt, 20 April 2008. 64 Ibid. For another media operation of the us military, this time to influence the flow of information in the Iraqi media through the proxy of a private contractor, see Kuttab, The Media and Iraq, 2007, pp. 885f. 65 See written statement available on the nyt website. Barstow, How the Pentagon Spread Its Message, nyt, 20 April 2008. For further examples see Wilesmith, Reporting Afghanistan and Iraq, 2011, pp. 37f.
C Consequences of This Relationship a Tendency to Abuse The last two sections proved again the enormous power of media to shape public opinion. Well aware of this power, governments as well as militaries constantly try to shape and stream it in their favour. War coverage is therefore under the perpetual pressure of political manipulation. However, the power of the media in contemporary society also entails other eminent risks. First, the media does not always work independently and sometimes fol- lows a fundamental bias. The financial and political background of media
66 Wilesmith, Reporting Afghanistan and Iraq, 2011, p. 11. 67 Ibid, pp. 11, 14. 68 Fifty per cent believed that the us had found evidence that Iraq was working closely with al-Qaeda, over twenty per cent believed that actual weapons of mass destruction had been found in Iraq and almost twenty-five per cent believed that world opinion favoured the us going to war with Iraq. Even two years after 9/11, seven out of ten Americans still believed that Saddam Hussein and Iraq had a role in the terrorist attacks on the World Trade Center. Ibid, p. 16. 69 See for instance the personal apology of Leonard Downie, Jr, executive editor of the Washington Post. Downie, The Washington Post, 12 August 2004.
70 See as an example the coverage of Italian media about the political engagement of media magnate Silvio Berlusconi or the war coverage on Iraq and Afghanistan of the American network Fox News. With other examples, Thürer, Kampf der Bilder, 2009. 71 Stelter, After Raid, Videos Carry On the Fight, nyt, 1 June 2010. 72 One of the idf videos attracted more than 600,000 views on YouTube within a few hours. Ibid. 73 See its origins in Gustave Le Bon’s Psychologie des foules (The Crowd) of 1895. These ideas were later carried on by Sigmund Freud, Max Weber and finally the doctrine of the Nazi regime. See also Reicher et al., Entrepreneurs of Hate, 2005, p. 621 with further references.
I can’t predict if ultimately, the war will be started. …However, should journalists keep quiet about this possibility for not procuring a possible war? I mean, they have to describe the precarious situation, so that war as a big concrete danger will be realised and can be avoided. Journalists too must learn to tackle tightrope walks.78
74 Goebbels for instance wrote that: ‘[T]he most brilliant propagandist technique will yield no success unless one fundamental principle is borne in mind constantly – it must con- fine itself to a few points and repeat them over and over. …[I]f you tell a lie big enough and keep repeating it, people will eventually come to believe it’. Cited in Reicher et al., Entrepreneurs of Hate, 2005, p. 622. 75 See below in Chapters III and IV, pp. 179ff, 270ff. 76 Cited in Gilboa, Effects of Global Television News, 2005, pp. 11f. 77 Similar, Knightley, The First Casualty, 2004, p. xiii. 78 In the original German version: ‘Mir ist nicht möglich, zu prognostizieren, ob der Krieg gegen Iran letztlich begonnen wird. … Doch sollen Journalisten diese Möglichkeit
v erschweigen, um einen möglichen Krieg nicht herbei zu reden? Ich meine, sie müssen die prekäre Situation beschreiben, damit der Krieg als grosse konkrete Gefahr begriffen und verhindert werden kann. Auch Journalisten müssen lernen, Gratwanderungen zu bewälti- gen’ (translated by the author). Ulrich Tilgner, Pulverfass Mittlerer Osten, Zurich 2010. 79 Pauly, Is Journalism Interested in Resolution?, 2009. See also Loyn, Peace Journalism, 2007. 80 Pauly, Is Journalism Interested in Resolution?, 2009, p. 19. 81 Ibid, pp. 20f. 82 Ibid, p. 22.
3 Essence of Part I To summarize, this first part of Chapter 1 showed that the combat environment of today’s war coverage is rapidly changing and tends ever more toward cyber- war, in which information is one of the key factors for mission success. At the same time, information is also of high importance to general politics because it alters public opinion, which sets bounds on every democratic government. War coverage that delivers information about armed conflicts therefore has a major power to constrain policymaking. Well aware of this power, governments and militaries have developed different tools, such as media operations, to influence the media’s coverage of wars and ultimately affect the public’s perception of it. Media is hence under perpetual pressure to be exploited for military interests. Moreover, the said power of the media holds other eminent risks that range from non-transparent accountability and political manipulation to war propa- ganda. We have also seen that because of its ambition and structural placement within society, the media is not well suited to act as a facilitator for peace. It can therefore be said that media tends more to conflict than to its resolution.
II Circumstances, Methods and Means
1 Case Studies Having examined the theoretical combat environment and political context of war coverage in the 21st century, this section now focuses on the concrete cir- cumstances, methods and means of war coverage in contemporary conflicts. To this end, I discuss four conflicts that took place in the last decade: Iraq from 2003 to 2008, Libya in 2011, Gaza in 2008 and 2012, and Syria from 2011 to 2014. These four conflicts were chosen because they stand for the major develop- ments in the field in the relevant time periods and because of the accessibility of material on the conflicts.83 All four conflicts are armed conflicts as the term is understood in this book.84 They can hence serve as a factual backbone for the forthcoming legal analysis. The aim of this section is further to reveal the
83 For the methodology behind the choice of examples and cases, see further the Introduction, pp. 11ff. 84 For the legal requirements for a war to be classed as an armed conflict see Chapter 2, pp. 79ff. Further on these cases: Milanovic, How to Qualify the Armed Conflict in Libya? Blog ‘ejil Talk!’, 1 September 2011; ila, Meaning of Armed Conflict (2010), p. 26.
A Iraq (2003–08) a High End of Embedding I start this section with the case of the war in Iraq from 2003 until 2008, which was accompanied by a major shift in the media-military relation- ship that subsequently affected numerous other aspects of the conflict coverage.85 This shift became feasible shortly before the invasion into Iraq started, namely, when the us military announced the opportunity for the media to report on the war by being directly embedded with the military. To ‘embed’ a journalist meant placing him or her ‘in bed’ with the military. He or she would travel and eat together with and sleep alongside the troops. It was the first time that the us military had voluntarily opened its doors to journalists.86 In previous wars, such as the us invasion of Granada, its opera- tions in Panama and the First Gulf War, the us military had applied a very restricted information policy. It had denied media access to the battlefield and sometimes even effected information blackouts, rejecting any media requests for information about its military operations.87 To familiarize reporters with the military and the conditions of the journal- ists’ future work surroundings, the Pentagon offered interested media workers orientation training. In these so-called Embed Boot Camps, reporters were given a crash course in what they could possibly face during their missions in Iraq. They were taught about nuclear, biological and chemical threats as well as first aid. Andrew Jacobs, a New York Times prospective embed, described his training course later as, ‘alternately enlightening, entertaining, horrifying, and
85 For background on the conflict see Rodriguez, Embedding Success, 2004; Smith, The Media, 2004. 86 It cannot be proven definitively, but is still assumed that the new approach had been inspired by the concepts and outcome of reality programmes of the time, such as the tv series Cops or Profiles from the Front Line. Both programmes embedded journalists, one with local police departments, the other with us forces in Afghanistan. Livingston et al., International News, 2005, p. 49. 87 Smith, The Media, 2004; Zeide, In Bed with the Military, 2005.
- Units should plan lift and logistical support to assist in moving media products to and from the battlefield so as to tell our story in a timely manner. In the event of commercial communications difficulties, media are authorised to file stories via expeditious military signal/communications capabilities.91 - Commanders will ensure that media are provided with every opportunity to observe actual combat operations. The personal safety of correspondents is not a reason to exclude them from combat areas.92 - The standard for release of information should be to ask ‘Why not release’ vice ‘why release’. Decisions should be made asap, preferably in minutes, not hours.93 - Media may terminate their embed opportunity at any time.94 - All interviews with service members will be on the record. Security at the source is the policy. Interviews with pilots and aircrew members are autho- rized upon completion of missions.95 - Media embedded with us forces are not permitted to carry personal firearms.96
The ground rules generally claimed to acknowledge the right of the media to cover military operations and that they were ‘in no way intended to
88 Rodriguez, Embedding Success, 2004, p. 63. 89 The website offered also a lot of practical information, such as travel routes to Baghdad (via commercial flights, military units, etc.), information about biometric screening, visa application, and so on. Available at:
97 Ibid, Rule 4. 98 This is a further development of the ground rules for the mission in Afghanistan, which stipulated three categories of information (free, restricted and prohibited). 99 us Dep of Defense, Media Embed Ground Rules (2003), Rule 4F. 100 (Punctuation added) Ibid, Rules 4.G.18 and 4.G.19. 101 However, not all military troops allowed journalists to accompany them. Australian jour- nalists, for instance, were not allowed to embed with the Australian troops. Ibid.
102 Smith, The Media, 2004, p. 1351. 103 For scientific studies on the question of the objectivity of this kind of coverage, see Fox and Park, cnn in Iraq, 2006; Lewis, Facts in the Line of Fire, The Guardian, 6 November 2003. Further on the subject: Tuosto, The ‘Grunth Truth’, 2008; Smith, The Media, 2004, p. 1354; Wilesmith, Reporting Afghanistan and Iraq, 2011, p. 60. 104 Knightley, The First Casualty, 2004, pp. 538ff; Wilesmith, Reporting Afghanistan and Iraq, 2011, p. 20. 105 Jesper Hojberg, Executive Director of International Media Support, unesco, Safety of Journalists and Impunity (2007), p. 43. For the challenges of Iraqi journalism during and after the occupation see further Majid, The Crisis in Iraqi Journalism, 2007. 106 Knightley, The First Casualty, 2004, pp. 538ff. See further below, pp. 297ff.
107 Wilesmith, Reporting Afghanistan and Iraq, 2011, p. 20. 108 Knightley, The First Casualty, 2004, p. xii. 109 Ibid, pp. 538f. 110 Ibid; Kuttab, The Media and Iraq, 2007, pp. 882f. 111 See e.g. the example of the WikiLeaks video recording the attack of an American helicop- ter on two Reuters employees, mentioned in the Introduction, p. 2. 112 Interestingly, the cpj’s Death Watch counted just one killed journalist in Iraq before 2003. However, it is not entirely clear whether this number was a result of the changing scope of monitoring. See the cpj Death Watch available at:
[S]uch a practice sets a dangerous precedent that could jeopardize all other journalists covering this war as well as others in the future. …There is a real risk that combatants will henceforth assume that all press vehi- cles are armed.115 d The Rise of Bloggers During the invasion and occupation of Iraq, a new instrument of war coverage appeared on the horizon: bloggers, both from members of the military and from civilians, began gaining popularity and credibility.116 Three categories of blogs were prominent: first, blogs of journalists, many of them freelancers, who used this instrument to release their own story outside the channels of tradi- tional media; second, so-called milblogs, blogs from members of the military; and third, blogs of Iraqi civilians living under the American occupation.117 The blog of nbc News correspondent Kevin Sites, who was embedded with the United States Marines during November 2004 in Fallujah, is a good example of the first group of blogs.118 During his embed, he witnessed the killings of wounded Iraqis in the mosque of Fallujah. Sites filmed the operation, showing marines pointing their guns and pulling the trigger at the Iraqi soldiers. He was not sure if he could publish the video, which bluntly showed executions of Iraqi soldiers. After
114 rwb Website, cnn Crew’s Bodyguard Fires Back With Automatic Weapon When Crew Comes under Fire, Press Release, 13 April 2003. 115 Ibid. 116 Reasons for this success were manifold: lurid ideological reporting, the interactive nature of blogs, and the decreasing coverage of traditional media. Johnson and Kaye, Blogs of War, 2010; Wilesmith, Reporting Afghanistan and Iraq, 2011, p. 27. 117 See Johnson and Kaye’s interesting article analysing the credibility of bloggers by users ratings. Johnson and Kaye, Blogs of War, 2010, p. 317. 118 His blog is available at:
119 Example cited in Matheson and Allan, Digital War Reporting, 2009, pp. 1–9. 120 Johnson and Kaye, Blogs of War, 2010, p. 326. 121 Matheson and Allan, Digital War Reporting, 2009, p. 77. 122 His blog is available at:
B Libya (2011) The next case, the uprising in Libya during 2011, was of a completely distinct nature from the invasion into Iraq. It was a very brutal conflict involving different groups of actors and heavy weaponry used by the pro-Gaddafi forces on one side and sometimes very improvised weaponry on the side of the rebel fighters. However, because of the unclear distribution of power and control over territory, which cre- ated fuzzy edges of combat zones, it too was a very dangerous place for journalists. On top of that, the war coverage was mainly marked by two circumstances: On the one hand, the rebels understood early on the importance of having international media spread their view on the conflict from their perspective. Therefore, it was very easy for foreign journalists to gain access to the combat zones in territory con- trolled by the rebel groups in the east of the country. There, journalists were able to move around alongside the fighters without the restrictions of an actual embed- ding system and with the possibility of shooting pictures and witnessing combat operations closer than ever. On the other hand, former Libyan president Muammar Gaddafi pressed all the buttons of a media war, attempting to discredit opponents and prevent negative coverage of the conduct of his own forces. He tried to control media access to the battle zones as well as the content of the coverage and to attack all media criticising him, for – as he put it – inciting violence and spreading rumours and false information.124 a Communication Blackouts Like almost everything else in Libya, the country’s telecommunications infra- structure was controlled by the government.125 When the uprising started in February 2011 in Benghazi, the cell phone service was cut off. As early as 18 February 2011, Facebook and Twitter, and later all access to the Internet, were blocked. By end of February, Tripoli was the sole place within the whole coun- try where international phone calls were still functioning. However, there was
123 Smith, The Media, 2004, p. 1372. 124 ai, The Battle for Libya, 2011, p. 20. 125 Seib, Real-Time Diplomacy, 2012, p. 55. And for the story of the hijacking of Libyana’s phone network, see Coker and Levison, Rebels Hijack Gadhafi’s Phone Network, wsj, 13 April 2011; Sonne and Coker, Firms Aided Libyan Spies, wsj, 30 August 2011.
126 ai, The Battle for Libya, 2011, p. 19; Out of this context arose a legal case that is of high inter- est in the context of accountability of corporate companies for human rights violations: Namely, two ngos filed a case against Amesys, a French company that supplied monitor- ing software to the Gaddafi regime when international sanctions were already in place. The software was subsequently used by the Libyan information services to identify, arrest and torture critical civilian voices in Libya. The company is therefore alleged to be com- plicit in acts of torture. The case is being investigated and proceeding before Paris’s courts. Sonne and Coker, Firms Aided Libyan Spies, wsj, 30 August 2011. 127 ai, The Battle for Libya, 2011, pp. 9, 19. 128 Seib, Real-Time Diplomacy, 2012, p. 55. 129 ai, The Battle for Libya, 2011, p. 20.
Obviously, most international journalists did not follow the official recom- mendations and sought to provide independent coverage. A high number of them lost their lives during the uprising.130 Other journalists were luckier and survived attacks. One of them, for instance, was the German journalist Jürgen Todenhöfer, who in March 2011 discovered burnt-out cars in the desert on his way from Benghazi to Brega. Shortly after he and his companions stopped, their car was attacked. Fortunately, most of them were able to hide. Nevertheless, their Libyan driver was killed. The group of survivors subsequently withstood a two-hour attack behind a sand dune. In the protective dark of the night, they were finally able to escape and walked seven hours back to Benghazi.131 c Denying Access by Detention In most cases, however, the official policy was not to kill but to arrest, detain and threaten journalists in order to prevent them and deter others from report- ing about events in Libya. Numerous examples are a testimony of this wide- spread strategy.132 For instance, teams of both British and American reporters were arrested by Libyan forces and held for several days. In one case, the sol- diers took the reporters’ cameras, mobile phones and memory sticks. Their hands were tied and eyes covered, and they were deported to a military com- pound in Tripoli, where they were beaten up, some of them severely, accused of being spies and subjected to a fake execution.133 Despite severe losses of
130 E.g. two unnamed employees of Al Jazeera in March 2011; Mohamed Nabus, founder of the first independent online tv station that bypassed the government’s news blockade and the face of civilian journalism in Libya; as well as three international war photogra- phers: Anton Hammerl, Chris Hondros and Tim Hetherington. Hetherington was one of the most famous war photographers of the time, winning an Academy Award for Restrepo, a documentary about the war in Afghanistan. See Kameramann des Senders al-Jazira in Libyen getötet, nzz, 13 March 2011; ai, The Battle for Libya, 2011, p. 20; rwb Website, Two Journalists Killed, Many Missing, Arrested or Deported – List of Media Freedom Violations Gets Longer, Press Release, 21 March 2011; ai, The Battle for Libya, 2011, p. 20; Preisgekrönte Kriegsfotografen in Misrata getötet, Tages-Anzeiger, 21 April 2011. 131 Interview of Matthias Chapman with Jürgen Todenhöfer, ‘Ich rannte nicht. ich wusste, über mein Leben war entschieden’, Tages-Anzeiger, 25 March 2011. 132 See Peters, Freed Times Journalists Give Account of Captivity, nyt, 21 March 2011; rwb Website, rog erleichtert über Freilassung ausländischer Journalisten, Press Release, 25 August 2011; rwb Website, Two Journalists Killed, Many Missing, Arrested or Deported – List of Media Freedom Violations Gets Longer, Press Release, 21 March 2011; Entführte italienische Journalisten sind frei, Spiegel, 25 August 2011; ai, The Battle for Libya, 2011, pp. 20, 62. 133 See the example in the Introduction, pp. 2f.
134 Erdmann, Gefangen im Fünf-Sterne-Knast, Spiegel, 24 August 2011. 135 Williams, Hotel Libya – Journalist Relives the Horror Story, Blog ‘insi’, 21 August 2012. 136 See Chapter 5, pp. 387ff for more information on this service of the icrc. 137 There was also a rare account of a team of the nyt that wished to enter the hotel but was immediately rejected at gunpoint by the armed guards. See Erdmann, Gefangen im Fünf- Sterne-Knast, Spiegel, 24 August 2011; Williams, Hotel Libya – Journalist Relives the Horror Story, Blog ‘insi’, 21 August 2012. 138 Erdmann, Gefangen im Fünf-Sterne-Knast, Spiegel, 24 August 2011.
- Shooting around Rixos; Journalists moving upstairs to safety. - Waiting in the Rixos. Gunfire inside the hotel. Going on air. - Hotel still under Gadhafi control, even as celebrations spread nearby. - Everyone frightened & concerned – doesn’t feel like a 5 star hotel. Some water left but food at risk of ruin. - We’d like to leave to a safer location and negotiate an exit, but we are being prevented from doing so. - Over night store smashed open by gunmen. Journalists told to help themselves. - I had a Mars bar for breakfast. - Rixos crisis ends. All journalists are out! - Crisis ended when rixos gunmen realised that Libya outside of hotel doors was no longer Libya of old. Handed us their guns & said ‘sorry’. - bbc crew is leaving the hotel. - bbc has left the hotel.140
Many other journalists around the world followed this thin stream of informa- tion and tweeted about the crisis under the hashtag #Rixos.141 A high number of journalists had already used Twitter before, but this was the coming-of-age moment when the platform definitively arose as an additional news source for all major global news outlets covering armed conflicts. To sum this section up: Overall, the media coverage of the Libyan uprising was marked by a very hostile attitude of the Libyan government toward media, which resulted in many deaths and even more incarcerations of news provid- ers. In addition, regular shutdowns of all communication channels compli- cated the work of correspondents in the field. This contrasted with the
139 Erdmann, Gefangen im Fünf-Sterne-Knast, Spiegel, 24 August 2011. 140 (Punctuation added) Unfortunately, the exact time of the Tweets cannot be recon structed in retrospect. See Twitter, @matthewwprice, available at: www.twitter.com/#!/ mchancecnn. 141 Twitter allows its users to create new digital meeting points, where information about a common subject runs together by using a so-called hashtag (# + subject).
C Gaza (2008/2012) The next cases examined in this section are two military operations of the idf. It is needless to say that the Israeli–Palestinian conflict looks back on a long history of fluctuating violence, peace negotiations, agreements and new waves of armed violence. It has therefore already occupied the minds of thousands of historians, politicians and legal scholars. The complexity of the conflict offers a broad range of disputed legal questions.142 However, this section will only look at two short episodes of recent years in order to outline the role and use of the media during very violent periods of this conflict. The first situation that will be discussed is Operation Cast Lead, which lasted from 27 December 2008 until 21 January 2009 and represents idf media policy at its most restrictive.143 On the other hand, the second situation, Operation Pillar of Defense, an eight- day offensive from 14 to 21 November 2012, exemplified a new form of online propaganda by the unprecedented use of digital information as ammunition and the targeting of so-called illegitimate journalists.144 a Communications Blackout in 2008 The Israeli Army has traditionally been very careful to curry favour with the media. In the war against Hezbollah in Lebanon during 2006, the media was everywhere close to the idf; their cameras even picked up discussions between commanders. This policy changed rapidly in 2008. During Operation Cast Lead the idf imposed a total news blackout in the Gaza Strip. Erez, the sole pedes- trian crossing from Israel into Gaza, remained closed to all foreign journalists from the first day of the operation.145 Israeli and Palestinian journalists had already been denied entrance to Gaza by Israeli authorities, ostensibly because of danger to the journalists, since Hamas had won the elections two years before. But a ban on all media entering Gaza was new. Hence, the only
142 One of them being the classification of the conflict. See for many icj, Wall Opinion; Dinstein, Belligerent Occupation, 2009; Paulus and Vashakmadze, Asymmetrical War, 2009, pp. 113ff; Supreme Court of Israel, Bassiouni v Prime Minister, para. 12; Vité, Typology of Armed Conflict in ihl, 2009, p. 84f. 143 For more background on the facts, see Goldstone Report (2009); un ocha opt, Blockade Gaza (2009). 144 For more background on the facts, see Israel-Gaza Violence, bbc, 22 November 2012; Operation Pillar of Defense: Summary of Events, Blog ‘idf’, 22 November 2012. 145 The second crossing at Rafah was also closed by Egyptian authorities.
146 dcmf Website, Media Blackout during the Gaza War, 15 February 2009. 147 See the comment of Akiva Eldar, a senior commentator with the liberal Israeli daily news- paper Haaretz on: ibid. 148 Ibid. 149 Ibid. 150 Marty, Sag mir, wo die Toten sind, faz, Feuilleton, 12 January 2009. 151 Ibid. 152 rwb Website, Gaza News Blockade: Petition by Reporters without Borders and 160 News Media about Handed in at Israeli Embassy, 20 January 2009. 153 cpj, cpj urges Israel to open Gaza to international reporters, 6 January 2009.
154 Bronner, Israel Puts Media Clamp on Gaza, nyt, 7 January 2009; dcmf Website, Media Blackout during the Gaza War, 15 February 2009. See further on the case law on access to conflict zones, Chapter 4, pp. 255ff. 155 idf YouTube channel available at:
We recommend that no Hamas operatives, whether low level or senior leaders, show their faces above ground in the days ahead.158
Again some minutes later, the Alqassam Brigades, the militant arm of Hamas, responded on Twitter:
Our blessed hands will reach your leaders and soldiers wherever they are (You Opened Hell Gates on Yourselves).159
The idf Twitter account further invited followers to ‘read up’ on al-Jabari to understand why the Israeli military killed him and spread links to video and articles about Hamas’s past attacks on Israel. During the following days, first hundreds and then thousands followed a verbal propaganda battle on Twitter and shared their own views on the war in tweets using the hashtags #pil- larofdefense for the Israeli side and #gazaunderattack for the Hamas side of the story. This online propaganda had been carefully orchestrated. Several days before al-Jabari’s targeted killing, the idf began live blogging about the rocket attacks on southern Israel arriving from Gaza. As soon as the operation began, the idf also opened a Facebook160 account and a Flickr161 feed, all relying on the same white-on-red English info graphics, ready for copy/paste and distribution for
the idf’s official YouTube channel. Shachtman, Israel Kills Hamas Leader, Instantly Posts it to YouTube, Wired, 14 November 2012. 158 (Punctuation omitted) idf (@IDFSpokesperson), Tweet, 14 November 2012. 159 (Punctuation omitted) Alqassam Brigades (@Alqassam Brigades), Tweet, 14 November 2012. The Twitter page of the Alqassam Brigade has since live-tweeted its revenge attacks on Israel. 160 Facebook is a social networking service founded in 2004. Users – both individuals as well as corporate identities – can register and create a personal profile, connect with friends, exchange messages, share pictures and links to online sources and monitor updates to the profiles of their contacts. As of fall 2012, Facebook had over one billion active users. See
162 Shachtman, Israel Kills Hamas Leader, Instantly Posts It to YouTube, Wired, 14 November 2012. Sources of the images: idf (@IDFSpokesperson), Tweets, 14 November 2012. 163 Ibid. 164 Ibid. 165 Machey, Palestinians and Israelis Share Images of Dead and Wounded Children, Blog ‘The Lede’, nyt, 15 November 2012. 166 Although most international news outlets tried hard to stay objective in the conflict, the propaganda and the pictures were out and could not be ignored. The bbc, for example, widely covered the attack that caused the death of the son of its employee in Gaza. This coverage was completed by personal accounts of its correspondents. See as an example the Twitter coverage of bbc’s Middle East Bureau Chief Paul Danahar, who reported directly out of a civilian area in the Gaza Strip. Paul Danahar (@pdanahar), Tweet, 16 November 2012, 3.30 am. 167 Israeli Prime Minister Netanyahu posted at least two times a photograph of an Israeli baby (face obscured) who had been injured by missiles fired from Gaza, with the caption, ‘For Hamas, every time there are civilian casualties, that’s an operational success’. Benjamin Netanyahu (@netanyahu), Tweet, 20 November 2012. 168 Cohen, In Gaza Conflict, Fighting With Weapons and Postings on Twitter, nyt, 21 November 2012.
Remember it takes only 10 seconds out of hours of video footage to cause irreparable damage to the image of the soldiers, the army and the State… [M]edia, and especially the foreign press, is looking for strong images, even provocative, and therefore we must restrain from creating such images unnecessarily. …Remember that reporters on the field can create a provo- cation by their very presence or even intentionally in order to incite you to react the way they want you to…. The media has taken a central place on the modern battlefield and constitutes a lethal, yet legitimate weapon…. The media does not reflect reality as a mirror, but rather shapes and influ- ences it. The Palestinians make good use of this tool. It’s important to be the one leading and not the one being led.171
169 Benjamin Netanyahu (@netanyahu), Tweet, 19 November 2012, 11.04 pm. 170 See the video on YouTube, available at:
172 Moehing, ‘Illegitime’ JournalistInnen, gibt’s die?, derStandard, 25 November 2012. 173 hrw, Unlawful Israeli Attacks on Palestinian Media, 2012. 174 Ibid. 175 Ibid. 176 Ibid. For a legal assessment of these claims see further Chapter 3, pp. 158, 188f and Chapter 4, pp. 290ff. 177 How Hamas and Islamic Jihad Use Journalism as a Cover for Terrorism, Blog ‘idf’, 29 November 2012.
Pandora’s box in describing the targeted media as ‘illegitimate journalists’. When asked about wounded media workers in and on the targeted buildings, idf spokesperson Mark Regev told Al Jazeera that the idf considers employ- ees of Al-Aqsa tv – unlike reporters of the bbc or Al Jazeera – not to be ‘legiti- mate journalists’.178 According to Avital Leibovich, another idf spokesperson, any media intricately linked with Islamic Jihad and Hamas were in fact ‘terror- ists, who hold cameras and notebooks in their hands [and] are no different from their colleagues who fire rockets aimed at Israeli cities’.179 Leibovich then concluded that such journalists ‘cannot enjoy the rights and protection afforded to legitimate journalists’,180 and Regev further added that ‘[a]ll those involved in targeting Israeli civilians directly or indirectly should not feel that they have impunity’.181 In sum, the two operations of the idf in Gaza, Operation Cast Lead and Operation Pillar of Defense, marked two completely different approaches of the idf toward the media. While all journalists were completely shut out from the first operation, the tactic of the second operation then shifted to an immense generic news production by the idf themselves. If it was not clear before, the story of the beginning of Operation Pillar of Defense gave ultimate proof of how new media instruments can be used as rather aggressive digital weapons of opinion-shaping.182 In addition, the idf deliberately targeted several journal- ists and media installations, claiming that they were not legitimate journalists.
D Syria (2011–14) The last case portrayed in this section is again an non-international armed conflict, namely, the war in Syria since 2011.183 The coverage of this war shows patterns simi- lar to the those of the war in Libya. The official policy of the Syrian government, for instance, was also the deterrence of independent reporting through targeting and
178 Al Jazeera English, Israeli government spokesman Mark Regev defending the air strikes that hit a building housing local and foreign journalists in Gaza, 19 November 2012, video available at:
184 Franzoesischer Journalist in Syrien getoetet, nzz, 11 January 2012. 185 Ibid. 186 ipi Website, Syria Should Return Adem Özköse and Hamit Coşkun to Turkey as Soon as Possible, ipi Calls for Safe Release of Journalists, 16 March 2012, available at:
188 cpj Website, Journalist Deaths Spike in 2012 Due to Syria, Somalia, 18 December 2012. Similarly: Swiss photojournalist Kurt Pelda in an interview on German tv in summer 2012: ard Morgenmagazin, 16 August 2012; Gladstone, Journalists in Syria Face Dangers of War and Rising Risk of Abduction, nyt, 9 August 2013. 189 A fixer is someone hired by a foreign correspondent to help arrange a story. In most cases, this person is a local journalist or other local person with knowledge of the language and the political and social environment in the region. 190 Gladstone, Journalists in Syria Face Dangers of War and Rising Risk of Abduction, nyt, 9 August 2013. 191 cpj Website, cpj Condemns Effort to Silence News Coverage of Syria, 4 April 2013; Sherlock, Syrian Businessman Puts Bounty on Journalists, The Telegraph, 5 April 2013. 192 rwb, Liberté de la Presse, 2012, p. 4. 193 Gilles Jaquier and Rémi Ochlik, both French reporters; Mika Yamamoto, a Japanese jour- nalist; Marie Colvin an American journalist; and Yves Debay, a Belgian-born French jour- nalist. See the website of the cpj for more information and the video of French journalist Edith Bouvier mentioned in the Introduction of this book, p. 3.
Colvin, an American-born war correspondent, offered a very impressive portrait in her black eye-patch, having lost one eye while covering unrest in Sri Lanka in 2001. Her stories of the most dangerous places on earth earned her the title ‘queen of war correspondents’.194 In February 2012 she was covering the conflict in Syria for London’s Sunday Times and died together with French reporter Rémi Ochlik when their hideout in Homs was ambushed by the Syrian army. Facing the difficult situation for international reporters, many local journal- ists covered the conflict and many of them were killed beginning in spring 2011. According to the cpj, by the end of 2013, 56 local journalists had died in connec- tion with their work in Syria.195 Many more were and are still held in Syrian cells or by armed militia.196 And again, in this conflict, a media installation was tar- geted: In June 2012, the official Syria Arab News Agency reported an attack on the building of the pro-Assad Al-Ikhbariyah tv in the south of Damascus.197 c From Grass-Roots Activism to Citizen Journalism When the demonstrations began, the protestors numbered just a few hundred. In March 2011, they started to light fires on rooftops in Damascus and Homs to see how many others would follow suit as a hidden signal to join the revolu- tion.198 Shortly later, thousands were joining the protests. And within the first months of the conflict, many – mostly young – Syrians turned their activism and protests into organised forms of information-sharing systems. A new generation of citizen journalists emerged. They got sim cards and pseudonyms and were able to spread news over the country despite the regular Internet shutdowns by the government. Yet the flow of information did not
194 Pfeffer, Farewell to the Queen of War Correspondents, Haaretz, 22 February 2012. 195 cpj Website, Killed Journalists in 2013. 196 At least 23 professional journalists and 19 citizen-journalists were being held in government prisons in Syria in early 2013. Londoño, Journalist Austin Tice’s Family Pleads to Have Him Home for Christmas After Capture in Syria, The Washington Post, 20 December 2012; rwb Website, Free Syrian Army Faction Releases Kidnapped Lebanese Journalist, 14 November 2012; Gladstone, Journalists in Syria Face Dangers of War and Rising Risk of Abduction, nyt, 9 August 2013; rwb, Liberté de la Presse, 2012; cpj Website, Journalist Deaths Spike in 2012 Due to Syria, Somalia, 18 December 2012; ifex Website, As Fighting Escalates, Citizen Journalists Bear Heavy Cost, 13 July 2012. See also the rubric ‘Missing Journalists’ on the cpj website, available at:
199 Seib, Real-Time Diplomacy, 2012, p. 53; Syriens ‘Buergerjournalisten’, Wie trotz Blockade Informationen von den syrischen Unruhen an die Weltoeffentlichekeit gelangen, nzz, 10 February 2012. 200 A proxy server is a computer application that acts as an intermediary for requests from clients seeking information or resources from other servers. Their use has many advan- tages, such as bypassing restrictions on websites, increasing speed or enhancing security. In this context, they are mainly used out of security concerns, because they allow the original source of the request to remain hidden behind the proxy server. 201 Macleod, Syria’s Young Cyber Activists Keep Protests in View, The Guardian, 15 April 2011. 202 ifex Website, Video: Rami Jarrah on the Rise of Citizen Journalism in Syria, 20 December 2012.
203 Ibid. 204 Chozick, For Syria’s Rebel Movement, Skype Is a Useful and Increasingly Dangerous Tool, nyt, 20 November 2012. 205 Apparently, one of the first batches of satellite phones sent into Deraa was arranged by a Syrian national living in the us, who gathered about us�30,000 for approximately 80 sat- ellite phones. Malas, Syrian Revolt Fueled by Roof Fires and Tweets, wsj, July 15, 2011. 206 Syria Conflict: uk to Give Extra £5 m to Opposition Groups, bbc, 10 August 2012; Nicol and Myers, Britain Secretly Equipping SyrianRrebels with Latest Satellite Phones to Help Topple Assad, The Daily Mail, 5 August 2012. 207 Skype is an online service for communication purposes founded in 2003. The service enables registered users to call other registered users for free over the Internet, to exchange messages, photos and videos with them, or – for very cheap fees – to call to any other telephone extension worldwide.
2 Common Features The first section of this chapter summarised the characteristics and key chal- lenges of armed conflicts after the year 2000. This section now aims to do the same with regard to the means, methods and circumstances of war coverage in the new millennium. These common characteristics are drawn from the four case studies outlined above as well as from other relevant literature in the field. In a second step, the conclusion then summarises the actual risks and threats for news providers in contemporary conflicts and formulates equivalent legal questions addressing these threats.
A Journalism Meets the Market a Commercial Pressure From the 1980s onwards there has been relentless cost-cutting by Western news organisations in the face of budget cuts forced by declining revenues and the demands of corporate shareholders. At the same time, the new 24-hour news market redefined the work of the international reporter. The news was now always ‘on’ and services were in constant need of new stories or updates. The pace was further multiplied by the emergence of the Internet a decade later.210 The Internet also challenged the exclusivity of international reporting.
208 Chozick, For Syria’s Rebel Movement, Skype Is a Useful and Increasingly Dangerous Tool, nyt, 20 November 2012. 209 In the face of the latest information leaks revealed by Edward Snowden, the encryption of such services must anyhow be highly questioned. Chozick, For Syria’s Rebel Movement, Skype Is a Useful and Increasingly Dangerous Tool, nyt, 20 November 2012. 210 For the history of American and British news, see Sambrook, Foreign Correspondents, 2010, pp. 3ff, 25.
Private international mail traffic was replaced by instant and public blogging, or as Sambrook puts it:
The information revolution devalued the currency of mainstream foreign news. The premium or value in news became in up-to-the-minute break- ing news supplemented with comment and analysis for specialist or niche audiences.211
To compete with the technological shifts in the media circus, companies had to invest in digital newsrooms and satellite-enabled broadcasting facilities while reducing the costs of printing plants. In addition, advertising revenues were undercut by the fragmentation of the media. In other words, ‘[j]ournal- ism met the market – and found it uncomfortable’.212 Foreign correspondents are expensive. Along with the salaries and rent costs come allowances and support for the correspondent’s families. The rev- enue of international news had never covered these costs; they had always been subsidised by other parts of the news machinery.213 The Internet stripped away the cross-subsidies of the former press or tv networks. Google in particu- lar brings every article directly to the reader, without making him buy the whole newspaper. In addition, international reporting generally experienced a decrease in the second half of the 20th century. In the uk, for example, the international stories in the main newspapers dropped by 40% from 1979 to 2009.214 Finally, neither of the two most important aspects of modern report- ing, speed and comment, required expensive bureaux. Therefore, international correspondents and offices were often at the forefront of budget cuts.215 Today, more flexible business models, including variable bureaux and employees, have rebalanced fixed budgets. New kinds of cross-subsidies are emerging, be it non-profit grassroots entrepreneurialism from individuals or more state funding for international news. Nevertheless, the greater imperative to cut costs has led to stronger competition in the Western media market and
211 Sambrook, Foreign Correspondents, 2010, p. 8. 212 Ibid, p. 11. 213 Ibid, pp. 11–13. 214 Besides the cuts, interest in international news on wars is still valuable. An analysis of the Pew News Interest index looking at what news the us public followed over ten years from 1986 to 2007 put disaster coverage at 39 per cent compared with 17 per cent for foreign news in general. Ibid, pp. 16, 63, 67. 215 Ibid, pp. 11–13; Livingston et al., International News, 2005, p. 37; Rehfeld, Nur Schreihaelse werden noch gehört, faz, 1 November 2010; Wilesmith, Reporting Afghanistan and Iraq, 2011, pp. 14–19.
The parachute approach often produces news without context: the war or other humanitarian emergency appears to news consumers to have suddenly exploded, a distortion that occurs because journalists have not been on the scene to cover the situation while the fuse was burning…this kind of journalism is intrinsically misleading.219
However, there are also arguments in favour of such ‘crisis-hopping’. It can, for instance, be valuable in terms of professionalism and an accurate means of keeping distance from a certain environment, which can be reflected in a higher notice of changes.220 In addition, the accumulation of such parachute journal- ists led often to a formation of groups staying at the same place and travelling together, the so-called clumping of reporters. This phenomenon is also called ‘Palestine Syndrome’, derived from the Palestine Hotel in Baghdad, where most of the international journalists stayed during the invasion in 2003.221 This clumping may, however, also be caused by the security concerns of said journal- ists, the interest in sharing experiences with others and the possibility of parties to relieve stress caused by the exhausting working environment.222
216 Kupfer Schneider, International Media and Conflict Resolution, 2009, p. 1. 217 Sambrook, Foreign Correspondents, 2010, p. 7. See also Weichert et al., 1000 Dollar für ein Menschenleben, 2012. 218 According to former Swiss correspondent Marty, this was the case during the Gaza crisis in 2008: Marty, Sag mir, wo die Toten sind, faz, Feuilleton, 12 January 2009. 219 Sambrook, Foreign Correspondents, 2010, p. 18. 220 Ibid, p. 18. 221 Weichert et al., 1000 Dollar für ein Menschenleben, 2012. 222 Ibid.
[W]hether you’re writing from Aleppo or Gaza or Rome, the editors see no difference. You are paid the same: [US]$70 per piece. Even in places like Syria, where prices triple because of rampant speculation. So, for example, sleeping in this rebel base, under mortar fire, on a mattress on the ground, with yellow water that gave me typhoid, costs [US]$50 per night; a car costs [US]$250 per day. So you end up maximizing, rather than minimizing, the risks. Not only can you not afford insurance – it’s almost [US]$1,000 a month – but you cannot afford a fixer or a translator. You find yourself alone in the unknown. The editors are well aware that [US]$70 a piece pushes you to save on everything. They know, too, that if you happen to be seriously wounded, there is a temptation to hope not to survive, because you cannot afford to be wounded.223
The decreasing budgets of news rooms thus also have effects on the security of freelancers, since they cannot afford insurance or other necessary protective gear and end up maximising risks because of financial pressure. d Increasing Dependence on Local Staff With lower budgets for foreign offices and the increasing model of parachute reporting, more journalists are disconnected from the reporting-ground and depend therefore on local staff who fill in their knowledge gaps, have the net- work to find new and hidden high-quality information, and are able to deliver some context and background of a story.224 Such support staff usually travel
223 Borri, The Twisted Reality, 2013. To explain: A fixer is someone hired by a foreign correspon- dent to help arrange a story. In most cases, this person is a local journalist or other local per- son with knowledge of the language and the political and social environment in the region. 224 In Afghanistan, for instance, stringers and fixers were almost mandatory for foreign reporters because of the difficult territorial surroundings. See for instance the portrait of Swiss journalist Philippe Kropf on Sardar Ahman Khan, a former Afghan reporter who works as a ‘media facilitator’ and opened the media agency Kabul-Pressistan, now one of the largest and most prominent media productions in the country. Kropf, Fixer für
B Digitalisation and Acceleration We have seen that technology changed the face of war in the last two decades. The same is true for war coverage in the last 60 years: The Second World War was the first radio war, the war in Korea offered the first pieces from the front- lines by lightweight cameras, and during the Vietnam War, everything appeared for the first time in colour. Yet, it was during the last two decades that techno- logical progress changed the overall work of international correspondents massively: In the 1980s, for a live broadcast, satellite dishes had to be flown in, often on specifically chartered aircrafts. In the 1990s, equipment became smaller, lighter and more robust. Satellite dishes could be put into trucks or deconstructed into a series of pieces in portable boxes. However, such mini- portable television stations, called ‘fly-aways’, were stored in 30 cases the size of average luggage and weighed a single ton.226 In 2003, in contrast, reporters were already broadcasting with a satellite phone and a laptop. One reporter, nbc’s David Bloom, even brought with him a us�500,000 tank recovery vehicle, modified to be able to transmit television-quality video to a satellite while driving at 100 kilometres per hour.227 And in 2012, a satellite phone or even a smartphone – together with access to a mobile network – was sufficient to broadcast live to the home desks.228 In addition, mobile broadband
Fallschirm-Journalisten, In Krisengebieten wären viele Berichterstatter ohne lokale Dienstleister blind, nzz, 10 January 2012. The website of the company is available at:
The power of social networking – as musicians, journalists and busi- nesses have quickly learned – is that when done right, the audience does the work, passing on the message to others, who in turn pass it on. But it
229 wef, Global Information Technology Report, 2012, pp. 67ff. 230 rss feeds are an online tool to publish frequently updated information (e.g. blogs, news, scientific results). Users can subscribe to the rss feed of a certain information source and thus quickly receive a full or summarised text of the updated data of this source. Thereby, the need to manually check the source is redundant. 231 Sambrook, Foreign Correspondents, 2010, p. 33.
is a tricky business, mixing the gravity of war with a medium that can appear obsessed with triviality.232
This development has blurred traditional boundaries between policymaking and journalism. It seems as if the online space has become the new battlefield, with parties orchestrating a concert of propaganda and fuelling the world with digital ammunition, while everybody else has lost control of the flow of infor- mation and its sources. The paper version of newspapers digesting the news of a day during the night now already has an outdated taste when distributed the next morning. Therefore, all major leading press companies like the New York Times, the Guardian or the Israeli paper Haaretz started covering conflicts via liveblogs on their websites.233 These online forums enable them to keep pace with the incoming headlines from all over the world. However, most sites just replicate what news agencies report, and try to disguise this dependence through cosmetic changes or the addition of minor editorial adjustments on their websites.234 The real job of media would be to check the sources of such information and put them into context. Yet because of the high speed of infor- mation, this is an enormous challenge. Hence, the rat race for breaking news increasingly becomes a competition of breaking rumours.
C Civilianisation of the News Besides the participation of the conflict parties and of ngos in generic news production, the new digital media ecosystem also enables contributions from ordinary citizens. It started in the aftermath of the tsunami in Southeast Asia in December 2004.235 This was the moment when tourists and other citizens in the affected countries became a prominent feature on the journalistic land- scape by offering their holiday accounts and pictures to media outlets. It was
232 Cohen, In Gaza Conflict, Fighting With Weapons and Postings on Twitter, nyt, 21 November 2012. 233 Such as the blog ‘The Lede’ of the nyt, the News Blog of the Guardian or the Live Blog of Haaretz on the Israel-Gaza conflict. 234 See the stunning numbers of a study done by Chris Paterson of Leeds University in 2006, in which he analysed the content of popular news websites in the us and the uk. He discovered that on average 50 per cent of the stories were supplied by news agencies, principally Reuters and the Associated Press, although the individual statistics varied enormously: for the abc network the number was at 85 per cent and for the bbc at only 9 per cent. In the case of news portals by Internet companies, the average figure was even higher and stood at 85 per cent. Paterson, News Agency Dominance, 2005. 235 Sambrook, Foreign Correspondents, 2010, p. 98; Allan, Citizen Journalism, 2009, pp. 18, 17–32.
236 Matheson and Allan, Digital War Reporting, 2009, p. 101. 237 Shirky, The Political Power of Social Media, 2011. See further Bradshaw, Wiki Journalism, 2009, p. 251. 238 Available at:
241 The stories on cnn iReport are not edited, fact-checked or screened before posting. The network receives, on average, 500 iReports a day. See cnn iReport, available at:
explicitly disavowing the norm of objectivity. In addition, the ‘citizen’ – an ama- teur caught up in events, sometimes a victim and proudly partisan – all too often becomes a category of intrinsic value, associated with claims to authen- ticity, the authority of personal experience and independence.245 Similarly to the bully syndrome,246 this intrinsic value might lead to the wrong conclusion that an individual affected by such events automatically is an authoritative news source. Yet it appears that such individuals are often acting as advocates and not as reporters and that such reports regularly fail to provide an objective witness testimony, as is the job of professional journalists.
D Military Attempts to Control the Flow of Information The trends discussed in the three foregoing sections on the commercial pressure, the digitalisation and acceleration, and the civilianisation of the news have largely been caused by new technology and its effects on the methods and means of reporting. It is now also pertinent to see how the traditional parties to a conflict, the militaries, reacted to this transformation. In all four conflicts portrayed above, the parties to the conflicts actively tried to influence the flow of information about the conduct of war. Saddam Hussein as well as Bashir Al-Assad and Moammar Gaddafi spread their views about their enemies through state-held television channels. Libyan and Syrian rebels included foreign journalists on their frontlines hoping they would share their perception of the war. The Israeli military first blocked all media access, only to later orchestrate an enormous information offensive. And the us, nato and its allies were also constantly looking for the best way of giving access to the media without opening the door too wide for negative coverage of their operations. From all these attempts to control the flow of information, four main categories can be derived: first, a total news blockade; second, the emergence of the embedding program; third, the practice of guided tours for the media; and fourth, generic news production by the military itself. The first and most absolute form of military control over the flow of infor- mation is the denial of all media access to the conflict zone. This was practiced by the idf in 2008 and by the us in earlier wars. The second version, the embedding programme,247 was applied in Iraq and later in Afghanistan and had broad impacts on the war coverage in terms of security and content and was therefore highly disputed. While some journalists said that despite all restrictions, embedding was still the best way to report because it brings you
245 Matheson and Allan, Digital War Reporting, 2009, pp. 106f. 246 See Chapter 1, p. 22. 247 The origins of the embedding programme are controversial. Some authors say it had already been practiced during the First and Second World Wars and Vietnam. Others
III Conclusion I: Key Challenges of War Reporting in the 21st Century
Throughout this chapter, we have seen that the information component is increasingly decisive in contemporary warfare. Well aware of this importance, parties to armed conflicts have a high interest in how the war is perceived by
claim it started during the war in the Falkland Islands between the uk and Argentina in 1982. However, there is a consensus that during the conflict in Iraq in 2003, embedding was at its peak. For more background see Knightley, The First Casualty, 2004, pp. 531f; Jacobi, War Correspondent, 1982; Payne, Media as an Instrument of War, 2005, p. 86; Smith, The Media, 2004; Zeide, In Bed with the Military, 2005. 248 Interview of Greg Wilesmith with Lindsey Hilsum, reprinted in part in: Wilesmith, Reporting Afghanistan and Iraq, 2011, p. 28; Anderson, Myth and Reality on Embedded Reporting, Conference, On the Front Line of Accountability, tmc Asser Institute, 2011. 249 Payne, Media as an Instrument of War, 2005, p. 86. 250 Anderson, Myth and Reality on Embedded Reporting, Conference, On the Front Line of Accountability, tmc Asser Institute, 2011.
1 Agent-Focused Attacks A Targeting The case studies above showed the prevailing threat journalists face when working in conflict zones: too often, they are deliberately targeted, meaning they are the objective of the use or threat of violence from parties to the conflict, who may attack or kill the journalist or threaten to do the same to his family.252 Examples are the Israeli missile that struck Mahmoud al-Kumi and Hussam Salama in Gaza City in November 2012 or the attack on Marie Colvin and Rémi Ochlik in Homs, Syria, in February 2012. This threat also exposes news providers to a high risk of injury. Overall, citizen journalists and local reporters are far more frequently targeted than international journalists. For example, in 2006, 32 journalists were killed in Iraq, all
251 The differentiation is an adopted version of Draghici’s differentiation between act- and agent-focused attacks. Draghici and Woods, Crimes against Journalists, London 2013. 252 See also Heyns and Srinivasan, who declare murder the predominate method used for journalist killings, at approximately 68 percent. Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 310.
253 Joel Simon, Executive Director of Committee to Protect Journalists, in: unesco, Safety of Journalists and Impunity (2007), pp. 72f; un sr foex, Annual Report 2010, para. 65. 254 See for instance the public announcement of the Syrian Ministry of Information in March 2012 warning all international media against entering Syria illegally, or the bounty hunt of a pro-Assad businessman offering money for any help in arresting journalists working for Al Jazeera and Al-Arabiya. See above pp. 58f.
B Kidnapping News providers also face a high risk of being kidnapped. The kidnappers are often rebels or other armed groups who aim to gain international attention for their cause and ideology or to receive a high ransom. The legal questions addressing this threat are hence: How does international law protect news pro- viders from kidnappings? And are there any other legal and non-legal mea- sures that reduce the risk of kidnappings?
C Regulating Access One of the most effective ways to prevent events from being reported is to deny all access to the scene.255 In general, all battlefield access regulations have an effect on independent reporting because they regulate what scenes the jour- nalists witness and which places (and stories) remain hidden. In almost all the cases, the denial or regulation of media access is explained with considerations of journalist security.256 Legal questions addressing this risk are hence: Does international law provide a right of news providers to access to the battlefield? And what are the legitimate conditions for the parties to a conflict to arrest and detain news providers?
2 Activity-Focused Attacks A Destruction of Media Houses and Confiscation of Equipment Since the war in the former Yugoslavia at the end of the 1990s, another threat has become a regular practice of war. In each of the conflicts outlined above, media houses were targeted. In April 1999, nato bombed the headquarters of
255 See above, pp. 37, 44, 50. 256 See e.g. the case of Rixos (p. 47), Operation Cast Lead (pp. 49f), Syria (pp. 57ff) and Iraq (pp. 37ff).
Radio Television Serbia in Belgrade.257 In November 2001, an American missile hit the broadcasting headquarters of Al Jazeera in Kabul.258 In April 2003, when Coalition forces neared Baghdad, American missiles hit Al Jazeera’s offices in the city, killing one cameraman. On the same day, two other build- ings that were known to the Pentagon as housing media were hit by American attacks. One of them was the Palestine Hotel in the centre of Baghdad housing the vast majority of international correspondents present in Iraq. The other building housed the offices of Abu Dhabi tv, whose identity is spelled out in large blue letters on the roof of their building.259 In July 2011, nato bombed three satellite dishes of Libyan state tv Al-Jamahiriya, killing 3 media workers and injuring 21.260 In June 2012, an attack on the building of the pro-Assad Al-Ikhbariyah tv in the south of Damascus was reported. And finally in November 2012, during a conflict of just eight days, three media houses were attacked. While some of the attackers claimed the attacks to be accidental, others publicly proclaimed the reasons, which were mostly to silence propa- ganda. In addition, the equipment of news providers was regularly destroyed or confiscated and not returned or refunded. Such equipment ranges from small mobile phones and cameras, to bigger communication devices such as satellite phones and dishes, and finally up to offices. Legal questions address- ing these risks would hence be: Are media offices and installations legitimate military targets? What effect has the content of their reportage on their legal nature? And under what circumstances are parties to a conflict allowed to confiscate or destroy the equipment of news providers?
B Censorship During a handful of conflicts, the media were able to report independently. However, even then, news reports were often censored by the parties to the conflict, especially from state-run media companies in a civil war where the government was one party to the conflict. In addition, news providers were often under constant political pressure to apply self-censorship. Examples of such pressure are the repeated demands of the Pentagon to major news net- works to withdraw their correspondents from Baghdad or the refusals of high
257 The attack was highly disputed and led to several investigations, including in the icty. See pp. 292ff with further references. 258 Wells, Al Jazeera Accuses us of Bombing its Kabul Office, The Guardian, 17 November 2001. 259 Knightley, The First Casualty, 2004, p. 539. 260 insi Website, insi Calls on un to Investigate over nato and idf Attacks on Media Outlets, 5 August 2011.
C Hacking, Fake Accusations and Defamation Alongside the emergence of digital news reporting, online attacks on journal- ists are ever more frequent. Technology is increasing and online security is decreasing in tandem. Accounts are hacked and blocked and sources revealed.263 This affects personal safety of the journalists themselves as well as their families and professional sources. The same online risks also open doors for defamation and fake accusations, as supposedly happened a great deal in Syria. A number of journalists reported identity fraud, with Facebook pages and Twitter accounts being opened under their names or accusations of crimes appearing on websites.264 Such (false) accusations also happened offline and in other conflicts. In most of the cases, journalists are accused of terrorism, treason, spying or defamation.265 Legal questions addressing this threat would hence be: Does international law protect the online activity of news providers? And, does international law restrict news coverage by establishing criminal liability for certain actions?
261 Such as former us Secretary of Defense Donald Rumsfeld, who denied the bbc any fur- ther interviews after some critical questions. Knightley, The First Casualty, 2004, pp. 538ff. 262 As happened in the case of Al Jazeera during the war in Iraq. Ibid. 263 rwb, Enemies of the Internet Report, 2012, pp. 32f. 264 ifex Website, Latest Threat to Journalists Covering Syria: Identity Fraud, 17 April 2013. 265 See the long list of imprisoned journalists on the Website of the cpj, available at:
3 General Atmosphere of Impunity All these threats are accompanied by a general atmosphere of impunity. That means that in the event of a crime against a news provider, only in very few cases does an independent investigation take place. Although there is very lit- tle data available to support this claim, the existing data is crystal clear. This data results from unesco’s monitoring of investigations and prosecutions in cases of killed news providers. Overall, the statistics of the years 2006–12 show 501 cases of killed journalists.266 Out of this total, only 14 cases saw the convic- tion of the perpetrator. That is an average conviction rate of 2.3 per cent. In other words and numbers: in 97.7 per cent of the cases the perpetrators walked free.267 This atmosphere of impunity of crimes against news providers is an additional threat to their work, as it leads to the emergence of a vicious circle of escalating crime and fear, where the perpetrators can continue to attack news providers. In addition, many acts of violence against news providers do not originate in attacks of the military but are perpetrated by non-state actors, including organized crime syndicates, security forces and militias. Legal ques- tions addressing this overall threat would hence be: What are the obligations of states and other relevant actors with regard to the investigation and prose- cution of crimes against journalists? And further, what other legal and non- legal measures would help to fight the general atmosphere of impunity?
266 A documentation of each case is available on the website of unesco’s fem Division. On the role of unesco in fighting against impunity of crimes against journalists, see Chapter 5, pp. 363ff. 267 This extreme trend is further supported by the statistics of the cpj, which calculated an overall impunity rate of 94 per cent and states further that only in 2 per cent of the killings did a correct trial of the perpetrators and instigators take place before the competent authorities. un sr foex, Annual Report 2010, para. 94.
The title of this book reads Bravery or Bravado? The Protection of News Providers in Armed Conflicts. The scope of this study is hence limited by two essential objects of interests: first, by the scope of the term ‘armed conflicts’, and second, by the scope of the term ‘news providers’. It is therefore pertinent to define the meaning of both notions at the outset. In this chapter I will thus first define the legal notion of armed conflict, which sets temporal and territorial limits to the scope of this study. In a second section, I will outline what law applies during times of armed conflicts; hence, I will define what law will be the object of research. I will then move on in a third section to define the thematic term news providers, as it is used throughout this study.
I Defining Armed Conflict
With regards to the notion of armed conflict, I follow the interpretation as it is understood in international law. This interpretation is linked to the scope of application of ihl, which applies only during armed conflicts. However, it is a difficult task to find common legal classifications of situations of violence. The relevant conventions of ihl dealing with this issue refer to various types of armed conflicts and offer therefore a very multifaceted concept of the notion. At the same time, these instruments do not give criteria that are precise enough to determine the content of those categories unequivocally. The quest for a unified definition of the legal concept of armed conflict has therefore already absorbed myriad minds of legal scholars.1
1 Normative Pillars of the Notion of Armed Conflict The normative pillars of the notion of armed conflict are found in the four Geneva Conventions (gc i–iv) and their Additional Protocols (ap i and ap ii).2
1 See for many: Schindler, Different Types of Armed Conflicts, 1979; Byron, Armed Conflicts, 2001; Stewart, A Single Definition of Armed Conflict, 2003; O’Connell, Defining Armed Conflict, 2008; Vité, Typology of Armed Conflict in ihl, 2009; Gasser and Thürer, ihl, 2011; Burgorgue-Larsen and Úbeda de Torres, ‘War’ in the Jurisprudence of the iacthr, 2011. 2 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (gc i); Geneva Convention for the Amelioration of the
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004288850_004
The adoption of the four gc in 1949 was the moment of birth of the legal concept of armed conflict.3 Nonetheless, the four treaties did not create an unambiguous concept. On the contrary, they distinguished two types of con- flicts, namely: international armed conflicts (iac), involving two or more states, and non-international conflicts (niac), between governmental forces and non-governmental armed groups or between groups of the latter type only.4 Efforts to unify the two different types into a common notion failed in 1948 and again in 1977, when the two aps to the four gcs were established.5 Instead, the new toolkit of ap II offered another new paradigm for the notion of niac.6 The GCs and their aps hence created three different legal concepts of armed con- flicts: one legal concept for an international armed conflict and two different legal concepts for a non-international armed conflict. This ambiguity leaves much room for interpretation. It is therefore pertinent to see how legal scholar- ship and jurisdiction have interpreted and refined these concepts, a task that will be pursued in the next two sections.
2 Common Basis of Legal Scholarship Since the birth of the concept of armed conflict in the four gcs, international scholars have argued about its wording and scope.
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (gc II); Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (gc III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (gc IV); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977 (ap I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (ap II). 3 Before, the mainstream literature regularly used the term ‘war’ for the same facts. ‘War’ was in the period of classical international law a legitimate means of politics, even though not established by international law. Yet, as early as the adoption of the un Charter, which defined new foundations for the ius ad bellum – the right of states to go to war – governments and international lawyers began to abandon the use of the term war and swiftly shifted to the new concept of armed conflict. 4 Both forms of conflicts are shortly circumscribed in the clauses about the applicability of the treaties: Article 2 (1) gc for iac and common Article 3 gcs in respect to niac. 5 During the diplomatic conferences preparing these protocols, the icrc attempted with the Norwegian delegation to bring the dichotomy together into a single concept covering all kinds of conflicts, without success. For a good overview of the establishing process of ap i and ii, see Green, The New Law of ac, 1977; further Stewart, A Single Definition of Armed Conflict, 2003, p. 313; icrc, Opinion Paper on Armed Conflict, 2008. 6 Article 1 ap II.
With regard to the notion of iac, Article 2 (1) gc, which determines the scope of application of the four gcs, reads:
[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties
Scholars relatively soon agreed on a broad interpretation of this wording and hereby assured a wide application of the four gcs and ap I. Schindler, for example, wrote that the existence of an armed conflict could be assumed:
when parts of the armed forces of two States clash with each other.… Any kind of use of arms between two States brings the Conventions into effect.7
Gasser further linked the triggering of the applicability of the gcs to the effects of such a clash. Namely, as soon as:
the armed forces of one State find themselves with wounded or surren- dering members of the armed forces or civilians of another State in their hands, as soon as they detain prisoners or have actual control over a part of the territory of the enemy State, then they must comply with the rele- vant convention.8
An iac hence exists regardless of the reasons of the parties involved in the conflict. There is also no formal war declaration or recognition required. The application of the four gcs and ap I is hence based solely on factual condi- tions. It makes no difference either how long the conflict lasts, or how much slaughter has taken place.9 Therefore, one can say that the definition of an iac is rather broad.
7 Schindler, Different Types of Armed Conflicts, 1979, p. 131. See similarly, Pictet, Commentary on gc III, 1960, p. 23. 8 Gasser, ihl, 1993, pp. 510f. For further definitions see Boothby, The Law of Targeting, 2013, pp. 45ff. 9 Apart from that, Articles 1 (3) and (4) gc expand the field of applications to national libera- tion wars. In addition, the law of iac is also to be applied in cases of belligerent occupation (Article 2 gc and Article 1 (3) ap I). This study does not analyse cases of belligerent occupa- tion. However, since the same law of iac applies to such cases, the findings of this study with regard to iac can also be adopted to cases of belligerent occupation.
The notion of niac, on the other hand, has grown much more complex because of the different thresholds of violence of common Article 3 gcs and Article 1 ap II. Common Article 3 of the four gcs applies:
[i]n the case of armed conflict not of an international character occur- ring in the territory of one of the High Contracting Parties.10 ap II does not modify the existing conditions of common Article 3 gcs, but develops and supplements them. It is applicable in armed conflicts
which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and con- certed military operations and to implement this Protocol.11
The definition of ap II is narrower than the one of common Article 3 gcs, mainly because of two aspects: First, it introduces a requirement of territorial control over a part of the state territory. And second, it expressly applies only to armed conflicts between state armed forces and dissident armed forces or other organised armed groups. Contrary to common article 3 gcs, ap II does not apply to armed conflicts occurring only between non-state armed groups.12 Overall, common Article 3 gcs takes the territory and the intensity as relevant criteria to the application, whereas ap II focuses upon the actors of the conflict as a decisive link. However, it has been generally accepted that the lower threshold found in Article 1 (2) of ap II, which excludes internal disturbances and tensions from the definition of niac, also applies to common Article 3 gcs.13 Whereas legal scholars found a consensus on the notion of iac rather quickly, the indeterminacy of the concept of niac led to intensive discussions. Advocates of a narrow definition that focus on a higher protection of individuals
10 (Punctuation added) Common Article 3 gcs. 11 Article 1 (1) ap II. Article 1 (2) ap II further excludes situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 12 Sassòli, The Role of Human Rights and ihl, 2011, p. 53. See also Schindler, Different Types of Armed Conflicts, 1979, p. 147; Schmitt et al., Manual of niac, 2006. 13 Sassòli, The Role of Human Rights and ihl, 2011, p. 56; icrc, Opinion Paper on Armed Conflict, 2008.
3 Merger or Phantasmagoria of a New Age? Over time, the distinction between niac and iac became more and more dis- puted. It was described as ‘truly artificial’, ‘arbitrary’, ‘undesirable’, ‘difficult to justify’ or nowadays just ‘less important’.15 Meron even described the rules applicable to a complex conflict situation like the wars in the Balkans as ‘a crazy quilt of norms’.16 Many international scholars hence argued that the former distinction of these two kinds of conflict was no longer valuable and that they have merged over time to a common law that can now – at least as far as human beings are concerned – be applied to both types of conflict. Supporters of this approach underscore their argument with mainly four developments in international law: the so-called humanisation of international law, and corresponding devel- opments in international jurisprudence, in customary international law, and in state practice. The first development, the doctrine of the ‘humanisation of international law’, is guided by the idea that the former state-sovereignty-oriented approach in international law has gradually been supplanted by a human-being-oriented approach. This concept was famously coined by Theodor Meron’s 2003 article in the American Journal of International Law and the extended version of this article in his general course at the Hague Academy of International Law in the same year.17 In his works, he outlines the significant change by the propagation of human rights doctrines within the international forum since 1948 and the subsequent emergence of the role of the individual in international law.18 The International Criminal Tribunal for the former Yugoslavia (icty) later followed
14 See icrc, Opinion Paper on Armed Conflict, 2008, with further references and below, pp. 79ff. 15 Bartels, Timelines, Borderlines and Conflicts, 2009, p. 40; Crawford, Unequal before the Law, 2007, with further references. 16 Meron, Nicaragua’s Fallout, 1998, p. 238. 17 Meron, The Humanisation of Humanitarian Law, 2000; Meron, The Humanisation of International Law, 2006. 18 Citing this development, Schmitt even proclaims a renaissance of the law of war in the 21st century. Schmitt, The Vanishing Law of War, 2006, p. 68. See further Thürer, ihl, 2011,
[i]f international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy [between niac and iac] should gradually lose its weight.20
The third argument supporting the abandonment of the former separation between niac and iac is an accordant development in customary ihl. This argument was strongly influenced by the icrc’s comprehensive study on cus- tomary international law in ihl.21 During the research on state practice, the icrc found broad proof for an equal adaption of both regimes on all sorts of conflicts, which results – over big parts of ihl – in a fusion of the two sys- tems.22 The fourth development pointing toward a merger of the law of iac and niac is ultimately state practice. Supporters of the merger doctrine argue, namely, that such a practice was manifested through the adoption of several newer treaties and agreements, most of them dealing with weapons regulation and disarmament, which all apply equally to international and non-interna- tional armed conflicts.23 Another group of international law scholars contests the merger of these two types of conflicts or the respective application of their legal frameworks. Even though they recognize the argument of merger as a political wish, they deny its character as a factual development and warn of a politicisation of international law.24 They argue that in fact, large differences between the types
p. 52; Trinidade, International Law for Humankind, 2013, pp. 391ff, 635ff; Pinzauti, Good Times for a Change, 2012; Cassese, Realizing Utopia, 2012. 19 icty, The Prosecutor v Tadic, Interlocutory Appeal on Jurisdiction, para. 79. 20 Ibid, para. 97. 21 Cf. Introduction, pp. 13f; Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009; Henckaerts and Doswald-Beck, Customary ihl, Practice, 2009. 22 Willmott, Distinction between iac and niac, 2004; Stewart, A Single Definition of Armed Conflict, 2003, p. 334; Byron, Armed Conflicts, 2001. 23 Examples include the 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, the 1997 Ottawa Convention on the Prohibition of Anti- Personnel Mines and the 1999 Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict. 24 See for many Milanovic and Hadzi-Vidanovic, Taxonomy of Armed Conflict, 2013.
25 An opinio iuris is one of the formal requirements for the emergence of a customary rule. 26 Bartels, Timelines, Borderlines and Conflicts, 2009, pp. 41, 66f; Stewart, A Single Definition of Armed Conflict, 2003, p. 327. 27 The war was even supported by both the un Security Council and nato. un sc Res 1373 (2001); un sc Res 1363 (2001); nato, Response to Terrorism (2001). 28 The us characterized the conflict thereafter as an ‘armed conflict with al-Qaeda, the Taliban and associated forces’. us Supreme Court, Hamdan v Rumsfeld, pp. 65–70; Supreme Court of Israel, Public Committee against Torture v Government of Israel II, para. 21; ila, Meaning of Armed Conflict (2010), p. 2. 29 For a detailed analysis of new forms of conflict see Milanovic, What Exactly Inter nationalizes an Internal Armed Conflict? Blog ‘ejil Talk!’, 7 May 2010; Milanovic, How to Qualify the Armed Conflict in Libya? Blog ‘ejil Talk!’, 1 September 2011. For a special focus on transnational conflicts, see Kress, Transnational ac, 2010; Paulus and Vashakmadze, Asymmetrical War, 2009. Further Geiss, Fragile States, 2009; Muenkler, Wars of the 21st Century, 2003, pp. 20f; Stewart, A Single Definition of Armed Conflict, 2003.
So far, international scholars have not reached a consensus on the question of whether the distinction between niac and iac and their correspondent regimes in ihl is still valuable. However, in my opinion, international jurispru- dence, such as the icty’s case law as well as customary ihl, strongly point in the direction of a merger of the two regimes. The next section now presents the understanding of armed conflict as it will be applied in this study.
4 Approach of This Study The last paragraphs proved the challenge of finding common legal classifica- tions for situations of violence. However, it seems that in practice the absence of a clear and unified definition has not proven very harmful. At least during iac, this absence even favoured a very flexible and liberal interpretation of the notion and thereby ensured a wide application of ihl.30 In this study, I will adopt the twofold concept of armed conflict as presented by the International Law Association (ila) and – almost identical albeit more sophisticated – by the Trial Chamber (tc) of the icty. Both concepts involve a strong case-by-case approach with room for further interpretation. The first concept is found in the report of the ila’s Use of Force Committee. This report is the result of a process that started in March 2005, when the ila assembled 17 distinguished scholars of international law from around the world in a committee and mandated that they report on the general meaning of armed conflict in international law.31 Several meetings and conferences were held, with the participation of war correspondents, military historians, soldiers, peace researchers, ethicists and political scientists. They were all asked to address the meaning of armed conflict from their own perspective.32 The committee looked into the primary sources of international law, the writ- ings of international scholars, the positions of organisations and ngos, and the case law of international courts and tribunals as well as national jurisprudence. Its final report was presented in The Hague in 2010.33 The second concept was delivered by the tc of the icty in its retrial judgement in the case Prosecutor v Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj in November 2012.34
30 See also Melzer, Targeted Killings, 2008, p. 252. 31 This meaning was to be clarified not only with respect to the triggering of ihl, since the definition of armed conflict is not just important to ihl, but also among others to asylum law, arms control law, human rights law or neutrality law. Chaired by Mary Ellen O’Connell and reported by Judith Gardam. Other members were e.g. Wolff Heintschel von Heinegg and Georg Nolte. 32 O’Connell, Defining Armed Conflict, 2008, p. 393. 33 ila, Meaning of Armed Conflict (2010). 34 icty, The Prosecutor v Haradinaj, Retrial Judgement, paras 394f.
Both bodies worked out two essential minimum criteria to be satisfied for an armed conflict, namely (a) the existence of organized armed groups that are (b) engaged in fighting of some intensity. The ila identified significant state practice and subsequent opinio juris on the matter in customary international law, while the icty tc summarised its subsequent case law on the notion of armed conflict after the milestone judgement in the Tadic case.35 Both came to similar results. With regard to the first criterion of organisation, the icty stated that the following factors should be taken into account:
1) factors signalling the presence of a command structure; 2) factors indi- cating that the armed group could carry out operations in an organised manner; 3) factors indicating a level of logistic; 4) factors relevant to the armed group’s level of discipline and its ability to implement the basic obligations of Common Article 3; and 5) factors indicating that the armed group was able to speak with one voice.36
The report of the ila included almost the same factors but added further the keywords ‘training’ and ‘recruiting ability’.37 With regard to the criterion of intensity, the icty listed following factors:
1) the seriousness of attacks and whether there has been an increase in armed clashes; 2) the spread of clashes over territory and over a period of time; 3) any increase in number of government forces and mobilisation and the distribution of weapons among both parties to the conflict; 4) the involvement of the un Security Council; 5) the number of civilians forced to flee from the combat zones; 6) the types of weapons used, par- ticularly heavy weapons, and other military equipment, such as tanks and other heavy vehicles; 7) the blockading or besieging of towns and heavy shelling of towns; the extent of destruction and number of casual- ties caused by shelling or fighting; 8) the quantity of troops and units
35 See in particular: In Delalic the icty enumerates the different actors permitting classifica- tion of armed conflicts and in Boškoski and Tarčulovski it summarises the developments of this case law and concludes that the criterion of protracted armed violence has been interpreted as referring more to the intensity of the armed violence than to its duration. icty, The Prosecutor v Delalic, para. 184; icty, The Prosecutor v Boškoski, paras 175–206; see also icty, The Prosecutor v Haradinaj, Trial Judgement, paras 40–60, especially paras 49, 60. 36 icty, The Prosecutor v Haradinaj, Retrial Judgement, paras 394f. 37 ila, Meaning of Armed Conflict (2010), pp. 28f.
deployed; existence and change of front lines between the parties; the occupation of territory, towns and villages; 9) the deployment of govern- ment forces to the crisis area; closure of roads; 10) eventual cease fire orders and agreements; 11) the attempt of representatives from interna- tional organisations to broker and enforce cease fire agreements; and 12) the intensity, including the protracted nature, of violence which has required the engagement of the armed forces and the high number of casualties and extent of material destruction.38
The ila included almost the same factors in its list, albeit less elaborately. It further stated that the requirement of intensity normally includes a temporal aspect that requires more than a minor exchange of fire or an insignificant border clash. However, none of the factors identified above is necessarily determinative in itself. A lower level with respect to any one may satisfy the criterion of intensity if the level of another factor is high.39 Moreover, the cri- teria of intensity and protraction are linked to each other and a lesser level of one component may satisfy a higher level of the other. Nevertheless, intensity is the more important criterion.40 The long enumeration of these factors – especially the factors regarding the criterion of intensity – gives an exact picture of the case law on the matter. Namely, it shows that the courts – especially the icty – did not choose to follow a road to narrow one single definition down. On the contrary, over time, they added more and more factors to this list. By doing that, the icty paved the way for a wide and open interpretation range of the concept of armed conflict.41
38 icty, The Prosecutor v Haradinaj, Retrial Judgement, paras 394f. See similarly, but shorter, ila, Meaning of Armed Conflict (2010), pp. 28ff. 39 ila, Meaning of Armed Conflict (2010), pp. 28ff. 40 Ibid, p. 30. For the different approaches to the commencement, termination, and territo- rial scope of armed conflict see ibid, p. 30; icty, The Prosecutor v Haradinaj, Retrial Judgement, para. 396. 41 The criteria developed by the icty were thereafter carried on by the icrc and included in the preparations of the Statute for the icc. However, the Statute today stipulates a new terminology which led to another controversial discussion about the question of whether, in referring explicitly to the criterion of duration (‘protracted armed conflict’), para. (2) (f) icc Statute merely clarifies the terms of paragraph (2) (d) icc Statute or common Article 3 gcs, without creating a separate category of conflict, or whether paragraph (2) (f) icc Statute proposes a different type of non-international armed conflict, thus defining a new field of application. On this discussion see Vité, Typology of Armed Conflict in ihl, 2009, pp. 81f; Meron, The Humanisation of International Law, 2006, p. 30; icc, The Prosecutor v Lubanga, Confirmation of Charges, paras 229–237, 234.
This flexible interpretation not only enables a comprehensive analysis of a broad range of cases of violence but also is guided by the conviction that a detailed examination of the concrete facts of each case must always be the mandatory minimum. This approach is in line with the ambition of this study to cover a broad range of cases in situations of violence and will consequently be applied for the analysis ahead. But before coming to the core of this legal analysis, in a next step, I will first outline what law applied during such ‘armed conflicts’, and hence what will be the legal object of research in the forthcom- ing analysis.
II Applicable Law during Armed Conflict
For a long time, whenever an international lawyer was analysing a legal situa- tion in times of an armed conflict, it was clear that the only applicable regime would be the conventions and rules of the law of war, hence ihl. Today, this is no longer true. The development of the ‘humanisation of international law’42 also had an effect on the understanding of how norm systems other than ihl apply during armed conflicts. Thus, today, every lawyer analysing situations of armed conflict has to scrutinise not only the applicability of ihl, but also its interplay with the international human rights regime (hrl). Furthermore, one has to look into icl, which often takes the lead in educing the fine lines of the delicate interaction of ihl and hrl.43 This enlargement of legal fields leads directly to the more general question of how international lawyers deal with the multitude of different branches of international law in a globalised world, with most of these branches developing with disregard of other fields of inter- national law and sometimes overlapping or excluding each other; in short: the question of the fragmentation of international law.
1 International Humanitarian Law and International Criminal Law Since the application of ihl is triggered by the existence of an armed conflict, this regime is applicable to all situations covered by this book. International humanitarian law, also called ‘law of armed conflict’ or ‘laws of war’, aims at
42 See above, pp. 83f. 43 Naturally, this study also consults other branches of international law, such as the law of treaties, the sources and principles of international law and others. However, because of the substantial influence of these three branches with respect to the answers to the research questions posed at the outset of this study and because of their complex rela- tionship with each other, they are specifically highlighted at this stage of the analysis.
44 The term ihl is a rather new one. It was first used during the various conferences of the preparations of the two aps to the gcs in 1977. For a historical overview of the origins of ihl, from Henry Dunant’s essay A Memory of Solferino of 1862 up to the Ottawa Convention of 2008, see Gasser and Thürer, ihl, 2011, para. 3. 45 The Hague Regulations contain one of the core principles of ihl, the so-called Martens Clause that was later included in Article 1(2) ap I: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. 46 Thürer, ihl, 2011, pp. 46f. 47 Gasser and Thürer cite e.g. the Bible, the Koran, and Buddhist or Hindu scriptures and even state that rules with the aim of limiting warfare for ethical reasons have been and are still part of the ‘unwritten human cultural heritage’. Gasser and Thürer, ihl, 2011, para. 7. 48 Such as the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction; the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects; the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction; the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction and the 2008 Convention on Cluster Munitions. 49 To a large extent collected in: Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009 and Henckaerts and Doswald-Beck, Customary ihl, Practice, 2009, further described on pp. 137ff.
50 See common Article 3 to the gcs; Article 1 (2) ap I; Gasser and Thürer, ihl, 2011, para. 25f. 51 Sassòli, ihl and icl, 2009, p. 111. 52 See detailed descriptions of different meanings at Kress, icl, 2009; Werle, Principles of icl, 2005, p. 25, Nr. 72. 53 (Emphasis in original) Kress, icl, 2009, para. 10. 54 The tribunals of Nuremberg and Tokyo were a breakthrough, meaning that they recog- nized the existence of an international criminal legal system and its substance. Nevertheless, it is difficult to portray the tribunals as organs of the international commu- nity, as they were not established by a common international institution and supported by a consensus of all nations. Kress, icc, 2009; Zahar and Sluiter, icl, 2008, pp. 4–13. 55 The idea of a permanent international criminal court was mentioned as far back as 1795 by Immanuel Kant in his book Zum ewigen Frieden; and in 1872 the long-standing
2 The Applicability of Human Rights in Armed Conflicts Today, it is generally recognized that international human rights law continues to apply during armed conflicts alongside ihl.57 The term ‘human rights law’ covers all fundamental freedoms – all basic civil and political as well as social, economic and cultural rights recognized to each individual independently of nationality. It encompasses furthermore the rights of minorities and peoples and the obligations of states to protect, prevent, investigate, punish and ensure redress for violations of those rights by third parties. Those rights and obliga- tions are recognized in international treaties and declarations as well as by customary law.58 Together they comprise a distinct branch of international law. This branch of law basically is a post-World War II creation, when states were willing to sacrifice parts of their sovereign power (domain réservé). Namely, the relationship of the state with its own citizens came to be regulated by international law. The un Charter of 1945 and the Universal Declarations of Human Rights of 1948 (udhr) were the keystones upon which was built the following system eroding the exclusiveness of the domestic jurisdiction.59 They were followed by numerous human rights conventions, most importantly
president of the icrc Gustave Moynier introduced such an idea to the ruling powers of Europe. But none of them shared his enthusiasm and the idea had to wait more than another century to come back to light. For the development of the substance of icl in the case law of the ad hoc Tribunals and a very short overview of the history of the establish- ment of the icc, see Kress, icl, 2009, paras 25f. 56 In recent years, additionally, law and jurisprudence interpreting the same crimes have been emerging in national legal systems. This is due to the fact that after the establish- ment of the icc, states joining the icc Statute started adjusting their criminal laws to the new international legal landscape by way of reference or transformation. Nevertheless, major contemporary political powers, such as the us, China, India and the Russian Federation, still remain outside the icc. 57 For an overview of the different evolutions and values of both systems see: Kolb, hrl and ihl, 2010; Schindler, hrl and ihl, 1981; Doswald-Beck, The Right to Life, 2006, p. 881; Droege, ihl and hrl, 2007, pp. 313ff; Alston and Goodman, International Human Rights, 2013, pp. 157–488. 58 For slightly different approaches see Kolb, hrl and ihl, 2010, para. 1 and Buergenthal, Human Rights, 2007, para. 1. 59 See especially Articles 55 and 56 un Charter; udhr.
60 Other important universal human rights treaties are e.g. the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1989 Convention on the Rights of the Child, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (icerd) and the 1987 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 61 The 1998 Asian Human Rights Charter and the 2004 Arab Charter on Human Rights are not listed here because they have not gained the same substantial influence as the other frameworks. This is due to the fact that the Asian and Arab sisters lack a hard-law character, and have no supervisory mechanisms that guarantee their implementation. Furthermore, they contain more than classical civil and political rights. The Asian Charter, for instance, contains social rights such as a right to democracy, a right to peace and a right to development and social justice. Nevertheless, despite these deficiencies, the exis- tence of those charters shows that the idea of universal human rights is by no means just a Western phenomenon. 62 Each situation fulfilling the requirements of the definition of an armed conflict (see above, p. 87f) in terms of intensity and organisation extends at the same time to a threat to the life of the nation and can therefore be considered sufficient for the declaration of a state of emergency. See further Burgorgue-Larsen and Úbeda de Torres, ‘War’ in the Jurisprudence of the iacthr, 2011, pp. 162ff. 63 See further on the issue, Chapter 4, pp. 244ff.
A Interaction between International Humanitarian Law and Human Rights Law The main question that scholars focus on today is the specific interplay between ihl and hrl. This question is also of high interest for this study because the foundations of the protection of news providers can be found both in ihl and hrl. It is therefore pertinent to know how these foundations interplay and what norms eventually prevail. All logically possible solutions of the relationship of the two regimes have appeared, been defended, disappeared and been reborn over time. However, the discussion was defined by mainly three groups of scholarly interpretation: the Separatists, the Complementarists and the Integrationists. Separatists share the view that both ihl and hrl are separate bodies of law and should remain so.64 The second group, the Complementarists, concede both branches a spe- cific relationship of complementarity.65 And finally, the Integrationists see ihl and hrl as two parts of the same concept and allow them to largely merge into one another. This approach reads the rules as a continuum between hrl, hrl in cases of emergency, and ihl, whereas all three concepts merge in different combinations according to the practical needs at stake.66 It seems that today, an upholding of the theory of separation is academically and politically no longer affordable. Recent practice and case law have therefore developed in the direction of the Integrationists and the Complementarists.67 In 1968 the un ga adopted Resolution 2444 entitled Respect for Human Rights in Armed Conflicts.68 This resolution established a link between the two systems and reaffirmed certain human rights principles that govern during
64 Kolb, hrl and ihl, 2010, para. 27. 65 Ibid, para. 28. 66 It goes along with this doctrine when Thürer and Buergenthal say, that ihl is – from a historical perspective – some kind of forerunner of hrl, or when the icrc calls the com- mon ground of two overlapping circles of ihl and hrl ‘a common telos’. Buergenthal and Thürer, Menschenrechte, 2010, p. 115. Pioneers of this group were for instance, Dinstein, niac and hrl, 1977; Schindler, hrl and ihl, 1981; Meron, Need for a New Instrument, 1983; Doswald-Beck and Vité, ihl and hrl, 1993. For later authors see Kolb, History of hrl and ihl, 1998; Orakhelashvili, ihl and hrl, 2008. For an overview of the effects of this discus- sion on various branches of international law, see Ben-Naftali, ihl and hrl, 2011. 67 Everyone who dares to argue in this direction automatically faces the somewhat political accusation of weakening the idea of human rights. As examples for a rejection of separa- tion but in favour of a very restrictive interpretation of complementarity, see Scobbie, Principle or Pragmatics? 2010, p. 456; Gowlland-Debbas, Right to Life, 2010, p. 125; Abresch, The ECtHR in Chechnya, 2005, p. 750; Kolb, hrl and ihl, 2010, para. 30. 68 un ga res 2444 (1968).
69 un sr Kälin, Report on Human Rights in Kuwait (1992); Goldstone Report (2009). Furthermore, many fact-finding missions supported by the un Office of the High Com missioner for Human Rights were appointed to address violations of ihl and hrl: East Timor (1999), Togo (1999), Occupied Palestinian Territory (2000/2006), Darfur (2004/2005/2006) and Lebanon (2006). 70 un sc res 2016 (2011); un sc, sg Report on Civilians (2012); See also un hchr, Report (2009). 71 It is important to distinguish the aforementioned groups of scholarly interpretation of the overall theoretical relationship of the two regimes from the approaches of practice outlined here that apply this theoretical frame to concrete questions. This categorisation is taken from Kolb, hrl and ihl, 2010. 72 This approach was applied in a number of situations of public emergency which did not amount to an armed conflict. For examples, see ibid, para. 33. 73 The Turku Declaration includes issues of fair trial and of limitations on means and meth- ods of combat, with prohibition of displacement and deportation, and with guarantees of humane treatment. Turku Declaration.
B Renvoi Approaches a Lex Specialis Theory Under the umbrella of the Renvoi Approaches, the icj developed the theory of the lex specialis.78 The lex specialis derogat legi generali principle reflects a maxim of legal interpretation and technique for the resolution of norm
74 See Kolb, hrl and ihl, 2010, paras 38ff. 75 That leads to a paradox of a lower human rights protection during peace time than during armed conflict. Hence, the law is more protective in situations in which, on account of their gravity, it might seem logical to allow for greater state freedom, rather than the reverse. 76 It has also been argued that those bodies showed restraint in the direct application of ihl because of their lack of expertise and jurisdiction in the field. In some cases, however, hrl bodies directly applied ihl, for instance the IACommHR in Juan Carlos Abella v Argentina. There, the Commission held ‘where there are differences between legal stan- dards governing the same or comparable rights in the American Convention and a humanitarian law instrument, the Commission is duty bound to give legal effort to the provision(s) of that treaty with the higher standard(s) applicable to the right(s) or freedom(s) in question’. IACommHR, Juan Carlos Abella v Argentina, 18 November 1997, para. 156. Further: Kolb, hrl and ihl, 2010, paras 42ff; ECtHR, Isayeva v Russia, ECtHR, Banković et al. v Belgium et al.; IACommHR, Tablada Case; iacthr, Las Palmeras v Columbia; AfCommHR, Commission Nationale des Droits de l’Homme et des Libertés v Chad. 77 Kolb, hrl and ihl, 2010, paras 35ff. 78 icj, Nuclear Weapons Case, para. 25, icj, Wall Opinion, para. 106.
79 ilc, Fragmentation of International Law (2006), paras 56f. 80 icj, Nuclear Weapons Case, para. 25; see also Doswald-Beck, The Right to Life, 2006, p. 898. 81 See Milanovic, Norm Conflict Perspective, 2009, pp. 463, 473f; Schabas, Lex Specialis, 2007, pp. 597f; Corn, Mixing Apples and Hand Granades, 2010, pp. 57ff; Kolb, hrl and ihl, 2010, para. 36 with further references. 82 This becomes even clearer in the French version of the icj Opinion: ‘c’est uniquement au regard du droit applicable dans les conflits armés, et non au regard des dispositions du pacte lui-même, que l’on pourra dire si tel cas de décès provoqué par l’emploi d’un certain type d’armes au cours d’un conflit armé doit être considéré comme une privation arbi- traire de la vie contraire à l’article 6 du pacte’. icj, Nuclear Weapons Case, para. 25. 83 Such double-protected rights are, for example, the rights to life and against arbitrary deprival; the prohibition against inhumane and degrading treatment and assaults on physical and mental integrity; the rights against arbitrary arrest and detention; rights related to judicial guarantees; rights related to the use of firearms by enforcement offi- cials; rights related to medical assistance, etc.
In its Wall Opinion, the icj further elaborated its theory and held that the lex specialis rule provides a primacy in application of a positive norm competition but not the non-applicability of one norm in favour of the other.84 It said basically that hrl can also be applicable at the same times as ihl, but con firmed concurrently that the system of ihl is more ‘special’ than that of hrl. Nevertheless, critics did not stop. In the third case before the court, the icj finally did not further use the term lex specialis. Nevertheless, it copied the specific section of its elaboration in the Wall Opinion.85 This tactic was inter- preted in different ways, whereas the majority of scholars argued that it should be read as a parallel existence and application of the principle of complemen- tarity and the lex specialis rule.86 b ‘Belt and Suspenders’ Approach After the criticism of the lex specialis doctrine, different but related concepts have been established, such as a ‘pragmatic theory of harmonization’,87 of ‘cross-pollination’88 or ‘cross-fertilization’,89 or a ‘mixed-model’.90,91 In all these theories, the consultation of one body is used to fulfil the interpretation of the other without establishing a definitive hierarchy of norms or norm systems. The Human Rights Commission further summed up these approaches as both spheres of law being complementary, not mutually exclusive.92 According to this theory, the two bodies of law are in effect additive. They apply at the same time, while the individual benefits from the more favourable regime. Schabas calls this theory with an additive effect the ‘belt and suspenders’ approach.93 A similar approach was further used by the iacthr in the Velàsquez case and, with a slightly more restrictive approach, by the icty in the Kunarac case.94
84 icj, Wall Opinion, paras 106, 110ff, 136ff, 178. 85 icj, drc v Uganda, paras 168ff. 86 Kolb, hrl and ihl, 2010, para. 36 with further references. 87 Prud’homme, Lex Specialis, 2007, p. 365. 88 Provost, ihr and hl, 2005. 89 Sands, Cross-Fertilization of International Law, 1999. 90 Kretzmer, Targeted Killing, 2005. 91 See further Bethlehem, who proposes concrete systematic solutions: Bethlehem, The Relationship between ihl and hrl, 2013. 92 un HRComm, General Comment Nr. 31 (2004) and 29 (2001). 93 Schabas, Lex Specialis, 2007, p. 593. 94 The icty adopted the terminology that both regimes are mutually complementary and added that their use for ascertaining each other’s content and scope is both appropriate and inevitable. icty, The Prosecutor v Kunarac, paras 467, 471; iacthr, Bàmaca -Velásquez v Guatemala, para. 27.
In the case of conflict between one of the hierarchically superior norms… and another norm of international law, the latter should, to the extent possible, be interpreted in a manner consistent with the former. If this is not possible, the superior norm will prevail.97
Second, the report underscored the importance of the overall principle of systemic integration. Without it, according to Koskenniemi, it would be ‘impos- sible to give expression to and to keep alive, any sense of the common good of humankind, not reducible to the good of any particular institution or “regime” ’.98 Following this approach, ihl and hrl must be interpreted (1) whenever pos- sible, by interpretation toward harmony and systemic integration of the two
95 A general norm conflict is when one norm constitutes, has led to or may lead to a breach of another. Regarding hrl and ihl, a broader definition can be applied: a norm conflict occurs whenever the application of the two norms leads to two opposite results (for example if ihl provides that a particular use of force was lawful, while ihl makes it unlawful). Milanovic, Norm Conflict Perspective, 2009, p. 465. 96 ilc, Fragmentation of International Law (2006); for some background and context see Cassimatis, ihl, hrl and Fragmentation, 2007. 97 At the same time, the report defines a hierarchy of norms that determines which is the superior one. ilc, Report Fragmentation of International Law (2006), para. 42. 98 ilc, Fragmentation of International Law (2006), para. 480.
3 Approach of This Study Two fundamental premises will guide the choice of interpretation of the inter- action between hrl and ihl in this study. The first premise could be called ‘simple rules’. It derives from the primary practical objective of ihl: namely, that ihl is guided by a few simple but fundamental principles with the aim to reduce unnecessary harm caused by armed conflicts whenever possible. Such principles are a useful tool for a law applicable in a stressful environment. Therefore, all other law applicable during armed conflict must also be as sim- ple as possible. Individuals involved in armed violence cannot examine detailed provisions and apply complex assessment-tests while carrying out military operations.
99 Milanovic, Norm Conflict Perspective, 2009; Milanovic, Whither Human Rights?, 2009. 100 He strongly criticises most of the aspirations of the participants to harmonise ihl with hrl as masked political attempts to further humanize ihl and strengthen individual human rights. Milanovic, Whither Human Rights?, 2009, pp. 459f. 101 Milanovic, Norm Conflict Perspective, 2009, p. 462. 102 This hierarchy is the following: (1) ius cogens (2) Article 103 of the un Charter (3) conflict clauses in treaties (4) lex posterior. Yet out of this hierarchy, only Article 103 un Charter and the derogation clauses of hrl treaties remain applicable tools to face a norm conflict of hrl and ihl. Milanovic, Norm Conflict Perspective, 2009, pp. 468ff, 470, 472f.
The second premise is named ‘ubuntu’. It is based on the vision of an inter- national law transforming itself from a state-oriented common legal system to a framework that encompasses the common and central value of humanity. Humanity is here understood in the sense of the African term ubuntu. There is no correct English word for the idea of ubuntu. Originating in the Southern African language, it roughly translated means ‘human kindness’ or ‘humanity’.103 It is a concept which understands the human individual as part of a larger community. Former South African archbishop and Nobel Prize winner Desmond Tutu described it as follows:
Ubuntu speaks particularly about the fact that you can’t exist as a human being in isolation. It speaks about our interconnectedness. You can’t be human all by yourself…. We think of ourselves far too frequently as just individuals, separated from one another, whereas you are connected and what you do affects the whole world.104
He then concludes that when you do good, it spreads out and it is for the whole of humanity. On the other hand, one is diminished as part of the greater whole of the community when others are humiliated, tortured or oppressed. The con- cept of ubuntu is therefore based on the well-being and human value of every single person and not of the community itself, in the sense of a majority. I understand the underlying premise of humanity thus in the sense that it is formed by the interconnectedness of all humans and that the welfare of every single one is interconnected with and a prerequisite for the progress of the whole. Humanity in that sense is an intrinsic value of an international system and closely related to Koskenniemi’s and Trinidade’s ideas of a common good of humanity.105 Based on these two premises, the choice of interpretation must, first, be as simple as possible in application and second, be based on the human value of every individual, and hence be directed toward the common good of humanity. The icj’s theory of the lex specialis is a rather simple rule because it offers some
103 In the 1980s and 1990s the term became known for a kind of humanist philosophy, as well as a guiding ideal for the transition from apartheid to a democratic system in South Africa, and was finally transported to the worldwide public by Nelson Mandela and Desmond Tutu. The term appears in the Epilogue of the Interim Constitution of South Africa (1993): ‘there is a need for understanding but not for vengeance, a need for repara- tion but not for retaliation, a need for ubuntu but not for victimization’. 104 (Emphasis added) Tutu, No Future without Forgiveness, 1999, p. 35. 105 ilc, Fragmentation of International Law (2006), para. 480; Trinidade, International Law for Humankind, 2013, pp. 275ff, 393ff.
106 Scobbie, Principle or Pragmatics?, 2010.
Indeed, exposing an unresolvable norm conflict may ultimately prove to be more productive then forcibly avoiding it, as nothing will give a better incentive to States to improve the normative framework.107
The prudent approach, as Schindler rightly puts it, is to remain aware of the differences of regimes in order to attain the highest degree of efficiency of all parts of international law.108 The parallel application and mutual nourishing of ihl, hrl and icl should hence be carried out with due diligence, always keeping in mind that overboard activism filled with good intentions could in the end weaken the whole system.109 Having clarified the notion of armed conflict and therewith the temporal and territorial scope of this study as well as the applicable law on such situa- tions, I will now deal in the next section with the personal scope of this study. Namely, I present the conceptual background of the notion ‘news providers’.
III Defining News Providers
The first draft of this book was entitled ‘The Protection of Journalists during Armed Conflicts’. Yet, soon after the first pages of writing it became clear that the term journalist fell short on many aspects of the reality of today’s news coverage. Nevertheless, it has been and still is the term predominantly used for people who provide news, including in legal scholarship.110 But who is actu- ally a journalist? And who decides who can be called a journalist? Is it an employee of the Swiss newspaper Neue Zürcher Zeitung who investigates the
107 (Punctuation added) Milanovic, Norm Conflict Perspective, 2009, p. 483. 108 Schindler, hrl and ihl, 1981, p. 943; See further also Milanovic, Whither Human Rights? 2009, p. 131; Schabas, Lex Specialis, 2007, p. 613. 109 Diggelmann and Burri, Menschenrechte: Literaturspiegel, 2011, p. 495. 110 Cf. Düsterhöft, The Protection of Journalists, 2013; Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013; Gill and Fleck, Military Operations, 2010, p. 262; Moore, Embedded Journalists, 2009; Saul, International Protection of Journalists, 2008; Tang, Protection of Journalists, 2008; Zanghi, Protection of Journalists, 2005; Fairlie, Evidentiary Privilege of Journalists, 2004; Howard, Need for Protection, 2002; Mukherjee, Protection of Journalists, 1994.
111 Freelancers are journalists who sell their work on a project basis and who are not perma- nently associated with a news agency or organization. 112 See above, pp. 66ff. 113 It is therefore often not entirely clear what professions and activities are included in the scope of their works. See e.g. Düsterhöft, The Protection of Journalists, 2013, p. 4. 114 Reuters Institute, Definitions of Journalism, available at:
115 Ibid. National legislation on this issue similarly varies extensively because it depends on the national understanding of the concept of freedom of expression. For two completely opposing examples of national legislation see Tunisia (with a very restrictive approach) and Mexico (with a very broad approach): 2011 Decree Nr. 2011–115 of 2 November 2011 relative to the freedom of the press, specifically Article 7; on Mexico: O’Brien, Defining Who Is a Journalist, Mexican Style, cpj Blog, 26 March 2012. 116 The cpj defines a journalist as a person ‘who cover(s) news or comment(s) on public affairs in print, in photographs, on radio, on television, or online’, while rwb uses the much broader term of ‘news providers’ which contains the two components of content and activity. cpj, available at:
1 Communication Sciences Communication sciences has focused in recent years mainly on the new chal- lenges the media face after the information revolution. Concerning the defini- tion of journalism, one very specific focal point has emerged: the diffuse role of citizen journalists. Citizen journalism has many names: it is called ‘networked’ or ‘participatory journalism’; ‘user-generated content’; ‘we media’; ‘personal media’; ‘individual media’; ‘participatory media’; ‘grassroots media’; ‘open source journalism’; ‘personal publishing’; and others.119 Bowman and Willis describe it for instance as:
[t]he act of a citizen, or group of citizens, playing an active role in the process of collecting, reporting, analyzing and disseminating news and information. The intent of this participation is to provide independent, reliable, accurate, wide-ranging and relevant information that a democ- racy requires.120
Jay Rosen, a professor of journalism at the New York University describes it, on the other hand, as:
[w]hen the people formerly known as the audience employ the press tools they have in their possession to inform one another.121
The actual actors of this phenomenon are called ‘citizen journalists’, ‘ama- teur reporters’, ‘witness contributors’, ‘eyewitnesses’ or just people who hap- pen to be in a certain place at a certain time committing ‘random acts of journalism’.122
119 For an overview see Bowman and Willis, We Media, 2003; Allan, Citizen Journalism, 2009, pp. 18, 17–32. And also Matheson and Allan, Digital War Reporting, 2009, p. 98. 120 Bowman and Willis, We Media, 2003. 121 Jay Rosen, A Most Useful Definition of Citizen Journalism, Blog ‘Pressthink’, 14 July 2008. 122 For an overview see Citizen Journalism Defined, Blog ‘Random Acts of Journalism’, 20 June 2007.
While it is clear that citizen journalism is highly influential to the formation of the whole media landscape, opinions differ on the inclusion of citizen jour- nalists into the definition of overall journalism. And indeed, what does tweet- ing make you? Or writing a blog? Or sending pictures to a newspaper? Does it make you a journalist yourself or does it just make you a source of a journalist? A famous example of citizen participation in news coverage has been Sohaib Athar, a Pakistani resident who lived close to the compound where Osama Bin Laden used to live until May 2, 2011.123 In the night of the American attack on the compound, Athar tweeted on the Twitter handle @ReallyVirtual ‘helicop- ter hovering above Abbottabad at 1 am (a rare event)’.124 He wanted to sleep and was annoyed by the noise outside. After a while, he started to follow the action outside and during and after the raid, he answered questions from oth- ers seeking information by sharing what he saw and knew and connecting dif- ferent sources.125 He did most of the things a professional journalist would do in this situation. But does this make him a journalist? Opponents of this ques- tion argue:
Applying any sort of professional criteria to people who write down their opinions and call themselves journalists is a waste of time and an insult to those willing to go to prison for their craft … bloggers provide an essen- tial service as activists, but they are not journalists.126
Mabrouk further compares: ‘If I changed the oil filter in my car once, am I (or was I) a citizen/amateur mechanic?’127 She sees citizen journalism as an occu- pation but not a profession, with the main difference of the criterion of profes- sionalism, namely a certain standard of the content. Supporters of the inclusion of citizen journalists in the definition of overall journalism, on the other hand, focus on the activity of the craft. They interpret counterarguments mainly as the panic of traditional media facing new and enormous competition:
Why don’t journalists want to admit that others can now perform many of the same functions they do, given these new tools? Because that means
123 For the discussion on the topic: ibid. 124 See Twitter, @ReallyVirtual, available at:
that anyone with a Twitter account or a blog is competition. But that is the reality – and journalists of all kinds had better start getting used to the idea, instead of trying to define their way out of it.128
These supporters further argue:
Everybody who uses freedom of expression to report, shoot, film is a jour- nalist. Whatever you want to call it, collecting and reporting information, putting it in context and then distributing that to others is journalism.129
The discussion within communication science about the scope of journalism is hence still an ongoing process with an open ending.
2 Legal Theory and Practice In view of the legal focus of this book it is pertinent to know how international law defines journalism. But despite the use of the term in some normative instruments, no primary source of international law actually defines journal- ism. Nevertheless, case and soft law have circumscribed the profession to some extent, using the frequent parameters of activity, content and intent. In its General Comment Nr. 34, the un HRComm described journalism as a:
function shared by a wide range of actors, including professional full- time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the Internet or elsewhere.130
The un HRComm hence focused on the activity of the profession, which is ‘to engage in forms of self-publication’. Besides the un HRComm, the Special Rapporteur on the promotion and protection of the right to freedom of opin- ion and expression, Frank La Rue, also defined journalists in two of his annual reports to the Human Rights Council (hrc). In 2010 he wrote that journalists are:
individuals who are dedicated to investigating, analysing and disseminat- ing information, in a regular and specialized manner, through any type of written media, broadcast media (television or radio) or electronic media.
128 See Ingram, Does Posting Things to Twitter Make You a Journalist? Blog ‘Gigaom’, 5 May 2011. 129 (First emphasis added) Ibid. 130 (Punctuation added) un HRComm, General Comment Nr. 34 (2011), para. 44.
With the advent of new forms of communication, journalism has extended into new areas, including citizen journalism.131
Two years later, he refined his definition and stated that journalists were defined:
by their function and service, (as) individuals who observe and describe events, document and analyse events, statements, policies, and any prop- ositions that can affect society, with the purpose of systematizing such information and gathering of facts and analyses to inform sectors of soci- ety or society as a whole. Such a definition of journalists includes all media workers and support staff, as well as community media workers and so-called ‘citizen journalists’ when they momentarily play that role.132
After a closer look at the two definitions, one can see that his focus was enlarged to cover also media workers and support staff, including now a stron- ger intent component. Yet both definitions of La Rue mainly concentrate on the activity.133 The two reports offer no explanation for the shifting scope. Although the components of content and intent are still very wide in the sec- ond definition, it appears slightly more political and gives the impression of a design under the close impression of the Arab Spring and the smouldering conflict in Syria. With regard to Europe, the Committee of Ministers of the Council of Europe offers the most precise definition of the term journalist. In its Recommendation No. R (96) 4 of May 1996, the Committee described:
the term ‘journalist’ […] as covering all representatives of the media, namely all those engaged in the collection, processing and dissemination of news and information including cameramen and photographers, as well as support staff such as drivers and interpreters.134
131 (Punctuation added) un sr FoEx, Annual Report 2010, para. 21. 132 un sr FoEx, Annual Report 2012, para. 4. 133 With regard to citizen journalism, La Rue states that ‘the concept is usually understood as independent reporting, often by amateurs on the scene of an event, which is dissemi- nated globally through modern media, most often the Internet (for example, through photo- or video-sharing sites, blogs, microblogs, online forums, message boards, social networks, podcasts, and so forth)’. un sr FoEx, Annual Report 2010, para. 62. 134 (Punctuation added) CoE, Rec R(96)4 (1996), preamble. Supported by Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 307; Thürer and Kempin,
By using this terminology, the Committee of Ministers again linked the profes- sion to its activity, which is ‘to engage the collection, processing and dissemi- nation of news and information’. In 1996, the year of writing of the CoE Recommendation, the Internet was already widely known but only used by a few. Blogs, Twitter and Facebook were still names to be discovered. Nevertheless, the CoE’s definition offers a very broad spectrum that encompasses all current media workers. There is an enormous corpus of international jurisprudence about journal- ism and the protection of journalistic sources in human rights law, but only very few cases that directly address the personal scope of journalism. The iacthr dealt with the issue in an advisory opinion of 13 November 1985.135 Although the case is almost 30 years old, it is still very valuable as one of the leading cases concerning freedom of expression in the Inter-American human rights system that has been cited by the Court to this day.136 At the time, the government of Costa Rica submitted an advisory opinion request relating to the compatibility of Costa Rica’s law of compulsory membership in an association for the prac- tice of journalism. The iacthr, presided by Judge Buergenthal, defined:
[t]he profession of journalism – the thing journalists do – involves, pre- cisely, the seeking, receiving and imparting of information.137
The court then linked the profession of journalism directly to the right of free- dom of expression and explained that a distinction between professional jour- nalism and the exercise of freedom of expression is neither acceptable nor possible.138
On the contrary, both are obviously intertwined, for the professional journalist is not, nor can he be, anything but someone who has decided to exercise freedom of expression in a continuous, regular and paid manner.139
Kriegsberichtserstattung und humanitäres Völkerrecht, 2009, p. 758; Zanghi, Protection of Journalists, 2005, p. 145. 135 iacthr, Compulsory Membership Opinion. 136 iacthr, Bronstein v Peru, para. 149; iacthr, Herrera-Ulloa v Costa Rica, paras 108, 117; iacthr, Canese v Paraguay, para. 94; iacthr, Fontevecchia y D’Amico v Argentina, para. 46 and iacthr, Restrepo v Colombia, para. 137. See as well Ramírez and Gonza, Libertad de Expresión, 2009, pp. 25f. 137 iacthr, Compulsory Membership Opinion, para. 72. 138 Ibid, para. 73. 139 Ibid, para. 74; for a newer judgement see iacthr, Restrepo v Colombia, para. 140.
Here, the court inserts an important argument of the characterisation of the activity, namely that it has to be exercised in a ‘continuous, regular and paid manner’. However, one has to bear in mind that the opinion was written three decades ago. At that time, developments such as online news coverage and citizen participation could not have been predicted. Twenty-three years later, the European Court of Justice (ecj) dealt with the same matter, although in a very distinct context. Namely, it had to decide whether a certain activity was covered by the term of ‘journalistic purposes’, which was used in a eu Data Protection Directive.140 It concluded:
the medium which is used to transmit the processed data, whether it be classic in nature, such as paper or radio waves, or electronic, such as the internet, is not determinative as to whether an activity is undertaken ‘solely for journalistic purposes’. … [A]ctivities may be classified as ‘journalistic activities’ if their object is the disclosure to the public of information, opin- ions or ideas, irrespective of the medium which is used to transmit them.141
The ecj hence took the intent of the activity as key to a definition. However, this approach is intrinsically linked to the question posed in the preliminary question referred to the Court, which was to define ‘journalistic purposes’, which is exactly a journalistic intent. Furthermore, this approach is very wide, since the court uses the concepts of ‘information’ and ‘ideas’ and ‘opinions’, which are each in themselves somewhat cloudy concepts, and can include data, facts or fiction of any kind.142
3 What Matters: Intent, Activity or Content? However you might call them – global, regional, local or community journal- ists; independent correspondents or freelancers; citizen journalists, digital truth-tellers or social media producers – in the end, any such action comes down to the formula:
Individual + Activity + Content + Intent
140 The case concerned two Finnish media entities which published Finnish citizens’ income tax information accessed from a public register. The two companies established a service for mobile phone users who could request extracts of the published information on cer- tain individuals by text messages. At the same time, the service allowed personal data to be removed on request. ecj, Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy. 141 Ibid, paras 60f. 142 Anne Flanagan therefore criticises the test of the ecj and proposes a voluntary code of practice that separates a journalistic publication from all other public diffusions in the new media landscape. See Flanagan, Defining ‘Journalism’, 2012, p. 5.
While the definitions used in communication science as well as by legal bodies include a variety of these components, there are two elements that determine most approaches: the attributes of intent and of activity. Intent may be ‘the purpose of systematizing such information and gathering of facts and analyses to inform sectors of society or society as a whole’143 or simply the object of the ‘disclosure to the public of information, opinions or ideas’.144 Activity comes in the form of ‘engaging in forms of self-publication’145; ‘the collection, process- ing and dissemination of news and information’146; the ‘seeking, receiving and imparting of information’147; the ‘exercise of freedom of expression in a con- tinuous, regular and paid manner’148; the dedication to ‘investigating, analys- ing and disseminating information, in a regular and specialized manner’149; or to ‘observe and describe events, document and analyse events, statements, policies, and any propositions that can affect society’.150 In my opinion, every human being can become a journalist.151 However, the activity a person engages in is the decisive factor. This activity is to provide news. More precisely, it consists of reproducing and directly presenting facts or occurrences by written, visual, audio or other electronic means. Notwithstanding, other factors confine this activity. The content, for instance, is a reproduction of reality or history, a direct presentation of facts or occur- rences. It might include an analysis, an interpretation or a fiction of the future, but it needs to be rooted in actual or historical events. The product of this activity must be shared or made accessible for others, but distribution cannot be a condition. The activity must further be intended to inform soci- ety about itself and to transfer information into the public sphere that other- wise would be private. An adequate broad formula for a journalist is therefore:
143 un sr FoEx, Annual Report 2012, para. 4. 144 Ibid, paras 60f. 145 un HRComm, General Comment Nr. 34 (2011), para. 44. 146 CoE, Rec R(96)4 (1996), preamble. Supported by Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 307; Thürer and Kempin, Kriegsberichtserstattung und humanitäres Völkerrecht, 2009, p. 758; Zanghi, Protection of Journalists, 2005, p. 145. 147 iacthr, Compulsory Membership Opinion, para. 72. 148 Ibid, para. 74; for a newer judgement see iacthr, Restrepo v Colombia, para. 140. 149 un sr FoEx, Annual Report 2010, para. 21. 150 Ibid, para. 4. 151 It is, however, important to underscore that not everyone is a journalist and therefore entitled to the corresponding special protection.
an individual who intends to inform society by reproducing facts or occurrences by written, visual, audio or other electronic means and mak- ing them accessible to others.
However, it is still not decided if all acts of news providing can be considered acts of journalism. If a story or picture is not new, it might have no news con- tent, and be nothing more than a boring story or a boring picture. If something is biased, it might be propaganda or just bad work. Are the content, usability, accessibility, credibility, accountability or other values of the work decisive fac- tors? In my opinion, journalism as a profession consists of more than the bare activity of reproducing reality and sharing it with others. On the contrary, the collection of information is just the starting point and the moment of sharing the end of the activity. In between these two actions, certain methods of pro- cessing the information must be applied. These methods are such as to report accurately, to verify facts, to enquire independently, to distinguish between commenting and reporting and between suppositions, claims and opinions, to provide each individual or organisation a chance to reply, to consider ethical values, and also to apply professional journalistic standards such as fair play and respect for privacy and human dignity. And these methods are the crucial link that distinguish a professional journalist from an online amateur activist. Overall, accountability is the key to good journalistic work. Dedication to the task over a period of time is also a vital factor. But the additional criteria of an affiliation with a news agency or company cannot be a condition, as it excludes professional freelancers. Furthermore, a certain amount of income or dedication to the work as an intensity factor excludes part-time journalists. Income and employment factor are therefore not used as defining conditions. To sum up, a professional journalist is hence:
an individual who intends to inform society by reproducing facts or occurrences by written, visual, audio or other electronic means, process- ing the gained information by journalistic standards and making it acces- sible to others.
Consequently there are two different categories of people providing news: the group of professional journalists and another group of so-called amateur jour nalists who fulfil the first definition but do not apply journalistic standards. Although the term amateur journalist offers a very evident picture of its mean- ing, this study will instead use the term citizen journalist. There is not much sense in creating new terminology just for the sake of creating new and own
an individual who assists a professional journalist in the acquisition or processing of information.
All three groups finally have in common that they involve people who provide news. They can hence be merged under the common term news providers.153,154 That term, as understood in this study, includes:
individuals who intend to inform society by reproducing facts or occur- rences by written, visual, audio or other electronic means and making
152 Of course, some citizen journalists might intend to oppose against a political regime, but this is no necessary condition. 153 The only place where this terminology was already used is the rwb Comments for unesco on ‘Plan on Safety of Journalists and Combating Impunity’, albeit with no expla- nation of the scope of this term. 154 Evidently, each individual case has its peculiarities. By dividing these three groups of people, this work does not aim to create a hierarchy of the quality of news coverage. On the contrary, it tries to describe the reality with the help of accurate models and categories.
them accessible to others, as well as persons who assist professional jour- nalists in the acquisition or processing of information.155
Because of the importance of all these actors in the contemporary news pro- duction process, this study consequently aims to cover the protection of news providers as a whole.
Types of news providers
Professional Journalists Citizen Journalists Media Support Staff Individuals who intend Individuals who intend to Individuals who assist to inform society by inform society by a professional journal- reproducing facts or occur- reproducing facts or occur- ist in the acquisition or rences by written, visual, rences by written, visual, processing of audio or other electronic audio or other electronic information means, processing the gained means and making them information by journalistic accessible to others standards and making it accessible to others
155 Thereby, professional journalists are understood as ‘individuals who intend to inform society by reproducing facts or occurrences by written, visual, audio or other electronic means, processing the gained information by journalistic standards and making it acces- sible to others’.
International law offers a range of fundamental rules and guarantees for the protection of news providers. Yet this protection arises from different perspec- tives: while some norms focus on the protection of the person, others address the protection of the activity of news providers. This chapter deals with the first of the two perspectives, the personal protection of news providers in international law. Chapter 4 will subsequently deal with the functional protec- tion of news providers in international law. The first part of this chapter outlines the scope of the personal protection of news providers in ihl as well as hrl. In a second part, I will get granular on the most frequent limitations of this protection – such as accidental attacks on news providers, their deliberate targeting and their detention – and whether such limitations are in accordance with the law.
I Scope of the Personal Protection
1 Unequal Protection in International Humanitarian Law As discussed in the previous chapter, ihl divides armed violence into two kinds of conflicts: iac and niac.1 Although the law of these two kinds of con- flicts has fused together to a large extent, a detailed analysis of my research question must nevertheless start with scrutinising the specific normative foun- dations for each kind of conflict. The next sections therefore outline in sepa- rate parts what norms ihl offers for the protection of news providers in iac and niac.
A Dichotomy of News Providers in International Armed Conflicts ihl offers a twofold protection of news providers in iac. Two references in the law allot specific groups of news providers to two general concepts of ihl: On one hand, war correspondents benefit upon capture from prisoner-of-war (pow) status; on the other hand, journalists engaged in dangerous professional missions are protected as civilians.
1 See Chapter 2, pp. 79ff.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004288850_005
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: … Persons who accompany the armed forces with- out actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.2
This rule is a legacy of three older provisions: Article 50 of the Lieber Code of 1863;3 Article 13 of the Regulations concerning the Laws and Customs of War on Land (annexed to Convention (IV) respecting the Laws and Customs of War on Land) (H IV R) of 1907;4 and Article 81 of the Convention relative to the Treatment of Prisoners of War (pow C) of 1928.5 The Lieber Code was the result of the newly emerging craft of civil war correspondents in the 1850s and 1860s.6 The H IV R lifted the issue to the inter- national level. As part of the general codification of ihl in the face of the bru- tal wars at the end of the 19th century, the Hague Regulations formed the first international treaty, which mentioned the protection of news providers during
2 (Emphasis added). 3 Article 50 Lieber Code reads: ‘Citizens who accompany an army for whatever purpose, such as sutlers, editors or reporters of journals, or contractors, if captured may be made pris- oners of war, and be detained as such’ (emphasis added). Cf. Bluntschli, Lieber Code, 2003. 4 Article 13 H IV R states: ‘Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy’s hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate from the military authorities of the army which they were accompanying’ (emphasis added). 5 The exact wording of Article 81 pow C is: ‘Persons who follow the armed forces without directly belonging thereto, such as correspondents, newspaper reporters, sutlers, or contrac- tors, who fall into the hands of the enemy, and whom the latter think fit to detain, shall be entitled to be treated as prisoners of war, provided they are in possession of an authorization from the military authorities of the armed forces which they were following’ (emphasis added). 6 See the discussion about the first civil war correspondent Russell in the Introduction, pp. 6f.
7 Further on this codification process, see Introduction, pp. 7f; Chapter 2, pp. 117ff. 8 At the time, censorship and the use of propaganda were massive. However, Winston Churchill – himself a former war correspondent and then an English Lord – justified these politics by saying that ‘a warship in action has no room for a journalist … The war is going to be fought in a fog. The best place for correspondence about this war will be in London’. See Knightley, The First Casualty, 2004, pp. 90, 106ff, 121ff. 9 The rights of a pow were further codified in the same treaties and the Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations con- cerning the Laws and Customs of War on Land of 1899, Chapter II. 10 Hors de combat means in ihl a person who is no longer participating in hostilities, by choice or circumstance. International custom has developed three situations in which a person can be designated hors de combat: (i) anyone who is in the power of an adverse party; (ii) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; and (iii) anyone who clearly indicates an intention to surrender. Rule 47, cl- Study: Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 164ff. 11 gc I similarly states that they shall be treated as pow if fallen into enemy hands and that the enemy is obliged to forward information about his arrest to the adverse party. Articles 14 and 16 gc I. 12 See below, pp. 193f. 13 Pictet, Commentary on gc iii, 1960, p. 64. 14 See Chapter 1, pp. 19ff, 62ff.
However, the jurisprudence of icl may give some guidance on this point. In fact, the icty defined ‘war correspondent’ in its Randal decision as:
individuals who, for any period of time, report (or investigate for the pur- poses of reporting) from a conflict zone on issues relating to the conflict.15
However, the decision concerned a totally different context (a question of hrl) and did not make any reference to Article 4 (a) (4) of gc iii. Therefore it cannot be directly linked to the interpretation of the personal scope of this article. Nevertheless, it is useful as a broad indicator for interpretation. Another indicator of the personal scope is the authorisation of the military that is a formal requirement for the status. Article 4 (a) (4) of gc iii is only valuable for correspondents accredited by and travelling with the armed forces of a state.16 Since the permission of this requirement lies with national military decision-makers, it is also their decision who shall be granted this status. This leads to contemporary forms of war correspondents, namely, embedded jour- nalists. They travel with the armed forces without actually being a member thereof and have to pass through an accreditation process before being embed- ded.17 This authorisation process is equivalent to an authorisation of the armed forces, as requested by Article 4 (a) (4) of gc iii. Through this authorisation process, the militaries influence who has access and where they have access. The status of war correspondents in ihl is therefore applicable to all embed- ded journalists when they have passed an authorisation process and are travel- ling with the armed forces.18
15 icty, Randal Case, para. 29. On this case and its importance for news providers, see fur- ther Chapter 4, pp. 317ff. 16 This rule must be read in the context of the Second World War, where correspondents often wore uniforms and had a military grade. The categories in Article 4 (a) (4) of gc iii must further be distinguished from the propaganda groups within the military, such as, for instance, the Propagandakompanien of the German troops during the Second World War. 17 See an example in Chapter 1, pp. 37ff. 18 Scholars are divided on this question. Cf. Pape, Schutz der Presse, 2013, p. 37; Browne and Probert, Safety of Journalists Research Pack, 2012, pp. 15f. Contra: Düsterhöft, The Protection of Journalists, 2013, p. 8. And with a more complex analysis Balguy-Gallois, who refers to a consultation rwb undertook in 2004 and 2005, when asking states about their qualifica- tion of embedded reporters. While France, Germany and the Netherlands all treated embedded journalists as war correspondents, only the us military considered them to have the same legal status as ‘unilaterals’, meaning that they do not gain pow status upon capture. Balguy-Gallois, Le rôle des médias, 2010, p. 104.
State practice of recent conflict has shown that the status of ‘war correspon- dents’ was given to employees of media outlets but also to freelancers if they could provide guarantees from news entities to buy their stories.19 The title of such news providers travelling with the armed forces – namely, whether they are called ‘war correspondents’, ‘embedded journalists’ or something else – is consequently a simple question of labelling and not one of legal nature. In my view, embedded journalists also benefit from pow status upon arrest. Yet it has long been said that the concept of pows applies only to protected persons in the sense of the gcs. Protected persons are understood as those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or of the occupying power of which they are not nationals. Nationals of a neutral state who find themselves in the territory of a belligerent state, and nationals of a co-belligerent state, shall not be regarded as protected persons while the state of which they are nationals has normal diplomatic representation in the state in whose hands they are (Article 4 gc).20 In Tadic, the icty redefined the concept of protected person, going beyond the explicit text of Article 4 gc to state that the relevant factor for protected status is no longer enemy nationality, but allegiance to enemy and (absence of) protection by the party in whose hands a person is found.21 It is therefore crucial whether war correspondents, with their character as so-called followers of the armed forces, can be seen as in allegiance to the enemy. ‘Allegiance to the enemy’ is not further defined in the Tadic judgement, since the court only refers to ethnicity as an increasingly determinative factor of national allegiance.22 However, the contracts of embedded journalists, such as the Embed Rules for Iraq and Afghanistan23 or any other sort of accreditation, can broadly be understood as some sort of alle- giance. gc iii shall therefore apply to war correspondents of all nationalities as long they are not under the protection of the party in whose hands they fall. After authorisation as war correspondents, news providers usually receive an identity card. This card is not a constitutive condition for pow status in case of arrest.24 Even if first considered so, the working group of the diplomatic
19 Knightley, The First Casualty, 2004, p. 460. 20 As of 2013, every member state of the United Nations, plus the Cook Islands and the Holy See, was a party of all four gcs. Therefore, gc iii can be considered universally applicable. 21 icty, The Prosecutor v Tadic, ac Judgement, paras 164–166. 22 Ibid. 23 See above, Chapter 1, pp. 37ff. 24 Pictet, Commentary on gc iii, 1960; Gasser, Protection of Media Workers, 2009, para. 3.
1. Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1. 2. They shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civil- ians, and without prejudice to the right of war correspondents accredited to the armed forces to the status provided for in Article 4 (A) (4) of the Third Convention. 3. They may obtain an identity card similar to the model in Annex II of this Protocol. This card, which shall be issued by the government of the State of which the journalist is a national or in whose territory he resides or in which the news medium employing him is located, shall attest to his sta- tus as a journalist.
Article 79 ap I was the result of a long spate in the 1950 and 1960s of different attempts to strengthen the protection of journalists during armed conflict.27 Unfortunately, not much is known about the work of the ad hoc group and their arguments surrounding the inclusion of Article 79 in ap I.28 The protocols
25 At the same time, the identity card is a fulfilment of the general requirement of identity cards for pows. 26 With the exception that they are of the nationality of the enemy in whose hands they fall. 27 Article 79 ap I was a compromise of these different attempts. Saul calls it therefore a ‘half- hearted compromise’ of limited value in extending the protection of journalists. Saul, International Protection of Journalists, 2008, p. 107. 28 Report Working Group, CDDH/I/237 (Vol. X), p. 75.
Including the provision on journalists in a humanitarian law instrument should have the effect of making the Geneva Conventions and the Addi tional Protocols more familiar to those very journalists, since they would be more interested in consulting them.29
The use of the article as some sort of attractant for journalists to interest them more in ihl can be highly questioned. Article 79 ap I was nevertheless of immense use for the protection of journalists, since it clarified their status in the overall architecture of ihl. Before, the only norm dealing with news pro- viders was Article 4 gc iii. Paragraph 1 of Article 79 ap I then declared that journalists engaged in dangerous professional missions in areas of armed con- flict shall be considered civilians. Thereby, it referred such journalists to one of the major concepts within ihl – the protection of civilians.30 Yet, the article does not say that journalists per se are civilians, only that they shall be considered as such. The legal implications of this terminology were discussed during the working group preparations of ap I but apparently left aside to avoid another reopening of the negotiations about the text.31 Overall, scholars today agree that this wording is a result of an unfortunate phrasing of the provision and that the actual meaning is that journalists are civilians.32 However, this question is not of very high relevance, since Article 79 ap I generally is of declarative character. It does not create new law, it merely clarifies a controversial situation by referring these journalists to another, already-existing concept in ihl. The adoption of ap I not only introduced Article 79 ap I; it also lifted the overall protection of civilians in armed conflicts to a higher level. This had effects on the interrelationships between the already-existing gcs and the new protocols and hence also on the former’s concept of war correspondents. Even
29 un Doc CDDH/I/SR.31, para. 11, reprinted in Sandoz et al., Commentary ap I, 1987, Nr. 3256. 30 Boiton-Malherbe, La protection des journalistes, 1989, p. 150. 31 Statement of the Chairman of the Committee, Records Dipl. Conference 1974–1977, para. 11; Sandoz et al., Commentary ap I, 1987, Nr. 3258. 32 Sandoz et al., Commentary ap I, 1987, Nr. 3258. Cf. further Balguy-Gallois, Protection des journalistes, 2004, p. 4, fn 10; Düsterhöft, The Protection of Journalists, 2013, p. 12; Boothby, The Law of Targeting, 2013, p. 252; Heinsch, Cases in which Journalists Lose their Protection under ihl: When are Embedded Journalists Directly Participating in Hostilities? Conference, On the Front Line of Accountability, tmc Asser Institute, 2011.
Although the etymology calls to mind correspondents and reporters writ- ing for a daily newspaper, the present use of the word covers a much wider circle of people working for the press and other media.34
In later publications he broadened this definition and mentioned all types of the profession related to media35 or all personnel entrusted with media cover- age who are operationally active in a specific conflict.36 An historical interpre- tation arrives at a similar conclusion. The icrc draft of 1975 that preceded the adoption of ap I states:
The word ‘journalist’ shall mean any correspondent, reporter, photog- rapher, and their technical film, radio and television assistants who are ordinarily engaged in any of these activities as their principal occupation.37
33 Cf. Sandoz et al., Commentary ap I, 1987, Nr. 3259 and Sandoz, Swinarski and Zimmermann, Commentary ap I, 1987, Nr. 1915. 34 Sandoz et al., Commentary ap I, 1987, Nr. 3260. See also Düsterhöft and Balguy-Gallois, who describe this group of journalists as ‘unilaterals’ and ‘unilatéraux’, respectively. Düsterhöft, The Protection of Journalists, 2013, p. 8; Balguy-Gallois, Le rôle des médias, 2010, p. 87. 35 The German text reads: ‘alle[n] Berufsgattungen, welche den Medien zuzuordnen sind, wie z.B. Berichtserstatter des geschriebenen oder des gesprochenen Worts, Kameramänner, Tontechniker oder Photographen’. Fleck and Bothe, Handbuch ihl, 1994, p. 184, Nr. 1. 36 Gasser, Protection of Media Workers, 2009, para. 5. 37 (Punctuation added) Article 2 (a) 1975 Draft of 1 August 1975, Annex I, reprinted in: Sandoz et al., Commentary ap I, 1987, Nr. 3260.
According to Gasser, the term ‘professional’ shall furthermore be understood as ‘all activities which normally form part of the journalist’s profession’, namely, among others, taking notes, being on the site of action, interviewing people, taking photographs or shooting films.38 Article 79 ap I has never been applied to a specific case in an international court and therefore no international case law has specifically refined its per- sonal scope. Yet, although the phenomenon of citizen journalism was not yet known at the time of drafting, this broad definition also leaves room for the inclusion of citizen journalists and media support staff by means of a contem- porary interpretation of the wording, as long as these persons are ordinarily engaged in such activities as their principal occupation. However, this ques- tion may not be of special importance because in any event, even if a news provider does not fall under the category journalists engaged in dangerous pro- fessional missions, he or she is a civilian and shall be treated as such. In fact, the categorisation has no effect on the protection of a news provider as a civilian (it only clarified it again). The only case that falls outside the personal scope of Article 79 ap I are members of the military forces, who collect, share or process information within their function for the military. Such persons are considered combatants.39 Article 79 ap I further includes one territorial limitation (‘in areas of armed conflict’) and one factual limitation (‘dangerous missions’) on the scope of application. The icrc Commentary understands both limitations as concern- ing the ‘area affected by hostilities’40 because every activity in this area is by nature dangerous. According to the icrc, a geographic localisation of the scope of Article 79 ap I therefore makes little sense from either a legal or prac- tical perspective.41 Such an argumentation declines any second limitation within the general application of ap I. This makes sense for two reasons: First, because the limitation of a ‘dangerous’ mission is of subjective character and precludes any objective interpretation. It would be neither practical nor logi- cal of ihl to classify certain conflicts as more or less dangerous than others. In general, armed conflicts as a whole are considered dangerous areas. Second, it makes no sense because it uses the same approach as contemporary doctrine and case law that apply the regime of ihl, once applicable, to the whole terri- tory of a state.42
38 Ibid, 1987, Nr. 3264. 39 Ibid, Nr. 3262. 40 Ibid, 1987, Nr. 3263. 41 Ibid, 1987, Nr. 3263. 42 See Chapter 2, pp. 79ff.
Similar to Article 4 (a) (4) of gc iii, Article 79 ap I uses the mechanism of an identity card. But again, this card is no constitutive element for civilian status and shall only serve as proof of the status whenever necessary. Hence, if someone is not in possession of such a card, it has no consequences whatsoever for his pro- tection.43 Article 79 ap I further does not create the obligation for state or news corporations to issue such cards. Nevertheless, domestic law might stipulate other rules and guarantees for identity cards of news providers when the providers fulfil certain requirements. ap I includes a model of such a card in its annex. However, this is only a template; states can design their own cards. Only one passage, the Notice on the template, should be included in all designs, because it explains in a few sentences the significance of the card and the rights of its bearer.44 Compared with the universal application of the gcs, ap I faces a narrower scope of application. First, it applies only in iac. And second, it is not as undis- puted as the gcs and therefore does not enjoy the same support of states. As of December 2013, 173 states had ratified ap I – with the us, Israel, India, Iran, Pakistan and Turkey being notable exceptions.45 However, these states are nev- ertheless bound by a considerable number of the rules encompassed in ap i since they evolve at the same time as rules of customary international law. Accordingly, both war correspondents and journalists engaged in dangerous professional missions are civilians whenever they enter a combat zone. This is the case even when a journalist accompanies the armed forces and benefits from their logistical support. However, in case of arrest, war correspondents benefit from the additional rule that they must be treated as pows. Though this dichotomy of protection between war correspondents and journalists engaged in dangerous professional missions might not be of immense factual impor- tance, it is nevertheless of legal relevance.46 However, the difference between
43 Sandoz et al., Commentary ap I, 1987, Nr. 3272; Boiton-Malherbe, La protection des jour- nalistes, 1989, pp. 178ff. 44 In the preparations of Article 79 ap I, the working group discussed also the inclusions of other aspects on the card, such as language, fingerprints or religion. However, these aspects were dropped, among other reasons because there was not enough space on the card. Sandoz et al., Commentary ap I, 1987, Nr. 3277, 3250–3256; Gasser, Right to Information, 2003, p. 371. 45 Iran, Pakistan and the us signed the protocol in 1977 with the intention of ratifying it, which did not occur until 2013. 46 Jacobi and Gasser agree on the practical irrelevance of the distinction. Geiss disagrees and argues that journalists travelling with armed forces (he uses embedded journalists as an example) faces a higher risk of being arrested and that the distinction is therefore still relevant. Jacobi, War Correspondent, 1982, pp. 1346ff; Gasser, Right to Information, 2003, p. 372, fn 24; Geiss, The Protection of Journalists, 2008, p. 309.
47 Cf. above, p. 118, fn 10. 48 Henderson interprets the group of members of the armed forces who are exempt from attack as consisting of medical personnel, religious personnel and members of the armed forces exclusively and permanently assigned to civil defence organisations. Henderson, Targeting, 2009, p. 91, fn 86. 49 See below, pp. 116ff. 50 For a deeper analysis see Sandoz, Swinarski and Zimmermann, Commentary ap I, 1987, Nr. 1913; Fleck, Handbook ihl, 2013 pp. 95ff; Henderson, Targeting, 2009, pp. 91–123. 51 Cf. above, fn 5.
52 Article 4 (a) (1)–(3) of gc iii refers to individuals who have upon capture the status of a pow as lawful combatants, and Article 43 ap I defines the armed forces as parties to a conflict whose members are entitled to pow status upon capture by the enemy. 53 See also Rule 5 of the cl-Study: ‘Civilians are persons who are not members of the armed forces’. Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 17ff. 54 This term has been used for civilians who make a substantial contribution to the war effort but do not bear arms, for instance ammunition factory workers. See Henderson, Targeting, 2009, p. 93, fn 92. 55 This term is usually used for civilians who do regularly bear arms but do not meet the criteria for combatant status, e.g. in niac. See Henderson, Targeting, 2009, p. 93, fn 93. 56 Article 50 (2) ap I and Rule 5 of the cl-Study. Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 17ff. 57 Article 51 (2) ap I. Authors agree on the customary character of the principle. See e.g. Dinstein, The Conduct of Hostilities, 2004, p. 82. Further Rules 1 and 15–24 cl-Study, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 3ff, 51–76.
58 Sandoz, Swinarski and Zimmermann call it ‘the foundation on which the codification of the laws and customs of war rests’ and the icj even described it as ‘a fundamental and intransgressible principle of customary international law’. Sandoz et al., Commentary ap I, 1987, p. 598, Nr. 1863; icj, Nuclear Weapons Case, para. 257. 59 Cf. Article 48 ap I. 60 Cf. Article 57 ap I. See further below, fn 199. 61 Cf. Article 27 gc iv that obliges states to respect their persons, their honour, their family rights, their religious convictions and practices, their manners and customs, and to treat them humanely at all times. They shall further be protected against all acts of violence or threats thereof and against insults and public curiosity. The principle of humane treat- ment is further guaranteed in Articles 31–33 and 37 gc IV and Article 75 ap I. See also Rules 87 and 90 of the cl-Study, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 306ff, 315ff. 62 The utilisation of civilians or other protected persons as human shields or the taking of civilians as hostages are such fundamental breaches of ap I and war crimes. Cf. Article 85 (3) (a) and (b) ap I; Article 8 (2) (b) (xxiii) icc Statute; Article 34 gc IV; Article 75 (2) (c) ap I; Article 3 gc; Article 147 gc IV; Article 8 (2) (a) (viii) and (c) (iii) icc Statute; Article 2 (h) icty Statute; Article 4 (c) ictr Statute; Article 3 (c) scsl Statute; Rule 96, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 334ff. 63 Article 51 (3) ap I states that civilians only enjoy such protection ‘unless and for such time as they take a direct part in hostilities’. Article 79 (2) ap I mirrors this, saying journalists engaged in dangerous professional missions shall be protected ‘provided that they take no action adversely affecting their status as civilians’. Paragraph 2 of Article 79 ap I is thereby a direct reference to paragraph of Article 51 ap I.
B Equivalent Protection in Non-International Armed Conflicts The law of niac does not include equivalent provisions to Article 4 (a) (4) of gc iii and Article 79 ap I. Neither ap II, nor common Article 3 gcs – the so- called mini gc for niac – specifically mention news providers. However, as mentioned above,66 the laws of iac and niac have fused to a big extent due to new codifications and the development of customary law. It must hence be analysed whether the provisions of the law for iac for news providers have gained a customary character over time. The following pages summarise there- fore in a first step the general requirements for the evolution of customary rules in international law and, in a second step, apply them to the references of Article 4 (a) (4) of gc iii and Article 79 ap I as well as on the legal concepts of pow and the protection of civilians. a Customary Humanitarian Law It is not an easy task to define and proof the customary nature of certain rules in international law. Customs of international law are very diverse and cover different branches of the law. However, they all have some essential character- istics in common: the way they have come into existence and the manner their existence may be determined. It is generally accepted that customary law is formed by the practice of states, which they accept as binding upon them. In an early stage of the international justice system, both the Permanent
64 Melzer, Dph, 2009, pp. 83f. 65 See below, pp. 158ff. 66 See Chapter 2, pp. 83ff.
Court of International Justice (pcij) and the icj stated that the presence of customary law requires two elements: state practice and an opinio iuris sive necessitatis.67 The same requirements were later codified in Article 38 (1) (b) icj Statue.68 The first of the two elements, state practice, derives from the understand- ing that international law is created by the subjects of the law, which are the sovereign states. Hence, their practice reflects what is believed to be a cus- tom as matter of law.69 Treaties might help formalize this state practice but are no necessary condition for the development of a rule of customary nature. The second and subjective element, the opinio iuris, requires the belief on the part of states that this specific practice is rendered obligatory by the existence of the rule of law requiring it.70 It is therefore not sufficient if states repeatedly act in the same way while convinced that this behaviour is on a voluntary basis. The significance of customary law is specifically enhanced in ihl. According to Meron, this is due to the meagre prospects for the satisfactory development of the law of war through orderly treaty-making:
Customary law is thus a major vehicle for alignment, adjustment and even reform of the law. In many other fields of international law, treaty making is faster than the evolution of customary law. In international humanitarian law, change through the formation of custom might be faster, but less precise in content, than the adjustment of law through treaty making.71
In 1996 the icrc started an ambitious project with the goal of identifying the rules of the law of armed conflict that have become part of international customary law. This impressive work came to a preliminary end in 2005 when the icrc presented the first two volumes of their study (cl-Study).72
67 pcij, Lotus Case, para. 18; icj, North Sea Continental Shelf Cases, para. 77; icj, Nicaragua Case, para. 102. 68 Article 38 (1) (b) icj Statute states that the court shall apply ‘international custom, as evidence of a general practice accepted as law’. Cf. Treves, Customary International Law, 2006, para. 16. 69 Ibid, para. 16. 70 icj, North Sea Continental Shelf Cases, para. 77. 71 Meron, Custom in ihl, 1996, p. 247. 72 Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009; Henckaerts and Doswald- Beck, Customary ihl, Practice, 2009 (Second Volumes).
The 161 rules filtered in Volume I of the cl-Study constitute a common core of ihl binding all parties to an armed conflict, regardless of their ratification of ihl treaties. Volume II of the cl-Study contains a summary of relevant state practice as well as the practice of international organisations and judi- cial or quasi-judicial bodies. This cl-Study facilitates the work of every scholar working in ihl by offering a comprehensive catalogue of rules of cl applicable in armed conflict. However, it must be said that the study faced some harsh criticism in the ensuing academic discussion.73 Nevertheless, the work of the icrc, as already stated in the Introduction, will be used as an authoritative source and as a starting point for my research on customary rules in ihl.74 b Characterisation of the References: Article 4 (a) (4) of gc iii and Article 79 ap I At the first sight it is questionable whether the reference of Article 4 (a) (4) of gc iii has gained a customary nature. The underlying problem in this case is the fact that status-based categories do not exist in niac. Hence, the con- cept of combatants lies outside the realm of the law of niac.75 And because the concept of pow is the natural extension of the status of combatants in case of an arrest by the enemy, it is equally not included in the law of niac. The cl-Study consequently states that the concept of pow is only a custom in iac.76 The second reference of the law of iac with regards to news providers, Article 79 ap I, has gained customary nature. Gasser writes in the icrc Commentary to Article 79 ap I that the provision did not create new law at the time of its adoption.77 And because no other provision of international law had mentioned before that news providers working in armed conflict shall be treated as civilians (or that they are civilians), the assumption lies close that it must have been a rule of customary international law. The cl-Study under- lines this theory. Its Rule Nr. 34 states:
73 See for many: Dinstein, cl-Study, 2006. 74 See Introduction, Literature Review, pp. 13ff. 75 In niac, instead of combatants, the study uses the term ‘persons who do not enjoy the protection against attack accorded to civilians’. Rule 106, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 384–389. 76 Cf. Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 384–389; Goodman, Detention of Civilians, 2009, p. 49. 77 Sandoz et al., Commentary ap I, 1987, pp. 917ff; but more doubtful in Gasser, Right to Information, 2003, p. 372.
Civilian journalists engaged in professional missions in areas of armed conflict must be respected and protected as long as they are not taking a direct part in hostilities.78
Even though this rule does not refer to the status of journalists as civilians, it links them directly to one of the basic rules for the protection of civilians. Namely, that they are protected as long as they are not taking a direct part in the hostilities.79 The cl-study moreover stresses that this rule is also applicable in niac (since no official contrary practice has been found). Deliberate attacks against journalists have constantly been condemned, in both iac and niac.80 Interestingly, the study uses the term civilian journalist. This terminology is not further explained in the study, which is rather unfortunate because it fur- ther confuses the already diffuse terminology of ihl regarding news providers. However, it is reasonable to assume that this wording was chosen to clarify that members of the military forces who are dealing with information warfare are not included in this rule and that the terminology of journalists engaged in dangerous professional missions is not uniformly used by state practice. However, the term war correspondent could misleadingly be seen as a counter- part to the term civilian journalists. According to the law of iac, however, war correspondents are also civilians and only benefit from the privilege of pow in the case of detention. Hence, they can also be subsumed under the term civil- ian journalist.81 It is, on the other hand, rather unlikely that state practice refers to citizen journalists.82 In the sense of the terminology defined in Chapter 2, civilian journalist should therefore be understood as covering all professional journalists and media support staff.83 c Protection as Civilians Since Rule Nr. 34 of the cl-Study indicates that journalists fall under the regime for the protection of civilians and applies also in niac, journalists con- sequently fall under the regime of niac for the protection of civilians. Yet, the
78 Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, p. 115. 79 Cf. Rule 6 of the cl-Study. Ibid, pp. 19ff. 80 Ibid, 2009, pp. 115–117; for extracts of corresponding state practice, see Henckaerts and Doswald-Beck, Customary ihl, Practice, 2009, pp. 661ff, 665. See further Gill and Fleck, Military Operations, 2010, p. 262. 81 Cf. Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, p. 117. 82 This accords with the examples of state practice listed in the cl-Study, Henckaerts and Doswald-Beck, Customary ihl, Practice, 2009, pp. 661ff. 83 Cf. the overview of the terminology in Chapter 2, pp. 111ff.
84 Out of 167 state parties, 20 made reservations (e.g. Argentina, Austria, Canada, China, France, Germany and the uk). 85 With further references: Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, Rule 1, pp. 5–8. 86 Ronzitti, Civilian Population, 2010, para. 45. 87 Article 8 (2) (c) (i)–(iii) icc Statute. 88 Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, Rules 96, 98, pp. 334ff, 340ff. 89 Cf. Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009.
2 Strong Backdrop of Human Rights Law hrl protects news providers in two ways: First, it protects them directly through the general human rights of every human individual, such as the right to life, the right to personal liberty and integrity, the right to be free from tor- ture and the right to an effective remedy. Second, it protects them indirectly through rights which protect their activity, such as freedom of expression and the right to information. The protection of the latter freedoms will be addressed in Chapter 4 under the topic of the functional protection of news providers.92 The next pages focus in the meantime on the direct protection of news provid- ers within the general framework of the human rights protection of every human individual. Since the most frequent risks and dangers for news providers are attacks on their lives and wellbeing, kidnapping and detention, I focus here on the ‘hard core’ human rights, which protect every human being from arbitrary depriva- tion of life and liberty and the protection of the psychological and physical integrity. In order to illustrate the particularities of the situation of news pro- viders, I will, whenever possible, use examples of international jurisprudence that particularly concerned news providers.
90 Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, Rule 6, pp. 19ff. 91 Evidently, these rules apply only to individuals who are members of neither the armed forces of the state nor of the dissident armed forces or other organized armed groups. 92 See below, Chapter 4, pp. 208ff.
A Right to Life I start with the most fundamental of all human rights: the right to life. Life is the foundation of individuals as members of society. Without life, a human being is not able to unfold his or her identity. Without life, a human being is also not able to unfold all other human rights. The right to life is therefore also the most fun- damental human right of news providers. This vital importance gives the right to life a special position at the top of the hierarchy of legal norms.93 It is safeguarded in Article 6 iccpr, Article 2 echr, Article 4 achr and Article 4 AfChHR, and non-derogable not only under the iccpr (Article 4 (2)), but also under the echr (Article 15 (2)) and the achr (Article 27 (2)). The Inter-American Commission on Human Rights (IACommHR) even rated the right to life as part of jus cogens.94 The right to life hence also applies during armed conflicts. However, the character of the right to life is not as absolute as it seems. Even though it is non-derogable under various human rights treaties, the right itself has no absolute character. The underlying reason is that also in modern democracies, it may become necessary to kill a person under exceptional circumstances. The iccpr, the AfChHR and the achr therefore confine themselves to safeguarding that no ‘arbitrary’ deprivation of life shall take place.95 The term ‘arbitrary’ covers not only cases of intentional killing, but also cases where it is permitted to use force in which an unintended outcome may be the depriva- tion of life.96 Although the echr does not use the same terminology, it is widely accepted that Article 2 (2) echr serves as the model for providing a fair yardstick for cases in which force may be regarded as ‘non-arbitrary’.97 This is the case (a) in defence of a person of unlawful violence, (b) to effect a lawful arrest or to prevent the escape of a person lawfully detained, or (c) in action lawfully taken for the purpose of quelling a riot or insurrection. In addition, two other reasons are generally accepted exceptions to the right to life: first, the explicit exception of the death penalty, and second, cases of killing as a result of lawful acts of war.98 What kind of ‘lawful acts of war’ allow parties of
93 Tomuschat, The Right to Life, 2010, p. 3. 94 IACommHR, ‘13 de Marzo’ v Cuba, para. 79. Further on the status and the nature of the right, Gowlland-Debbas, Right to Life, 2010, p. 129. Tomuschat, The Right to Life, 2010, p. 5. 95 Article 6 (1) iccpr; Article 4 AfChHR; Article 4 (1) achr. 96 Gowlland-Debbas, Right to Life, 2010, p. 130. 97 Schmahl, Targeted Killings, 2010, p. 239. 98 Article 15 (2) echr. This is one of the cases where ihl defines what hrl means in war- time. un HRComm, General Comment Nr. 6 (1982), para. 6; Gowlland-Debbas, Right to Life, 2010, p. 130. Critical: Doswald-Beck, The Right to Life, 2006, p. 882; Milanovic, Norm Conflict Perspective, 2009, p. 478.
99 See below, pp. 150ff, 158ff. 100 Tomuschat, The Right to Life, 2010, p. 17. 101 This results from the general obligations of states to respect, protect and provide all sorts of human rights. See un HRComm, General Comment Nr. 6 (1982), para. 4; Jacobs et al., echr, 2005, pp. 143ff. Compare further with Browne and Probert, who list four obligations (including the obligation of the state to undertaking measures to guarantee protection). Browne and Probert, Safety of Journalists Research Pack, 2012, p. 9. For the duty to investi- gate see Droege, ihl and hrl, 2007, pp. 351ff. 102 IACommHR, Bustíos v Peru.
the level of violence and the defenselessness which characterize the con- ditions in which a great proportion of the civilian population in the emergency areas live, due to the ‘cross fire’ nature of the situation, where insurgent groups are in action on one side and agents of the government on the other.107
The Commission then directly applied common Article 3 gcs and emphasized that the non-derogable norms of the achr continue to apply simultaneously with the former, and that both Article 4 achr and Article 3 gcs prohibit, inter alia, arbitrary deprivations of life.108 The Commission further concluded that it was clear that Bustíos was extra-judicially executed by agents of the Peruvian state. Thereby they arbitrarily deprived him of his right to life.109 Consequently,
103 Ibid, paras 4ff. 104 See also Bustíos, Caso Bustíos, 2009. 105 IACommHR, Bustíos v Peru, para. 1. 106 Ibid, para. 42. 107 (Punctuation added) Ibid, para. 16. On the intensity of the conflict, see further ibid, paras 58–61, 73–75. For an assessment of situations and the law of armed conflict in the juris- prudence of the IACtHR, see Burgorgue-Larsen and Úbeda de Torres, ‘War’ in the Jurisprudence of the IACtHR, 2011. 108 IACommHR, Bustíos v Peru, para. 59. 109 Ibid.
110 Ibid, paras 59, 60, 63. 111 Ibid, para. 16. 112 However, because of the gravity of the facts and the proven involvement of state authori- ties, the Commission did not balance the protection of journalists in war zones with the interests of state security or with the requirements of lethal force against civilians in ihl. This is a gap in the jurisprudence still in need of clarification by further cases originating in times of challenged state security. Perkins, Violence against the Press in Latin America, 2001. 113 Cf. IACtHR, Nicolle v Guatemala, a case that originated in the murder of journalist and politician Jorge Carpio Nicolle during the civil war that rocked Guatemala from 1962 to 1996. IACtHR, Nicolle v Guatemala, para. 76 (21) (background of the facts); para. 76 (deter- mination of an armed conflict); para. 77 (violation of the right to life); para. 82 (violations of other rights). 114 See above, pp. 44ff and pp. 56ff. 115 Cf. Chapter 1, pp. 49ff.
116 ECtHR, Kılıç v Turkey, para. 60. 117 Ibid. In Tekin v Turkey the Court had to assess the degrees of the state of emergency and the severity of the confrontations in the region. On this occasion it did not let slip a word on a qualification of the conflict. However, the proclamation of a state of emergency and the numbers and facts above were undisputed and – at least in some situations – amounted to an armed conflict. ECommHR, Tekin v Turkey, paras 25f. 118 For an overview of these facts, see ECtHR, Yaşa v Turkey, paras 23ff.
This involves a primary duty on the State to secure the right to life by put- ting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such pro- visions. It also extends in appropriate circumstances to a positive obliga- tion on the authorities to take preventive operational measures to protect an individual or individuals whose life is at risk from the criminal acts of another individual.121
This finding is of great importance for the issue of impunity. Namely, it obli- gates states to establish a sufficient legal framework as a basis for the authori- ties to fight impunity. However, the Court limited these findings in the next paragraph as:
the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be estab- lished that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individ- ual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged rea- sonably, might have been expected to avoid that risk.122
In the case, the ECtHR stressed that in early 1993 the authorities were aware that those involved in the publication and distribution of the newspaper Özgür Gündem feared that they were falling victim to a concerted campaign tolerated,
119 ECtHR, Kılıç v Turkey; ECtHR, Yaşa v Turkey. 120 ECtHR, Kılıç v Turkey. 121 Ibid, para. 62. 122 (Emphasis added) Ibid, para. 63.
was at this time at particular risk of falling victim to an unlawful attack. Moreover, this risk could in the circumstances be regarded as real and immediate.124
In addition to the specific risk to journalists working in this area, the Court observed that the enforcement of the criminal law with respect to unlawful acts allegedly carried out with the involvement of the security forces disclosed particular characteristics in the southeast region in this period. The defects of enforcement were so severe that they undermined the effectiveness of the pro- tection afforded by the criminal law during the relevant period. Thereby, the court indirectly referred to a general atmosphere of impunity.125 Kemal Kılıç was hence at a particular risk of a violation of his right to life and the authorities knew of this threat. In addition, the applicable criminal law was undermined by the prevailing atmosphere of impunity of crimes against news providers in the region. In conclusion, the Court stated that the authorities failed to take reasonable measures available to them to prevent the materialisation of the real and immediate risk to the life of Kemal Kılıç and found, accordingly, a violation of Article 2 of the Convention. This jurisprudence was later confirmed in Dink v Turkey, which concerned a murdered Turkish journalist of Armenian origin.126 Again, in this case, the ECtHR assumed that the Turkish authorities were aware of the hostilities from nationalist circles toward Dink and the newspaper he worked for.127 Moreover, they even knew of assassination plans and the identity of the planners, but implemented no protective measures. Furthermore no effective investigation had been carried out into the failures which occurred. This led to violations of both the material and procedural obligations that arise from Article 2 echr.128
123 Ibid, para. 66 with references to other case law on such incidents. 124 Ibid, para. 66. See similarly ECtHR, Gongadze v Ukraine, paras 168, 179. 125 ECtHR, Kılıç v Turkey, paras 71–75. 126 ECtHR, Dink v Turkey. 127 Ibid, paras 66ff. 128 Ibid. See further ECtHR, Torlak v Turkey, decided in early 2013, and the case ECtHR, Demirtaş v Turkey that arose out of a similar context of threats to the life of a Kurdish journalist and is still before the ECtHR, at the stage of communicated cases, waiting for the parties’ submissions.
The IACommHR applied the same parameters in the Miranda case in 1999.129 The case concerned the murder of Héctor Félix Miranda, a well-known Mexican journalist, author and associate director of a weekly newspaper, who reported on political corruption and drug trafficking. Yet, the Commission could not find a violation of the right to life of Miranda because it was not clearly established that the authorities knew about the threats he had received and the danger he faced.130 The duty to prevent interferences with the right to life by third parties hence obligates states not only to put in place effective criminal laws and to back them up by a adequate law enforcement machinery but also to take preventive operational measures to protect an individual whose life is at risk from crimi- nal acts by third parties. However, this last obligation is only activated if the authorities know or ought to know of the existence of a real and imminent risk to the life of a news provider. Such real and imminent risk may arise from the frequency of past attacks on news providers in the region or calls for future attacks.131 Available data about attacks on news providers from professional, civil society or international organisations such as unesco can help assess such a context. Whenever the authorities know or ought to know of such an imminent risk, they have the duty to take appropriate measures against the materialisation of that risk. Otherwise, they violate the procedural aspect of the right to life. c Duty to Investigate Violations of the Right to Life The third obligation of states to investigate violations of the right to life effi- ciently and to prosecute and punish the perpetrators of such violations is based on the interpretation of the requirement of states ‘to ensure respect’ for the right to life. This obligation includes positive measures to ensure that the right is respected and does not cease in times of war.132 The ECtHR refined this obligation in its jurisprudence on the Chechnya war, holding in particular that the obligation of states to carry out effective investigations of violations of the
129 The Court also considered the state’s failure to investigate the attacks and prosecute and punish the perpetrators. However, in this case, agents of the state themselves were not involved in the attack. IACommHR, Miranda v Mexico. 130 Claims of violations of the right to humane treatment (Article 5) and the right to equal protection (Article 24) were equally dismissed. Ibid, paras 13–15, 16f. 131 With regard to the case studies undertaken in Chapter 1, the public call for a bounty hunt for journalists working for Al Jazeera and Al Arabiya in Syria in 2012 or the high number of attacks on news providers during the same period could be regarded as such an immi- nent risk. See Chapter 1, pp. 58f. 132 Cf. Doswald-Beck, The right to life, 2006, p. 887.
[T]he authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the con- duct of any investigative procedures…. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events…. This means not only a lack of hierarchical or institutional connection but also a practical independence…. This is not an obligation of result, but of means…. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.… The degree of public scrutiny may well vary from case to case. In all cases, however, the victim’s next-of-kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.133
Here again, the human rights jurisprudence can be read as a refinement of the fair trial guarantees established by ihl. And these human rights rules establish an obligation to effectively investigate suspected violations, using impartial and independent procedures, and to prosecute and punish violations. Such an investigation also needs to recognize the unique characteristics of armed con- flict (for instance, an evaluation of a possible breach of the principle of propor- tionality).134 The result of every investigation must furthermore be made public, including details of how and by whom the investigation was carried out, the findings, and any prosecutions subsequently undertaken.135 In a more general manner, systematic supervision and periodic investigation should take place, so that institutions, policies and practices ensure that the right to life is upheld as effectively as possible by all actors, including the military.136 The relevance of this obligation in regards to crimes against news providers was again addressed in cases originating in southeast Turkey.137 In both Yaşa v
133 ECtHR, Isayeva, Yusupova and Bazayeva v Russia, paras 209–213. 134 un sr ESAEx, Annual Report 2006, paras 33–43. 135 Ibid. 136 Ibid. 137 ECtHR, Kılıç v Turkey, para. 60.
Turkey and Kılıç v Turkey, the Court found a failure of the obligation to provide an effective investigation and consequently a violation of the procedural aspect of Article 2 echr.138 In a later judgement originating in a murder case in the Ukraine the Court further confirmed this approach.139 The findings of international case law can be summarized as follows: it is nearly impossible to prove beyond reasonable doubt that a violation of the right to life was connected or caused by a person’s journalistic activities. However, within a certain context, news providers face because of their activ- ity an increased risk of falling victim to an unlawful attack against their right to life. During such prima facie situations, states must provide the greatest guar- antees possible for journalists, including those working in armed conflicts. If a news provider faces at the same time a real and immediate risk to his right to life, states have the additional obligation to apply preventive measures to pro- tect him from unlawful attacks.140
B Right to Personal Liberty Chapter 1 showed the high risk to news providers of becoming victims of kid- nappings and enforced disappearances during times of armed conflicts.141 The iccpr as well as regional human rights treaties address this threat along with ihl and recognise the guarantee that no one may be deprived of his liberty except for under conditions previously established by law.142 A deprivation of liberty is thereby any restriction of an individual’s freedom to physically go to or leave a certain place.143 The un HRComm clarified further that this guarantee
138 Ibid, para. 83. ECtHR, Yaşa v Turkey, para. 116. 139 The case concerned an application of the wife of a disappeared Ukrainian political jour- nalist and editor-in-chief of Ukrayinska Pravda, an online newspaper. In its merits, the Court used strong words to describe the Ukrainian authorities as ‘not only formalistic but also blatantly negligent’ but also more preoccupied with proving the lack of involvement of high-level state officials in the case than with discovering the truth about the circum- stances of the disappearance and death of the victim. The Court consequently found both a substantive violation of Article 2 and a procedural violation of Article 2 echr. ECtHR, Gongadze v Ukraine, paras 164f, 171, 180. See further for the American continent: IACtHR, Nicolle v Guatemala, para. 35. 140 The IACommHR has the power to order such precautionary measures and has done so with the aim of protecting the lives of news providers in the past, although with mixed success. Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 323. 141 Cf. Chapter 1, pp. 72ff. 142 Articles 9, 10 and 11 iccpr, Article 7 achr, Article 5 echr and Article 6 AfChHR. For the relevant ihl provisions, see below, pp. 191ff. 143 Dörr, Arbitrary Detention, 2007, para. 1.
144 General Comment to Article 4 of the un HRComm stating that ‘[s]tate parties may in no circumstances invoke Article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hos- tages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of inno- cence’ (emphasis added). un HRComm, General Comment Nr. 29 (2001), para. 11. 145 Forced disappearance of persons is thereby understood as: ‘the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that depri- vation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees’. Article II 1994 Inter-American Convention on Forced Disappearance of Persons. See fur- ther also Article 2 of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance. 146 un HRComm, General Comment Nr. 6 (1982), para. 4. 147 IACtHR, Velásquez v Honduras. 148 IACtHR, Blake v Guatemala.
extend until such time as the disappearance is entirely solved and that the crime of forced disappearance is an indivisible whole inasmuch as it is a continuing or permanent crime, which extends beyond the date on which the actual death occurred, provided that the death took place in the context of the disappearance.152
In Blake’s case, his fate or whereabouts were not known until June 1992, after the date on which Guatemala accepted the contentious jurisdiction of the Court. Therefore, the Court considered itself competent to hear the case with regard to the possible violations in connection with those effects and actions.153
149 Ibid, para. 52. 150 Ibid, paras 31, 81. 151 Whereas the violation of Article 13 achr was considered an indirect consequence of Blake’s proven disappearance and death. Ibid, paras 86 and 105. 152 Ibid, para. 55. 153 The Court stressed that evidence for the role of the authorities in Blake’s death and the delay between his disappearance and the discovery of his body amounted to a violation of his survivors’ rights to a fair and prompt hearing according to Article 8 achr. It also violated the family members’ right to humane treatment (Article 5 achr), even though the claim that Blake suffered a violation of his own right to humane treatment was beyond the Court’s jurisdiction. Moreover, the burning of the remains of Blake constituted another violation of Article 5 because it increased the suffering of his relatives, since it was an assault on cultural values prevailing in Guatemalan society, which foresee that remains are handed down from generation to generation, with regard to respecting the dead. Ibid, paras 54, 114f. On enforced disappearance, see further ibid para. 66.
In its merits, it highlighted again the responsibility of governments to investi- gate journalists’ murders with dispatch and bona fides. It established in par- ticular the right of a murdered journalist’s survivors to recover monetary damages, including in the case when a state tries to cover up a killing and intentionally delays the criminal investigation.154 Although the situation of the civil war in Guatemala lay outside the scope of scrutiny of the court, its find- ings in Blake state clearly that states must also protect news providers from enforced disappearances during times of war. So far, there has been no other case that refined this obligation of protection.155 However, similar parameters will be applicable as with regards to the right to life.156
C Right to Physical and Psychological Integrity hrl protects news providers, as it does all other human beings, from torture or any other inhumane and degrading treatment.157 It is also prohibited to apply degrading treatment or punishment that grossly humiliates the victim before others or drives a detainee to act against his or her will or conscience.158 Here again, ihl and hrl supplement and reinforce each other. In several of the cases mentioned above, the IACtHR and the ECtHR found violations of the right to physical and psychological integrity and entangled it in some of the cases even with the protection accordant to ihl: In the case Bustíos v Peru,159 for instance, the Commission found a violation of the right to personal integrity of Article 5 achr by the injuries of Eduardo Rojas Arce pro- duced in the ambush carried out by Peruvian forces. The Commission made a direct link to ihl and found at the same time a violation of common Article 3
154 The case was of great importance for the development of a jurisprudence for principles related to damages and compensation for the family members of those kidnapped and killed by government agents in Latin America. See also Perkins, Violence against the Press in Latin America, 2001, pp. 278f. 155 Strasbourg was at first more reluctant with cases of forced disappearances to develop later a similar jurisprudence as the IACtHR. Yet, none of the cases before the court con- cerned a news provider. See for instance the case Kurt v Turkey, where the Court found first no violation of the right to life, but instead a particularly grave violation of the right to liberty and security of person under Article 5 echr. ECtHR, Kurt v Turkey. See further the cases against Turkey and Russia cited in Jacobs et al., echr, 2005, pp. 147ff. 156 See above, pp. 135ff. 157 See Article 7 iccpr, Article 3 echr, Article 5 achr, Article 5 AfChHR and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 158 ecommhr, Denmark, Sweden, Norway and the Netherlands v Greece, para. 1339. 159 IACommHR, Bustíos v Peru.
160 Ibid, paras 64–66. See for violations in time of peace: double violation of Article 5 (1) achr in IACtHR, Perozo v Venezuela. 161 IACommHR, Milk Case, para. 141. 162 I discuss here only the effects of detention on the physical and psychological integrity of the detainee. For the requirements for legitimate detention see further below, p. 191. 163 ECommHR, Tekin v Turkey. 164 Ibid, para. 53. 165 Ibid, para. 49. For defining torture, inhuman treatment and degrading treatment under the echr, see Jacobs et al., echr, 2005, pp. 170–174ff. 166 ECommHR, Tekin v Turkey, para. 49. 167 (Punctuation added) Ibid, para. 52. 168 un HRComm, Mukong v Cameroon. 169 Ibid, para. 9.3.
3 Essence of Part I The last section showed that news providers are not only protected by ihl, which divides them into the categories of war correspondents and journalists engaged in dangerous professional missions; they are also protected by the core human rights of life, liberty and physical and psychological integrity. All these human rights are non-derogable, and thus apply alongside ihl during armed conflict. However, even though applicable, these rights are not immune from limitations. That means that, in the face of certain overruling interests, these rights may be restricted. The next section will therefore outline the most frequent and relevant legitimate limitations to the personal protection of news providers working in armed conflicts.
II Limitations of the Personal Protection
The past section showed that ihl and hrl fuse into a comprehensive personal protection of news providers during armed conflict. However, this protection has its limits: (1) news providers may be killed or injured by an accidental or tolerated side effect of an attack; (2) in very restrictive circumstances they may deliberately be targeted; or (3) they may be detained. The following paragraphs specify these limitations of the personal protection and illustrate it with some examples derived from the case studies examined in Chapter I.
170 Furthermore, the un HRComm noted that the applicant had been singled out and sub- jected to exceptionally harsh and degrading treatment. He was kept detained incommu- nicado, was threatened with torture and death, and was intimidated, deprived of food, and kept locked in his cell for several days on end without the possibility of recre- ation. The Committee finally judged this treatment a violation of Article 7 iccpr. Ibid, paras 9.3f.
1 ‘Bad Luck’ or Collateral Damage News providers do not behave like other civilians. Affected by an armed con- flict, most other persons leave the area of hostilities and try to find shelter in safer areas. News providers do the reverse. They explicitly look for hostilities, for ‘action’, for ‘new’ material for their stories. And even when they do not actively follow such action, they often try to place themselves in the eye of the storm to witness closely what’s happening there. By this attitude, they wilfully expose themselves to a higher risk than other civilians. In addition, persons who accompany the armed forces, such as embedded journalists, take on a higher risk of incidental injury or death simply by virtue of their proximity to the armed forces (especially when wearing army-issue fatigues, which was the usual practice during the Second World War and up to the early 1960s171).172 The same is true for citizen journalists who cover news from the frontline of civil wars. The loss of life or injury of a news provider can consequently be an accidental or tolerated side effect of an attack on a legitimate military target caused solely by the news provider’s proximity to the target. Such effects are not necessarily a violation of ihl or hrl. The protection described above reaches at this stage a first limit. This limit is measured and balanced by the fundamental principles of proportionality and military necessity in ihl.
A Proportionality Relating to News Providers The principle of proportionality is one of the core pillars of ihl. It is laid down in Article 51 ap I, which prohibits ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.173 The nationality of the civilians is irrel- evant in this regard. Attacks174 on a state’s own civilians fall under the same regime as attacks on the enemy’s civilian population.175 Furthermore, there is no mathematical formula to determine whether a certain number of victims are excessive in relation to a specific anticipated military advantage. Excessive
171 Cf. Goodman, Detention of Civilians, 2009, p. 51. 172 Cf. Saul, International Protection of Journalists, 2008, p. 109. 173 (Emphasis added) The principle is further embodied in Article 51 (5) (b), Article 57 (2) (a) (iii) ap I, Article 8 (2) (b) (iv) icc Statute and part of customary ihl. See also icj, Nuclear Weapons Case, para. 587. 174 I use ‘attack’ in this context in a literal meaning and not as narrow as defined in Article 49 ap I. 175 Henderson, Targeting, 2009, pp. 227f. This derives from the broader definition of the civil- ian population in ap I than of protected persons by the gcs.
176 icty, Final Report nato Bombing, para. 50. The test of the anticipated loss, however, con- sists ‘in knowing not whether those who prepare or decide on an attack expected it to cause excessive losses and damages, but whether they “should have expected” such dis- proportionate losses’. Balguy-Gallois, Protection des journalistes, 2004, pp. 13f. 177 Yet Franck concludes that beauty as well as proportionality is not solely in the eye of the beholder. Franck, On Proportionality of Countermeasures, 2008, p. 766. 178 Balguy-Gallois, Protection des journalistes, 2004, pp. 13f. 179 For an overview of ambiguous areas of proportionality, see Clarke, Proportionality in Armed Conflicts, 2012. 180 Cf. Ronzitti, Civilian Population, 2010, para. 9. 181 During the same night, radio relay buildings and towers were hit, along with electrical power transformer stations. icty, Final Report nato Bombing, para. 71–79. 182 The exact numbers are disputed. The report of the icty on the incident named 10–17 deaths, ai counted 16 deaths. ai, nato in Yugoslavia, 2000, pp. 40ff, 40. icty, Final Report nato Bombing, para. 71.
183 icty, Final Report nato Bombing. 184 Ibid, para. 78; ai, nato in Yugoslavia, 2000, pp. 43ff. 185 bbc2 Broadcast of March 2000, cited in icty, Final Report nato Bombing, para. 78. 186 Ronzitti, Civilian Population, 2010, para. 10; Balguy-Gallois, Protection des journalistes, 2004, p. 14. 187 icty, Final Report nato Bombing, para. 77. 188 Laursen, icty Investigation, 2001, p. 792.
189 Similarly, Benvenuti, icty Review, 2001, p. 523. 190 ai, nato in Yugoslavia, 2000, pp. 43f. 191 Laursen, icty Investigation, 2001, pp. 790f. 192 Pape, Schutz der Presse, 2013, p. 30. 193 Ibid.
B Military Necessity and Advanced Warning Relating to News Providers As has already been mentioned multiple times, ihl is a pragmatic law, a com- promise between the interests of protecting humanity while allowing a mini- mum of violence. The second fundamental pillar that restrains the legitimacy of violence during armed conflict, the principle of military necessity, is one more tool to balance these interests. According to this principle, all action and attacks during armed conflict must be aimed at securing a military advantage – that is, they must offer a benefit for the overall reach of the general goal of victory.195 Today, it is generally recognized that this principle permits:
194 On the benefit of civilian journalists from the principle of proportionality, see also Gill and Fleck, Military Operations, 2010, p. 262; Geiss, The Protection of Journalists, 2008, p. 306. 195 Cf. Boothby, The Law of Targeting, 2013, p. 59; Henderson, Targeting, 2009, pp. 35ff. For a glimpse back on the long history of the principle of military necessity, see Gardam, Necessity and Proportionality, 2004, pp. 28–58, 138–230, 7ff.
only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.196
Consequently, any destruction of property and loss of life or injury must be imperatively demanded by the necessities of the war and have a reasonable connection to the overcoming of the enemy forces. Destruction as an end in itself is prohibited, a breach of both customary and conventional provisions of ihl, and can amount to a war crime.197 Thus, if the control or neutralisation of an object is sufficient for the military benefit, the destruction of it is prohibited.198 However, the exact kind and degree of force that can be regarded as neces- sary involves a complex analysis based on a wide variety of operational and contextual circumstances. As Melzer points out:
the aim cannot be to replace the judgment of the military commander by inflexible or unrealistic standards; rather it is to avoid error, arbitrariness, and abuse by providing guiding principles for the choice of means and methods of warfare based on his or her assessment of the situation.199
The principle of military necessity also gives the premise for the rule, that all civilian casualties must be avoided if possible. ihl therefore incorporated the
196 (Punctuation added) Melzer, Dph, 2009, p. 79. 197 Article 85 (3) (b)–(c) ap I and Article 8 (2) (b) (i–ii) icc Statute. The failure to suspend such an attack is also a grave breach of ap I and amounts to a war crime if of sufficiently serious nature. Gardam, Necessity and Proportionality, 2004, pp. 128, 130. 198 Cf. Article 52 (2) ap I. Article 57 (2) (b) ap I states further that an attack is to stop as soon at it becomes clear that the object is not of a military character or that the attack is not proportionate to its military advantage. 199 Melzer, Dph, 2009, p. 80. Doswald-Beck similarly states that the possibility of warning and how this could be done must be guided by common sense, which will inevitably include the safety of the attacker. Doswald-Beck, 1977 Geneva Protocols, 1989, p. 170, Nr. 72. Articles 57 and 58 ap I further suggest a list of precautions to fulfil the requirements of propor- tionality and military necessity: (i) doing everything feasible to verify that the objectives to be attacked are military objectives; (ii) choosing means and methods of attack with a view to avoiding – or, at least, minimizing – incidental injury to civilians and civilian objects; and (iii) refraining from launching an attack expected to be in breach of the prin- ciple of proportionality. Melzer, Dph, 2009, p. 75.
200 Cf. Article 19 Lieber Code; Article 26 H IV R (1907); Article 19 gk IV, and others. 201 This obligation is not mandatory in the case of surgical strikes. Balguy-Gallois, Protection des journalistes, 2004, p. 17. 202 ai, nato in Yugoslavia, 2000, pp. 44f. 203 Ibid. 204 Consequently, uk Prime Minister Tony Blair blamed Yugoslav officials for not evacuating the building. icty, Final Report nato Bombing, para. 77. 205 Apparently, statements of nato officials from two weeks earlier could have been con- sidered as a warning. However, ai regards these warnings as not meeting the neces- sary requirements; consequently, according to ai, there was no warning from nato that a specific attack on rts headquarters was imminent. ai, nato in Yugoslavia, 2000, p. 45.
206 In the aftermath the authorities were blamed for their behaviour. This was harshly criti- cised by Benvenuti. Benvenuti, icty Review, 2001, p. 523. 207 ai, nato in Yugoslavia, 2000, p. 44; icty, Final Report nato Bombing, para. 77. 208 See e.g. the bombing of Abu Dhabi tv in Baghdad in 2003. Balguy-Gallois, Protection des journalistes, 2004, p. 16. 209 To recall: The relevant tweet from the idf read: ‘We recommend that no Hamas opera- tives, whether low level or senior leaders, show their faces above ground in the days ahead’. idf (@IDFSpokesperson), Tweet, 14 November 2012. See further Chapter 1, pp. 52ff.
2 Targeting News Providers The case studies of Chapter 1 showed that in newer conflicts, attacks on news providers were not just accidental side effects of attacks on other objectives. On the contrary, in many cases, news providers were deliberately targeted, as in the cases of Mahmoud al-Kumi and Hussam Salama, the two cameramen for Al-Aqsa tv in Gaza in November 2012,211 or Marie Colvin and Remi Ochlik, two international journalists in Syria in February 2012.212 This practice led to the question of whether the use of deliberate lethal force against selected news providers is in accordance with international law. Only a few of the cases of deliberately targeted journalists during armed conflicts have been analysed by international human rights bodies. In the Bustíos case, the IACommHR, for instance, found that:
Though journalists or reporters in combat zones implicitly assume a risk of death or injury either incidentally or as a collateral effect of attacks on legitimate military targets, the circumstances surrounding the attacks on Hugo Bustíos and Alejandro Arce clearly indicate that they were not acci- dental, but intentional.213
Yet, in most cases, the concrete circumstances and the reasons of attacks on news providers remained in the dark. The recent example of targeting in Gaza during November 2012, however, offers more insights because the idf delivered an explanation for the strike in the close aftermath. In this explanation, the idf described the targeted media workers as ‘illegitimate journalists’.214 Moreover, idf spokespersons added that
210 See the chapter ‘Proportionality and civilians in modern international humanitarian law’ in: Gardam, Necessity and Proportionality, 2004, pp. 85ff. 211 See Chapter 1, pp. 55f. 212 See Chapter 1, pp. 58f. 213 IACommHR, Bustíos v Peru, para. 61. 214 See Chapter 1, pp. 55f.
A Legitimacy of Deliberate Lethal Force against Selected Civilians At the outset it must be repeated that international law undisputedly allows the use of deliberate lethal force against selected civilians. We have seen above that the right to life is not absolute and entails legitimate restrictions, such as by ‘lawful acts of war’.216 The scope of these restrictions has long been unclear and led therefore to a discussion famously known under the title of targeted killing.217 This discussion has been fuelled by the fight against terrorism in recent years, and researchers have since given a great deal of attention to this phenomenon.218 A comprehensive outline of this problematic goes beyond
215 idf spokesperson Lt Col Avital Leibovich, cited in: hrw, Unlawful Israeli Attacks on Palestinian Media, 2012. 216 Cf. above, pp. 135ff. 217 Doswald-Beck understands targeted killing as: ‘a lethal attack on a person that is not undertaken on the basis that the person concerned is a “combatant,” but rather where a state considers a particular individual to pose a serious threat as a result of his or her activities and decides to kill that person, even at a time when the individual is not engag- ing in hostile activities’. Doswald-Beck, The Right to Life, 2006, p. 894. For other defini- tions, see Schmahl, Targeted Killings, 2010, p. 233; Melzer, Targeted Killings, 2008, pp. 1–8. 218 Above all Melzer, Targeted Killings, 2008. Further for many Schmahl, Targeted Killings, 2010; Henderson, Targeting, 2009, pp. 79–123; Boothby, The Law of Targeting, 2013, pp. 141–191; Guiora, Legitimate Target, 2013; Finkelstein et al., Targeted Killings, 2012; Otto, Targeted Killings, 2012; Rudolf and Schaller, Targeted Killing, 2012; Schmitz-Elvenich, Targeted Killing, 2008.
219 Schmahl, Targeted Killings, 2010, pp. 233ff, 236. 220 The prohibitions against denial of quarter, perfidy, and selected weapons, means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering con- clude these restraints on any force used against civilians. Melzer, Dph, 2009, pp. 16, 77ff. See also Thürer, who adds the principle of humanity, Thürer, ihl, 2011, p. 68. 221 But also with regards to combatants, parties of the conflict do not get a carte blanche for the use of lethal force. On the contrary, the principle of proportionality and military necessity must be the leading parameters to the implementation of every action that threatens or permits to take a human life. Schmahl, Targeted Killings, 2010, p. 245; Tomuschat, The Right to Life, 2010, p. 8. 222 Cf. Melzer, Targeted Killings, p. 239; Schmahl, Targeted Killings, 2010, p. 238. 223 Schmahl, Targeted Killings, 2010, p. 237. 224 un HRComm, Report Israel (2003), para. 15.
225 Ibid. 226 The case resulted from a state of emergency in Colombia and because an arrest would have been possible, the use of potential lethal force was unnecessary. un HRComm, Guerrero v Colombia, para. 13.2. 227 ECtHR, McCann v uk; ECtHR, Ergi v Turkey; ECtHR, Isayeva v Russia. For more back- ground see Abresch, The ECtHR in Chechnya, 2005. 228 Most importantly with regard to the principles of proportionality and necessity. Abresch, The ECtHR in Chechnya, 2005, p. 762. 229 Ibid, p. 762. 230 The Court refers e.g. to ‘strict’ or ‘absolute proportionality’ rather than ‘proportionality’ as used in ihl. 231 Doswald-Beck, The Right to Life, 2006, pp. 883f. 232 Supreme Court of Israel, Public Committee against Torture v Government of Israel I, para. 39. 233 It said: ‘A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force’. Ibid, para. 40. 234 Ibid.
In conclusion, the un HRComm, the ECtHR and the Israeli Supreme Court have stated that if potential lethal force is applied, it has to be the last resort (hence proportional and militarily necessary) and can only be applied when a civilian poses a concrete and imminent threat or – in ihl terms – when a civil- ian takes a direct participation in the hostilities. This excludes any sort of pre- ventive killings. In addition, use of lethal force can also be excessive in situations where an arrest is not possible.235 Scholars have further developed this case law and identified different crite- ria that need to be fulfilled for the deliberate use of lethal force against selected civilians. For instance, Melzer, one of the authorities in this field, developed a set of cumulative criteria which need to be fulfilled for targeted killings.236 According to him, such practice must cumulatively:
¯ be likely to contribute effectively to the achievement of a concrete and direct military advantage without there being an equivalent non-lethal alternative; ¯ be directed against an individual not entitled to protection against direct attack; ¯ not be expected to inflict incidental death, injury or destruction on persons and objects protected against attack that would be excessive in relation to the concrete and direct military advantage anticipated; ¯ be planned and conducted so as to avoid erroneous targeting, as well as to avoid, and in any event to minimize, the incidental infliction of civilian death, injury and destruction on persons and objects protected against direct attack; ¯ be suspended when the targeted individual surrenders or otherwise falls hors de combat, regardless of the practicability of capture and evacuation; ¯ not be conducted by undercover forces feigning non-combatant status or otherwise by resort to perfidy; ¯ not be conducted by resort to poison, expanding bullets or other prohibited weapons and must respect the restrictions imposed by ihl on booby-traps and other devices.237
235 Doswald-Beck, The Right to Life, 2006, p. 886. 236 In his rigorous analysis, he distinguished cases of targeted killings in law enforcement operations and during hostilities. However, the analysis at hand concentrates on attacks on news providers in the context of hostilities and focuses therefore on the respective criteria. 237 (Punctuation changed) Melzer, Targeted Killings, 2008, pp. 426f.
He concluded that even in the conduct of hostilities, no person can lawfully be ‘liquidated’ without further considerations. Therefore, ‘targeted killings must be located at the extreme end of the scale of methods permitted’.238 This comes down to the point that targeted killing can only be legitimate in exceptional situations. For instance, if:
it is carried out in an area where the state does not exercise effective con- trol so that it cannot reasonably effect an arrest; and the state authorities have sought to transfer the individual from whatever authority is in con- trol of the area, assuming that there is such an authority; and the indi- vidual has engaged in serious, life-threatening, hostile acts and the state has reliable intelligence that the individual will continue to commit such acts against the lives of persons the state is under an obligation to pro- tect; and other measures would be insufficient to address this threat.239
In addition, every such killing needs to meet certain procedural requirements in the aftermath of the event: An automatically independent investigation must be held into whether the state’s use of force was lawful, and the results of the investigation must be published.240 With regards to civilians, consequently, three introductive questions are to be answered before a targeting strike can be released: First, is the civilian target no longer entitled to protection against direct attack? Hence, is he taking a direct part in the hostilities? Second, are less restrictive means sufficient to avoid the threat from his participation? Or would the targeting be excessive in relation to the concrete and direct military advantage anticipated? And third, is the attack militarily necessary in qualitative, quantitative and temporal terms? All three questions will be addressed on the following pages for the specific case of news providers. The first question in particular is of great interest because it has to be analysed whether reporting itself can amount to a direct participation in hostilities. This will be discussed in the next two sections (B. ‘Notion of “Direct Participation in Hostilities”’ and C. ‘Direct Participation Through “Providing News”?’). By contrast, the second and third question are of a general nature. They can be answered with the findings from above and will therefore only be included in the conclusion of the next two sections.
238 Ibid, p. 427. He comes to a similar result with regards to targeted killings in the context of law enforcement operations. See ibid, pp. 423f. See further on the same issue Schmahl, Targeted Killings, 2010, p. 241. 239 Doswald-Beck, The Right to Life, 2006, pp. 896f. 240 Ibid, pp. 895f with further references.
B Notion of ‘Direct Participation in Hostilities’ a Struggle for a Uniform Definition The analysis of the last sections came various times to the conclusion that news providers are protected as long as they do not take a direct part in the hos- tilities. However, despite the frequent use of the notion ‘direct participation in hostilities’ (dph), the law does not define its actual meaning.241 Legal institu- tions, interpretation bodies and authors have struggled for decades to find a uniform definition of the notion. Goodman, for instance, describes dph as:
geographic and temporal proximity to the damage inflicted on the enemy.242
The meaning of ‘geographic and temporal proximity’, though, remains unclear. The icrc Commentary to the gcs defines dph as:
acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.243
This definition too includes foggy words, such as ‘nature’, ‘purpose’, and ‘actual harm’. Yet it is not only hard to define uniform criteria; one also has to bear in mind the possible consequences of a broad or narrow definition of dph. A broad definition has, for example, consequences not only in the targeting but also in the detention context, since more civilians can be legitimately detained. A restrictive definition, on the other hand, has consequences in other fields, such as the recruitment of child soldiers: it is prohibited for parties to a conflict to use children to participate directly in hostilities. Hence, the narrower dph is defined, the wider the loophole in the child soldier regime becomes.244 b icrc Guidance on Direct Participation in Hostilities Because of the ambiguous notion of dph and its high relevance in times of rising numbers of civilians participating in combat operations,245 the icrc
241 The notion of dph is furthermore used in ap I as well as in common Article 3 gcs and therefore is of relevance for both iac and niac. While ap I uses ‘direct’ participation, com- mon Article 3 gcs refers to ‘active’ participation. Both terms can, however, be used inter- changeably. Boothby, The Law of Targeting, 2013, pp. 144f; Melzer, Dph, 2009, pp. 16, 43. In this analysis, direct participation is the term that will be referred to and interpreted. 242 (Punctuation added) Goodman, Detention of Civilians, 2009, p. 52. 243 (Punctuation added) Sandoz et al., Commentary ap I, 1987, p. 619, Nr. 1942. 244 Goodman, Detention of Civilians, 2009, pp. 70f. 245 See Chapter 1, pp. 22ff.
246 Finally published in a book(let) in 2009: Melzer, Dph, 2009. 247 This character of the guidance results from the fact that the participants could not agree on many of the points discussed – especially in the face of a very progressive interpreta- tion of the icrc. 248 Cf. Schmitt, Direct Participation in Hostilities, 2010, p. 6; Boothby, The Law of Targeting, 2013, p. 148. 249 Schmitt, Direct Participation in Hostilities, 2010, pp. 24ff; Boothby, The Law of Targeting, 2013, pp. 160f. 250 See further Boothby’s rather open approach in Boothby, The Law of Targeting, 2013, pp. 162f. 251 For the differentiation between ‘active’ and ‘direct’ see above, fn 242. Obviously, many more aspects are relevant, such as the questions of who can qualify as a participating civilian and in what temporal scope participation presents itself. The personal scope is not very difficult regarding the case of news providers. Furthermore, the temporal scope of participation will only be discussed at the periphery. See Melzer, Dph, 2009, p. 13; and for the concept of civilians, pp. 20–40. 252 Melzer, Dph, 2009, pp. 43.
C Direct Participation in Hostilities through ‘Providing News’? Having sketched the broad meaning of dph with regard to civilians in armed conflict, this section applies it on news providers. To start, it must again be clarified that the general rules for civilians apply. It is hence clear that when a journalist, blogger or interpreter takes up arms and uses them to destroy objects or attack members of a party to the armed conflict, he is taking a direct part in the hostilities and loses his immunity from attack. These are the classic cases of dph. But can the professional activity of news providers per se – the collection, process and distribution of news – also amount to direct participa- tion in hostilities? The arguments of the idf assume a positive answer to this question. Such an argumentation may, however, also have a political back- ground and must therefore be challenged. a Usual and Unusual Behaviour of News Providers ihl treaty and customary law give no guidance for the interpretation of whether news coverage can amount to dph. The mere existence of Article 79 ap I supports the interpretation that the usual activities of news providers are respected by ihl and not considered as dph. A specific mentioning of journal- ists would otherwise neither be necessary nor useful because the protection of civilians is already guaranteed by other provisions of ap I.254 Furthermore, the wording of ap I refers explicitly to a profession and thus indirectly includes its professional activity. It would further be inconsistent with customary ihl if the usual activity of newsgathering would amount to dph. In addition, the customary ihl rule states specifically that journalists must be protected and respected.255 This wording can be interpreted as a protective shield for the activity of news providers since it states a principle of non-interference, which can only be addressed at the activity. Discussion of this matter in related literature is very scant. Most authors agree, however, that the usual activity of news providers – such as travelling to
253 On the three requirements see also Schmitt, Direct Participation in Hostilities, 2010, pp. 26–34. 254 The drafting history of ap I and the long foregoing discussions on the inclusion of journal- ists support this role. 255 Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 115–118; Boiton-Malherbe, La protection des journalistes, 1989, p. 224.
256 Balguy-Gallois, Protection des journalistes, 2004, p. 6; Geiss, The Protection of Journalists, 2008, p. 296; Pape, Schutz der Presse, 2013, pp. 34f; Düsterhöft, The Protection of Journalists, 2013, pp. 12f; Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 325; Balguy- Gallois, Le rôle des médias, 2010, p. 97; Gasser, Protection of Media Workers, 2009, Nr. 7. 257 Cf. the attack of a us helicopter in Iraq on a cameraman, released by WikiLeaks. See Introduction, p. 2. 258 Ibid. Balguy Gallois further distinguishes usual and unusual activities of news providers and concludes that only unusual actions can amount to dph. 259 However, she limits this finding in the same breath, stating that all legal propaganda is not dph. German original: ‘Propaganda im Rahmen des rechtlich Zulässigen’ (translated by the author). Pape, Schutz der Presse, 2013, p. 34. Similarly, Düsterhöft, The Protection of Journalists, 2013, p. 13; Saul, International Protection of Journalists, 2008, p. 111. 260 Goodman elaborates dph in the context of detention. He further argues that war corre- spondents are such indirect participants. This terminology was further used by the Supreme Court of Israel in the case Public Committee against Torture v Government of Israel, which dealt at length with the notion of dph. Goodman, Detention of Civilians, 2009, p. 54; Supreme Court of Israel, Public Committee against Torture v Government of Israel I, para. 35. 261 Goodman further states, citing the us Supreme Court, that it is insufficient to show any tenuous connection with a terrorist organisation. Any dph must be governed by a con- nection and contribution to the organisation that together are sufficient to include the civilian in the cycle of hostilities in its broad sense. Goodman, Detention of Civilians, 2009, pp. 54f; Contra: Boothby, The Law of Targeting, 2013, p. 149. 262 One such case happened, for instance, during the Indonesian invasion of East Timor, where an international journalist conveyed a military message for the East Timorese resistance movement Fretilin. Saul, International Protection of Journalists, 2008, p. 111.
263 Heinsch, Cases in which Journalists Lose their Protection under ihl: When are Embedded Journalists Directly Participating in Hostilities? Conference, On the Front Line of Accountability, tmc Asser Institute, 2011. 264 As a second example he lists cases when journalists form part of security operations that reserve foreign secret services information that would be necessary for peaceful opera- tions or political attempts for peace. Ibid. For an explanation of the term ‘information operations’ see further Chapter 1, pp. 29ff. 265 Supported by Saul, Prosecuting War Crimes, 2009, pp. 83–120, 102. 266 According to the guidance, activities of general war effort include: ‘all activities objec- tively contributing to the military defeat of the adversary (e.g. design, production and shipment of weapons and military equipment, construction or repair of roads, ports, air- ports, bridges, railways and other infrastructure outside the context of concrete military operations), while war-sustaining activities would additionally include political, economic or media activities supporting the general war effort (e.g. political propaganda, financial transactions, production of agricultural or non-military industrial goods)’ (emphasis and punctuation added). Melzer, Dph, 2009, p. 51.
267 ilc, Fragmentation of International Law (2006), para. 480. See further Chapter 2, pp. 99f. 268 Speech is for this analysis understood as all forms of content of communication, by words, pictures, audio, digital or any other visual means. 269 The notion ‘international speech crimes’ is in this context to be understood in a broad sense, encompassing all international crimes that can be committed by speech as well as different forms of hate speech prohibited by international law. 270 To the knowledge of the author, Odora is so far the only author who connects ihl and icl in regards to journalists. He also mentions – albeit supposedly accidentally – that indi- vidual criminal responsibility can be seen as dph. Odora, Criminal Responsibility of Journalists, 2004, p. 314. 271 Ibid, pp. 314f.
272 Melzer, Dph, 2009, p. 46. 273 The guidance names a variety of examples of such acts, such as sabotage; other armed or unarmed activities restricting or disturbing deployments, logistics and communications; capturing or otherwise establishing or exercising control over military personnel, objects and territory to the detriment of the adversary; or electronic interference with military computer networks. On the other hand, the refusal of a civilian to collaborate with the military does not reach the required threshold. Ibid, pp. 47f. 274 Such acts can be attacks directed against civilians and civilian objects, for instance, sniper attacks against civilians and the bombardment or shelling of civilian villages or urban residential areas. The guidance distinguishes these actions further with other acts that may be prohibited under ihl but do not fulfil the necessary threshold, such as the build- ing of fences or roadblocks; the interruption of electricity, water, or food supplies; the appropriation of cars and fuel; the manipulation of computer networks; and the arrest or deportation of persons. Ibid, pp. 49f. 275 Likelihood, according to the guidance, means harm ‘which may reasonably be expected to result from an act in the prevailing circumstances’. Ibid, p. 47. 276 Only the publication and dissemination of highly sensitive military data that immedi- ately informs over victory or defeat can possibly be considered dph. See below, p. 188 for an example.
277 Dojčinović, Linguistic Approach to Criminal Analysis, 2012, p. 73. 278 See above, pp. 126ff, 286ff. 279 Both individual criminal responsibility and dph are different concepts that balance dif- ferent interests. However, both regimes apply additional parameters to balance the sever- ity of unprotected behaviour (proportionality in the use of force versus in criminal sentencing), although that is not of further interest for this study. 280 For a detailed assessment, see Chapter 4, pp. 285f. 281 See Chapter 4, pp. 267ff for an overview on the jurisprudence on incitement to genocide.
282 See Chapter 4, pp. 273ff. 283 Article 7 udhr, Article 19 (2) iccpr, Article 10 echr, Articles 4 and 5 icerd. Article 13 (5) of the achr is limited to incitement to violence or similar illegal actions. Both Article 4 (a) of icerd and Article 20 (2) of the iccpr go beyond that to additionally cover incitement to discrimination and hatred (or hostility). Article 4 (a) of icerd goes even further, calling for the prohibition of all ideas based on superiority. Of the iccpr, achr, udhr and the echr, only the achr specifically provides for the criminalisation of hate speech (Article 13 (5)). 284 Article 19 (2) iccpr. For the criminalisation of speech, see the detailed elaborations in Chapter 4, pp. 265ff. 285 Ibid. 286 See further Chapter 4, pp. 275ff, which deals at length with the question of whether hate speech as a form of persecution is a crime against humanity.
there must be a direct causal link between a specific act and the harm likely to result either from that act, or from a coordinated military opera- tion of which that act constitutes an integral particle.287
The guidance then goes on to differentiate between a direct and an indirect participation in hostilities. The latter does not lead to a loss of protection and corresponds – on the collective level – to other activities that are part of the general war effort or war-sustaining activities, but cannot be character- ized as the conduct of hostilities.288 The classic example of indirect partici- pation is the work of a munitions worker: while working in a munitions plant, he does not lose his protection against individualized attack, but does assume the risk of collateral injury. At home, he retains full protection.289 In other words, the same worker is de jure protected at work and at home. However, de facto he assumes the risk of an attack while working at the munitions plant because the plant is a military objective. With regards to news providers, munitions workers can be compared with embedded jour- nalists. They too face a high risk of being collateral damage because the envi- ronment they work in is a legitimate military objective. Yet, de jure, they are
287 Melzer, Dph, 2009, p. 51. 288 Ibid, p. 51. 289 Henderson, Targeting, 2009, pp. 106ff.
290 Ibid. 291 For examples, see Melzer, Dph, 2009, p. 52. 292 Ibid, p. 53. 293 Schmitt, Direct Participation in Hostilities, 2010, p. 30; Boothby, The Law of Targeting, 2013, p. 155.
(1) Causation of Incitement to Genocide Inciting an act is not the same as causing it. Incitement to genocide is an incho- ate crime.294 That means that incitement is complete and punishable even if it does not lead to the materialisation of genocide. For a conviction of the crime it is therefore not necessary to prove causation between the incitement and the occurrence of genocide. Consequently, prosecution for incitement to geno- cide to date has not required evidence that speech caused genocide.295 Nevertheless, though neither factually supported nor legally required, causa- tion haunted the jurisprudence of the crime.296
(a) Approaches of Jurisprudence In all cases applying incitement to genocide, courts have tried to identify cau- sation-related factors to assess whether speech incited genocide.297 In most cases, evidence was presented that speech was made and later mass violence occurred.298 Witnesses who had heard or read such speech testified that it had influenced them or others to kill on a fearsome scale.299 In their merits, both the International Military Tribunal at Nuremberg (imt)300 and the International
294 For a detailed analysis of the crime of incitement to genocide with a special emphasis on news providers as offenders, see Chapter 4, pp. 267ff. 295 This was wrongly criticised by Metzl, who argues that there must be a proof of a causal link between the incitement and the substantive crime. Metzl, Radio Jamming, 1997, p. 637. 296 Benesch names several reasons to explain why causation slips into judicial rulings. To name the most convincing ones: because of the unclear definition, which leaves courts with no systematic method of identifying the crime of incitement; because of the pres- sure on courts to hand down the same punishment for speech as they would for killing; and because causation can be easily (and mistakenly) inferred from circumstantial evi- dence. Benesch, The Ghost of Causation, 2012, pp. 256, 257. 297 Mendel, Hate Speech, 2010, p. 6. 298 See e.g. the tc of the ictr, which listed the killing of a Tutsi businessman whose name was previously read over the notorious airwaves of Radio Télévision Libres des Milles Collines (rtlm), or the arrest and release of a mechanic after rtlm called for his release, and the cancellation of an order to kill a journalist after his praying and begging at rtlm. ictr, The Prosecutor v Nahimana, ac Judgement, para. 513. 299 Similarly, Benesch, The Ghost of Causation, 2012, p. 254. 300 For example, in the Streicher case before the imt, the Tribunal held ‘[f]or his twenty-five years of speaking, writing, and preaching hatred of the Jews, Streicher was widely known as “Jew-Baiter Number One.” In his speeches and articles, week after week, month after month, he infected the German mind with the virus of anti-Semitism and incited the German people to active persecution’. imt, Judgement 1946, p. 121. See for the details of the case Chapter 4, pp. 268f.
Criminal Tribunal for Rwanda (ictr)301 then used metaphoric language to describe the effects of the alleged incitement.302 These vague approaches of the imt and the ictr exemplify how difficult it is to prove a nexus of speech and subsequent action. In general, it is the mere poten- tial of the communication to cause genocide that makes it incitement.303 Yet, in order to prove such potential, a relationship between the specific speech and the effects of it must be established. However, the effect of speech on large groups of people is even today hard to measure, poorly understood and only one of a con- stellation of reasons that may contribute to why people act as they do. It is there- fore necessary to define the parameters for the assessment of such potential and the relationship between speech and its effects. Such potential depends on the circumstances of speech. The crime of incitement to genocide cannot be commit- ted by anyone (as hate speech); it can only be committed by certain people under certain circumstances.304 It is therefore pertinent to identify under what circum- stances the crime can occur and how these circumstances can be identified.305
(b) Modelling Causation-Related Factors Legal scholars have developed different models to structure causation-related fac- tors of incitement to genocide. Gregory Gordon, former ictr prosecutor, for instance, suggested a four-pronged test consisting of the elements: purpose, text, context and the relationship between speaker and subject.306 Susan Benesch, an
301 The ictr tc held, for instance, that an accused journalist ‘poisoned the minds of his readers, and by words and deeds caused the deaths of thousands of innocent people’. ictr, The Prosecutor v Nahimana, tc Judgement, para. 1101; ictr, The Prosecutor v Nahimana, ac Judgement, para. 1102. When sentencing another accused journalist, the judge told him, ‘Without a firearm, machete, or any physical weapon, you caused the deaths of thousands of innocent civilians’. ictr, The Prosecutor v Nahimana, tc Judgement, para. 1101. See further ictr, The Prosecutor v Bikindi, paras 266, 421. 302 See further the judgement of the ictr tc, which erred in stating that causation was given in a case of incitement to genocide of a journalist, even when a second action was needed to cause relevant harm. The ac corrected this thereafter and reversed some of the convic- tions of all defendants for unclear evidence. See ictr, The Prosecutor v Nahimana, tc Judgement, para. 952; ictr, The Prosecutor v Nahimana, ac Judgement, paras 509, 513. Disagreeing: Partly dissenting opinion of Judge Shahabudeen, ictr, The Prosecutor v Nahimana, ac Judgement, para. 73. 303 ictr, The Prosecutor v Nahimana, tc Judgement, para. 1015. 304 Benesch, Defining Incitement to Genocide, 2008, pp. 493f. 305 One must be cautious not to mix the causation parameters of hate speech and incite- ment, as some literature does when applying the standards of human rights monitoring bodies such as the un HRComm or the ECtHR. Cf. Mendel, Hate Speech, 2010, pp. 6f. 306 Gordon, A War of Media, 2005.
a majority of the effects of the station on collective forms of violence were…due to social interactions, or coordination effects, rather than the persuasive power of the content or inflammatory messages contained in the broadcasts.314
307 She was the first to publish a comprehensive model for such a test. See for the first ver- sion: Benesch, Defining Incitement to Genocide, 2008; and for a second, revised, version: Benesch, The Ghost of Causation, 2012, p. 256. 308 Benesch, The Ghost of Causation, 2012, p. 256. 309 Ibid, p. 262. 310 Yanagizawa-Drott, Propaganda and Conflict, 2012. 311 He states: ‘The key insight is that when mass media broadcast a public signal that violence against the minority group is state-sponsored, this can affect participation in violence via two channels. First, through a direct information effect, where individuals who have access to mass media are more likely to become perpetrators because their beliefs about the government’s policy change. Second, through an indirect coordination effect, where stra- tegic complementarities lead some individuals to join the violence because mass media induces other individuals to join’ (emphasis in original). Ibid, p. 1. 312 The analysis also indicates that violence that inherently requires more coordination, such as militia and army violence, was more affected by the broadcasts. Ibid, pp. 1, 5. 313 Ibid. 314 Ibid, p. 6.
It is therefore the specific role of mass media in triggering social interactions and coordination that makes incitement via mass media so dangerous, but only in the case when a large share of the population is exposed to it and in cases were certain forms of violence require higher degrees of organisation and coordination.315 All three models – those of Gordon, Benesch and Yanagizawa-Drott – try to identify features that increase the potential of incitement to genocide to cause genocide. If one fuses these approaches together, a comprehensive model emerges consisting of six features that broadly sketch incitement to geno- cide:316 (a) the speaker, (b) the audience, (c) the content, (d) the socio-historic context, (e) modes of transmission, and (f) the criterion of time.
The Speaker
The speaker of incitement to genocide must have authority or influence over his audience. Most often this will be political authority; it can, however, also be cul- tural or religious authority.317 With regards to news providers, it can, for instance, be a famous commentator, an influential correspondent or a talk show master.
The Audience
The econometric model of Yanagizawa-Drott showed that mass media has a special power to incite if a large segment of the population is exposed to it. The audience of such inciting media emissions must hence be large or indetermi- nate. A large audience is the public in a particular country, as was the case in the Third Reich, where the Nazis had control over more than 2,300 newspa- pers. The audience in the Streicher case, accused before the imt, was similarly large. During the Nazi era, he controlled Der Stürmer, a newspaper that had a circulation of 600,000 by 1935.318 This was also the case in Rwanda, where a large part of the country had access to the broadcasts of rtlm.319
315 Ibid, p. 30. 316 The model is based on Benesch’s toolbox, which was subsequently completed by exam- ples, additional questions and the criterion of time. 317 In the case of Akayesu before the ictr, the perpetrator was burgmestre of a commune in Rwanda. ictr, The Prosecutor v Akayesu, ac Judgement, para. 74. In another case, the accused was a famous Rwandan pop star: ictr, The Prosecutor v Bikindi. See further Benesch, The Ghost of Causation, 2012, pp. 263f. 318 imt, Judgement 1946, p. 120. 319 However, the readership of the Rwandan newspaper Kangura in itself might not have been a large enough audience to fulfil this criterion (it had only a few thousand readers), especially when considering the high illiteracy rate in Rwanda in the years 1990–94.
Content of the Speech
The content of inciting speech must be direct and intense but it can also be expressed in coded or indirect language. Incitement often uses repetitive and degrading language, jargon and perverse euphemism and dehumanizes the vic- tims-to-be by using animal comparisons to describe them. In its judgement, the imt described how in leading articles and letters, some of them written by Streicher himself, Jews were depicted as ‘a parasite, an enemy, and an evildoer, a dissemina- tor of diseases’,320 a germ and a pest or ‘swarms of locusts which must be extermi- nated completely’.321 In the former Yugoslavia, Milosevic referred to Bosnian Muslims as ‘black crows’,322 and Hutu leaders, editors and broadcasters famously described Tutsis as ‘inyenzi’,323 as dogs or cockroaches. In Rwanda, the phrase ‘go to work’ furthermore came to mean ‘commit genocide’ and ‘kill the Tutsis’.324 In order to be direct, speech does not necessarily have to be explicit; it can also be implicit but it must be more than a vague or indirect suggestion and directly address its audience.325 The term ‘direct’ must further be understood in the context of the local culture and linguistic content, focusing on the ques- tion if the persons for whom the message was intended immediately grasped the implication thereof.326 An example of such direct speech is the following extract of a 1939 leading article from Der Stürmer that reads:
320 imt, Judgement 1946, p. 121. 321 Ibid. 322 Benesch, Defining Incitement to Genocide, 2008, pp. 486, 503. 323 The term ‘inyenzi’ was coined in the 1960s to refer to Tutsi rebel fighters who conducted night-time attacks in Rwanda and then disappeared before daylight into neighbouring countries. The term’s meaning later changed dramatically and Georges Ruggiu, a Belgian broadcaster who pled guilty to committing incitement to genocide in Rwanda, admitted that by 1994, ‘inyenzi’ had come to signify ‘Tutsi’ and ‘person to be killed’. ictr, The Prosecutor v Ruggiu, para. 44 (iii). For another case of metaphoric language, see the famous Kangura article published in February 1993 titled ‘A Cockroach Cannot Give Birth to a Butterfly’, cited in ictr, The Prosecutor v Nahimana, tc Judgement, para. 179. See further also para. 188. 324 Used in the case of Eliézer Niyitegeka, a journalist and news presenter on Radio Rwanda and Minister of Information of the Interim Government. ictr, The Prosecutor v Niyitegeka, Harmonised Amended Indictment. 325 ictr, The Prosecutor v Nahimana, tc Judgement, para. 1011. 326 ‘Indeed, a particular speech may be perceived as “direct” in one country, and not so in another, depending on the audience’. ictr, The Prosecutor v Akayesu, tc Judgement, paras 557f; ictr, The Prosecutor v Nahimana, tc Judgement, para. 1011. See further the partly dissenting opinion of Judge Shahabudeen, ictr, The Prosecutor v Nahimana, ac
A punitive expedition must come against the Jews in Russia. A punitive expedition which will provide the same fate for them that every mur- derer and criminal must expect. Death sentence and execution. The Jews in Russia must be killed. They must be exterminated root and branch.327
Another common method of incitement is the so-called accusation in a mirror technique.328 Using such an accusation, the speaker warns of an (often contrived) imminent attack of the enemy and urges the audience to be prepared and use self- defence. Collective self-defence gives a psychological justification for group vio- lence and is therefore a hallmark of incitement. Very often messages are repeated over and over in order to boost their intensity and inflammatory effect. This tech- nique was applied in Nazi Germany, the former Yugoslavia and Rwanda. The Tadic judgement, for example, listed articles, television programmes and public procla- mations in which Serbs were told that they needed to protect themselves from a fundamentalist Muslim threat and were encouraged to arm themselves since the Croats and Muslims were preparing a genocidal attack against them.329 The ictr also referred to such techniques being used in Rwanda.330 The constant calls for action and revenge in the former Yugoslavia and Rwanda were so intense that they were compared to a drumbeat and a hammer pushing on people’s heads.331
Socio-historical Context
Genocide never happens as a spontaneous outbreak of violence; it does not spring from nowhere.332 Every such process needs an adequate environment
Judgement, para. 65. Supported by Benesch, Defining Incitement to Genocide, 2008, pp. 516f. 327 imt, Judgement 1946, p. 121. For further examples of such direct speech see ictr, The Prosecutor v Nahimana, tc Judgement, paras 396, 397, 425. 328 This technique was introduced by expert witness Alison Des Forges when testifying before the icty. Kearney, Propaganda for War, 2007, p. 220. 329 icty, The Prosecutor v Tadic, TC Judgement, para. 91. 330 For instance, in 1990 the newspaper Kangura ran an ‘Appeal to the Conscience of the Hutu’ written by Hassan Ngeze, who described the Tutsi as bloodthirsty, dangerous and planning an attack. He went further on to set the infamous ‘Ten Commandments’ for the Hutu that viciously list among others the supremacy of the Hutu; the evil character of the Tutsi, espe- cially the Tutsi women; or the warning that every Hutu who marries or enters business with a Tutsi shall be treated as a traitor. ictr, The Prosecutor v Nahimana, tc Judgement, para. 139. 331 Gasser, Right to Information, 2003, p. 381; Benesch, Defining Incitement to Genocide, 2008, pp. 503ff. 332 As Judge Shahabudeen brightly stated: incitement operates by way of the exertion of influence, and influence is a function that processes over time. Or, how a witness before
Modes of Transmission
It is also pertinent how speech is transmitted. According the ictr, possible means are broadcasts, speeches, shouting or threats uttered in public places or at public gatherings, the sale or dissemination of written or printed material, the public display of placards or posters, or any other means of audiovisual communication.337 Benesch adds that it is crucial that the speech be transmit- ted in a way that reinforces its capacity to persuade.338 This can be through a media outlet of certain authority or a very popular music style.
Time
Every speech has a certain radius for its echo. A speaker can therefore not be made responsible for actions that follow five years after his speech. The Appeals Chamber (ac) of the ictr stressed in this regard that ‘the longer the lapse of time between a broadcast and the killing of a person, the greater the broadcast might not have substantially contributed to it’.339 The first repetition of incit- ing speech may not amount to incitement. But if a speaker repeatedly incites
the ictr described it, incitement can ‘spread petrol throughout the country little by little, so that one day it would be able to set fire to the whole country’. Partly dissenting opinion of Judge Shahabudeen, ictr, The Prosecutor v Nahimana, ac Judgement, para. 25; ictr, The Prosecutor v Nahimana, tc Judgement, para. 436. 333 Mendel, Hate Speech, 2010, p. 8 with further examples. 334 Benesch, The Ghost of Causation, 2012, p. 264. 335 Saxon, Propaganda as a Crime Under ihl, 2012, p. 123. 336 Benesch, Defining Incitement to Genocide, 2008, p. 523. 337 ictr, The Prosecutor v Akayesu, tc Judgement, para. 559. 338 Benesch, The Ghost of Causation, 2012, pp. 263f. 339 ictr, The Prosecutor v Nahimana, ac Judgement, para. 513. Contra: Partly dissenting opin- ion of Judge Shahabudeen, ictr, The Prosecutor v Nahimana, ac Judgement, paras 21–34.
(c) Conclusion After this long interlude in the waters of icl, it is time to come back to the original question posed in the context of ihl: Can speech amount to dph? The long analysis of causation of speech was full of technicalities and basically tried to prove something that to this day cannot be proven – how incitement to genocide causes genocide. In terms of causation, the dph concept of the icrc requires that there be a direct, namely, a sufficiently close relation between the act and the harm caused.341 To offer a reminder: This must be interpreted in a broad sense to include conduct that causes harm only in conjunction with other activities, while it is not sufficient that all the acts that cause the particular harm are con- nected through an uninterrupted causal chain of events.342 These descriptions are very similar to the concept of causation of incite- ment to genocide. It can be brought down to the somewhat contradictory for- mula that something does not have to cause something but must be very likely to cause it. For dph, an action must not cause harm of a special kind (death, injury or destruction of persons or objects protected against direct attack), but does have to be likely to result in or form an integral part of a coordinated military operation that is likely to result in such harm. With regards to genocide, it is not proven that incitement to genocide causes genocide, but it is undisputed that this form of incitement is likely to result in genocide. Yet there is one argument left to make: If the one-causal-step criterion of causation is applied, as supported by the icrc, incitement to genocide is defin- itively not likely to cause such harm. Speech per se can never directly inflict death, injury or destruction on persons or objects. There is always a second step necessary to cause such harm. Or as the tc of the ictr correctly held:
The nature of media is such that causation of killing and other acts of genocide will necessarily be effected by an immediately proximate cause in addition to the communication itself.343
340 Benesch, Defining Incitement to Genocide, 2008, pp. 496f. 341 See Melzer, Dph, 2009, p. 52. 342 Ibid, p. 54 and above, pp. 174ff. 343 ictr, The Prosecutor v Nahimana, tc Judgement, para. 952.
If, however, one follows the opinion of a more-causal-step criterion, such as that supported by Schmitt and Boothby, then incitement to genocide is likely to inflict death, injury or destruction on persons or objects and able to fulfil the causation criterion of dph. It is therefore a question of the interpretation of the criterion of causation that decides whether incitement to genocide can consist of dph: the one-causal-step approach of causation of dph excludes any dph by speech, while supporters of the more-causal-step approach include the possibility that speech may amount to dph. The next section will now move on to see whether other, less aggressive forms of speech surpass this causation criterion.
(2) Causation of Hate Speech Since hate speech is not criminalised by international law, there is no interna- tional crime of hate speech and therefore neither some components of causa- tion of hate speech in international law. Domestic and regional legislation, however, offer a wide range of different concepts of crimes based on hate speech. We have seen above that hate speech only surpasses the threshold of dph if it calls for violence or hostility. If criminalised, hate speech is also an inchoate crime. However, since there is no universal crime of hate speech, the analysis stops at this point and refers to the same result as the one regarding incitement to genocide. That is, whatever form of quasi-causation is required, with the one-causal-step approach of the icrc, hate speech can never directly inflict death, injury or destruction on persons or objects, and hence cannot be dph. If, however, one follows a more-causal-step approach, depending on the domestic concept of the crime, hate speech may be likely to inflict such death, injury or destruction on persons or objects, and thus amount to dph. cc Belligerent Nexus After this lengthy elaboration on the criterion of causation, in a next step, the analysis discusses whether icl also offers parameters for the belligerent nexus criterion of dph. This criterion requires that every direct participation in hos- tilities must be specifically designed to directly cause the required harm in sup- port of one party and to the detriment of another.344 Thus, the activity must be specifically designed to inflict such harm with a belligerent nexus. Therefore, the activity must be closely related to the hostilities conducted between par- ties to an armed conflict.345 Armed violence, which is not designed to cause
344 Melzer, Dph, 2009, p. 64. 345 Ibid, p. 58.
In determining the scope of liability for editors and publishers, the con- tent of a text is taken to be more important than its author. … Moreover, publishers and editors are regarded as equally responsible on the grounds that they are providing a forum and that owners have ‘power to shape the editorial direction’.350
Yet the responsibility of editors and publishers and the consequent assump- tion of their intent is not indeterminate. They must know or have reason to know about the content and its belligerent character.351 For example, Fritzsche was acquitted by the imt because ‘although he had sometimes spread false news, it had not been established that he knew it to be false’.352 This broad interpretation of intent – or in other words, the liability of news providers for
346 The state of mind of a person could only be relevant for dph if a civilian is totally unaware of the active part he is taking in hostilities. Ibid, pp. 59f. 347 Insofar as it considers the belligerent nexus of dph through speech. 348 ictr, The Prosecutor v Nahimana, tc Judgement, para. 1001. 349 Ibid. 350 Ibid, para. 1003. 351 Odora, Criminal Responsibility of Journalists, 2004, pp. 314f. 352 ictr, The Prosecutor v Nahimana, tc Judgement, para. 982.
353 The following questions were asked: First, is the civilian target taking a direct part in the hostilities; that is, is there a concrete and imminent threat arising from his participation? Second, are less restrictive means sufficient to avoid the threat from his participation? And third, is the attack militarily necessary in qualitative, quantitative and temporal terms? Cf. above, p. 163.
354 Cf. above, pp. 150ff. 355 Similarly, Saul, Prosecuting War Crimes, 2009, p. 102.
D Direct Participation in Hostilities of News Providers by Actions Other than Aggressive Speech Having established how speech may or may not amount to dph, this section deals with other behaviour of news providers that might as well amount to dph. icl is narrower than ihl in regard to dph because dph is broader than criminal responsibility. icl (and hrl with regards to hate speech) is therefore helpful but not sufficient guidance for interpretation. Three more examples shall illustrate this remaining zone of dph. I chose to use (a) the dissemination of untrue information of a military nature, (b) Israel’s policy to target ‘illegiti- mate journalists’, and (c) the arming of news providers, because these exam- ples appeared disputed in the analysis of Chapter 1. a Dissemination of Untrue Information of a Military Nature The analysis of recent conflicts showed that war coverage is often biased. Several studies in communication science confirmed this claim and proved that the national framing of news regularly dominates the professional frame of journalists where national interests are at stake and vice versa.356 The main question here is: Under what circumstances does journalistic recklessness cross the line to dph? The past section proved that this threshold is not easily surpassed. However, the distribution of speech that does not incite violence or hostility has only been discussed very briefly. Here, I want to discuss again an extreme example of such speech. Let me start with an episode of the recent conflict in Libya: During summer 2001, Libyan rebels publicly claimed to have arrested Gaddafi’s son Saif al- Islam. International media replicated this news and the icc publicly announced that Saif, who was accused of crimes against humanity, would be extradited to the Court.357 Only one day later, Saif al-Islam drove with his car to the Rixos Hotel in Tripoli, where all international media had assembled, and presented himself as a free man, rallying for Gaddafi’s government.358 It became obvious that the previous day’s news of his arrest had been a hoax. Since Saif al-Islam was one of the leaders of the Libyan government, the (mis)information about his arrest could possibly amount to dph. Such
356 For an analysis of American and Israeli media coverage of the Gaza crisis in 2008 and their portrait and framing of Fatah and Hamas, see Handley and Ismail, ‘Their’ News, ‘Our’ News, 2010. 357 See for many Capodici Vincenzo, Gestellte Bilder und Bizarre Lügen, Tages-Anzeiger, 26 August 2011. 358 Ibid.
359 Cf. above, pp. 170ff. 360 See Chapter 1, pp. 55f.
361 How Hamas and Islamic Jihad Use Journalism as a Cover for Terrorism, Blog ‘idf’, 29 November 2012. 362 Ibid. 363 hrw, Unlawful Israeli Attacks on Palestinian Media, 2012. 364 Contra: Boothby, The Law of Targeting, 2013, p. 149. 365 In consideration of the above-mentioned cases, which suspend the protection of ihl.
366 See e.g. the ambush of a cnn team in Iraq in 2003, when the team’s private security con- tractors responded with their machineguns. Chapter 1, p. 42. 367 Sandoz et al., Commentary ap I, 1987, pp. 619f, Nr. 1943. Similarly, Balguy-Gallois, Le rôle des médias, 2010, p. 88. 368 Article 13 (2) (a) ap I. 369 Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, p. 85. 370 Geiss, The Protection of Journalists, 2008, p. 296, fn 24; Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, p. 91. 371 Similarly, Schmitt, Dph and 21st Century, 2004, pp. 519f; Zanghi, Protection of Journalists, 2005, pp. 155f. 372 See also Geiss, The Protection of Journalists, 2008, p. 296.
3 Detention and Internment of News Providers In recent conflicts, journalists have frequently been arrested, detained, ques- tioned and humiliated. In multiple cases, their equipment was confiscated. One such example was the detention of a bbc team in March 2011 in Libya.374 Despite correct identification papers, they were arrested at a checkpoint by pro-Gaddafi forces, and their belongings (cameras, mobile phones and mem- ory sticks) were confiscated. Their hands were tied and eyes covered and they were deported to a military compound in Tripoli. No one explained to them the reasons for their arrest or their detention. They were beaten up, some of them severely, and accused of being spies. Moreover, they claimed that they had been threatened to be executed and that their capturers had fondled the women in their group. After a couple of days, they were finally released with- out any further explanation.375
A Prohibition of Arbitrary Detention and Right to a Fair Trial As outlined above, news providers are protected by the basic human rights standards of the rights to personal liberty and to physical and psychological integrity; both are non-derogable and apply consequently in both iac and niac.376 hrl further prohibits any arbitrary deprivation of liberty. The most important human rights in this respect are the right to a fair trial and an effec- tive remedy, enshrined in Articles 14 and 15 iccpr, Articles 8 and 9 achr, Article 6 echr and Article 7 AfChHR. Furthermore, the same instruments that protect from arbitrary deprivation of liberty also provide that no one may be subjected to arbitrary arrest or
373 See Robert Ménard, Secretary General of rwb: rwb Website, cnn Crew’s Bodyguard Fires Back With Automatic Weapon When Crew Comes Under Fire, Press Release, 13 April 2003; Gasser, Right to Information, 2003, p. 377. 374 See Introduction, p. 2. 375 Ibid. 376 See above, pp. 147ff.
The drafting history…confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law. … As the Committee has observed on a previous occasion, this means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.379 hrl further provides a series of guarantees to prevent arbitrary deprivation of liberty. Such procedural requirements include for example: (a) an obligation to inform a person who is arrested of the reasons for arrest; (b) an obligation to bring a person arrested on a criminal charge promptly before a judge; and (c) an obligation to provide a person deprived of liberty with an opportunity to challenge the lawfulness of the detention (the right of habeas corpus).380 Although obligations (a) and (b) are not listed as non-derogable in the relevant human rights instruments, the jurisprudence of the human rights bodies con- firmed that they may never be dispensed with altogether.381
B Detention in International Armed Conflicts ihl completes hrl in this regard, establishing certain regimes of detention and internment that do not amount to ‘arbitrary’ deprivation of liberty in
377 Articles 9, 10 and 11 iccpr, Article 7 achr, Article 5 echr and Article 6 AfChHR. See above, p. 149. 378 Cf. Rule 99 of the cl-Study. Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 344ff. 379 (Punctuation added) un HRComm, Mukong v Cameroon, para. 9.8 with further refer- ences. The case Mukong v Cameroon concerned a detained journalist in Cameroon, who’s detention was neither reasonable nor necessary and thus in violation of Article 9 (1) iccpr. 380 See Rule 99 of the cl-Study with a detailed assessment of the human rights guarantees. Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 344ff. 381 Ibid.
382 This is true for all news providers as the term is understood in this study, including citizen journalists, media support staff and journalists engaged in dangerous professional missions. 383 Ibid. 384 Articles 42ff, 68 and 78 gc IV similarly speak of internment or placing in assigned resi- dence rather then detention. 385 Goodman notes the example when a party to a conflict is unable or unwilling to respect the requirements of common Article 3 gcs with regard to conditions of confinement. Then, this party has no authority to detain. Goodman, Detention of Civilians, 2009, p. 49. 386 A detailed analysis of the rights and obligations of pows lies beyond the scope of this study; instead, the requirements of detention of pows will be summarised while foot- notes offer entry points to further literature on the issue. For an overview, see Sassòli, Internment, 2007, para. 4; Fleck, Handbook ihl, 2013, pp. 359ff. 387 Article 17 gc iii; Fleck, Handbook ihl, 2013, p. 391. 388 The embedding rules for Iraq gave embeds, for instance, the rank of an honorary officer. Chapter 1, pp. 37ff.
389 Article 17 (4) gc iii. 390 See Geiss for a specific focus on techniques of assessing the identity of pows (fingerprint- ing, dna swaps, etc). Geiss, Name, Rank, Date of Birth, 2005, p. 722. 391 Article 85 gc iii; Fleck, Handbook ihl, 2013, p. 392. 392 See above, pp. 142ff. 393 Geiss, Name, Rank, Date of Birth, 2005, p. 731. For the individual duty to protect prisoners of war under Articles 12 and 13 gc iii, see further Pinzauti, Protecting Prisoners of War, 2010. 394 Fleck, Handbook ihl, 2013, pp. 382f. 395 Regarding individual responsibility, that means that a member of the military who is in charge of protecting pows remains under a contingent duty to protect the pows when he knows they would otherwise not be protected, despite the fact he may no longer have
custody over them. This general rule ensures continuity of protection. Pinzauti, Protecting Prisoners of War, 2010, pp. 218f. 396 Cf. Article 5 (2) gc iii. 397 Pape, Schutz der Presse, 2013, p. 43; Saul, International Protection of Journalists, 2008, p. 104. 398 Similarly, Pape, Schutz der Presse, 2013, p. 41. 399 Geiss, The Protection of Journalists, 2008, p. 310. 400 Goodman, Detention of Civilians, 2009, pp. 53, 57. See further the subsequent section.
401 Cf. Saul, Prosecuting War Crimes, 2009, p. 103. 402 Sassòli, Internment, 2007, paras 7–14. 403 This rule is valid in both niac and iac. Goodman, Detention of Civilians, 2009, p. 53. 404 In contrast to the detention out of security reasons, which is called ‘administrative deten- tion’ or ‘internment’, this version of internment is often labelled ‘criminal detention’. Hill- Cawthorne, The Copenhagen Principles, 2013, p. 486. 405 Article 78 gc IV.
‘the security…makes it absolutely necessary’406 in cases of iac. The same parameters are applicable on both, whether during occupation or regular iac. Imperative reasons of security that legitimate internment are very difficult to circumscribe. It is clear that such a threat to national security must be defined more broadly than direct participation.407 It can be caused either by direct partici- pation or by engagement in hostile action that falls short of direct participation.408 The icrc interpreted this rule as permitting internment only in the case of:
serious and legitimate reasons to think that the interned persons may seriously prejudice the security of the detaining power by means such as sabotage or espionage.409
The tc of the icty confirmed this interpretation when saying, ‘The measure of activity deemed prejudicial to the internal or external security of the State which justifies internment or assigned residence is left largely to the authori- ties of that State itself’.410 However, the icty Chamber nevertheless posed some limitation on the interpretation of such security reasons and stated that ‘the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living’.411 Furthermore it held that the fact an individual is male and of military age is not sufficient to justify internment and detention.412 Goodman construes this to mean that there is also no valid security rationale in detaining someone who has no meaningful connection to hostilities, yet possesses information about enemy fighters, solely for intelligence-gathering purposes.413 This scenario could also affect news providers.
406 Article 42ff gc IV. 407 Goodman, Detention of Civilians, 2009, p. 53. 408 Civilians who directly participate in hostilities but whose targeting would not be ultima ratio or/and proportional fall under the first variation of this group. According to Goodman, the second variation (engagement in hostile action but not dph) also includes persons named in Article 4 (a) (4) gc iii. The detention of war correspondents is hence basically another variation of this rule. Ibid, pp. 53, 57. 409 (Punctuation added) See Rule 99, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 345ff with further references. 410 icty, The Prosecutor v Delalic, para. 574. 411 Ibid, para. 577. See also Sassòli, Internment, 2007, para. 9 for references to the case law of the Eritrea-Ethiopia Claims Commission that disagreed on this point. 412 icty, The Prosecutor v Delalic, para. 577. 413 Goodman, Detention of Civilians, 2009, pp. 54f.
Similar to dph, mere membership of a terroristic organisation or news entity that spreads biased or falsified news is not valid grounds for an impera- tive security threat that legitimates internment. The security reason must be related to the individual and not simply to his or her belonging to a certain category.414 Instead, the detaining power must rely on the individual’s particu- lar connection and contribution to the organisation or the news coverage, because the civilian himself must pose a threat to security. Internment of news providers on the sole grounds of their foreign national- ity, membership in a certain organisation, profession, or possession of infor- mation is thus prohibited. Yet cases of speech that fall short of dph and the announcement of such speech can pose an imperative threat to security. Incitement to genocide or other forms of severe hate speech, such as incite- ment to violence or to hostilities, may therefore be legitimate grounds for detention (also outside the context of criminal proceedings). All cases for initial or continued internment must be based on valid grounds. In addition to these grounds, deprivation of liberty must follow certain proce- dures of fair trial to be lawful. For instance, any news provider arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons these measures have been taken.415 Additionally, the detaining power must establish that internment is the only means available and ‘absolutely necessary’ to defend against the threat posed by the conduct of the news provider.416 Whatever the reasons, the internment must end as soon as the reasons for it no longer exist and in any case as soon as possible after the close of hostilities.417 However, it must be remembered that the regime of civilian internment of gc IV only applies to protected persons.418 The personal scope of these provi- sions is therefore very limited. The gcs do not cover aliens in the territory of
414 Sassòli, Internment, 2007, para. 9; Hill-Cawthorne, The Copenhagen Principles, 2013, pp. 486f. 415 Cf. Articles 43 and 78 gc IV and the rules about the appointment of a protecting power as an impartial supervisor. For an overview, see Fleck, Handbook ihl, 2013, p. 318. 416 Goodman, Detention of Civilians, 2009, p. 55; Fleck, Handbook ihl, 2013, p. 316. 417 Articles 132 and 133 gc IV. 418 To recap: Protected persons under gc IV are understood as those who at a given moment, and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons who are party to the conflict or of an occupying power of which they are not nationals. Nationals of a neutral state who find themselves in the territory of a bel- ligerent state, and nationals of a co-belligerent state, shall not be regarded as protected persons while the state of which they are nationals has normal diplomatic representation in the state in whose hands they are (Article 4 gc).
419 Similarly to the categorisation of pows, see above, p. 111. icty, The Prosecutor v Tadic, ac Judgement, paras 163–169. 420 As long as this is in accordance with the law of the detaining power. See moreover Tang, who argues that confiscation is legitimate, yet without offering a legal explanation for this claim. Tang, Protection of Journalists, 2008, pp. 40f. 421 Paragraph 3 of this article includes persons who are ‘arrested, detained, or interned for actions related to the armed conflict’. Paragraph 4 further guarantees a minimum of fair trial rights that apply to all persons. Further Fleck, Handbook ihl, 2013, pp. 318ff.
C Detention in Non-International Armed Conflicts The law of niac does not provide a specific regime for civilian internees. It simply states some guarantees for humane treatment of persons who do not or no longer directly participate in hostilities.425 Additionally, Article 5 ap II pro- vides guarantees for persons who have been deprived of their liberty for rea- sons related to the conflict, no matter whether they are interned or detained. However, it must be noted that common Article 3 gcs and Article 5 ap II do not limit the valid grounds for which a person may be detained. Therefore, they do not exclude internment without trial, nor prescribe any specific proce- dure for the decision about the internment.426 Despite this normative gap, the icrc argues that there is a customary rule of ihl that prohibits unlawful deprivation of liberty in niac.427 That rule derives
422 Article 75 ap I. 423 Ibid. 424 This is stated in the statutes of the icc and the icty and is a rule of customary law. See Rule 100 of the cl-Study, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 352ff. 425 Common Article 3 gcs. 426 It is not mandatory to scrutinise the conditions of internment in niac by an external power. The icrc has no right to visit interned persons, but may offer its services to the parties under common Article 3 gcs. 427 The terminology used in these manuals and legislation varies from unlawful/illegal con- finement and unlawful/illegal detention to arbitrary/unnecessary detention. Cf. Rule 99 cl-Study, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 344ff.
[A]ll persons deprived of their liberty for reasons related to a non- international armed conflict must be given the opportunity to challenge the legality of the detention unless the government of the State affected by the non-international armed conflict claimed for itself belligerent rights, in which case captured enemy ‘combatants’ should benefit from the same treatment as granted to prisoners of war in international armed conflicts and detained civilians should benefit from the same treatment as granted to civilian persons protected by the Fourth Geneva Convention in international armed conflicts.429
Yet as stated above, the cl-study is not beyond criticism, especially when interpreting ihl provisions alongside hrl jurisprudence. The authority to detain is hence not completely clarified in niac and in certain cases of iac where only Article 75 ap I applies. The icrc therefore undertook an attempt to draft legally non-binding procedural principles and safeguards for internment or administrative detention in armed conflict and other situations of vio- lence.430 According to these principles, in all cases imperative reasons of secu- rity ought to form the minimum legal standard informing any internment whether in iac or niac.431 This standard must be carefully assessed with regard to each individual detainee.432
D News Providers before Military Tribunals As we come to the end of this chapter, one peculiarity is left to discuss: gc iii codifies a clear textual presumption favouring military tribunals for the pros- ecution of pows.433 War correspondents are treated as pows in case of their arrest. They can hence be tried before military tribunals. For civilians, however, this is not as clear. Neither gc IV nor ap I uses explicit language to address the
428 For the hrl guarantees for a fair trial, see above, pp. 142ff. 429 Rule 99 cl-Study, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 344ff. 430 This set of principles is called the Copenhagen Principles. See Hill-Cawthorne, The Copenhagen Principles, 2013, p. 485; Pejic, Procedural Principles and Safeguards for Internment, 2005. 431 See Pejic, Procedural Principles and Safeguards for Internment, 2005, p. 381. 432 Ibid. 433 Goodman, Detention of Civilians, 2009, p. 58.
III Conclusion II: Strengths and Lacunae of the Personal Protection
This chapter showed that ihl grants news providers protection as civilians, which is the highest possible protection ihl offers to individuals. It further divides them into war correspondents (those travelling with the armed forces) and journalists engaged in dangerous professional missions (all other news providers). hrl supports this protection by guaranteeing the right to life, the prohibition of arbitrary deprivation of liberty, the right to a fair trial and the right to physical and psychological integrity. News providers are thus protected like every other civilian person by ihl and hrl. However, the activity nevertheless has some effects on the personal protection: namely, the jurisprudence of human rights bodies highlights that the obligation to protect the human rights of news providers from interferences of state
434 Ibid. 435 See furthermore Goodman’s remarks on whether the authority to prosecute and the authority to detain in ihl are not coextensive with reference to us policy on detention and military trials after 9/11. Ibid, pp. 59f, 66.
Targeting Detention Military Trial
News providers War correspondents436 No Yes Yes travelling with the armed forces
News providers News providers who dph Yes437 Yes Yes438 not travelling with the armed News providers who do No Yes Yes439 forces not dph but pose a threat to security
All other news providers No Yes440 No
Since the legal background of different forms of detention is quite irregular, a separate table clarifies these regimes:441
436 In this table, war correspondents form a single line for reasons of a better overview. Nevertheless, depending on their behaviour, war correspondents may at the same time fall into the second and third lines. 437 Only under very strict conditions of lethal force against selected civilians. 438 Only when civilian courts are closed or unavailable, so that resort to the military system is essentially unavoidable. 439 Ibid. 440 Only if they are accused of a crime and there is enough evidence to prove their involvement. 441 The idea of this table is taken from Goodman in his article in the American Journal of International Law of 2009 ‘The Detention of Civilians in Armed Conflict’. His article focuses on the us policy of detaining Al Qaeda fighters after 9/11 and offers a very good overview of the general framework of detention of civilians in armed conflict. Instead of three he dis- tinguishes four groups of civilians: (A) regular armed forces and irregular armed forces that meet the criteria of gc iii or ap I; (B) direct participants in hostilities; (C) civilians who are indirect participants in hostilities; and (D) civilians who are nonparticipants in hostilities. Goodman describes civilians who do indirectly participate in hostilities as cases of Article 4 (A) (4) of the gc iii. War correspondents meet these criteria and fall therefore in his model under group C. Goodman, Detention of Civilians, 2009, pp. 57f.
Protection before Protection in arrest detention
News providers War ap i + customary Common Article 4 gcs, travelling with correspondents law + hrl (reduced gc iii, Article 75 ap i, the armed forces by ihl) customary law + hrl
News providers News providers Not protected under Article 75 ap i, not travelling who dph ihl as long as customary law + hrl with the armed dph lasts + hrl forces (reduced by ihl)
News providers ap i + customary Articles 42 ff gc iv, who do not dph law + hrl (reduced Article 78 gc iv, but pose a threat by ihl) Article 75 ap i, to security customary law + hrl
All other news ap i + customary Article 75 ap i, providers law + hrl (reduced customary law + hrl by ihl)
Chapter 1 of this book established that direct attacks, kidnapping and deten- tion are among the main threats for news providers in contemporary armed conflicts. However, in most cases, perpetrators do not target news providers because they are common individuals or civilians. Rather, they are targeted because of their function with the indirect aim of preventing them from car- rying out their work. Legally, this phenomenon is difficult to grasp. Dinah PoKempner says, for instance, that it is a little like writing about global warming: ‘The danger is real, catastrophic, accelerating, and yet almost invisible’.1 At the same time, Chapter 1 established that parties to contempo- rary armed conflicts increasingly also adopt methods to directly target the work of news providers, such as fake accusations, hacking, censorship, com- munication blackouts, destruction of media facilities or confiscation of equipment. In Chapter 2 we have also seen that it is an immense challenge to define the actual agents of contemporary news production because war coverage is conducted by a large variety of actors. As a consequence, this study chose a functional definition of news providers that is defined by their activity. However, Chapter 3 proved that the primary legal system applicable during armed conflicts, namely ihl, mainly focuses on the personal protection of news providers.2 This is rather unfortunate. Since the vital role of news provid- ers is triggered by their activity, it is this activity that should be protected by international law in the first place. Despite its importance, this aspect has been largely ignored in past research on the protection of news providers in armed conflicts.3 Therefore, I examine in this chapter the extent to which international law protects this activity, namely, the functional protection of ‘providing news’.
1 PoKempner, A Shrinking Realm, 2007, p. 18. 2 hrl consequently completed this protection. 3 See for instance Browne and Probert, Safety of Journalists Research Pack, 2012, pp. 15f; Düsterhöft, The Protection of Journalists, 2013; Balguy-Gallois, Le rôle des médias, 2010, p. 104. Pape, on the other hand, dealt with the functional protection of the press in hrl but did not put that in the context of ihl and icl. Pape, Schutz der Presse, 2013.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004288850_006
I start with an analysis of the scope of the functional protection, which will be followed by the most frequent or disputed limitations of the functional protection in armed conflicts and an evaluation of their accordance with international law. These highlighted limitations will be: (1) restrictions on access to the territory of an armed conflict, (2) espionage, (3) the prohibition to expose protected persons to public curiosity, (4) criminal liability for speech, (5) the targeting of media facilities, and (6) testimonial privileges of news providers before international criminal tribunals. Throughout this analysis, we will see a range of emerging new concepts – especially in hrl – that offer a broad protection of the functional protection of news providers. Nevertheless, state parties to contemporary conflicts often skirt this law or interpret it very broadly.
I Scope of the Functional Protection
News providers are constantly searching for news.4 They collect, process, transfer and publish information. In order to conduct this work, they need to speak and write and shoot what they think is relevant (or even not so relevant) for the news story they seek. At the same time, they depend on information and its disclosure by others. hrl specifically protects such activities with dif- ferent concepts: Freedom of expression protects the fundamental right to think and speak freely. In addition, the right to information ensures access to certain kinds of information.5 ihl, on the other hand, does not contain any direct reference to the activity of ‘providing news’. Neither the gcs nor their aps or other ihl treaties mention news coverage or related activities. Nevertheless, it can be argued that the mere mention of journalists engaged in dangerous professional missions and war correspondents includes an underlying protection of their activity because of the provisions’ use of a professional terminology.6 The icrc commentary to Article 79 ap I accordingly describes the term ‘professional’ as covering ‘all activities which normally form part of the journalist’s profession’,7 namely, tak- ing notes, being on the spot of action, interviewing people, taking photographs
4 In this context, news can be understood as information that has not yet reached the public sphere. 5 See below, pp. 208ff. 6 See Chapter 3, pp. 121ff. Similarly, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, p. 117. 7 Sandoz et al., Commentary ap i, 1987, Nr. 3246. See further Chapter 3, pp. 121ff.
1 Freedom of Expression I start the analysis with the right to free expression, a fundamental human right protected by all major human rights systems. The first and foremost is the iccpr. Its Article 19 states:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all
8 See Chapter 3, pp. 158ff. 9 Henckaerts and Doswald-Beck did not identify such a rule in their cl-Study. Despite their study not being exhaustive, it must be noted that none of the military manuals cited in the study mentions beginnings of an equivalent rule. It can therefore be said that overall, there is no trace of such a rule in state practice. Rules 26 and 34, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009. The Handbook of the International Law of Military Operations categorises journalists as persons whose functions enjoy special pro- tection. Nevertheless, technically, those persons – including medical, religious, and civil defence personnel and civilian journalists – enjoy no greater protection than ordinary civilians. Gill and Fleck, Military Operations, 2010, para. 16.8, p. 262. 10 See below, pp. 259ff. 11 See below, pp. 262ff. 12 See below, pp. 265ff.
kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
Analogous guarantees can be found in Article 9 AfChHR, Article 13 achr, and Article 10 echr.13 The ECtHR, the un HRComm, the IACtHR and the IACommHR generally have a similar understanding of the individual dimension of freedom of expression. This individual dimension protects everyone’s right to seek, receive and impart information, ideas and opinions. The ECtHR and Inter-American human rights bodies have created rich case-law which established that all forms of speech are protected, including offensive, exaggerating, shocking and disturbing speech, and that the seeking, receiving and imparting of informa- tion is protected irrespective of the medium used for communication.14 In 2011 the un HRComm summarised this case law and other state practice representing the most recent international consensus on freedom of expres- sion in its General Comment Nr. 34. On this occasion, it stated that freedom of expression in the sense of Article 19 iccpr includes ‘the expression and receipt of communications of every form of idea and opinion capable of trans- mission to others’.15 Hence, all forms of expression are protected, including spoken, written and non-verbal expression, such as images and objects of art. Furthermore, protected forms of content are to be understood in a very broad sense, and range from statements about political discourse, comments on pub- lic affairs, discussions of human rights, journalism, art and culture to religion.16 In addition – and important for the case of news providers – freedom of expres sion encompasses all means for the dissemination of expression, including new forms of audio-visual as well as electronic and Internet-based modes of expression.17 The IACtHR further stated that the right guarantees whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible.18
13 See also Appendix to Recommendation Nr. R (96) 4, Principle 6. 14 See e.g. ECtHR, Dink v Turkey, para. 124; IACtHR, Compulsory Membership Opinion, para. 31; IACommHR, Bustíos v Peru, para. 70. Further also un sr FoEx, Annual Report 2012. 15 un HRComm, General Comment Nr. 34 (2011), para. 11. 16 Ibid. 17 un HRComm, General Comment Nr. 34 (2011), para. 12. Cf. further un sr FoEx, Annual Report 2010, paras 88–103, 93. In Restrepo, the IACtHR specifically highlighted the wide audience of recipients of such opinions, ideas and information and the invisibility of dis- tribution of information and ideas. IACtHR, Restrepo v Colombia, para. 138. 18 IACtHR, Compulsory Membership Opinion, para. 31; IACommHR, Bustíos v Peru, para. 70.
By this approach, the un HRComm as well as the IACtHR and the ECtHR support a functional protection of news providers that rests on the idea that the function and not the label of the agent is the key to protection. Freedom of expression is therefore the fundamental basis and legal blueprint of the pro- tection of all activities of news providers.
A Direct Protection of Freedom of Expression States parties to the iccpr, the echr, the achr and the AfChHR must respect and protect freedom of expression. To respect freedom of expression means that states shall not take any actions that are not in accordance with these treaties. All measures that constitute an interference with expression or its dis- tribution are problematic, and can include executive orders preventing publi- cation, search of news providers’ homes and offices, restrictions on content, access to places of journalistic interest, testimonial duties before criminal courts, and confiscation of published material or penalties as well as other forms of interference if they have a chilling effect on future speech. In general, the imposition of any conditions or formalities on speech must be justified.19 The obligation to protect freedom of expression additionally obliges states to protect individuals from interferences with the right to free expression by third parties. Freedom of expression, however, is not an absolute right. It may be derogated or limited by overriding public and private interests, such as state security or the privacy of others. All major treaties include a framework for balancing freedom of expression with these other interests.20 Unfortunately, this study has neither the space nor time to outline all these different varia- tions of restrictions. Instead, the second part of this chapter focuses on the most relevant and disputed areas of restrictions of the activity of news provid- ers in armed conflict and outlines the parameters for balancing such restric- tions. At this stage, the analysis moves on to the legally complex and not yet well-researched question of indirect attacks on freedom of expression.
B Indirect Protection of Freedom of Expression At the outset of this chapter it was said that a large number of attacks on news providers are aimed at indirectly targeting their activity – and thus their freedom of expression. It was similarly said that legally, such attacks are difficult to grasp. International lawyers have in the past mainly addressed them with an
19 IACtHR, Compulsory Membership Opinion, para. 31; IACommHR, Bustíos v Peru, para. 70. For an overview see un HRComm General Comment 34; Jacobs et al., ECHR, 2005, pp. 428f; Grossman, Freedom of Expression, 2012; O’Flaherty, General Comment Nr. 34, 2012. 20 See below, pp. 244ff.
21 This was discussed in Chapter 3, pp. 139ff. 22 In this case, Cameroon had indirectly justified its actions on grounds of national security and public order, by arguing that the author’s right to freedom of expression was exer- cised without regard to the country’s political context and continued struggle for unity. un HRComm, Mukong v Cameroon, para. 9.7. 23 un HRComm, Njaru v Cameroon, para. 6.4. 24 Ibid. 25 For the background of the Kurdish conflict in Turkey and the facts of the cases, see Chapter 3, pp. 139ff.
26 ECommHR, Tekin v Turkey, paras 57ff. 27 Ibid, para. 61. 28 ECtHR, Yaşa v Turkey, para. 118. 29 ECtHR, Kılıç v Turkey, para. 60. 30 Ibid, para. 85. In the case Gongadze v Ukraine, Article 10 echr is not even mentioned. A violation of it was neither claimed by the applicant nor considered by the Court itself. The Court only stressed that journalists covering politically sensitive topics are in a parti cularly vulnerable position, which authorities have to consider while exercising their obli- gation to protect their right to life. ECtHR, Gongadze v Ukraine, paras 164f. 31 ECtHR, Yaşa v Turkey, para. 120; ECtHR, Kılıç v Turkey, paras 84–87. Draghici similarly underscores that the cases address impunity for murder and not for actions targeting journalists or interfering with free speech. Draghici and Woods, Crimes Against Journalists, City University London, May 2013.
Article 10 – simply for reasons of time and money, given that the ECtHR already faces an absolutely immense backlog of cases.32 However, in 2010 the Court finally changed its jurisprudence and addressed an indirect violation of Article 10 echr via an attack on a journalist in the case Dink v Turkey.33 Alongside an examination of a direct violation of free expres- sion, the Court found that a conviction of the highest criminal court in Turkey had left Dink vulnerable to attacks and that the authorities had not taken any positive actions to prevent such attacks. In addition, the Court found that, sim- ilar to the violations of the right to life, freedom of expression also places a positive obligation on the state to protect endangered individuals from attack by third parties, and not just an obligation to refrain from direct interference.34 Thus, by not offering adequate protection to Dink, Turkey had indirectly vio- lated freedom of expression. The Inter-American human rights bodies were far more progressive than the ECtHR in this regard. From their beginnings, they specifically highlighted indirect violations of freedom of expression through attacks on news provid- ers. As far back as 1997, in the first such case before the IACommHR, Bustíos v Peru, the Commission examined what the ECtHR did not touch until Dink v Turkey, namely the question of whether the death and injury of journalists could amount to a violation of freedom of expression.35 In the case, the Com mission considered it proven that the perpetrators, the military authorities, knew perfectly well that the two victims were journalists covering occurrences
32 The immense backlog of cases of the court is cited in various press releases. See e.g. the press release echr 312 (2013), Reform of the Court: Filtering of cases successful in reducing backlog, 24 October 2013, available at:
provide the greatest possible protection to the two journalists in order for them to have the ability to carry out their function of seeking, covering, and disseminating information on occurrences in the area with the great- est guarantees possible.37
The Commission further ruled that the death of one and the injuries of the other journalist directly touched on the right to free expression ‘due to the fact that these occurrences are a sign of harassment and intimidation of those functioning as journalists, which positively has an impact on the quality and characteristics of information’.38 It also held that by the attack on them, the two journalists were ‘arbitrarily prevented from seeking out, covering, and dis- seminating information on a particular occurrence’.39 Thereby, it created the concept of an arbitrary prevention from the exertion of freedom of expression, or, more precisely, an arbitrary prevention from providing news. In 1999, the Commission confirmed this jurisprudence in the Miranda case, which concerned a murder of a well-known Mexican journalist.40 The attack on Héctor Félix Miranda, a journalist, author and associate director of a weekly newspaper, took place in Tijuana and resulted in Miranda’s death. The evi- dence, especially the confession of one of the perpetrators, showed that he had committed the crime because he had been criticized in Miranda’s column, and ultimately that Miranda was assassinated because of what he wrote in his newspaper articles.41 Yet, the Mexican authorities failed to investigate the crime and prosecute the perpetrators. The Commission found several violations of the achr, including, most importantly, that the failure to investigate and effec- tively prosecute the mastermind behind the assassination amounted by itself to a violation of freedom of expression.42 That being so, the Commission estab- lished that freedom of expression not only obligates states to protect journalists in risky environments – as it had already stated in Bustíos v Peru – but also that
36 IACommHR, Bustíos v Peru, para. 74. 37 (Emphasis and punctuation added) Ibid, para. 75. 38 Ibid, para. 76. 39 (Emphasis added) Ibid. 40 IACommHR, Miranda v Mexico. 41 Ibid, para. 51. Similar findings followed in IACtHR, Nicolle v Guatemala, para. 82 (e). 42 The Court found a violation of the rights to a fair trail and to the judicial protection pro- vided by Article 8 and 25 achr in regard to the obligation to respect and guarantee those rights, as established in Article 1 (1) achr. IACommHR, Miranda v Mexico, para. 66.
43 Cf. Grossman, Freedom of Expression, 2012. 44 IACtHR, Restrepo v Colombia. 45 Another indication of this purpose was that during the assault the aggressors shouted that he should give them the video tape. Ibid, paras 136, 142, 144. 46 Cf. states’ obligations of the protection of the right to life, pp. 135ff. 47 In Restrepo, for example, Colombia had a special obligation to investigate and adjudicate claims against the perpetrators and sanction them as well as adopt means of protection because of the previous threats against the victim and the volatile environment for jour- nalists in Colombia at the time. This especially given the background that in 1995, a new law was adopted that created a special police unit for the protection of professional groups working under constant risk, one of them being journalists. IACtHR, Restrepo v Colombia, paras 191ff, 193, 211.
2 Right to Information In order to conduct their work, news providers depend on information. In that regard, hrl establishes a right to information – at first sight a perfect match. However, this right to information is a multifaceted concept that does not fully match with the information requirements of news providers. But let me first start by outlining the contours of this right. In its very first session in 1946, the un General Assembly adopted Resolution 59 (1), stating: ‘Freedom of information is a fundamental human right and … touchstone of all the freedoms to which the United Nations is consecrated’.51 In the same year, Robert R. Wilson mentioned in the American Journal of International Law the ‘recent emphasis in certain quarters, particularly in the United States, upon “freedom of information” as a requisite for lasting world peace’.52 However, after these first pleas, a long silence settled around the right
48 Ibid, para. 194. 49 Cf. above IACtHR, Restrepo v Colombia; IACommHR, Bustíos v Peru; un HRComm, Mukong v Cameroon; un HRComm, Njaru v Cameroon. 50 Cf. above: ECtHR, Dink v Turkey; IACommHR, Miranda v Mexico. 51 un ga Res 59 (1) (1946). 52 In the same comment, he also mentioned a ‘right to listen’, which was at the time con- nected to listening to radio broadcasts. Wilson, Freedom of Information, 1945, p. 791.
53 McDonagh, The Right to Information, 2013, pp. 25f. Cf. the website of the Right2info- campaign with a good overview of all national and international material on the right to information, available at:
A Freedom of Expression as the Basis for the Right to Information Besides the right to disseminate information by whatever medium to impart ideas, freedom of expression similarly protects each individual’s right to receive information.59 Hence, hrl not only protects the provider of informa- tion but also the potential recipient of that information.60 However, despite its inclusion in the freedom of expression articles of all major treaties, the right to information had long been ignored.61 During the 1990s this started to change. In 1994, the Declaration of Chapultepec, a set of principles that elabo- rates on the scope of freedom of expression of the achr, explicitly recognised
58 The two concepts are taken from Bishop, who identified four different approaches to a right to information. The choice of these two concepts is based on the limited scope of this study with regards to news providers and does not include any validation of other concepts which apply in the context of the right to information. Bishop, Internationalizing the Right to Know, 2009, pp. 45ff. 59 Access to information has therefore also been described as ‘instrumental to the enjoy- ment’ and ‘a pre-condition of the full exercise of the right to freedom of expression’. McDonagh, The Right to Information, 2013, p. 29. See further IACtHR, Compulsory Membership Opinion, para. 31; IACommHR, Bustíos v Peru, para. 70; Retrepo, para. 137; IACtHR, Lund v Brazil, para. 197. 60 Some authors argue that the term ‘seek’ of Article 19 iccpr offers a basis for a right to information. However, while ‘seek’ is not included in the echr provision and has only been adopted by the AfCommHR in 2002, ‘receive’ is included in all major treaties. In normative legal terms, the second term seems therefore to be the safer ground for a right to information. Bishop, Internationalizing the Right to Know, 2009, pp. 45ff; McDonagh, The Right to Information, 2013, p. 29. 61 The right to ‘receive’ information is included in Article 19 iccpr, Article 9 AfChHR, Article 13 achr and Article 10 echr.
citizens, in particular through the media, shall have wide access to infor- mation and the opportunity to disseminate information and opinions about the activities of elected bodies and their members.66
After still being reluctant to find a right to information in SB v Kyrgyzstan in 2009, the un HRComm later found a violation of the right to information in Nurbek Toktakunov v Kyrgyzstan in 2011.67 The case concerned a denial by Kyrgyzstan’s government to provide the applicant with access to statistics on death sentences and prison mortality. The Committee held that the requested data was of public interest and, in a more general statement, that ‘information
62 The Declaration states that ‘the authorities must be compelled by law to make available in a timely and reasonable manner the information generated by the public sector’. Principle 3 Chapultepec Declaration. Although of non-binding legal character, today the declaration has been signed by more than 30 countries. 63 See e.g. un sr FoEx, Annual Report 2009, para. 60. 64 Joint Declaration sr FoEx (2004). 65 un HRComm, General Comment Nr. 34 (2011), paras 18f. See further Hoffman’s lengthy article focused mainly on the development of the right to information and the role of dif- ferent international actors within this process, as well as Mendel’s approach over the soft- law basis of the right to information: Hoffman, Human Right to Receive Information, 2003; Mendel, Freedom of Information, 2008, pp. 10ff. 66 The case concerned the question of access of a journalist to press facilities in the Canadian parliament. un HRComm, Gauthier v Canada, para. 13.4. 67 un HRComm, sb v Kyrgyzstan; un HRComm, Toktakunov v Kyrgyzstan.
[T]he right of access to information includes a right of the media to have access to information on public affairs and the right of the general public to receive media output. The Committee considers that the realisation of these functions is not limited to the media or professional journalists, and that they can also be exercised by public associations or private individuals. … When, in the exercise of such ‘watchdog’ functions on matters of legitimate public concern, associations or private individuals need to access State-held information, as in the present case, such requests for information warrant similar protection by the Covenant to that afforded to the press.70
According to this interpretation, bloggers and citizen journalists could also claim access to government-held information when they fulfil a watchdog function within society. At the regional level, the Inter-American system was once more a step ahead of the ECtHR: Already in Bustíos v Peru, the Commission had held that the freedom to inform oneself is universal and entails a right of persons to receive information without distorting interference.71 The IACtHR was more hesitant to find a right to information. Yet in 2006 it published its milestone judgement in Claude Reyes v Chile.72 The case originated in the Rio Condor Project, an extensive timber-logging and deforestation operation by a us company on
68 un HRComm, Toktakunov v Kyrgyzstan, para. 6.3. Similar, IACtHR, Lund v Brazil, para. 197. 69 un HRComm, Toktakunov v Kyrgyzstan, para. 6.3. 70 Ibid, para. 7.4. The violation was further found because Kyrgyzstan failed to explain why the restriction of such access was, according to law, necessary and protective of a legiti- mate interest. 71 IACommHR, Bustíos v Peru, para. 69. 72 IACtHR, Reyes v Chile.
recently advanced towards a broader interpretation of the notion of free- dom to receive information and thereby towards the recognition of a right of access to information.80
It further stated that:
the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gather- ing of information.81
Moreover, the ECtHR confirmed the un HRComm’s opinion on the character of the requester of information. It similarly found that civil associations, when
73 In the case, the government provided the applicant with a part of the information he had requested, but failed to explain the restrictions on the publication of another part of information. 74 IACtHR, Reyes v Chile, para. 77. See also IACtHR, Lund v Brazil, para. 197. 75 Interestingly, the shift in approach came just after the IACtHR’s landmark decision Reyes v Chile. See McDonagh for an overview of the jurisprudence of the ECtHR, McDonagh, The Right to Information, 2013, pp. 34–37. 76 ECtHR, Sunday Times v uk, paras 64–66. 77 ECtHR, Sener v Turkey, para. 46. 78 ECtHR, Matky v Czech Republic. 79 ECtHR, Szabadság v Hungary. 80 Ibid, para. 35. 81 (Punctuation added) Ibid, para. 27.
82 Ibid, paras 36, 38. 83 See Kenedi v Hungary of 2009 about the right of a historian undertaking research into the history of state security services, and Gillberg v Sweden of 2012 for restrictions on access to research files held by a university. ECtHR, Kenedi v Hungary; ECtHR, Gillberg v Sweden. 84 A public body is further understood as all branches of the state (executive, legislative and judicial) and other public or governmental authorities as well as semi-state entities and other entities when carrying out public functions. un HRComm, General Comment Nr. 34 (2011), paras 7, 18. 85 IACtHR, Reyes v Chile, para. 73; McDonagh, The Right to Information, 2013, p. 29. 86 ECtHR, Társaság a Szabadságjogokért v Hungary. 87 ECtHR, Kenedi v Hungary. 88 McDonagh, The Right to Information, 2013, p. 48. 89 Bishop, Internationalizing the Right to Know, 2009, pp. 73f. 90 IACtHR, Reyes v Chile, para. 77. See also IACtHR, Lund v Brazil, para. 197. 91 See for a detailed analysis McDonagh, The Right to Information, 2013, pp. 25–55, 49.
Such a purpose may be the facilitation of public debate on matters of legiti- mate public concern or to publish an objective study on the functioning of state organs.92 Since the character of the requester is connected to its role as a watchdog, it may be assumed that, in most cases, the watchdog anticipates the public purpose. In addition, the obligation to protect the right to information has other far- reaching consequences for public administration. Namely, it urges states to proactively highlight information of public interest and ensure easy, prompt, effective and practical access to such information.93 This proactive informa- tion policy shall minimise the need for individuals to have to resort to requests to access it.94 Overall, the case law is still not coherent and will have to be clarified in future judgements. In particular, the ‘public interest qualitative test’ and the character of the requester will have to be refined. However, with regards to news providers it can already be said that they are bearers of the right to infor- mation. They fulfil a watchdog function within society since they share a pub- lic purpose of ‘providing news’, which in turn informs society and facilitates public debate.95 All news providers, meaning professional journalists, citizen journalists and media support staff, are therefore legitimate requesters of the right to information.96 However, it is nevertheless still not clarified what infor- mation they can have access to as the bearers of this right. To conclude: News providers have a right to information regarding state-held information of public interest or importance. Yet does this right offer an additional scope of protection for news providers besides their right to free expression? Yes, it does. The right to information gives the state a positive obligation to disclose and provide state-held information not only if requested but also proactively. Such information could be, for example, about the targeting choices of the military or progress of military operations. The right to information therefore offers the direct gate for news providers to request desired information from authorities. However, this human right is also not absolute and subject to restrictions.97
92 ECtHR, Társaság a Szabadságjogokért v Hungary, para. 26; ECtHR, Kenedi v Hungary, para. 40. 93 un HRComm, General Comment Nr. 34 (2011), para. 19. 94 Mendel goes so far as to conclude an obligation of states to publish key information even in the absence of a request. Mendel, Freedom of Information, 2008, p. 33. 95 Cf. Introduction, pp. 5ff; Chapter 1, pp. 25ff; and below, pp. 230ff. 96 un HRComm, General Comment Nr. 34 (2011), para. 18; McDonagh, The Right to Information, 2013, pp. 25–55, 46f. 97 See below, pp. 244ff.
B A Right to Truth as the Basis for the Right to Information As I have stated before, there are various legal concepts of a right to information. A right to information can also be derived from a human right to truth as has only emerged during the last decade. If it exists, the right to truth could be of use for the protection of ‘providing news’ insofar as it indeed protects seeking and searching for the truth. But let me first outline the emergence of this concept. Various human rights bodies have mentioned a right to truth in their juris- prudence. The IACtHR was the first to find it in the Velásquez case in the con- text of enforced disappearances.98 On this occasion, the Court stated and repeated later on several occasions:
The right to know the truth is included in the right of the victim or of the victim’s next of kin to have the relevant State authorities find out the truth of the facts that constitute the violations and establish the relevant liability through appropriate investigation and prosecution.99
The IACommHR and the un HRComm have subsequently adopted similar views in their case law.100 The ECtHR was more hesitant, but finally found such a right to truth in December 2012, in the case of El-Masri v The Former Yugoslav Republic of Macedonia. In this case, the Grand Chamber explicitly mentioned for the first time the terminology of a right to the truth and described it as ‘a right to know what had happened’.101 During the same time, other un bodies have also dealt with a corresponding concept, and in 2006 the result of this process was published in a report of the un High Commissioner for Human Rights on the right to the truth. This report includes the first universal definition of the right that reads:
The right to the truth implies knowing the full and complete truth as to the events that transpired, their specific circumstances, and who partici- pated in them, including knowing the circumstances in which the viola- tions took place, as well as the reasons for them.102
Shortly thereafter, the un Human Rights Council (hrc) adopted resolutions on the right to truth and in August 2012 appointed Pablo de Greiff as the first
98 IACtHR, Velásquez v Honduras. 99 Ibid, paras 152, 166, 177. IACtHR, Romero v Venezuela, para. 62; IACtHR, Pueblo Bello Massacre, para. 219; IACtHR, Chang v Guatemala, para. 274. 100 See the following pages. 101 ECtHR, El-Masri v Macedonia, para. 191. 102 un hchr, Study on the Right to Truth (2006), p. 4, para. 3.
Special Rapporteur on the promotion of truth, justice, reparation and guaran- tees of non-recurrence.103 While the importance of the right is clearly accepted, its legal contours under international law remain nebulous. The origins of the right can be traced back to ihl, to the right of families to know the fate of their relatives (Articles 32 and 33 ap I) and the obligation of parties to search for persons who have been reported missing.104 This obligation is rooted in the basis of humanity of ihl, which protects victims of armed conflicts and also aims to reduce the suf- fering of their next of kin. The icrc therefore understands the right to know the truth as a norm of customary ihl, according to which each party to the conflict must take all feasible measures to account for persons reported miss- ing as a result of armed conflict.105 The hrl approach is wider in the scope of the right than its roots in ihl because it obligates all states and not only the parties of an armed conflict. hrl therefore completes ihl in this regard. However, because of the rather young history of the human right to truth, there is not yet an agreement on its actual scope. In El-Masri, the concurring judges described the right to the truth as a right to ‘ascertain and establish the true facts’ and to ‘an accurate account of the suffering endured and the role of those responsible for that ordeal’.106 The report of the un High Commissioner ultimately broadens the scope as encompassing the material elements of:
the entitlement to seek and obtain information on: the causes leading to the person’s victimization; the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law; the progress and results of the inves- tigation; the circumstances and reasons for the perpetration of crimes
103 See his first annual report outlining his mandate and implementation strategy as well as the 2013 report on his first activities: un sr Truth, Annual Report 2012; un sr Truth, Annual Report 2013. Further Resolutions 9/11 and 12/12 of the Human Rights Council, adopted on 24 September 2008 and 12 October 2009. un hrc, Res 9/11 (2008); un hrc, Res 12/12 (2009). The right has further been ensured by the establishment of truth com- missions, commissions of inquiry, the disclosure of state documents, managements of archives and public access to information. 104 Naqvi, The Right to the Truth, 2006, pp. 248f; un hchr, Study on the Right to Truth (2006), pp. 4f, paras 5f. 105 See Rule 117 cl-Study, which applies in both niac and iac (with special emphasis on enforced disappearances), Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, p. 421. 106 ECtHR, El-Masri v Macedonia, Joint Concurring Opinion of Judges Tulkens, Spielmann, Sicilianos and Keller, paras 1–4.
under international law and gross human rights violations; the circum- stances in which violations took place; in the event of death, missing or enforced disappearance, the fate and whereabouts of the victims; and the identity of perpetrators.107
As with the procedural aspect of other human rights violations, the right to truth obligates states to investigate with all disposable legal means once the authori- ties have the knowledge of such human rights violations.108 This obligation is one of means, not of result, with the aim of the procedural determination of the most complete historical truth possible.109 The right is therefore closely linked to the procedural guarantees arising from other human rights, such as, for instance, the right to life. Naqvi accurately summarises this ambiguous role of the right:
Broadly speaking, the right to the truth … is closely linked at its inception to the notion of a victim of a serious human rights violation. Like proce- dural rights, it arises after the violation of another human right has taken place, and would appear to be violated when particular information relating to the initial violation is not provided by the authorities, be it by the official disclosure of information, the emergence of such information from a trial or by other truth-seeking mechanisms.110
Because of its philosophical, cultural-religious and social background, it has also been argued that the right to truth shall be understood as more than a mere human right, namely, as a principle of international law.111 Others called it ‘an emerging – though rapidly developing – norm of international law’,112 technically arising with the systematic human rights violation itself. Naqvi even argues that the practice of states and instituting mechanisms taken together with national legislation ‘suggests the emergence of some- thing approaching a customary right’.113 And the 2006 report of the High
107 UN HCHR, Study on the Right to Truth (2006), para. 43. 108 IACtHR, Lund v Brazil, para. 138. 109 Méndez and Bariffi, Right to Truth, 2011, para. 5. 110 Naqvi, The Right to the Truth, 2006, p. 249. 111 Ibid, p. 268; Méndez, Right to Truth, 1998, p. 264. See also Salado-Osuna, who calls it an ‘emerging principle’. Salado-Osuna, The Victims of Human Rights Violations, 2005, p. 325. 112 Méndez and Bariffi, Right to Truth, 2011, para. 1. 113 She adds that those rights most crucial to the protection of human dignity and of univer- sally accepted values of humanity – as the right to truth is – require a lesser amount of confirmatory evidence of their customary character. Naqvi, The Right to the Truth, 2006, pp. 249–254, 267f. See also Meron, Custom in ihl, 1996, pp. 35, 113.
Commissioner also underscores the inalienable and autonomous character of the right.114 International human rights bodies struggled similarly with the legal nature of the right to truth. In case law it has been connected to the obligations of states to protect and fulfil other human rights, such as the victim’s family’s right to access justice,115 the right to an effective remedy, the right to an effec- tive investigation and to be informed of the results,116 the right to a fair trial and legal assistance,117 the family’s right to information via freedom of expres- sion118 and of their right to be free from psychological torture.119 But not only the various human rights bodies differ in their interpretations; the individual bodies were also not coherent in their own approaches. For example, while in Lund v Brazil the IACtHR described the obligation to inves- tigate, prosecute and punish the perpetrators of grave human rights viola- tions, especially of enforced disappearances, as a norm of jus cogens character, it clarified in Pueblo Bello Massacre v Colombia that it does not consider the right to the truth as an autonomous right.120 The ECtHR, on the other hand, faced a clash of interpretations among its own judges in the case El-Masri: While the majority of the Grand Chamber implicitly held that the right to the truth was a general principle of the procedural aspect of Article 3 echr, judges Tulkens, Spielmann, Sicilianos and Keller underscored in a concurring opin- ion the special character of the right to truth in the context of Article 13 echr, the right to an effective remedy, especially when linked to the procedural obli- gations under Articles 3, 5 and 8.121 According to them, Article 13 includes such
114 At the same time it acknowledges the right’s close interconnection to the duty and obliga- tion of the state to protect and guarantee other human rights. un hchr, Study on the Right to Truth (2006), paras 55–57. Similarly, Groome, The Right to Truth, 2011, pp. 175–199. 115 IACtHR, Lund v Brazil, paras 211f. 116 IACtHR, Bàmaca-Velásquez v Guatemala; ECtHR, El-Masri v Macedonia; ECtHR, Association ‘21 December 1989’ v Romania, para. 144; CoE, Impunity Guidelines (2011). 117 IACtHR, Lund v Brazil, paras 211f. 118 Ibid, para. 201; ECtHR, Dink v Turkey, para. 135. 119 IACtHR, Velásquez v Honduras; un HRComm, Khalilova v Tajikistan; un HRComm, Aliboev v Tajikistan; un HRComm, Lyashkevich v Belarus. For an overview of the case law see fur- ther Naqvi, The Right to the Truth, 2006; un hchr, Study on the Right to Truth (2006), paras 4–24; Bishop, Internationalizing the Right to Know, 2009; Groome, The Right to Truth, 2011; Bleeker, The Right to Know, 2010; Méndez and Bariffi, Right to Truth, 2011. 120 IACtHR, Lund v Brazil, para. 137; IACtHR, Pueblo Bello Massacre, para. 219. 121 The Court further held that the complaint of the applicant under Article 10 echr (also concerning the right to truth) overlaps with the merits under Article 3 echr. ECtHR, El-Masri v Macedonia, paras 191, 263–265.
In practice, the search for the truth is the objective purpose of the obliga- tion to carry out an investigation and the raison d’être of the related quality requirements (transparency, diligence, independence, access, disclosure of results and scrutiny).123
However, despite being implicitly recognised in the procedural aspects of other provisions of the Convention, these judges described the right to truth as ‘a new right’.124 And this was exactly the point of disagreement among the judges. Two other judges, Casadevall and López Guerra, stated in their own concurring opinion that the right to truth was part of the general obligation to investigations in human rights violations. In their view, this makes any sepa- rate analysis of this right redundant.125 Another point of ambiguity of the right is its bearer. Is it only the victim and his family or also a wider circle of society? The report of the High Commissioner used the terms ‘families of victims’, ‘victims’, ‘child’, ‘relatives’ or their ‘repre- sentatives’, but acknowledges at the same time that the right has a collective dimension.126 This broad approach was confirmed by the IACtHR in Lund v Brazil127 when stating that every person, including the relatives of the victims of grave human rights violations, has the right to know the truth.128
122 ECtHR, El-Masri v Macedonia, Joint Concurring Opinion of Judges Tulkens, Spielmann, Sicilianos and Keller. 123 (Emphasis added) Ibid, para. 6. 124 Ibid, para. 5. 125 ECtHR, El-Masri v Macedonia, Joint Concurring Opinion of Judges Casadevall and López Guerra, para. 2. 126 un hchr, Study on the Right to Truth (2006), paras 26–32, 35f, 58. 127 The case originated in an operation conducted by the Brazilian army between 1972 and 1975 that aimed to eradicate the guerrilla movement Guerrilla do Araguaia. Since then, allegations of arbitrary detention, torture and forced disappearance of some 70 people have not been clarified. The amnesty laws enacted by the Brazilian dictatorship in 1979 and subsequent democratic governments precluded any criminal investigation into and disclosure of information related to the case. IACtHR, Lund v Brazil. 128 ‘[T]oda persona, incluyendo los familiares de las víctimas de graves violaciones a derechos humanos, tiene el derecho a conocer la verdad. En consecuencia, los familiares de las víctimas, y la sociedad, deben ser informados de todo lo sucedido con relación a dichas violaciones’ (translated and emphasis added by the author). IACtHR, Lund v Brazil, para. 200; See further Bishop, Internationalizing the Right to Know, 2009, p. 189.
In consequence, relatives of the victims and society have to be informed about everything that follows in relation to said violations. Such a broad interpretation of the bearer of a right to truth includes news providers who are not victims of human rights violations and not related to the victims. Applying this approach, news providers in all conflicts around the world can argue that they shall have access to government-held information on past human rights violations, which regularly happen in times of war. As an example, news providers could request information from the Syrian govern- ment about its use of chemical weapons in 2012 or of the idf about casualties during its recent operations in Gaza. While the legal nature and scope seem to be slowly emerging, it must also be noted that several other aspects of the right to truth remain controversial. The con- cept of ‘legal truth’ is, for instance, anything but clear. What is ‘truth’?129 And who defines what ‘truth’ is? Looking at icl, the concept of ‘legal truth’ is aimed at restor- ing and maintaining peace, facilitating reconciliation processes, fighting impunity, reconstructing national identities and setting a historical record.130 However, an absolute right to truth is contradictory to the rights of the accused in criminal pro- ceedings:131 such an absolute right would mean that the accused would be obli- gated to tell the complete truth about his involvement in severe human rights violations. However, the right to remain silent and not to incriminate oneself, the due process rights, and the presumption of innocence of the accused as well as the right to defend oneself exactly foresee that the accused do not have to reveal the complete truth if they do not wish to do so. The progressive approach of human rights bodies to a right to truth has therefore been criticised by several scholars.132 To summarise: The right to truth originates in the basis of humanity in ihl. It is essentially the incorporation of the procedural aspects of certain human rights violations. Together with other human rights, such as the right to justice, it is a vital component in the contemporary fight against impunity for grave human rights violations.133 Some authors then even argue that it is a separate
129 The Truth and Reconciliation Commission of South Africa, for instance, dealt with four dif- ferent types of truth: factual and forensic truth; personal and narrative truth; social truth; and healing and restorative truth. Naqvi, The Right to the Truth, 2006, p. 254. 130 Ibid, p. 246. 131 Ibid, p. 247. 132 See e.g. Koskenniemi, who argues that law cannot be of use for educating people of his- torical truths. Koskenniemi, Between Impunity and Show Trials, 2002, p. 34. 133 Méndez and Bariffi see the right to truth as one of the three obligations of states that rise in the presence of massive or systematic human rights violations: the right to justice as the obligation to investigate, prosecute, and punish; the right to truth; and the obligation to reparations. Méndez and Bariffi, Right to Truth, 2011, para. 3.
The right to the truth is a notion that seems at once idealistic and obvious to the human condition. Truth is a concept that is notoriously hard to pin down. It implies objective credibility but also requires subjective under- standing. It suggests agreement about factual reality but also space for dif- fering interpretations. … [I]t may be argued that the right to the truth stands somewhere on the threshold of a legal norm and a narrative device. Its clear link to human dignity means that nobody will deny its importance, but lin- gering doubts about its normative content and parameters leave it some- where above a good argument and somewhere below a clear legal rule.134
Future cases will have to refine the still-blurred contours of the right to truth. However, at this stage it is important to recall why we have dealt with this concept: Namely, because the right to truth offers news providers a clear basis for access to information about serious past human rights violations. We will now move on to examine the collective dimension of the right to information because it offers an additional gate for news providers’ access to information.
C Collective Dimension of the Right to Information Nobel Prize winner in economics Amartya Sen once stated that famines do not occur in societies in which there is a free press.135 He therefore describes free- dom of expression as a ‘meta-right’ of fundamental importance upon which the realization of many other rights depends.136 Researching the scope of free- dom of expression and the right to information, one often comes across similar arguments on the importance of these rights for the welfare of a democratic society as a whole. Courts and monitoring bodies that applied and described these rights regularly used a language which created some sort of collective nimbus that surrounds these rights.137 This collective nimbus has far-reaching
134 Naqvi, The Right to the Truth, 2006, pp. 272f. 135 Because, in most cases, it is not a lack of food that is causing the famine but a lack of information about the lack of access to food in poor regions. A free press exposes this danger and makes any failure to react intolerable. Sen, Development as Freedom, 1981, Chapter 7: Famines and other Crimes. 136 Sen, The Right Not to be Hungry, 1984, pp. 70f. Similarly, Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 305. 137 They have been described as economic rights, as key factors to development, as supporter and protector of the enjoment of all other rights and as a prerequisite for the functioning of a democratic system. un sr FoEx, Annual Report 2010, paras 88, 104, 111; un HRComm,
a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed.138
The Commission shored up this interpretation in later cases, stating in the first case of violence against journalists:
Freedom of expression is universal and conceptually comprises the legal authority which supports every person, considered individually or col- lectively, in expressing, transmitting, and disseminating his thought instantaneously and diachronically.139
Referring to advisory opinion oc-5/85 of 1985, the Commission went on to say that freedom to seek, receive, and impart information and ideas of all kinds means:
that those to whom the Convention applies not only have the right and freedom to express their own thoughts but also the right and freedom to
General Comment Nr. 34 (2011), paras 2f. IACtHR, Restrepo v Colombia, para. 141. See fur- ther Heyns and Srinivasan, who compare attacks against journalists with a shooting of a police officer, which is an attack on the overall police and security system. They say that an attack on a journalists is therefore likewise an assault on the foundations of the human rights project and on informed society as a whole. Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, pp. 305f. 138 (Emphasis added) IACtHR, Compulsory Membership Opinion, paras 70f. Repeated in IACommHR, Bustíos v Peru, para. 71; IACommHR, Miranda v Mexico, para. 43. 139 (Emphasis and punctuation added) IACommHR, Bustíos v Peru, para. 69.
seek, receive, and impart information and ideas of all kinds. Hence, when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to ‘receive’ information and ideas. The right protected by Article 13 consequently has a special scope and character, which are evidenced by the dual aspect of freedom of expression. It requires, on the one hand, that no one be arbitrarily limited or impeded in expressing his own thoughts. In that sense, it is a right that belongs to each individual. Its second aspect, on the other hand, implies a collective right to receive any information what- soever and to have access to the thoughts expressed by others.140
In this paragraph, the Commission clarified that the collective dimension of freedom of expression does not encompass the whole scope of the right; rather, it exists only with regard to the aspect of ‘receiving’ information and ideas. According to the both bodies, the IACtHR and the IACommHR, freedom of expression hence encompasses a social dimension – a collective right to infor- mation. On this collective right, the Commission elaborated further:
In its social dimension, freedom of expression is a means for the inter- change of ideas and information among human beings and for mass communication. It includes the right of each person to seek to communi- cate his own views to others, as well as the right to receive opinions and news from others.141
It then concluded that both the individual and the collective dimension must be guaranteed simultaneously.142 This legal concept of a collective or social dimension of freedom of expres- sion has an important effect on the protection of the work of news providers. According to the IACtHR, a society that is not well informed is not a society that is truly free.143 The work of journalism is exactly to search, recieve and distribute information, that is to say – using the Court’s words – to inform
140 IACommHR, Bustíos v Peru, para. 70 referring to IACtHR, Compulsory Membership Opinion, para. 31. See further IACtHR, Restrepo v Colombia, para. 137; IACtHR, Lund v Brazil, para. 197. 141 IACommHR, Bustíos v Peru, para. 70 referring to IACtHR, Compulsory Membership Opinion, para. 32. 142 Ibid. See also IACtHR, Restrepo v Colombia, para. 137; IACtHR, Lund v Brazil, para. 197. 143 IACtHR, Compulsory Membership Opinion, paras 70f; IACommHR, Bustíos v Peru, para. 71.
144 IACtHR, Restrepo v Colombia, para. 140. 145 Ibid; IACtHR, Compulsory Membership Opinion, para. 71. 146 IACtHR, Compulsory Membership Opinion, para. 31; IACommHR, Bustíos v Peru, para. 70; IACommHR, Miranda v Mexico, para. 46. See for an overview also Grossman, Freedom of Expression, 2012, pp. 376f. 147 Similar, Jacobs et al., echr, 2005, pp. 432f. 148 The death of one and the injuries of the other journalists touch on the individual dimen- sion of the right, while the collective dimension of the right is violated because society is being deprived of receiving information on a particular occurrence. IACommHR, Bustíos v Peru, paras 76f. 149 IACtHR, Restrepo v Colombia, paras 136, 147.
150 IACtHR, Restrepo v Colombia, para. 139. 151 ‘[T]odos aquellos procedimientos que condicionan la expresión o la difusión de infor- mación al control del Estado’ (translated by the author). IACtHR, Restrepo v Colombia, para. 139. 152 Ibid, para. 148. 153 Ibid. 154 Ibid, para. 146; IACommHR, Miranda v Mexico, para. 52. 155 IACommHR, Miranda v Mexico, para. 52; and for further references on international instruments addressing the safety of journalists, paras 53ff Cf. also un sr foex, Annual Report 2010, paras 88–103.
156 IACommHR, Miranda v Mexico, para. 49. 157 Ibid, para. 50. 158 IACtHR, Restrepo v Colombia, para. 145. 159 ECtHR, Sunday Times v uk, para. 66. 160 See, for instance, ECtHR, Dink v Turkey, paras 123f. On the collective right to information in connection with other rights, especially in the context of security threats and environ- mental risks, see ECtHR, Worm v Austria, para. 12; ECtHR, Kolyadenko et al. v Russia, para. 159; ECtHR, Öneryildiz v Turkey, paras 90, 108.
The African Commission on Human and Peoples’ Rights (AfCommHR) and the un HRComm, on the other hand, were more progressive than the ECtHR. The AfCommHR held in a case of 18 jailed journalists held incommunicado that the imprisonment of journalists not only deprives them of their rights to freely express and disseminate their opinions, but also deprives the public of its right to information.161 The un HRComm also confirmed a social dimension in its case law regarding the right to information – in and outside the scope of freedom of expression: In Nurbek Toktakunov v Kyrgyzstan, it reiterated its earlier findings that first, the right of access to information includes a right of the media to have access to information on public affairs and second, that the general public has a right to receive media output.162 Between these two steps, information can circu- late in society so that the latter can become acquainted with it, have access to it, and assess it. The un HRComm stated explicitly that this social dimension could be realised by the media or professional journalists, but also by other public asso- ciations or private individuals who exercise a watchdog function.163 Interestingly, Gerald L. Neuman, one of the members of the Committee, came back to these two dimensions in his concurring opinion in Nurbek Toktakunov v Kyrgyzstan and underscored their difference with regards to their bases in the Covenant. According to him, the first step, the right of the media to have access to information on public affairs, rises from an interpretation of Article 19 in light of Article 25 iccpr (political participation) and other rights of the Covenant.
It is not derived from a simple application of the words ‘right … to receive information’ in Article 19 (2), as if that language referred to an affirmative right to receive all the information that exists. The central paradigm of the right to freedom of expression under Article 19 (2) is the right of com- munication between a willing speaker and a willing listener. Article 19 protects strongly (though not absolutely) the right of individuals to express information and ideas voluntarily, and the correlative right of the audience to seek out voluntary communications and to receive them.164
He then distinguishes this right of the public to receive information and ideas from a willing speaker from the ‘newer’ right of access to information held by
161 AfCommHR, Article 19 v Eritrea, para. 106; AfCommHR, Jawara v Gambia, para. 65. 162 UN HRComm, Toktakunov v Kyrgyzstan, para. 7.4. 163 Ibid, paras 6.3f. 164 Ibid, Individual Opinion by Committee Member Neuman (concurring), para. 4.
165 Ibid, para. 6. 166 Ibid.
167 IACommHR, Bámaca-Velásquez v Guatemala, para. 197; IACtHR, Lund v Brazil, para. 200; ECtHR, El-Masri v Macedonia, para. 191; Naqvi, The Right to the Truth, 2006, p. 257; Salado- Osuna, The Victims of Human Rights Violations, 2005, pp. 332f; un sr Truth, Annual Report 2013, para. 19. 168 See e.g. the Separate Concurring Opinion of Judge Sergio García Ramírez in: IACommHR, Bámaca-Velásquez v Guatemala, paras 19–21. 169 With judges Casadevall and López Guerra disagreeing in their concurring opinion: ECtHR, El-Masri v Macedonia, paras 191, 263–265. 170 Ibid, para. 191; IACtHR, Lund v Brazil, para. 200. 171 IACtHR, Lund v Brazil, para. 200. 172 (Translated by the author) The concrete passage reads: ‘Asimismo, este Tribunal ha deter- minado que toda persona, incluyendo los familiares de las víctimas de graves violaciones a derechos humanos, tiene el derecho a conocer la verdad. En consecuencia, los famili- ares de las víctimas, y la sociedad, deben ser informados de todo lo sucedido con relación a dichas violaciones’. IACtHR, Lund v Brazil, para. 200.
If one takes the view that only society as a whole has a right to truth, news providers gain only of the protection of this collective right. If, on the other hand, one supports the position that every individual has a respective right to truth, news providers have an additional ‘traditional’ individual right and accordingly benefit from a double protection. The interpretation of the IACtHR in Lund v Brazil points to the latter direction, while the ECtHR left this ques- tion unanswered. To the knowledge of the author, so far there has been no complaint of a violation of the collective dimension of the right to truth by others besides the victim or their next of kin (often joined by amici curiae briefs). The same is true for the right to information: No ordinary and uninvolved citizen has claimed that an attack against a journalist violated his individual right to receive information as part of the collective right of society. Future cases will hopefully clarify this uncertainty. To conclude, it can be deduced that there is a collective right to informa- tion in international law. While the collective right to information on the basis of freedom of expression is recognised by un organs and the Inter- American human rights system, the ECtHR is still reluctant in this regard. The collective dimension of a right to truth, on the other hand, has recently been recognised by all major regional and universal human rights bodies. However, the legal nature of the right to information based on both concepts is still not clarified. This ambiguity is mirrored in the large number of dis- senting and concurring opinions in the case law. Nevertheless, restrictions on the access of news providers to government-held information and infor- mation about grave human rights violations consequently restrain the watchdog function of news providers and ultimately the collective rights of society to state-held information and to truth. However, with regard to the functional protection of news providers, this means that the collective right to information based on freedom of expression does not offer an additional legal foundation (despite political-legal support), while the collective dimension of the right to truth does.
3 Beyond Orthodoxy: A Right to Receive News? After establishing the emerging collective human rights to information and to truth, this section investigates now whether the scope of these rights reaches so far that one can even make a plea for the existence of a ‘human right to receive news’. This question must be posed in view of the overall research question of this study, because a right to receive news for every individual would offer a very specific protection for the activity of news providers. Essentially, they would be the functional personification of such a right.
Different courts and international bodies have supported such a concept. The un HRComm, for instance, stated in the case Nurbek Toktakunov v Kyrgyzstan explicitly that the public and its members have a ‘right to receive media output’.173 It repeated this finding in its General Comment on freedom of expression in 2011 when stating that state actions to encourage an independent and diverse media are an adequate means of protecting the rights of media users, such as the right to receive a wide range of information and ideas.174 Both the ECtHR and the IACtHR implicitly used a similar approach. The ECtHR early in its history stated that freedom of expression not only gua rantees ‘the press to inform the public but also the right of the public to be properly informed’.175 The IACtHR supported a comparable view with its aforementioned statement that a society that is not well informed is not a soci- ety that is truly free.176 In numerous cases it stated further that in its social dimension, freedom of expression is a means for mass communication, which also includes ‘the right of each person to receive opinions and news from others’.177 Hence, one could argue that the human rights to free expression and to information form the common ground for an intrinsic human right to receive news. And because there is no exclusive definition of the term ‘news’, such a right includes all sorts of information. Thus, the concept of a human right to receive news includes the reception of all information others are willing to impart and obliges states not to interfere with the distribution of such infor- mation. It would be a guarantee of a free flow of information in the public sphere, and offer a protective fence around the invisible marketplace of news. In addition, such a concept allows news providers access to government-held information about past human rights violations.178 But what legal nature does such a concept have? Is it an idea or an ideal? Is it a custom of international law, or a principle? Or is it just the common ground
173 un HRComm, Toktakunov v Kyrgyzstan, para. 7.4. See further: un HRComm, General Comment Nr. 34 (2011), para. 13. 174 un HRComm, General Comment Nr. 34 (2011), para. 14. 175 ECtHR, Sunday Times v uk, para. 66. 176 IACtHR, Compulsory Membership Opinion, paras 70f; IACommHR, Bustíos v Peru, para. 71; See also IACtHR, Restrepo v Colombia, para. 138. 177 IACtHR, Compulsory Membership Opinion, para. 32; IACommHR, Bustíos v Peru, para. 70. See further IACtHR, Restrepo v Colombia, para. 137; IACtHR, Lund v Brazil, para. 197; IACtHR, The Last Temptation of Christ, para. 66. 178 States, however, do not have a positive obligation to disseminate news by themselves. Cf. Jacobs et al., echr, 2005, p. 450.
Freedom of expression is the basis of human rights, the source of human- ity and the mother of truth. To block freedom of speech is to trample on human rights, to strangle humanity and to suppress truth.182
Applying Xiaobo’s understanding on Navqi’s concept of custom in interna- tional law, a human right to receive news requires a lesser amount of confirma- tory evidence of its customary character.
179 Cf. Introduction pp. 11f; Tullio, Customary International Law, mpepil, 2006, para. 8. 180 Cf. Meron, Custom in ihl, 1996, p. 94. 181 Naqvi, The Right to the Truth, 2006, pp. 267f. See also Meron, Custom in ihl, 1996, pp. 35, 113. 182 Liu Xiaobo, cited in Coonan, China Condemns ‘Insult’ of Award for Jailed Dissident Liu Xiaobo. The Independent, 9 October 2010.
However, customs only develop and are binding if the process of their for- mation is based on a mutual understanding of states. If one state objects to the existence of the rule, it does not bind him. This is called the rule of a persistent objector. Hence, it could be argued, that all sorts of interferences of states with communication, specifically with news production and distribution, as we have seen in various examples in Chapter 1, have shown that states’ legal sense of obligation is not yet strong enough for a right to receive news to gain the nature of a custom.183 It is therefore too early to say that a right to receive news has emerged as a customary norm of international law.
4 Essence of Part I This first part of Chapter 4 has shown that there are a number of pillars that guarantee the functional protection of ‘providing news’ in hrl. While some, like the individual dimension of freedom of expression, are established and stable concepts of the international human rights framework, others, like the right to information in its individual and collective dimension, are still emerg- ing and ultimately depend on the views of the judges sitting in the courtrooms of the major human rights bodies. Essentially, the foundations of the func- tional protection of news providers can be summarised in the follow To con- clude, it can be deduced that there ing table: In summa, free expression of news providers in all forms as well as the com- munication and distribution of such expression are protected by the tradi- tional right to free expression. In addition, the newer right to information guarantees news providers access to state-held information and to informa- tion about serious human rights violations. Since this basis of the functional protection is exclusively rooted in hrl, it is all more pertinent to analyse how this framework balances these rights with the rights of others and interests of challenged state security in times of armed conflict, as well as how ihl restrains or completes this protection. The next part will therefore elaborate on the most frequent or disputed limitations of the functional protection of news providers and examine their accordance with international law.
183 See various examples in Chapter 1, pp. 62ff.
II Limitations of the Functional Protection
The previous part of this chapter showed that news providing is protected by various human rights. Nevertheless, this protection faces the possibility of severe limitations, which will be scrutinised on the following pages. The present section starts with an outline of the general parameters for restrictions on freedom of expression and the right to information and moves subsequently to specific areas of special importance or legal interest for news providing in armed conflict.
1 General Limitations of Human Rights during Armed Conflict Armed conflicts are extreme situations of emergency that strain every demo- cratic society and government. It is therefore a long tradition in international law that the balance between the rights of the people and the power of the government shifts in situations of armed conflict toward more power for the government. Human rights may therefore experience severe restrictions; they might even be derogated. However, such derogations and restrictions must ful- fil certain requirements, which will be presented in this section.
A Derogation of Freedom of Expression and the Right to Information The derogation of states from human rights treaties means a temporary abro- gation of the obligation of states to respect, protect and fulfil human rights. Every major human rights treaty includes a derogation clause. Article 4 iccpr, for instance, provides that states may take measures derogating from their obligations under the Covenant to the extent strictly required by the
184 E.g. the right to access justice, the right to an effective remedy, the right to an effective investigation and to be informed of the results, the right to a fair trial or the right to be free from psychological torture. 185 According to the interpretation of the IACtHR and the IACommHR, news providers have also an individual right to information that derives from the collective dimension of the right to information. Yet this aspect of the collective right offers them no additional foun- dation that is not already covered by their individual right to information. 186 Except the case that a news provider is a victim or a relative or representative of the victim. 187 News providers gain from this protection no matter if one follows the interpretation of the Inter-American human rights bodies or the ECtHR and the un High Commissioner. As messengers for such information for society, they are anyway bear- ers of the collective dimension of the right to truth. The American interpretation, however, offers them a double protection: once, as individual persons and second, as messengers for society.
188 Article 4 iccpr foresees that derogations are possible in exceptional situations, involving a threat to the life of the nation. An armed conflict does not necessarily imply such a threat to the nation; it is only considered such if it cannot be contained by resorting to those limitations on rights that are permissible under the ordinary provisions of the Covenant. The echr can be derogated under four conditions: (a) the emergency must already exist or be imminent; (b) it must affect the whole of the nation; (c) the organized life of the community must be threatened; and (d) the situation must be such that normal measures permitted under the Convention will not be adequate to address that situation. Article 27 achr, on the other hand, refers directly to ‘time of war’. Nevertheless, deroga- tions of the achr are justified in extremely grave situations only, when such suspension is the only way to preserve the highest values of a democratic society and under the requirements of (1) necessity, (2) timeliness, (3) proportionality, (4) compatibility, (5) non-discrimination, and (6) compliance with the law by the authorities. See Kretzmer, State of Emergency, 2008, paras 8, 9, 12; un HRComm, General Comment Nr. 34 (2011), para. 3; Grossman, Freedom of Expression, 2012, pp. 397f. 189 AfCommHR, Commission Nationale de Droits de l’Homme et des Libertés v Chad, para. 21. 190 The four most fundamental human rights which are non-derogable under the iccpr, echr and achr are the right to life; the prohibition of torture and other forms of cruel, inhumane or degrading treatment or punishment; the right to be free from slavery and servitude; and the right not to be subjected to retroactive punishment. For more details on the different catalogues on non-derogable rights see Kretzmer, State of Emergency, 2008, paras 22ff. 191 un hchr, Study on the Right to Truth (2006), p. 2, para. 60.
B Lex Specialis of Article 79 ap I as a Non-Derogable Right to News? ihl does not explicitly protect the activity of news providing. Yet, as shown in Chapter 3, Article 79 ap I and customary ihl protect news providers as civil- ians. hrl, on the other hand, clearly guarantees the rights to free expression and information of news providers. Hence, hrl covers the protection of all aspects of their activity, with the exception of a possible derogation. Now, it could be argued that the rule of ihl, which protects persons who seek, receive and impart information during armed conflict, is a lex specialis rule to hrl – a lex specialis that implies the indirect protection of a right to free expression
192 Geiss, The Protection of Journalists, 2008, p. 305. 193 In the case, the Commission determined that Greece was not justified in derogating from the echr and that the measures adopted, including press censorship, were a violation of Article 10 echr. The uk and Turkey have both also derogated from the convention but from Article 5 and not Article 10 echr. ECommHR, Denmark, Sweden, Norway and the Netherlands v Greece, pp. 131–138.
there are elements that in the Committee’s opinion cannot be made sub- ject to lawful derogation under Article 4. [ … ] Freedom of opinion is one such element, since it can never become necessary to derogate from it during a state of emergency.195
Although this would have been the perfect moment, the un HRComm did not state the same for freedom of expression and the right to information. The ECtHR and the IACtHR have similarly addressed restrictions on freedom of expression and information during armed conflict. They both have not mentioned a non-derogability of the rights or partial aspects of them but applied instead very strict scrutiny in testing the legitimacy of limitations. Thus, the parameters for such limitations will be outlined in the next section.
C Parameters for Restrictions on Freedom of Expression and the Right to Information Besides derogation, states also have the possibility of putting restrictions on freedom of expression and the right to information. Obviously, during armed conflict, the power of the state is strained and the importance of national
194 Gasser argues on the same basis for an indirect promotion of a right to information in times of war but not for a lex specialis. Gasser, Protection of Media Workers, 2009, para. 16. 195 un HRComm, General Comment Nr. 34 (2011), para. 5.
- the protection of national security or of public order, public health or morals; - the respect of the rights and reputations of others; - propaganda for war or the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
Restrictions which do not comply with these requirements arbitrarily prevent news providers from providing news. aa Freedom of Expression versus National Security In times of armed conflict, the most frequently applied reason for limitations of information and communication is the reference to national security.
196 Emerson, Freedom of Expression in Wartime, 1968, p. 975. 197 Article 19 (3) iccpr. The echr and the achr held similar requirements for restrictions of human rights based on their foundation in the law and the principles of necessity and proportionality. In Article 9 (2), the AfChHR stipulates only that any restriction must be provided by law. Yet Article 29 (3) establishes the possibility of national security as an argument for restrictions. For an overview, see Pape, Schutz der Presse, 2013, pp. 98–108.
Yet national security cannot totally overturn free expression. Louis Joinet and Danilo Türk, two former un Special Rapporteurs on the promotion and protec- tion of the right to freedom of opinion and expression, developed in 1992 a set of guidelines for restrictions of freedom of expression with regards to national security in times of armed conflict.198 They stated that the legal basis for such restrictions may be interpreted extensively in such situations, but at the same time, any restriction must be interpreted restrictively. Joinet and Türk further stressed that all restrictions must not contradict ihl and must be aimed at the overall goal of reestablishing peace. If a measure does not aim at this goal, it cannot be proportional.199 Overall, the human rights bodies have used a similar approach when assess- ing restrictions on free expression in the light of national security interests. Article 19 (3) iccpr legitimates restrictions because of national security only if there is a severe political or military threat for the whole state.200 Such a threat can be the protection of the territorial integrity or political independence against threats from outside the state, such as espionage. The threat must be one of ‘national’ importance, that is, addressing the whole nation. According to Pape, this level of threat shall be interpreted in the light of Article 2 (4) un Charter.201 Besides this general yardstick, states have significant room to assert that an issue is in the interest of national security. Nevertheless, any restriction must be proportional, and in this respect, the un HRComm applies a very restrictive interpretation of the measures taken. The Committee is thereby inspired by the Johannesburg Principles, a set of guidelines which were drafted in the 1990s with the aim of refining possible restrictions of Article 19 (3) iccpr in light of threats to national security.202 Principle 2 of these guide- lines states:
(a) A restriction sought to be justified on the ground of national secu- rity is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the
198 Cited in Mukherjee, Protection of Journalists, 1994, p. 351; Mukherjee, Internationalization of Journalists’ ‘Rights’, 1995, p. 110. 199 Ibid. 200 Cf. Keller and Sigron, State Security v Freedom of Expression, 2010. 201 Pape, Schutz der Presse, 2013, pp. 120f. In the view of this study’s definition of armed con- flict, the yardstick of Article 2 (4) un Charter will in most cases be surpassed. 202 See further also the Siracusa Principles, a forerunner of the Johannesburg Principles.
use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government. (b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demon- strable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrass- ment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.
The Johannesburg Principles further state that states must demonstrate that the expression in question is intended to incite imminent violence, is likely to incite such violence, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.203 The yardstick for restrictions of Article 19 (3) iccpr is therefore rather high. In the past, this has often led to the finding of a violation of the iccpr.204 The ECtHR applies a similar method, giving states significant room for their interpretation of national security but applying a strict proportionality and necessity yardstick: issues of national security can be espionage, treason, ter- rorism or a functioning military apparatus; and the correlative restrictions, for instance, the banning of distribution of flyers,205 suppression of certain tv broadcasts206 or prohibition of the publication of military secrets.207 In gen- eral, restrictions must be very specific and narrowly tailored to avoid a violation of Article 10 echr.208 Hampson therefore concludes that the case law of the
203 For a series of protected expressions, see further Principles 7–9 of the Johannesburg Principles and also the Siracusa Principles, para. vi. 204 See e.g. un HRComm, Mukong v Cameroon; un HRComm, Sohn v Republic of Korea; un HRComm, Park v Republic of Korea, un HRComm, Kim v Republic of Korea; un HRComm, Laptsevich v Belarus; un HRComm, Dergachev v Belarus. 205 Broadly stated, the ECtHR generally only allows restrictions of explicit calls to violence or, in one of the cases, to desertion of soldiers. See e.g. ECtHR, Zana v Turkey; ECommHR, Arrowsmith v uk. 206 The focus lies in such cases on the content of the broadcast and not on the journalist’s position in relation to it. Cf. ECommHR, Purcell et al. v Ireland; ECommHR, Brind v uk; ECtHR, Jersild v Denmark. 207 Thereby, the ECtHR generally recognised that the interest of confidentiality exists no lon- ger when sensitive information has already been in the public sphere. Cf. ECtHR, Vereniging Weekblad Bluf! v Netherlands; ECtHR, Guardian v the uk. 208 See, for a narrowly tailored example, ECommHR, Brind v uk.
ECtHR follows the premise: ‘The more wide-raging the restriction, the more robust the scrutiny’.209 Similar to the un HRComm and the ECtHR, the Inter-American human rights bodies apply the parameters of proportionality and necessity regarding restrictions of freedom of expression caused by national security interests.210 Yet, within this assessment, they pay special attention to the interests of a democratic society. In 2005, the IACtHR stated further in a landmark judge- ment that general pre-censorship of non-published information, such as the seizure of not-yet-released publications or the banning of Internet pages for the public, is not in conformity with the achr.211 Besides this case, the IACtHR had only a few opportunities to refine its yard- stick regarding freedom of expression and national security. It can only be noted that in the few cases considering attacks on news providers during armed conflict, the IACtHR as well as the IACommHR applied the same parameters as for restrictions during peacetime. In connection with the Bustíos case, the Commission stressed, for instance, that the authorities shall:
provide the greatest possible protection to the two journalists in order for them to have the ability to carry out their function of seeking, covering, and disseminating information on occurrences in the area with the great- est guarantees possible.212
In the case Carpio Nicolle v Guatemala, which occurred during a niac, the IACtHR also applied the same yardsticks for an assessment of the violation of the rights of a murdered journalist as it applied in cases of peacetime.213 In both cases, national security did not have an effect on the applied parameters. Overall, human rights bodies have applied rather tight yardsticks to assess restrictions on freedom of expression in the interest of national security.214
209 Hampson, Freedom of Expression in Situations of Emergency, 2012, p. 453. See further also Pape, Schutz der Presse, 2013, pp. 124ff. 210 Article 29 (c) achr; IACtHR, Compulsory Membership Opinion, para. 42. 211 See e.g. IACtHR, Palamara-Iribarne v Chile. For cases on libel and defamation see further the landmark decision IACtHR, Herrera-Ulloa v Costa Rica or for a more recent and restrictive judgement: IACtHR, Mémoli v Argentina. 212 (Punctuation and emphasis added) IACommHR, Bustíos v Peru, para. 75. 213 See IACtHR, Nicolle v Guatemala, para. 82 (e). 214 However, there exists no common definition of national security. Pape, Schutz der Presse, 2013, pp. 140f.
In the view of the functional protection of news providers, this is a very wel- come jurisprudence that takes the fundamental importance of independent reporting into account. Independent coverage of an armed conflict provides an essential check on violations of human rights and humanitarian law rules.215 As an example, military information about war crimes and breaches of the gcs shall only be restricted as long as there is a necessity for its confidentiality. If this necessity no longer exists, the disclosure of such crimes has priority.216 However, a strict prohibition of pre-censorship, such as that applied by the IACtHR, might be too restrictive in times of armed conflict.217 As an example: Any imminent damage caused by the publication of military secrets can only be addressed with pre-censorship because the damage arrives with the first publication and not necessarily with its further distribution. However, gener- alised preventive restrictions, such as general blockades of communication (ie mobile network and Internet interruption) and pre-censorship can easily violate human rights because they are not narrowly tailored and therefore not proportional to the requirements of the specific case.218 bb Freedom of Expression Versus the Rights and Reputations of Others Another reason for restrictions foreseen by all major human rights treaties is the protection of the rights and reputations of others. It is a very sensitive challenge for states to find the right balance between restricting freedom of expression because of its obligation to protect the rights of others and at the same time not violating free expression of the speaker. This is even more critical in times of armed conflicts, when the rights of other individuals are drifting in the back- ground of state interests. Speech and other media output often touch on the rights and reputations of others, their private lives, or their political or religious beliefs. Regional and domestic criminal codes on the right to privacy and on hate speech, incitement to violence and discrimination, and defamation laws address this problematic and draw the line between protected and prohibited behaviour of the media. In addition, ihl stipulates that certain persons shall be protected from public curiosity. This issue will be further discussed below as one of the most relevant restrictions on freedom of expression in armed conflicts.219
215 Geiss, The Protection of Journalists, 2008, p. 304. 216 Cf. Pape, Schutz der Presse, 2013, pp. 118f. 217 Ibid, p. 131. 218 un HRComm, General Comment Nr. 34 (2011), para. 22. For an analysis of the jurispru- dence of the AfCommHR, see Pape, Schutz der Presse, 2013, pp. 133ff with further references. 219 See below, pp. 262ff.
220 See below, pp. 265ff. 221 Bishop, Internationalizing the Right to Know, 2009, pp. 78f. 222 ECtHR, Bojolyan v Armenia, para. 58; Pape, Schutz der Presse, 2013, p. 97. 223 Cf. Principle 12 Johannesburg Principles, which reads: ‘A state may not categorically deny access to all information related to national security, but must designate in law only those specific and narrow categories of information that it is necessary to withhold in order to protect a legitimate national security interest’. 224 Principle 14 Johannesburg Principles. 225 At the same time it is recognized that individuals receiving unauthorized confidential or classified materials should not be punished. Bishop, Internationalizing the Right to Know, 2009, p. 204.
Limiting the right to information to the realm of political/public inter- est contexts gives rise to both conceptual and practical difficulties. At a conceptual level, such a limitation does not sit well with one of the basic principles of information access laws: that access rights accrue to everyone, regardless of their capacity to establish any particular interest in accessing the requested information, and that the motive of a requester in seeking access to information should therefore be disregarded.227
Hence, only exceptional limitations of the right to information are legitimate in the case of a real and imminent danger for national security. Contrary to freedom of expression and the right to information on the basis of freedom of expression, the right to truth shall not only be non- derogable, it shall also not be subject to limitations.228 In cases of severe human rights violations, the authorities cannot apply mechanisms like the ‘secret of the state’, ‘confidentiality’, public interest or national security to deny requested information by the judicial and administrative authorities investigating charges of human rights violations.229 Amnesties or similar measures and restrictions must never be used to limit, deny or impair the right to the truth.230 Consequently, when a right-to-truth claim is made, the state has the obligation to respond in good faith to all information requested by the investigating authorities, the victims and their next of kin. To this end, the decision about access to requested information should never depend exclusively on a state body whose members are suspected of committing the illicit act.231 In order to facilitate the highest protection, the burden of proof regarding the non-existence of the requested information lies ultimately with the state.232
226 un HRComm, General Comment Nr. 34 (2011), para. 19. 227 For the complex question of restrictions, especially highlighting the question of interest in the information, see McDonagh, The Right to Information, 2013, pp. 50ff. 228 un hchr, Study on the Right to Truth (2006), p. 2, para. 60. 229 IACtHR, Lund v Brazil, para. 202. 230 un hchr, Study on the Right to Truth (2006), para. 60. 231 IACtHR, Lund v Brazil, para. 202. 232 Ibid, para. 211.
The previous section outlined the general parameters for restrictions on the functional protection of ‘providing news’ in international law. The next section will also deal with limitations of freedom of expression and the right to infor- mation, paying close attention to six issues that are of specific relevance for the activity of providing news: (1) access to the area of conflict, (2) the accusation of espionage, (3) the protection of protected persons from public curiosity, (4) criminal liability for speech in international law, (5) the targeting of media facilities, and, finally, (6) the issue of a testimonial privilege for news providers before international tribunals.
2 Restrictions on Access to the Conflict Zone I start this list of special issues with a short elaboration on access to the conflict zone, one of the fundamental preconditions for accurate war coverage: In the 2008 Gaza crisis, the Israeli military established a complete news blackout and did not allow news providers to enter the territory of the Gaza strip and report on the idf’s military operation there.233 This practice made independent reporting from Gaza impossible. International humanitarian law does not provide any provisions on access of news providers to conflict zones. Therefore, news providers do not benefit from special rules and must respect the country’s domestic regulations con- cerning access to its territory like any other person entering a foreign country. They must respect domestic laws that foresee the loss of the right to reside and work in a foreign country if the person has entered it illegally.234 And even in the case of a legal entry of news providers into a foreign country, the parties to a conflict have the possibility to ‘remove’ them as part of the civilian popula- tion from a certain area as a precaution against the effects of attacks.235 This precautionary removal of civilians is not only a possibility but also an affirma- tive duty of the parties to a conflict in the case of high risk. It is, however, ques- tionable whether states are allowed to deport news providers by force if they refuse to move.236 In any event, a complete blockade of access of all news providers as practiced in Gaza 2008 is incompatible with Article 79 ap I. This article presupposes the general acceptance of news providers in the terri- tory of armed conflict. Accordingly, every restriction of access must be in
233 As a consequence, only journalists who were already in the territory, mostly Palestinians, reported about the ongoing operations. Chapter 1, pp. 49ff. 234 Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, p. 117. 235 Article 58 (a) ap I and Article 49 gc IV (under very restrictive conditions). 236 Article 35 gc IV furthermore states everyone’s right to leave the territory of a party to a conflict.
It is normally incompatible (with the Covenant) to restrict the freedom of journalists and others who seek to exercise their freedom of expres- sion … to travel outside the State party, to restrict the entry into the State party of foreign journalists to those from specified countries or to restrict freedom of movement of journalists and human rights investigators within the State party (including to conflict-affected locations, the sites of natural disasters and locations where there are allegations of human rights abuses).237
This implies that all member states of the iccpr must allow news providers to enter and leave their territory. This interpretation is also supported by Frank La Rue, un Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, who stated:
It is recommended that States take all actions necessary to ensure that representatives of the national and international press have access to all facts and to all places, including zones of internal or international armed conflict, while guaranteeing the protection necessary to safeguard their lives and their physical and mental integrity, together with the full exer- cise of their human rights in accordance with international human rights law and international humanitarian law.238
Hence, automatically overruling national security interests cannot justify a complete denial of media access. It is also hard to argue that complete denial
237 (Emphasis added) un HRComm, General Comment Nr. 34 (2011), para. 45. See further also Appendix to Recommendation Nr. R (96) 4, Principle 10 and Principle 11, which states general conditions for the use of accreditation systems. See further Zanghi, Protection of Journalists, 2005, p. 153. 238 (Emphasis added) un sr FoEx, Annual Report 2010, para. 132. The right of news providers to access territories of armed conflict is further mentioned in Principle 10 of the Recommendation of the Committee of Ministers of the Council of Europe in 1996 and in Principle 19 of the Johannesburg Principles. CoE, Rec R(96)4 (1996), paras H, 12.
239 Geiss, The Protection of Journalists, 2008, p. 304. 240 Israeli and foreign journalists had already been denied access since the beginning of November 2008. The fpa petitioned against this policy as early as November 2008. Yet the first hearing was only set for 31 December 2008, after the petitioner urgently requested a decision in light of the ongoing Israeli military operation in the Gaza Strip Supreme Court of Israel, fpa v Southern Command I. 241 Supreme Court of Israel, fpa v Southern Command II. Cf. further Goldstone Report (2009), paras 116, 1805. 242 us District Court, District of Columbia, Flynt v Weinberger; us Court of Appeals: Flynt v Weinberger.
The second case, The Nation Magazine v United States Department of Defense,243 dealt with restrictions on media access during the First Gulf War, especially outside the official press-pools. Again, the court – this time the us District Court of New York – decided that is was not possible to find general parameters for access to conflict areas. Yet, it held at the same time in an obiter dictum that restrictions of access to a press-pool should not be arbitrary.244 The third case, Flynt v Rumsfeld,245 dealt with the embedding practice of the us military in Afghanistan. More precisely, it concerned the denial of access of a reporter to a special force ground troop of the us military in Afghanistan. The compatibility of the embedding rules for the wars in Iraq and Afghanistan with American constitutional law has also been extensively evaluated in us scholar- ship.246 However, although some limitations of the embedding rules raise First Amendment concerns about governmental distortion of the news and, most significantly, a structural tendency to promote pro-military coverage, scholars and the Circuit Court for the District of Columbia have stated that the us embedding program does not violate the First Amendment of the us Constitution.247 The Circuit Court for the District of Columbia furthermore stressed in Flynt v Rumsfeld that there exists no such thing as a First Amendment right of media access to us military operations.248 That being so, the denial of access of Flynt to a special force in Afghanistan was compatible with us law, while extensive access to other troops was allowed. In total, the common tenor of national case law seems to allow certain restrictions on access to military operations (eg to special troops on the ground), while forbidding a complete media blackout from an armed conflict and even major military operations. Further, the burden of proof for the legiti- macy of all prior restraints on access lies with the government.
243 us District Court, sd New York, The Nation Magazine v us Department of Defense. 244 Ibid, paras 1571–1574. 245 us Circuit Court, District of Columbia, Flynt v Rumsfeld; us Supreme Court, Flynt v Rumsfeld. 246 For an overview on the us tradition of access of the media see Jazayerli, War and the First Amendment, 1995; Zeide, In Bed with the Military, 2005; Smith, From the Front Lines, 1993; Cross, Press Access to us Military Operations, 1987; Steger, Gordian Knot, 1994; Klein, The Censor’s Red Flair, 1992. 247 It was even argued, that embedding promotes free speech principles better than alterna- tive press access or the removal of restrictions and promotes clear standards for military accountability. See Zeide, In Bed with the Military, 2005. 248 us Circuit Court, District of Columbia, Flynt v Rumsfeld; us Supreme Court, Flynt v Rumsfeld.
3 Espionage and Dissemination of Military Secrets The second highlighted issue in this list is espionage, a special case of restric- tions to freedom of expression and the right to information in light of severe national security interests. Historically, one of the major legal weapons employed against uncomfortable opinions of internal opponents has been the crime of treason. For external opponents the equivalent has been the crime of espionage. But this legal weapon is not a relic of ancient times. On the con- trary, it is a major issue for contemporary war reporting: In Libya and Syria, news providers had been accused of being spies.249 Michael Ware, a New York Times correspondent in Afghanistan, even said once that war correspondents deal with such suspicions daily: ‘In Afghanistan, every Westerner is a spy until proven otherwise’.250 In fact, the activity of news providers and spies is often similar. Both collect and share information about operations. ihl describes the activity of espio- nage using the following characteristics:
(a) gathering or attempts at gathering information of military value; (b) acting from false pretences or in a deliberately clandestine manner; (c) on the territory of another state (a possible party to the conflict); (d) with the intention to deliver the gathered information to the adversary.251
Criteria (a) and (c) are certainly fulfilled by the work of news providers. Additionally, criterion (d) might be fulfilled when news providers share gath- ered information through an international news entity. Then, it can easily hap- pen that besides a wide public audience, an adversary will also receive the gathered information. However, the information is then in the public sphere, and the headstart on new knowledge, an immanent component of spying, has disappeared. As soon as information arrives in the public sphere, it is no longer a military secret. In fact, it is the intention that matters. While spies act in
249 For details see Chapter 1, pp. 2, 60, 77. Also Hassan Bility, a journalist reporting on Sierra Leone was accused of being a spy. Easterday, Charles Taylor Trial Report, 2009, p. 10. See for this case further below, pp. 329ff. 250 Cited in McDonald, Under Fire, 2003, p. 156. The accusation of espionage was always one of the most frequent accusations of news providers. For earlier examples, see Boiton- Malherbe, La protection des journalistes, 1989, pp. 36ff. 251 See cumulatively Article 46 (3) ap I about espionage in the context of occupation and Articles 29–31 H IV R; Article 88 Lieber Code; Rule 107 cl-Study: Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 389f. Further on spies, Fleck, Handbook ihl, 2013, pp. 107ff.
252 Geiss does not focus on the clandestine way of gathering, but describes the aim of spies to deliver the information to the enemy as the main difference between spying and pro- viding news. Geiss, The Protection of Journalists, 2008. 253 See Düsterhöft, who wrongly assumes the opposite. Düsterhöft, The Protection of Journalists, 2013, p. 13. 254 Article 46 (1) ap I. This rule applies when they are captured while engaged in spying. If they are captured after the completion of the espionage mission and they have already returned to their troops, they shall be treated as pows. Fleck, Handbook ihl, 2013, p. 109. 255 Article 46 (2) ap I. Rules 99 and 100, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 115–118. 256 For spies who are members of the armed forces, Article 46 (1) ap I applies. 257 According to the cl-Study, this is a custom of ihl: Rule 107 cl-Study, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 389f. Further also Fleck, Handbook ihl, 2013, p. 109. 258 ECtHR, Bojolyan v Armenia, para. 45. 259 Ibid; See also Nowak, iccpr Commentary, 2005, p. 355.
[T]he Court considers that non-classified information may vary signifi- cantly in its nature and substance, as well as the manner and purpose of its communication, as opposed to secret information, which due to its special status will almost invariably result in damage to national security interests if obtained by an intelligence service of a foreign State. The exis- tence of any damage or threats to national security must therefore be assessed in the particular circumstances of each case. The Court admits that the domestic courts are better equipped than this Court to assess whether and what damage can be done when non-classified information is communicated to an intelligence service of a foreign State. Nevertheless, the margin of appreciation enjoyed by the domestic courts in this matter, even if a wide one, cannot be said to be unlimited and, as in all other freedom of expression cases, the assessment of the necessity for any restriction goes hand in hand with European supervision.260
The applicant of the case had worked as civil servant for the Armenian minis- try of foreign affairs and as a journalist for different news entities, such as ntv tv, msnbc and the anatolian news agency. During this work he started to prepare analytical material concerning Armenia’s politics and economic situa- tion for some Turkish officers, using press material and his personal knowl- edge. The communicated material also included information of a military nature, inter alia, data concerning the guarding of the borders of Armenia by Russian and Armenian border guards, identification of border guards, check- points and high-ranking officials in the Ministry of Defence of Armenia, the strength of the Armenian army, the existence of radar and military airports, the types and number of military aircrafts and so on.261 The applicant claimed that the information was a result solely of his journalistic activity, but the information was communicated exclusively to a foreign intelligence service. Therefore, the court held that a penalty of ten years’ imprisonment, ‘while undoubtedly harsh’, could not be regarded as disproportionate.262 To conclude this section it can be said that although they have similarities, news providers and spies must clearly be distinguished from each other. States shall not use accusations of spying in order to avoid independent reporting. Moreover, it is the responsibility of each news provider to act publicly and not
260 ECtHR, Bojolyan v Armenia, para. 59. 261 Ibid, para. 60. 262 On the other hand, a ban on dissemination of information which no longer has a secret character and is therefore considered to be in the public domain is incompatible with the requirements of Article 10. Ibid, paras 58, 62.
4 Protection of Protected Persons from Public Curiosity The third section of special limitations examined in this chapter deals with the protection of certain persons from exposure to public curiosity. Article 27 (1) gc IV generally obliges states to respect protected persons, their honour, their family rights, their religious convictions and practices, as well as their manners and customs. In addition, they shall especially be protected against public curi- osity. Article 13 (2) gc III states the same protection for pows. Both prohibi- tions clearly forbid presenting protected persons to the public as a trophy of war, especially through visual material by which the person could be identi- fied. Using this provision, states can legitimately prohibit news providers’ access to protected persons. These rules are an ihl lex specialis for restrictions of freedom of expression, more specifically of Article 19 (3) iccpr (respect of the rights and reputations of others).263 However, this rule only applies in iac and there is also no such rule with regards to civilians who live in occupied ter- ritory.264 However, the obligation to respect the human dignity of persons from disturbing and degrading records is moreover part of hrl. And customary ihl also establishes that persons hors de combat must be treated humanely.265 According to Geiss, this rule is even a principle of general international law.266 It can therefore be argued that the protection of vulnerable persons from pub- lic curiosity falls within the scope of hrl and customary ihl for iac and niac. States have introduced this prohibition in their domestic military regula- tions. The embedding rules of the us military for its mission in Iraq incorpo- rated, for example, provisions stating that no photographs or other visual media showing an enemy pow’s or detainee’s recognizable face, nametag or other identifying feature or item may be taken.267 In addition, still or video
263 Cf. above, p. 252. 264 Contra: Gasser, Right to Information, 2003, p. 378. 265 Rule 147 cl-Study: Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 164ff. 266 Gasser, Right to Information, 2003, p. 377. Thürer and Kempin further argue, that this rule is not only applicable for the parties to the conflict but for all contracting states of the gcs (referring to Article 129 gc III). Thürer and Kempin, Kriegsberichtserstattung und humanitäres Völkerrecht, 2009, p. 766. 267 us Dep of Defense, Media Embed Ground Rules (2003), Rule 4G.
One of the pilot’s eyes was purple and swollen shut. As the filmed inter- view progresses in the presence of the prisoner’s armed captors, the jour- nalist explains to the public: ‘We had no way to establish exactly how he had been treated before we got there, or what kinds of pressure he was under. But we wanted to hear his story’. Among other questions, the cor- respondent asked the prisoner: ‘Did you understand … that you were bombing civilians?’ The captured pilot appears frail and afraid in the video but the journalist explains: ‘Most think the pilot’s innocence is feigned, a ploy to escape responsibility for his actions’.269
This interview clearly exposed the pilot to public curiosity. The nature of the questions and the journalists’ comments concerning the pilot’s behaviour fur- ther increased his vulnerability. The Free Syrian Army as a party to the conflict should have protected its prisoner from such an interview. Many other examples attest to an ignorance of the parties to armed conflicts and the media in this regard: Already during the war in Iraq, Al Jazeera had broadcast dead coalition soldiers and the interrogation of frightened American pows.270 The publication of the infamous and humiliating pictures of the Abu Ghraib prison by various international media outlets was similarly critical in light of the provisions of protection of detainees to public curiosity. And in the Syrian conflict, many traditional media houses did not comply with these rules: In a broadcast of December 2012, Syrian officials ‘paraded’ six prisoners before the bbc and a national film crew. The video of this parade showed the passport of one of the prisoners, clearly legible.271 In April 2013, the New York Times published a video on its website that recorded interviews with prisoners of the Syrian government accused of being former rebel fighters. In this video,
268 Cf. Chapter 1, pp. 38ff. 269 Saxon, Humanitarian Law, Ethics, and Journalism in Syria, cpj Blog, 29 January 2013. 270 Knightley, The First Casualty, 2004, p. 538. 271 Saxon, Humanitarian Law, Ethics, and Journalism in Syria, cpj Blog, 29 January 2013.
When it is reasonable to believe that publication of the detainee’s face, identity, or other information may assist his or her safety and well-being, and not lead to exploitation or abuse? Put more starkly, journalists and their editors and employers might ask: Will this broadcast help or dam- age the humanitarian interests of the prisoner of war?275
When dealing with such cases, domestic courts followed a similar approach that focuses on the purpose of the exposure and the identification of the per- sons: In the aftermath of the abuses at the Abu Ghraib prison, the American administration tried to forbid the publication of the files that confirmed the abuse. This led to a lawsuit of the American Civil Liberties Union against the United States Department of Defense before American courts, in which the American Civil Liberties Union claimed the publication of the files was in the interest of the public, allowing it to know the abuses of its own military.
272 Gerdau, Syria’s Shifting Strategy, nyt, Video of 24 April 2013. For further examples, see Pape, Schutz der Presse, 2013, pp. 143ff. 273 Cf. Introduction, pp. 8f. 274 Similar, Pape, Schutz der Presse, 2013, p. 145. 275 Saxon, Humanitarian Law, Ethics, and Journalism in Syria, cpj Blog, 29 January 2013.
Two instances decided that Article 13 gc III was not violated because in the respective pictures confirming the abuse of the prisoners, their faces were not visible. That being so, the identities of the prisoners were protected and the purpose of the dissemination of the pictures was not itself to humiliate the prisoners but to expose the abuse by their guards.276 For these reasons, it is not only parties to armed conflicts that should com- ply with the prohibition to expose protected persons to public curiosity; news providers should also always ask themselves whether it is possible to identify protected persons from their reporting and whether the publication will help or damage the humanitarian interests of these persons.
5 Criminal Liability for Speech The fourth category of restrictions that receives special attention in this chapter is the criminal liability for speech. Criminal liability for the publication and dis- tribution of certain ideas and information is a serious form of censorship with a chilling effect on the activity of news providers. However, this censorship may be legitimated by a justification in international law.277 Article 19 (3) and Article 20 iccpr state that propaganda for war or the advocacy of national, racial or reli- gious hatred that constitutes incitement to discrimination, hostility or violence may be a legitimate reason for restrictions of freedom of expression.278 This gen- eral rule has been refined by a bouquet of provisions that address the broad spec- trum of different forms of speech, ranging from state obligations to protect legal forms of free speech to norms that not only prohibit but also criminalise certain forms of speech. The following table recalls three legal categories of speech:
Criminalised speech Unprotected speech Protected free (prohibited and (prohibited but not speech criminalised) criminalised)
- Incitement to genocide Hate speech (e.g. All other forms of - Propaganda for war discrimination on the free speech - Eventually: Persecution basis of religion or race, as a crime against incitement to hatred, humanity violence or hostilities)
276 Cf. for a summary Pape, Schutz der Presse, 2013, pp. 146f. 277 Ibid, p. 26. 278 See above for other legal foundations for criminal liability for speech, pp. 168ff.
The first column and category encompass forms of speech that are prohib- ited and criminalised by international law. The second column and category contains certain forms of hate speech, which are not protected but not crimi- nalised by international law. The third category finally includes all other legally protected forms of free speech. The borderline between free and prohibited or criminalised speech often lies in the grey zone of propaganda. When analysing such propaganda in international law, it must be noted that there has been a great deal of confusion about different forms of propaganda and their legal context, both among scholars and in jurispru- dence. This is due to the complexity but also to the relatively new legal concepts of different forms of propaganda.279 In the past, lawyers and investigators therefore frequently avoided propagandistic cases and jurisprudence regularly employed the concept as mere background decoration to judgements. In consequence, Dojčinović describes propaganda succinctly as a ‘multifaceted contextual borderliner’.280 Yet, propaganda has often been one of the main pillars of the perpetration of the core crimes of international law. As the Soviet judge Nikitchencko stressed after the Second World War:
The dissemination of provocative lies and the systematic deception of public opinion were as necessary to the Hitlerites for the realisation of their plans as were the production of armaments and the drafting of mili- tary plans. Without propaganda, founded on the total eclipse of the free- dom of press and of speech, it would not have been possible for German Fascism to realize its aggressive intentions, to lay the groundwork and then to put to practice the war crimes and the crimes against humanity.281
Propaganda also carries the potential to become one of the main pillars in future war crimes trials.282 A clarification of the different legal concepts cap- turing different forms of propagandistic expressions that allow censorship to free expression is therefore indispensable.
279 Dojčinović, Linguistic Approach to Criminal Analysis, 2012, p. 71. 280 Describing this unwelcome role, Dojčinović uses the image of the relative in every extended family whose presence is not welcome at all family gatherings. In war crimes trials and in icl, the concept of propaganda has exactly that role. He further adds that propaganda shares this role with other conceptual relatives such as ‘incitement’ and ‘instigation’, or ‘intent’ and ‘intention’. Ibid. 281 Cited in Kearney, Propaganda icty, 2012, p. 232. 282 At the moment propaganda forms part of the icc’s investigations in Kenya and Darfur. See below, pp. 281f. Dojčinović further argues that it is nearly impossible to built a com- plete ‘leadership case’ without reference to propaganda. Dojčinović, Linguistic Approach to Criminal Analysis, 2012, p. 71.
Therefore, I examine in this section the criminal liability for propaganda and other aggressive forms of speech. I start with one of the most horrific crimes – incitement to genocide (A), move then on to discuss what forms of hate speech are prohibited by international law (Ba), and how speech can amount to a crime against humanity – a field that still suffers from consider- able ambiguity (Bb), and conclude with an analysis of news providers as per- petrators of propaganda for war (C).
A Incitement to Genocide The first crime that is examined is incitement to genocide. Article 3 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide criminalizes incitement.283 The Statutes of the icty and ictr as well as the International Criminal Court (icc) statute each replicate this provision.284 The prohibition of genocide and incitement to genocide form part of jus cogens and are therefore applicable at all times.285 Incitement to genocide was a precursor of some of the most severe crimes in the history of the last century. Before and during the Second World War, the Nazis used propaganda of incitement as a catalyst for the Holocaust.286 And also during the wars in the former Yugoslavia and Rwanda in the first years of the 1990s, a regime of propaganda was upheld to create an atmosphere of fear and hate that laid the ground for serious human rights violations.287 In the Second World War and Rwanda, journalists were involved in the com- mission of incitement to genocide. This is due to the construction of the crime that brings about the high suitability of news providers as offenders. This spe- cial design of the crime is deliberate and was made clear as early as the Draft Convention for the Prevention and Punishment of Genocide prepared by the un Secretariat that stressed that direct public incitement referred to ‘direct appeals to the public by means of speeches, radio or press inciting it to
283 Incitement is one of five acts prohibited by the Genocide Convention (attempt, com- plicity, conspiracy and genocide itself). 284 Cf. Article 4 (3) (c) icty Statute and Article 2 (3) (c) ictr Statute respectively. See also Article 25 (3) (e) icc Statute, which mirrors the provision of the Genocide Convention, except that it appears in a separate article from the crime of genocide. For an overview of the material elements of incitement to genocide, see Werle, Principles of icl, 2005, pp. 211ff. 285 Zahar and Sluiter, icl, 2008, Chapter 5. 286 Not only the Germans used propaganda; the Military Tribunal for the Far East held that the Japanese propaganda framework was not dissimilar to that of the Nazis. They also prepared an aggressive war with the militarization of education and the control and dis- semination of propagandistic information. Kearney, Propaganda for War, 2007, pp. 50–52. 287 See the case law below, pp. 270ff.
288 un Doc E/447, 26 June 1947, p. 31. 289 Benesch, Defining Incitement to Genocide, 2008, p. 487. With regards to the criterion of causation, see Chapter 3, pp. 173ff. 290 imt, Judgement 1946, pp. 120ff, 150f. 291 See Timmermann, Incitement in icl, 2008, p. 827. 292 He was one of the earliest members of the Nazi Party, joining in 1921. imt, Judgement 1946, p. 120. 293 Ibid, pp. 501f. 294 Ibid, p. 151. 295 The Tribunal argued also that Fritzsche had no control over the formulation of propaganda policies, that he had merely been a messenger to the press of directives passed down to him and that in some cases of false news he did not know that it was false. Ibid. 296 Fritzsche was convicted as Hautpschuldiger before the Spruchkammer I in Nuremberg, as one of the ‘intellektuellen Urheber’ (intellectual originator) who influenced wide circles of the German people through his propaganda of the Nazi ideology. He was sentenced to nine years of forced labour. For further details see Timmermann, Incitement in icl, 2008, pp. 829f. For a detailed analysis of the background of the itm judgements and the quali- fications of the crimes see Kearney, Propaganda for War, 2007, pp. 34–45.
After the trials of the imt, many questions remained unanswered. However, the Tribunal had shown the important role of propaganda for the breakout and course of the Second World War and its danger for future atrocities.297 It was shortly thereafter that the drafters of the Genocide Convention designed the crime of incitement to genocide. But another half-century would pass until the first verdict that used the terminology of ‘incitement to genocide’ was rendered. The second court to deal with incitement to genocide was the ictr. In 1998, it convicted Jean-Paul Akayesu, a former bourgmestre of a commune in Rwanda, for speeches he made at a public meeting in the Rwandan town Gishyeshye.298 At the time, the ictr was pioneering an almost entirely new branch of law. It was the first conviction of this crime after the signing of the Genocide Convention, but was highly disputed because of the unclear definition of the crime.299 The court subsequently passed three other convictions for incitement to genocide, sentencing a Rwandan Minister of Information,300 the former Rwandan Prime Minister during 100 days of the genocide,301 and a Belgian broadcaster.302 The most famous of all international cases on incitement to genocide, and also the most interesting for the course of this study, were the charges against Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze before the ictr.303 Ferdinand Nahimana, an academic, and Jean-Bosco Barayagwiza, a lawyer, were co-founders of the Rwandan radio station rtlm. Barayagwiza also held the post of Director of Political Affairs at the Ministry of Foreign Affairs and Hassan Ngeze was a journalist and founder and editor-in-chief of the Rwandan tabloid Kangura.304 The court joined these three cases into what came to be known simply the Media Trial. Even though the standards of infrastructure of the information system in Rwanda were low, the massacres during the genocide were committed in a highly systematic and synchronised manner. This was due to long and cautious planning. rtlm and Kangura played a major part in this preparation process
297 Kearney, Propaganda for War, 2007, p. 54. See also the cases of the International Military Tribunal for the Far East on propaganda of the Japanese at Kearney, Propaganda for War, 2007, pp. 50–52. 298 ictr, The Prosecutor v Akayesu, tc Judgement; ictr, The Prosecutor v Akayesu, ac Judgement. 299 See Chapter 3, pp. 173ff. 300 ictr, The Prosecutor v Niyitegeka, paras 69ff. 301 ictr, The Prosecutor v Kambanda, specifically para. 39 (x). 302 ictr, The Prosecutor v Ruggiu. 303 ictr, The Prosecutor v Nahimana, tc Judgement; ictr, The Prosecutor v Nahimana, ac Judgement. 304 For more facts of the case see MacKinnon, Nahimana, 2004.
I would like to tell you…that the war we are waging is actually between these two ethnic groups, the Hutu and the Tutsi.309
In a follow-up in June 1994, rtlm broadcast:
One hundred thousand young men must be recruited rapidly. They should all stand so that we kill the Inkotanyi and exterminate them, all the easier that… the reason we will exterminate them is that they belong to one ethnic group. Look at the person’s height and his physical appearance. Just look at his small nose and then break it. Then we will go on to Kibungo, Rusumo, Ruhengeri, Byumba, everywhere. We will rest after liberating our country.310
The newspaper Kangura used a similar pattern for incitement. Starting in 1990, it published a series of articles, many of them written by Hassan Ngeze, that warned the Hutus of the bloodthirsty Tutsis and called them to wake up, be firm and
305 The tc stated that this was ultimately shown in a joint competition of rtml and Kangura of eleven questions which could be answered by reading previous issues of Kangura, most considering discriminatory texts. The whole exercise was designed to familiarize the hearers and readers with the ideas of Kangura published over the preced- ing three years. ictr, The Prosecutor v Nahimana, tc Judgement, paras 256ff. See further Metzl, Radio Jamming, 1997, p. 630; Yanagizawa-Drott, Propaganda and Conflict, 2012. 306 ictr, The Prosecutor v Nahimana, tc Judgement, paras 256ff. 307 Gasser, Right to Information, 2003, p. 381. 308 Metzl, Radio Jamming, 1997, p. 631. 309 ictr, The Prosecutor v Nahimana, tc Judgement, para. 392. 310 Ibid, para. 396.
311 Ibid, paras 139, 188. 312 Ibid, paras 204ff. 313 Ibid, paras 138ff. 314 Ibid, para. 158. 315 Ibid, paras 673–715, 982. Furthermore the Chamber cited case law on hate speech cases and material of international bodies, such as the ilc. Hundreds of witnesses were heard, one of them being Swiss journalist Philippe Dahinden, paras 115ff, 142ff, 244ff, 511, 1010, and, above all, paras 541ff. 316 For many: Benesch, Defining Incitement to Genocide, 2008, p. 515. See also the amicus briefs of nearly a dozen ngos and professional organisations before the ac specifically addressing the difference between hate speech and incitement to genocide. ictr, The Prosecutor v Nahimana, Amicus Brief, p. 2. 317 The proceedings were especially long because of numerous unclear procedural questions, flaws and mistakes of the tc. See the clear words Judge Theodor Meron used in his dissent- ing opinion: Partly dissenting opinion of Judge Meron, ictr, The Prosecutor v Nahimana, ac Judgement, pp. 375–382; similarly Benesch, Defining Incitement to Genocide, 2008, p. 489.
The findings of the ictr’s ac remain today the most detailed regarding the crime of incitement to genocide. Other courts, both international318 and national,319 also dealt with the crime of incitement of genocide and mirrored in most cases the findings of the ictr’s ac. As outlined above,320 incitement to genocide is a crime of ‘utmost gravity’.321 And because of its gravity, it is a so-called inchoate crime. This means that the crime of incitement is complete and punishable even if it does not lead to the materialisation of the intended result of the perpetrator, to genocide.322 Nevertheless, the perpetrator must have taken a significant step toward carrying out the crime.323 One of the main reasons for inchoate crimes is prevention. Penalizing such crimes permits law enforcement officers and the judiciary to become involved before any harm has occurred. This policy focuses on the first purpose of the Genocide Convention, which is to prevent the commission of genocide and not only to prosecute after such a disaster has already occurred.324 At this stage it is critical to distinguish incitement from instigation. Both terms are often wrongly considered to be synonymous:325 Instigation means prompting another to commit an crime. Incitement, on the other hand, is one
318 The crime of incitement to genocide has not played a significant role before the icty (contrary to the prohibition of propaganda for war). However, it is noteworthy to mention that the icj had the chance to further define the crime in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide when Bosnia and Herzegovina claimed that certain acts for which Serbia could be held responsible amounted to incitement to genocide. However, the icj did not make any remarks on these allegations. icj, Genocide Convention Case. See further Timmermann, Incitement in icl, 2008, p. 843, fn 157. 319 A famous case of former Rwandan politician Léon Mugesera engaged the Canadian courts. He gave a fiery speech in front of a large Hutu audience in Rwanda in 1992. He was quickly indicted in Rwanda for incitement to violence, but escaped the charge by fleeing to Canada, where other Rwandan expatriates denounced him. After lower courts acquit- ted him, in 2005 he was finally convicted for incitement to genocide by the Canadian Supreme Court. Canadian Supreme Court, Mugesera v Canada. 320 Cf. Chapter 3, pp. 175ff. 321 ictr, The Prosecutor v Ruggiu, Early Release Decision. 322 ictr, The Prosecutor v Akayesu, tc Judgement, para. 563; ictr, The Prosecutor v Nahimana, tc Judgement, para. 1013; ictr, The Prosecutor v Ruggiu, para. 16; Benesch, The Ghost of Causation, 2012, p. 256; Timmermann, Incitement in icl, 2008, p. 825. See further Werle, Principles of icl, 2005, pp. 165f. 323 Werle, Principles of icl, 2005, p. 166. For the complete assessment of the circumstances of incitement see Chapter 3, pp. 175ff. 324 Benesch, The Ghost of Causation, 2012, p. 256. 325 Timmermann, Incitement in icl, 2008, p. 825. See also ictr, The Prosecutor v Nahimana, ac Judgement, para. 678.
B Hate Speech The second category of speech that is examined in this section is hate speech. In order to reflect one of the major legal disputes in this area, I divide the
326 Contrary to some national legislation (for instance Swiss or German law), according to which the instigation is completed when the danger is present, meaning when the deci- sion to commit the criminal act has been made in the instigatee’s mind. See Timmermann, Incitement in icl, 2008, pp. 849f. 327 Both the icty and the ictr have addressed instigation in their jurisprudence. See Article 7(1) icty Statute and Article 6(1) ictr Statute, which lists instigation as a form of individual criminal responsibility in several cases. Find more references to case law at Timmermann, Incitement in icl, 2008, pp. 838f. 328 ictr, The Prosecutor v Musema, para. 120; ictr, The Prosecutor v Akayesu, tc Judgement, para. 481. 329 ictr, The Prosecutor v Akayesu, ac Judgement, paras 478–483. 330 Benesch, Defining Incitement to Genocide, 2008, p. 507.
331 Cf. CoE, Rec R(97)20 (1997), Appendix. 332 Some of the earlier drafts also included the prohibition of propaganda and hate speech. Benesch, The Ghost of Causation, 2012, p. 256. 333 This debate is too complex to be summarised here. For further background on the topic see therefore Mendel, Hate Speech, 2010; Fournet and Pégorier, Only One Step Away From Genocide, 2010; Pocar, Persecution as a Crime, 2008. 334 See below, pp. 275ff. 335 Article 7 udhr, Article 19 (2) iccpr, Article 10 echr, Article 4 and 5 icerd. Article 13 (5) of the achr is limited to incitement to violence or similar illegal actions. Both Article 4 (a) of icerd and Article 20 (2) of the iccpr go beyond that to additionally cover incitement to discrimination and hatred (or hostility). Article 4 (a) of icerd goes even further, calling for the prohibition of all ideas based on superiority. Of the iccpr, udhr and the echr, only the achr specifically provides for the criminalisation of hate speech. Article 13 (5) achr reads as follows: ‘Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, colour, reli- gion, language, or national origin shall be considered as offenses punishable by law’.
The iccpr, for instance, requires states to prohibit three forms of incitement other than to genocide: incitement to hostility, to discrimination and to violence. Other treaties prohibit incitement of hatred.336 These treaties prohibit or call to criminalise hate speech but none of them criminalises hate speech per se. Censorship of hate speech by domestic legislation can therefore be justified if it follows the established parameters of international law as outlined above.337 However, there is an additional discussion between legal scholars in this area about whether very severe forms of hate speech are nevertheless already criminalised by international law as crimes against humanity. This discussion will therefore be examined in greater detail in the section below. b Persecution through Hate Speech as a Crime Against Humanity Incitements to war crimes and to crimes against humanity are not criminalised by international law and are thus not international crimes. The drafters of the icc Statute discussed the expansion of the crime of incitement to cover also war crimes and crimes against humanity, but these efforts were ultimately rejected.338 Nevertheless, the concept of crimes against humanity leaves room for the criminalisation of speech because it can be committed via several acts, one of them being the material element of persecution.339 The notion of per- secution itself and underlying acts of persecution fall short of a definite and comprehensive definition.340 The ad hoc Tribunals therefore basically created new law in interpreting persecution. They did this rather progressively. In Tadic, the icty surged ahead when stating that:
336 This is specifically relevant because hatred is considered to be a state of mind and thus an opinion. Opinions are generally protected under international law. Despite this, and although there are some states which persistently object to the idea of banning incitement to hatred, most states accept this international standard. Mendel, Hate Speech, 2010, p. 9. 337 Cf. above, pp. 247ff. 338 The current understanding of crimes against humanity is essentially a product of the jurisprudence of the ad hoc Tribunals, which clarified many previously contentious gen- eral aspects as well as the definition and application of various specific crimes. Cf. Schabas, An Introduction to the icc, 2004, p. 30; Bassiouni, The Statute of the icc, 1998, p. 142; Benesch, Defining Incitement to Genocide, 2008, p. 509; Timmermann, Incitement in icl, 2008, pp. 843f. See further also Pocar who argues, that ‘humanity’ may be understood as referring to either all human beings – humankind – or to the characteristic of being ‘human’ – humanness. Pocar, Persecution as a Crime, 2008, pp. 355, 365. 339 For an overview of the material elements of persecution (e.g. murder, extermination, tor- ture, the crime of apartheid or enforced disappearance) see Werle, Principles of icl, 2005, pp. 254ff. 340 Fournet and Pégorier, Only One Step Away From Genocide, 2010, p. 713.
such that civilians would feel their only option was to leave their homes, and…fan a state of hatred whereby combatants would further such deportations or transfers through the commission of ‘incidental’ war crimes343
Nevertheless, the court did not find it necessary to address propaganda through the concept of incitement and other speech-related crimes, but rather included it as evidence of the accused’s contributions to joint criminal enterprises.344 In Prosecutor v Kordić and Cerkez, the prosecutor of the icty then extended the notion of ‘persecution’ to persecution through propaganda in the form of hate speech, which was the first indictment in history to allege hate speech as a crime against humanity.345 However, the tc denied the application of the crime against humanity for ‘encouraging, instigating and promoting hatred, distrust and strife on political, racial, ethnic or religious grounds, by propa- ganda, speeches and otherwise’346 and stressed that neither a codified rule nor a rule of customary law stated that such an act in itself could constitute perse- cution as crime against humanity.347 The Chamber noted that there was a
341 icty, The Prosecutor v Tadic, tc Judgement, para. 710. 342 icty, The Prosecutor v Stakic, para. 773. 343 (Punctuation added) Kearney, Propaganda icty, 2012, p. 247. 344 See for instance the case of Šešelj, who was convicted for various crimes he committed by way of ‘direct and public denigration’ and public speeches as well as of having partici- pated in a joint criminal enterprise by way of inflammatory speeches in the media insti- gating Serb forces to commit war crimes and crimes against humanity. icty, The Prosecutor v Šešelj, para. 10b; Kearney, Propaganda icty, 2012, p. 247. 345 icty, The Prosecutor v Kordic, para. 209, fn 272. 346 Ibid. 347 Ibid.
‘sharp split’ in treaty law in this area between criminalised and non-criminal- ised speech. A conviction for this crime would thus violate the principle of legality.348 The second court to consider this concept was the ictr in the aforemen- tioned Media Trial. This time, the ictr tc interpreted the crime of persecu- tion as a crime against humanity to include hate speech. In doing so, it expanded the law relating to international criminal liability with respect to hate speech and crimes against humanity.349 The judgement was therefore subject to vocal criticism.350 The judgement was then revised and corrected by the ac, which held:
When hate speech rises to the level of inciting violence or other imminent lawless action, such expression does not enjoy protection. But…an attempt, under the rubric of persecution, to criminalize unsavoury speech that does not constitute actual imminent incitement might have grave and unfore- seen consequences. Thus, courts must remain vigilant in preserving the often precarious balance between competing freedoms.351
It can therefore be read as a compromise that the ac then stressed that it should be especially reluctant to justify criminal sanctions for unpopular speech. It finally denied the criminalisation of hate speech in the case and concluded with a general statement:
From an ex post perspective, courts and commentators may often be tempted to claim that no harm, and in fact much good, could come from the suppression of particularly odious ideas. In many instances, hate speech seems to have no capacity to contribute to rational political discourse.
348 Ibid. On another occasion the court clarified that the crime against humanity of persecu- tion must involve ‘[t]he gross or blatant denial, on discriminatory grounds, of a funda- mental right, laid out in international customary or treaty law, reaching the same level of gravity as the other acts’. icty, The Prosecutor v Kupreški, para. 621. 349 Further, the tc misleadingly used the judgement in Ruggio for its argumentation, whereas the Ruggio judgement applied speech advocating racial violence. Orentlicher, Crimi nalizing Hate Speech, 2006, pp. 577, 580f. 350 Orentlicher for instance rightly notes that unlike the crime of incitement, which is defined in terms of intent, the crime of persecution is defined in terms of impact: ‘[Persecution] is not a provocation to cause harm. It is itself the harm’. The tc missed this difference. Orentlicher, Criminalizing Hate Speech, 2006, p. 581; Gordon, A War of Media, 2005, pp. 184, 187f. 351 ictr, The Prosecutor v Nahimana, ac Judgement, para. 12.
What, then, is its value? The reason for protecting hate speech lies in the ex ante benefits. The protection of speech, even speech that is unsettling and uncomfortable, is important in enabling political opposition, especially in emerging democracies.352
Hence, the ac underscored the critical character of this question but gave no definite answer to whether hate speech can per se constitute an underlying act of persecution and thus a crime against humanity.353 This open argumentation is evidence of the Chamber’s disagreement and leaves room for further interpretation. In a slugfest of dissenting and partly dissenting opinions, judges Meron,354 Pocar355 and Shahabuddeen356 immedi- ately attempted to fill this room with their own interpretations. Judge Meron, who arguably applied a us law approach in his dissenting opinion, strongly supported the final outcome of the ac.357 Yet he nevertheless argued for a definitive confirmation of the court in favour of non-criminalised hate speech.358 Citing Justice Oliver Wendell Holmes – who once said that ‘[e]very idea is an incitement’ – Meron went on to say that in cases of conflicting liber- ties, it is especially important to strike a balance between criminal and non- criminal speech and that speech that falls on the non-criminal side of that balance enjoys special protection.359 Thus, according to Meron, all forms of hate speech which do not amount to incitement to genocide must be protected. Judge Pocar, on the other hand, opposed:
In my opinion, the circumstances of the instant case are, however, a per- fect example where…hate speech fulfils the conditions necessary for it to
352 Ibid, para. 10. 353 See further ictr, The Prosecutor v Nahimana, Amicus Brief; Orentlicher, Criminalizing Hate Speech, 2006. 354 Partly dissenting opinion of Judge Meron, ictr, The Prosecutor v Nahimana, ac Judgement, pp. 375–382. 355 Ibid, pp. 349f. See further a confirmation and longer elaboration on this opinion in: Pocar, Persecution as a Crime, 2008, p. 360. 356 Partly dissenting opinion of Judge Shahabuddeen, ictr, The Prosecutor v Nahimana, ac Judgement, pp. 351–374, para. 16. 357 His opinion must be read considering the background of the American First Amendment tradition of the high protection of all forms of speech, including hate speech. Partly dissent- ing opinion of Judge Meron, ictr, The Prosecutor v Nahimana, ac Judgement, pp. 375–382. 358 Ibid, para. 16. 359 Ibid.
be considered as an underlying act of persecution. Indeed, the hate speeches broadcast on rtlm by Appellant Nahimana’s subordinates were clearly aimed at discriminating against the Tutsi and led the popu- lation to discriminate against them, thus violating their basic rights. Taken together and in their context, these speeches amounted to a viola- tion of equivalent gravity as other crimes against humanity.360
He continued this argument in another place and stated in a more general manner that ‘hate speech’,
infringing as it does the right to security and human dignity, may under certain circumstances amount to a persecutory act rising to the level of required gravity, either on its own or when taken in conjunction with other similar infringements. In other words, hate speech targeting a pop- ulation on one of the prohibited discriminatory grounds violates the right to respect for human dignity of the members of that group and thus constitutes ‘discrimination in fact’.361
In such cases, when hate speech is accompanied by incitement to commit genocide and at the same time forms part of a massive campaign of other dis- criminatory acts, then, according to Pocar, it rises without any doubt to the required level of gravity so as to amount to persecution.362 However, this con- cept is only applicable for extreme forms of speech. Mere forms of offensive or disagreeable forms of speech will not surpass the necessary requirement of ‘widespread or systematic attack against the civilian population’ that, in his view, warrants the balance with free speech.363 A third judge, Judge Shahabuddeen, also issued a partly dissenting opinion. He agreed with Judge Pocar in the point that the accused did in fact commit a
360 Partly dissenting opinion of Judge Pocar, ictr, The Prosecutor v Nahimana, ac Judgement, pp. 349f. See further Pocar, Persecution as a Crime, 2008, pp. 360f. 361 He follows with this argumentation the reasoning of the tc. ictr, The Prosecutor v Nahimana, tc Judgement, para. 1072. In the Ruggiu case, the ictr tc used a similar argu- mentation when stating that the acts of direct and public broadcasts ‘all aimed at singling out and attacking the Tutsi ethnic group and Belgians on discriminatory grounds, by depriving them of the fundamental rights to life, liberty and basic humanity enjoyed by members of wider society. The deprivation of these rights can be said to have as its aim the death and removal of those persons from the society in which they live alongside the per- petrators, or eventually even from humanity itself’. ictr, The Prosecutor v Ruggiu, para. 16. 362 Pocar, Persecution as a Crime, 2008, pp. 360f. 363 Ibid.
What is pertinent to such a case is the general persecutory campaign, and not the individual hate act as if it stood alone. The subject of the indictment is the persecutory campaign, not the particular hate act. …It may be said that an act, which is ordinarily a non-crime, can no longer be treated as a non-crime if it can be prosecuted when committed in a special context.366
In his view, the exclusion of persecution through hate speech from crimes against humanity is contrary to customary international law and is thus incorrect.367 The battle of ideologies is not yet decided. In a more recent case before the icty, former Serbian Prime Minister Vojislav Šešelj is indicted for persecution through hate speech as a crime against humanity. The charges against him list the participation in a joint criminal enterprise for instigating crimes by making ‘inflammatory speeches in the media, during public events, and during visits to the volunteer units and other Serb forces’;368 by participating in ‘war propa- ganda and incitement of hatred towards non-Serb people’;369 and by ‘instigat- ing his followers and the local authorities to engage in a persecution campaign against the local Croat population’.370 He is additionally charged with
364 However, he stressed that it might be wise from the standpoint of the prosecutor to charge as well for the crime of incitement, because of the prosecutorial advantage that there is no need to prove a ‘widespread and systematic attack on the civilian population’. Partly dissenting opinion of Judge Shahabuddeen, ictr, The Prosecutor v Nahimana, ac Judgement, pp. 351–374, para. 9. 365 Ibid, para. 12. 366 Ibid, paras 14f. 367 Ibid, para. 16. 368 Šešelj for example stated publicly on television and radio, that ‘for the Serbs, the Second World War had not ended’. See icty, The Prosecutor v Tadic, tc Judgement, para. 91. icty, The Prosecutor v Šešelj, para. 10 (b). 369 icty, The Prosecutor v Šešelj, para. 10 (c). 370 Ibid, para. 10 (d).
371 Ibid, para. 17 (k). 372 The trial was severely delayed by an internal dispute between judges at the court and the subsequent disqualification of one of the judges. 373 See icc, The Prosecutor v Samoeiruto et al., Summons, paras 44, 53; icc, The Prosecutor v Samoeiruto et al., para. 273 (the charges in this case focus on crimes against humanity). 374 icc, The Prosecutor v Harun, para. 5 (the charges in this case focus on crimes against humanity and war crimes). 375 For a general conceptual approach see Fournet and Pégorier, who place the crime of per- secution in the architecture of icl above crimes against humanity but below genocide and describe it as something like a ‘super crime against humanity’ or ‘lower genocide’. Fournet and Pégorier, Only One Step Away From Genocide, 2010, p. 718. 376 Timmermann, Incitement in icl, 2008, p. 851. 377 Benesch, Defining Incitement to Genocide, 2008, pp. 491, 496f. 378 On the other hand, she also notes, that the harm that can be caused by mere hate speech or incitement to genocide is so different that the balancing of interests and freedoms must be different. Hate speech, even if not dangerous for the security of a state, may cause serious psychological harm. But in comparison with incitement to genocide, there is also much more to lose by restricting it. Ibid, pp. 491, 496f.
C Propaganda for War The third category of speech examined in this section is speech that consti- tutes propaganda for war.381 Such speech is prohibited in Article 20 (2) iccpr
379 Kearney, Propaganda for War, 2007, p. 216. For more opinions see also Benesch, Defining Incitement to Genocide, 2008, pp. 485–528; ictr, The Prosecutor v Nahimana, Amicus Brief, pp. 2f. 380 Fournet and Pégorier, Only One Step Away From Genocide, 2010, p. 738. 381 It is crucial to distinguish between the general concepts of ‘propaganda for war’ and ‘war propaganda’. Although both terms have been used in variations by different hrl and icl bodies, according to contemporary case law and doctrine ‘war propaganda’ relates to propaganda inciting war crime and crimes against humanity during a conflict, whereas ‘propaganda for war’ concerns propaganda inciting to wars or aggression. Kearney, Propaganda for War, 2007, p. 217. I understand ‘war propaganda’ as also covering severe forms of hate speech, such as incitement to violence or hostility.
An attack on the foundations of international relations cannot be regarded as anything less than a crime against the international commu- nity, which may properly vindicate the integrity of its fundamental com- pacts by punishing aggressors. We therefore propose to charge that a war of aggression is a crime, and that modern International Law has abol- ished the defense that those who incite or wage it are engaged in legiti- mate business.383
Nevertheless, waging aggression was not criminalised until very recently. However, the imt paved the way for the contemporary crime of aggres- sion. Before the imt, following Jackson’s appeal, count one of the charges was called a ‘crime against peace’, namely, the planning, preparation, initia- tion or waging of a war of aggression, or a war in violation of international treaties, agreements or assurance, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.384 In the first series of convictions for propaganda for war before the imt, the defendants were accused of the dissemination of various doctrines which served the furtherance of the criminal plan and of the employment of doctrinal tech- niques as part of the common plan or conspiracy in order to ‘incite others to join in the common plan or conspiracy’ to wage aggressive war.385 According to the indictment, the propaganda of the Nazi regime prepared the people for future wars and intended to directly incite specific wars of aggression.386 However, as for the journalists’ charged with this crime, the imt held that they were not criminally responsible due to the failure of the prosecution to
382 Cf. above, pp. 247f. See further for a detailed analysis of the normative regime that governs the prohibition of propaganda for war Kearney, Propaganda for War, 2007. 383 Jackson, Atrocities and War Crimes, 1945. 384 Article 6 (a) imt Charter. For a comprehensive study on the prohibition of propaganda for war in international law see Kearney, Propaganda for War, 2007, pp. 34f. 385 Ibid, p. 35. 386 Ibid.
For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
An act of aggression shall thereby be understood as ‘the use of armed force by a state against the sovereignty, territorial integrity or political independence of
387 Similarly the cases of Streicher, Franz von Papen and Schirach. imt, Judgement 1946, p. 15.1. See also Kearney, Propaganda icty, 2012, p. 232; Kearney, Propaganda for War, 2007, p. 39. 388 This distinction between propaganda directly inciting to a specific act of aggression and propaganda which rather creates a general warlike atmosphere subsequently led to sig- nificant dissonance during the drafting of the iccpr’s prohibition of propaganda for war. More about the background of the itm judgements and the qualifications of propaganda for war at Kearney, Propaganda for War, 2007, pp. 34–45, 43. 389 Kearney lists specifically the convictions of Hess, Keitel, Rosenberg, Araki, Hashimoto, Kido, Oshima and Shiratori. Ibid, pp. 50–53. 390 icty, The Prosecutor v Tadic, ac Judgement, paras 87ff; Kearney, Propaganda for War, 2007, pp. 213ff. 391 See above the discussion about the character of propaganda and hate speech as persecu- tion and thus as crimes against humanity, pp. 275ff.
392 Future Article 8bis (2) icc Statute. The article further lists acts that shall qualify as an act of aggression: (a) the invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof; (b) bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state; (c) the blockade of the ports or coasts of a state by the armed forces of another state; (d) an attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state; (e) the use of armed forces of one state which are within the terri- tory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such terri- tory beyond the termination of the agreement; (f) the action of a state in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state; (g) the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein. 393 See specifically Article 15bis and 15ter, which establish the unique jurisdictional regime outlining when the icc Prosecutor can initiate an investigation into a crime of aggres- sion, which underlies more requirements than investigations of the other core crimes. 394 For the historical background and the contemporary interpretation of the crime of aggression see Gillett, Aggression at the icc, 2013; McDougall, The Crime of Aggression, 2013.
6 Targeting Media Facilities The fifth category of special restrictions on the functional protection of news providers in armed conflict that is examined in this chapter is the targeting of media facilities. Recent state practice showed that states tend to consider media facilities as military objectives, especially if they are spreading propaganda. Intentional destruction of buildings housing media was a common feature of all conflicts of the 21st century: In April 1999, nato bombed the headquarters of the Radio Television Serbia in Belgrade. In November 2001, an American missile hit the broadcasting headquarters of Al Jazeera in Kabul. In April 2003, American missiles hit Al Jazeera’s offices in Baghdad. On the same day, the Palestine Hotel, housing the majority of all international media and the offices of Abu Dhabi tv,
395 On the ‘leadership’ requirement, listing various examples, see McDougall, The Crime of Aggression, 2013, pp. 168ff, 181. 396 So far, there is no scholarly opinion on the subject available. 397 This is only true as long as international jurisprudence has not clarified that hate speech can amount to persecution in the sense of crimes against humanity.
A Contradictory Norms ihl applies the dichotomy of protection by the principle of distinction,399 including in the area of objects. Military objectives can legitimately be attacked while civilian objects are protected from such attacks. Neither the gcs nor their aps explicitly mention media facilities or allocate them to one of these two groups. However, other ihl treaties mention media facilities with incon- sistent results and soft law finally completes the confusion. Article 8 (1) (a) of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (cpcpac) lists ‘broadcasting stations’ under military objectives. The context of this provision is the protection of cultural objects when situated in adequate distance to important military objectives. Hence, the provision has to be read as declaring ‘broadcasting stations’ impor- tant and vulnerable military objectives. This argumentation is supported by the 1956 icrc Draft Rules for the Limitations of Dangers incurred by the Civilian Population in Time of War.400 The original idea of these rules was to list all military objectives, in order to clarify legitimate targets. One of the working papers also listed ‘installations of broadcasting and television sta- tions’. However, the French text of the Draft Rules made clear that such instal- lations must be of ‘fundamental military importance’ and Article 7 stated that even the listed objects cannot be considered military objectives if attacking
398 See for a summary of all these attacks, Chapter 1, pp. 25f. 399 Cf. Chapter 3, p. 128. 400 icrc, Draft Rules Civilian Population, 1956.
B Purpose and Use of Media Installations Similarly to the distinction between civilians and combatants, ihl defines civilian objects in a negative way as all objects that are not military objec- tives.405 Military objectives, by their nature, location, purpose or use, make an effective contribution to military action (constant factor). In addition, their total or partial destruction, capture or neutralization offers a definite military advantage (variable factor).406 As a consequence, every object which is not a military objective is protected as a civilian object and shall therefore not be attacked or subject to reprisals.407 Intentional attacks on civilian objects are
401 ai, nato in Yugoslavia, 2000, pp. 40ff, 43. 402 Ibid. 403 un sc Res 1738 (2006), para. 3. 404 un sr FoEx, Annual Report 2009, para. 49. 405 Article 52 (1) ap I. The rule of Article 52 ap I is of customary nature and also applicable in niac. See Rules 7–10, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 25ff. 406 Article 52 (2) ap I. This rule is similar to para. (1) of Article 52 ap I of customary nature and also applicable in niac. See Rule 8, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 29ff. 407 Article 52 (1) ap I including the presumption of a civilian object in cases of doubt (Article 52 (3) ap I). See furthermore Article 48 ap I, Article 23 (g), 25, 27 H IV R, Article 33 (2) and (3) and Article 147 gc IV.
408 See Article 85 (b–c) ap I and Article 8 (2) (b) (ii–v) and (ix) icc Statute. 409 According to Rado, ‘Unbeknownst to most television reporters, customary law long ago deemed radio and television stations to be military objectives…. The logic is that they can usually be put to military use and are essential for the functioning of any modern military in time of conflict’. Rado, Military Targets, 2006. Henderson, however, assumes that this custom was based on the 1956 Draft Rules that never became law and can therefore not be considered declarative of customary law. Henderson, Targeting, 2009, pp. 129ff. 410 Pape, Schutz der Presse, 2013, pp. 68ff, 69; Henderson, Targeting, 2009, pp. 129ff; Balguy- Gallois, Protection des journalistes, 2004, p. 9. 411 According to Article 52 (2) ap I, any object, under the right circumstances, can be used for military purposes and hence be turned into a military objective. 412 Dinstein, The Conduct of Hostilities, 2004, p. 89. Similarly, Sandoz et al., Commentary ap I, 1987, Nr. 636. 413 Sandoz et al., Commentary ap I, 1987, Nr. 636. 414 Balguy-Gallois, Protection des journalistes, 2004, p. 9. 415 See Dinstein for a non-exhaustive list of military objectives (with no reference to media objects). He also states that in special circumstances whole regions, such as important mountain passages, jungle trails or harbours, can be regarded as military objectives. Dinstein, The Conduct of Hostilities, 2004, pp. 88f, 92.
C Borderline Between Legitimate and Illegitimate Use In this section I will examine whether the dissemination of propaganda effec- tively contributes to military action and thereby answer the question of whether the dissemination of propaganda turns media facilities into legiti- mate military targets. To that end, I will first highlight the difference of this issue from the above-discussed topic of propaganda as dph (a). Subsequently, I will illustrate state practice using five case studies (b). And lastly, I will com- plete the ihl parameters on military objectives again with features of icl (c). The result of this analysis will finally be summarised in section D dealing with the military advantages of attacks on media facilities. a The Different Concept of ‘Contribution’ and ‘Direct Participation’ Research in social sciences showed that speech definitively can have an effect on enemy morale and support by the civilian population: The econometric analysis of Yanagizawa-Drott exemplified how incitement to genocide can boost atroci- ties.418 With regards to the case of Rwanda, he showed that media infrastructure which guaranteed access to radio emissions of rtlm could be directly linked to a strong increase of atrocities of Hutus against Tutsis.419 As outlined above, in order to be a legitimate military target, media facilities must effectively contribute to mili- tary action. In military terms, atrocities against the enemy, as in Rwanda, are defi- nitely an effective contribution to military action. It is, however, questionable if the media emissions themselves were already a contribution to military action or if they just boosted the contribution of others. The crucial question is, therefore: What kind of content of speech crosses this line of contribution to military action?
416 Balguy-Gallois, Protection des journalistes, 2004, p. 9; icty, Final Report nato Bombing, paras 55, 76; Pape, Schutz der Presse, 2013, p. 73. 417 Henderson, Targeting, 2009, p. 130. 418 Yanagizawa-Drott, Propaganda and Conflict, 2012. See further Chapter 3, pp. 177f. 419 Ibid.
As stated above in the section ‘Targeting News Providers’, it is very difficult to grasp the effects of different forms of speech.420 Here, the highly disputed ghost of causation comes back into the spotlight. However, the law relating to the use of lethal force against selected persons is different from the law relating to attacks on military objectives, that is, objects.421 In other words, the neces- sary threshold of ‘contribution to military action’ is different from ‘direct par- ticipation in hostilities’. Primarily because the wording is not the same: ‘contribution’ is less strong than ‘direct participation’, because it only describes a behaviour that adds something to military action. Behaviour can thus con- tribute through different levels of intensity.422 Direct participation, on the other hand, describes a behaviour that must itself be part of the hostilities. The evaluation of whether an object may be a legitimate target does not require that the object uses or is used for force but only whether it effectively contrib- utes to the military action of the enemy and attacking it provides a direct mili- tary advantage. For this reason, this test is less restrictive than that governing the deliberate use of lethal force against persons.423 Nevertheless, the assessment of dph via speech crimes can help assess the question discussed here. In the case of dph it has been outlined that the crimi- nalisation of speech under international law is a helpful tool to assess dph. Propaganda itself is not a crime under international law. Incitement to war crimes is neither an international crime. Only incitement to genocide, propa- ganda for war and perhaps persecution through hate speech as an underlying act of crimes against humanity are international crimes. This threshold for crimi- nalisation lies very high, for good reasons. In the case of dph, certain forms of hate speech do also surpass the threshold criterion but do not fulfil the one-step- criterion of causation. Speech can simply not directly inflict harm. Yet, since the test of military objectives is less restrictive than the one of dph; it could be argued that also ‘lesser’ forms of speech amount to use that contributes to military action, such as, for instance, hate speech inciting to violence and hostilities. Legal scholars have only sparely dealt with the matter. Geiss, for instance, argues that ‘criminality’ of behaviour does not and must not constitute a deci- sive criterion for the identification of legitimate targets under humanitarian
420 Cf. Chapter 3, pp. 158ff. 421 Doswald-Beck, The Right to Life, 2006, p. 891. 422 In a second step, the requirement of the definite advantage of total or partial destruction of objects guarantees the balance with this broad requirement. 423 This interpretation is also supported by the general architecture of ihl, which is based on the principle of humanity and offers a lower protection of civilian objects than the overall protection of civilians. Cf. Doswald-Beck, The Right to Life, 2006, p. 891.
424 Geiss, The Protection of Journalists, 2008, pp. 299f. 425 Ibid. See similarly the icty report on the bombing of rts Belgrade (cf. below, pp. 292f), which stated very broadly ‘if media is used to incite crimes, as in Rwanda, then it is a legitimate target’. icty, Final Report nato Bombing, para. 74. 426 The cases in the following section are chosen by criteria of availability of information and legal material on the occurrences. 427 See Chapter 3, pp. 151ff for the factual circumstances of the case. Also Pape, Schutz der Presse, 2013, pp. 76ff.
Broadcasts of rts were blacked out as result of the attack but resumed approx- imately three hours after the bombing. nato acknowledged that the attack hit the intended target, that is to say, that it classified the rts facilities as a military objective. nato gave several reasons for this qualification: First, it argued that the attack was aimed at disrupting and degrading the Federal Republic of Yugoslavia’s propaganda apparatus.428 That is to say, nato argued that the broadcasts incited hatred and propaganda, that they were under military control, and as a consequence, rts was a propaganda organ and its propaganda direct support for military action.429 It did not, however, claim that the Serbian media were used to incite international crimes. Second, nato stated that the rts building housed a large multipurpose communications satellite antenna dish that was used for the national command network.430 The strikes against tv transmitters and broadcast facilities were hence part of a cam- paign to dismantle the propaganda machinery, which was a vital part of President Milosevic’s control mechanism. Thus, the attack was not only targeted at the regime leadership’s ability to transmit their version of the news but also at their capacity to transmit their instruction to the troops in the field.431 nato therefore basically argued that the rts facilities were a dual-use object, describing it as a:
very hardened and redundant command and control communications system [which]…uses commercial telephone, …military cable, …fibre optic cable, …high frequency radio communication, …microwave com- munication and everything can be interconnected. There are literally dozens, more than 100 radio relay sites around the country, and…every- thing is wired in through dual use. Most of the commercial system serves the military and the military system can be put to use for the commercial system.432
Accordingly, civilian television was heavily dependent on the military com- mand and control system and military traffic was at least partly routed through the civilian communication system.433 ai undertook a detailed analysis in the aftermath of the attack, with the final outcome that the station was not a legitimate military objective.434
428 ai, nato in Yugoslavia, 2000, pp. 40ff, 40. 429 Ibid. 430 Ibid. 431 Ibid; icty, Final Report nato Bombing, paras 71–79. 432 (Punctuation added) icty, Final Report nato Bombing, paras 71–79. 433 Ibid. 434 ai, nato in Yugoslavia, 2000, p. 41.
the hitting of the rts studios was not an unwanted, collateral effect of the attack. In fact, according to the Committee, the attack had two inten- tional goals: a primary military goal, and a secondary non-military goal. In other words, the civilian casualties as ‘collateral damage’ appear to be caused wilfully.441
An earlier statement of nato only supports this assumption; namely, it indi- cated that the tv studios would be targeted unless they broadcast six hours per day of Western media reports:
435 Ibid. 436 icty, Final Report nato Bombing, paras 71–79. 437 Ibid, paras 47, 55. 438 Ibid, paras 71–79. On the report see also Gasser, Right to Information, 2003, pp. 381f. 439 Benvenuti, for instance, criticises multiple factors of the report in his 2001 ejil article. He underlines the unbalanced approach of the Committee, the political background of the outcome, the vague use of legal concepts, the disregard of icty case law, the shortcomings in legal reasoning and in selecting relevant facts, and finally the reluctance to start in- depth investigations of its own. Benvenuti, icty Review, 2001, pp. 507, 526. See further Laursen, icty Investigation, 2001, pp. 788ff; ai, nato in Yugoslavia, 2000, pp. 40ff; Henderson, Targeting, 2009, pp. 136f. 440 Benvenuti, icty Review, 2001, p. 522. 441 Ibid, p. 523.
If President Milosevic would provide equal time for Western news broad- casts in its programmes without censorship 3 hours a day between noon and 1800 and 3 hours a day between 1800 and midnight, then his tv could be an acceptable instrument of public information.442
Notwithstanding the criticism of nato, it must be acknowledged that in the former Yugoslavia, a war of media and words had started long before the actual hostilities began.443 The icty later convicted several persons for crimes related to and supported by propaganda, but as of today the court has not convicted a person solely because of speech. In July 2009, however, an independent asso- ciation of Serbian journalists brought a complaint against responsible persons and journalists of two Serbian daily newspapers Politika and Vecernja Novosti to the special court for war crimes in Belgrade. They were accused of propa- ganda for war and war crimes.444 In the aftermath of the attack rumours spread about British and French dis- approval of the target and their resulting refusal to take part in the bombing. This was also confirmed by a nato official in Brussels.445 However, this does not change the fact that all member states of nato are responsible under international law for the bombings – even if they did not participate in the concrete attack. Yet, the anecdote illustrates the heterogeneous interpretation of media objects as military objectives by different member states and nato’s solution to address this uncertainty with carrying out bombings on controver- sial targets without the participation of member states who objected to the specific attacks.446 The attack had also a – widely known in legal circles – sequel: An injured victim of the attack, together with a group of relatives of other killed victims, filed a com- plaint to the ECtHR against 17 European states, all members of NATO.447 The
442 Cited in: Final Report to the Prosecutor by the Committee Established to Review the nato Bombing Campaign Against the Federal Republic of Yugoslavia, paras 71–79. 443 The network, for instance, never reported on the tens of thousands of Albanian refugees who spoke of executions and ‘ethnic cleansing’ in Kosovo, but showed pictures of Madeleine Albright with growing Dracula teeth and endlessly repeated films that depicted Yugoslav soldiers as idealised heroes defending their country. Fisk, Once you kill people because you don’t like what they say, you change the rules of war, The Independent, 23 April 1999. 444 See Debatte über Kriegshetze serbischer Medien, nzz, 16 July 2009. 445 ai, nato in Yugoslavia, 2000, pp. 40ff, 46. 446 Ibid. 447 Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom. ECtHR, Grand Chamber: Banković et al. v Belgium et al.
448 Ibid, para. 28. 449 The main question was hence the effect of extra-territorial acts of member states of the echr on its jurisdiction. ECtHR, Grand Chamber: Banković et al. v Belgium et al., paras 74ff, especially 82. 450 Wells, Al Jazeera Accuses us of Bombing its Kabul Office, The Guardian, 17 November 2001. 451 Ibid. 452 Cf. Chapter 1, p. 41. 453 Wells, Al Jazeera Accuses us of Bombing its Kabul Office, The Guardian, 17 November 2001. 454 Ibid. 455 Ibid. 456 Ibid.
457 In the end, two English civil servants were charged under the British Official Secrets Act for leaking the memo. Sullivan and Pincus, Paper Says Bush Talked of Bombing Arab tv Network, The Washington Post, 23 November 2005; cpj Website, Bush, Blair Should Set Record Straight on Leaked Al Jazeera Threat, 23 November 2005; ifex Website, Media Gagged over Al Jazeera Memo, 30 November 2005. 458 See for many: Knightley, The First Casualty, 2004, p. 539; Gimbel, The War against Witness, Foreign Policy in Focus, 19 September 2011; Gimbel, Targeting Journalists in Iraq: Spain Seeks Justice in Couso Case, 11 October 2011, available at:
463 Ibid; Knightley, The First Casualty, 2004, p. 539. 464 Knightley, The First Casualty, 2004, p. 539. 465 Gimbel, The War against Witness, Foreign Policy in Focus, 19 September 2011, available at:
471 Knightley, The First Casualty, 2004, p. 540. 472 cpj Website, Campagna and Roumani, Permission to Fire?, 27 May 2003, p. 8. 473 Ibid, p. 1. 474 See e.g. the inclusion of comments that highlight certain facts of soldiers and their lives. 475 rwb, Two Murders and a Lie, 2004, pp. 7f, 22ff. 476 rwb further outlines the responsible level of command and highlights the commander of the 3rd Infantry Division who, in their view, bears a heavy responsibility for not providing the necessary information that would have prevented the attack. Ibid, pp. 20f. 477 The prosecutor argued at least partially on universal jurisdiction. 478 Eade, WikiLeaks, The Couso Case, Blog ‘Looking to the Left’, 21 December 2010. 479 Ibid.
480 Ibid. 481 Ibid. 482 Gimbel, The War against Witness, Foreign Policy in Focus, 19 September 2011, available at:
[T]he specific attack was justified on the principle that the Libyan televi- sion was clearly used, not only to disseminate message of propaganda or hated, but specifically used to incite acts of violence…speeches that were basically increasing in both frequency and intensities, which were clearly calling for conducting acts of violence against the population in Libya. This was, in a sense, the trigger for our attack on these dishes.491
In response to a question about the effects of the attack, he first named the degradation of the television satellite broadcast capability.492 Second, he said:
Another order of effect, of course, is a clear message. A clear message that nato will act against weaponry, conventional weaponry, but also against means that are used by the regime to trigger either threats or attacks
488 According to news reports, the attack killed three people and left 21 wounded. nato denied any such killings. insi Website, insi Calls on un to Investigate over nato and idf Attacks on Media Outlets, 5 August 2011; see further the Letter of Nato Assistant Secretary General for Operations Martin Howard to Joel Simon, Executive Director of cpj concern- ing the attack on the three satellite transmission dishes of Libyan state tv in Tripolis, ops(2011)0521, cpj Blog, 12 August 2011. 489 Charbonneau, Envoys want nato answers about strike on Libyan tv, Reuters, 10 August 2011. 490 Ibid. 491 Press briefing on Libya, 2. August 2011, available at:
against the civilian population. I believe that the message was delivered quite clearly.493
In August 2011, nato Assistant Secretary General for Operations Martin Howard answered a letter concerning the attack from Joel Simon, executive director of the cpj, and used the exact same arguments as Lavoie.494 He fur- ther added that extensive monitoring confirmed several broadcasts that clearly called for crimes against the civilian population and the aim of the attack was not to target the media but to neutralize the elements that were used to threaten the civilian population.495 With regards to the effect of the attack Lavoie admitted:
[Of] course, we are fully realistic and aware that this strike by itself did not, and will not, remove the ability of the Qadhafi regime to use televi- sion as a weapon or as a means to incite attacks.496
And about the diminished effects of the attack on the effects of hate speech, Lavoie simply stated:
[T]he key element is basically that television was used as a means to trig- ger acts of violence. …So this is purely military logic. Not something based on semantics or subjectivity.497
It was, however, clear that nato was aware of the critical nature of the objec- tive and paid attention to the principles of necessity and proportionality: First, the attack took place during the night, when no people were around; it chose satellite dishes on the ground and it did not destroy the entire broadcast net- work or its infrastructure, which according to Howard ‘will be an important capability for the country to have in the future’.498
493 Ibid. 494 Letter of Nato Assistant Secretary General for Operations Martin Howard to Joel Simon, Executive Director of cpj concerning the attack on the three satellite transmission dishes of Libyan state tv in Tripoli, ops(2011)0521, cpj Blog, 12 August 2011. 495 Ibid. 496 Press briefing on Libya, 2 August 2011, available at:
499 Cf. Chapter 1, pp. 55ff. 500 Sherwood, Israeli Air Strikes Hit Media Centres in Gaza City, The Guardian, 18 November 2012. 501 News item on the website of the press emblem campaign, available at:
which is a station that is a Hamas command and control facility, just as in other totalitarian regimes the media is used by the regime for command and control and also for security purposes.505 ff Essence of State Practice To conclude this section on state practice: We have seen that attacks on media facilities are no exception but rather the rule in contemporary armed con- flicts. Yet the justifications for such attacks differ considerably. nato’s attack on rts Belgrade was deliberate and aimed at silencing the propaganda machinery of the Serbian regime. With regards to the us attacks on the offices of Al Jazeera in Kabul and Baghdad, the us military claimed that Al Jazeera had not been a target. However, Al Jazeera countered that the us Department of Defense knew very well their location because they had delivered it to them several times through their partner cnn in Washington. The same argu- mentation followed the attacks in Baghdad on the Palestine Hotel, where us forces denied any deliberate targeting of media. In Libya again, nato admit- ted that they had deliberately targeted the satellite dishes, again to silence terror broadcasts.506 And in Gaza, the idf used the same argumentation as for the targeting of journalists, namely, that the media had been connected to terrorists. At least in one of the strikes, the idf argued that they had targeted an antenna on the roof of one building because it was part of Hamas’s opera- tional communications infrastructure and had therefore been used for mili- tary purposes.507 Hence, while the us denied any deliberate targeting of the media, the disclosure of unofficial documents indicate a contrary policy. nato and the idf, on the other hand, publicly admitted to targeting media facilities. They justified this policy with mainly two arguments: their contribution to the military information network of the enemy and their spreading of propaganda. c Propaganda as Contribution to Military Action To recall: The law does not clearly state whether media outlets are or can be legitimate military objectives. State practice and reactions to attacks on media outlets mirror this ambiguity of the law. In some cases it has been argued that the transmission of military information over media channels made them dual
505 hrw, Unlawful Israeli Attacks on Palestinian Media, 2012. 506 Charbonneau, Envoys Want nato Answers About Strike on Libyan tv, Reuters, 10 August 2011. 507 hrw, Unlawful Israeli Attacks on Palestinian Media, 2012.
To military professionals it is absurd – and even duplicitous – to con- tend…that it is somehow preferable to slaughter masses of enemy troops to achieve victory – in lieu of merely destroying a propaganda organ propping up a perverse regime (at the price of small, albeit regrettable, numbers of civilian casualties).513
Dunlap, however, does not say that the law as it stands today supports his posi- tion, but what he sees as preferable as opposed to the law. He also implicitly assumes that the destruction of the propaganda organ would forestall the attacking masses of enemy troops, which is not necessarily true. It can further- more be contended that he misuses the principle of proportionality, which does not apply to all operations of a war taken together, but to every single operation.514
508 See the cases concerning Belgrade and Gaza. 509 See the cases concerning Belgrade, Gaza and Libya. 510 Henderson, Targeting, 2009, p. 132; Pape, Schutz der Presse, 2013, p. 73; Balguy-Gallois, Le rôle des médias, 2010, pp. 99ff; Kuttab, The Media and Iraq, 2007, pp. 882f. 511 ai, nato in Yugoslavia, 2000, p. 41. 512 Dunlap, Law and Military Interventions, 2001, p. 15. Similar, Fenrick, nato Bombing Campaign, 2001, p. 497. 513 He describes any other interpretation as disconnected from humanitarian values, which inevitably weakens the support for the law. Dunlap, Law and Military Interventions, 2001, pp. 15f. 514 Cf. Chapter 3, pp. 150ff.
Contrary to Dunlap, Laursen finds that the inclusion of propaganda as a con- tribution to military action will stretch the definition of military objectives too far.515 He rightly sees the threshold problems of such an interpretation. Who will define what constitutes propaganda? Does it make a difference whether Al Jazeera or Western media, such as Fox News or British tabloid The Sun, distrib- ute such propaganda? Does propaganda have to be false or incorrect? And what about withholding information? Several governments practice military censor- ship of the media with the rationale of state security. Does this make the entire media a legitimate target? Laursen concludes that targeting propaganda out- lets ‘appears to be too openended and has the potential to substantially under- cut the protection of civilian objects’.516 Fenrick then argues that usually, media consitute no legitimate target but that this is different when a state controls essentially all of the media and the political leadership directing the war effort uses that media as part of a system to control the civilian population.517 Henderson then suggests an approach that lies in the middle of the afore- mentioned approaches:
The mistake that is often made is to try to determine whether propa- ganda as a class contributes to military action and consequently whether stopping the dissemination of propaganda offers a military advantage. The difficulty is that propaganda is a very broad class, and what some would class as propaganda others would class as something else. The cor- rect approach is not to try to determine whether the use of a tv or radio station to spread propaganda makes the tv or radio station a military objective. Rather, it is whether the use of the tv or radio station to dis- seminate a particular message or type of message makes the tv or radio station a military objective.518
He uses the analogy of a truck on a bridge to illustrate this approach, linking a radio station to a bridge and a truck to one particular form of propaganda and the content of the truck to the contents of the propaganda:
Looked at this way, in the same way that a bridge may or may not be a mili- tary objective depending upon what the cargo is inside a truck passing
515 Laursen, icty Investigation, 2001, pp. 782ff, 783. 516 Ibid, p. 784. 517 However, this is not the case in states with a free press. Fenrick, nato Bombing Campaign, 2001, p. 497. 518 Henderson, Targeting, 2009, pp. 133f.
over or about to pass over the bridge, a radio station may or may not be a military objective depending not on classing the broadcast as propaganda but rather by assessing the actual contents of the message.519
Then, however, he stops his analysis and does not scrutinise what kind of cargo, namely what content of propaganda, may amount to a military contri- bution. He admits not to offer direct legal support for his argument and simply states that the truthfulness of the message is irrelevant and that propaganda that is not more than general civilian support for the war effort is not sufficient for the criterion of contribution.520 The same is true for activities or propa- ganda that solely prolong the war.521 There is, however, legal material that offers support of Henderson’s argu- ment and even refines it. Again, icl can serve as a yardstick and interpretative guidance for ihl. Hence, when using general terms of propaganda, one must distinguish five different forms of it: (1) propaganda that incites to violence and hostility, (2) propaganda that incites to war crimes, (3) propaganda that incites to crimes against humanity, (4) propaganda for war, and (5) propaganda that incites to genocide. aa Incitement to Violence and Hostility as Contribution to Military Action As has been scrutinized above, it is very difficult to determine whether speech that incites to violence and hostility has an effect on the commission of such actions.522 The international community agrees that such forms of speech shall not be protected; it disagrees, however, on the criminalisation of such speech. This is also due to the unclear effects of such speech. It is therefore unclear whether it may contribute to the commission of hostilities, which might have an effect on military action. This may be an option but is far from a rule. It can therefore not be generally assumed that incitement to violence and hostilities contribute to military action. The politics of the criminalisation of hate speech support this understanding.523
519 Ibid, p. 134. See also Saul who argues ‘whether the media can be targeted for incitement depends on satisfying the ordinary requirements for attacking civilian objects… Such tests must be independently satisfied and there is no freestanding right to attack the media simply for incitement alone’. Saul, International Protection of Journalists, 2008, p. 114. 520 Henderson, Targeting, 2009, pp. 134f. 521 Ibid, p. 134. 522 See Chapter 3, pp. 173ff. 523 Cf. above pp. 275ff.
524 Laursen, icty Investigation, 2001, p. 786. 525 Cited in Pape, Schutz der Presse, 2013, p. 72. 526 Laursen, icty Investigation, 2001, p. 786. 527 See above pp. 292f. See also Saul, who argues that incitement to war crimes and the carry- ing out of such conduct is sufficient to establish that the media is making an effective contribution to military action. Saul, International Protection of Journalists, 2008, p. 114. 528 Similarly, Henderson, Targeting, 2009, p. 137. 529 Cf. Fenrick, nato Bombing Campaign, 2001, p. 496. 530 Ibid.
On the surface at least, a broadcasting station that incites genocide does not make an effective contribution to military activities and its destruc- tion would, therefore, not constitute a clear military advantage. On the contrary, to the extent the armed forces participate in the genocide, this would appear, from a cynical point of view, to detract from their contri- bution to legal military efforts.534
The main question is therefore whether genocide itself is part of the military efforts of the enemy. Only if genocide is an integral part of a military campaign can the criteria of effective contribution be fulfilled. This however, does not indicate a definite military advantage; this can only be fulfilled if the enemy regarded the genocide as being of military significance.535
531 Articles 49, 50, 129, 146 gc IV and Article 85 ap I, which obligate the state parties to ensure respect for the ihl provisions. Also mentioning this idea: Balguy-Gallois, Le rôle des médias, 2010, p. 100. 532 The requirements of proportionality and necessity nevertheless also condition any law enforcement operation. See Melzer, Targeted Killings, 2008, pp. 423f. 533 Cf. the constitutive elements of the crime, such as enslavement or the crime of apartheid. 534 It must be mentioned that the crime of genocide had not been far developed by case law at the time of writing his article. Laursen, icty Investigation, 2001, p. 786. 535 Ibid.
536 See above, pp. 282ff. 537 See ibid for further details.
- If media installations are used to incite to genocide and such genocide is part of the military plan of the enemy. - If media installations are used to plan, prepare or initiate a crime of aggression.
In addition, media installations which are used to incite to war crimes and seri- ous violations of ihl can be legitimately targeted over the framework of law enforcement.
D Military Advantage of Targeting Media Installations After this complex and lengthy analysis, a so-called killer-criterion must be added, which relativizes the foregoing analysis. In addition to all that has been said, it is very questionable whether the total or partial destruction or neutral- ization of media facilities fulfils the second criterion of military objectives, namely, a definite military advantage. Attacks on military objectives that only offer a temporary advantage are not legitimate.539 Moreover, such advantage must be concrete and perceptible and not only tactical or political.540 Information is clearly a decisive factor in contemporary conflicts.541 Destruction of media facilities may regularly lead to interruptions of commu- nication and a lack of communication and information of enemy forces, which can be a military advantage. However, such advantage is often of only very short duration because other channels of information immediately fill the gap in the communication chain. Media outlets often use several offices, antennas,
538 Laursen, icty Investigation, 2001, p. 786; also Henderson, Targeting, 2009, p. 137. 539 Balguy-Gallois, Protection des journalistes, 2004, p. 9. 540 Dinstein, The Conduct of Hostilities, 2004, pp. 85f. This rule is also applicable in niac, see Rule 8 cl-Study, Henckaerts and Doswald-Beck, Customary ihl, Rules, 2009, pp. 27ff. 541 See Chapter 1, pp. 22f.
7 Testimonial Privileges before International Tribunals In tandem with the strengthening of the international criminal justice system, another issue of restrictions on freedom of expression has gained some atten- tion during the last decade: testimonial privileges of journalists before interna- tional criminal tribunals. This will be the sixth and last special category of restrictions of freedom of expression and the right to information discussed in this section. In the context of this study, this concerns the question of whether news providers shall be compelled to testify before international criminal courts. This issue is of special interest for news providers who cover armed conflicts since they are regularly the first independent witness at scenes of crimes and therefore of vital interest for criminal trials. American journalist Elisabeth Neuffer described in her testimony before the icty her personal experience of how the work of news providers can be relevant for international criminal trials:
My path often crossed in the field with that of the war-crimes investiga- tors and prosecutors, as we were often chasing the same information. On
542 See e.g. the short interruption after the attack on rts Belgrade or the not-even-inter- rupted broadcasts after the attacks in Gaza. 543 Hampson argues, ‘If journalists are civilian, the exercise of the journalistic function must be civilian. In that case buildings and equipment necessary for the exercise of the func- tion must also prima facie be civilian’. Hampson, Freedom of Expression in Situations of Emergency, 2012, p. 460. Similarly, Pape, Schutz der Presse, 2013, p. 74.
several occasions, when I found I had general Information that was of no particular use to my stories but related to war crimes cases, I passed it along to staff from The Hague. …For example, investigators on the Srebrenica case will remember that my translator and I led them to the trail of skeletons we discovered on Mt. Kamenica – the bodies of those in the column of men that marched out of Srebrenica. [J]ournalists who reported in 1997 from Rwanda and Zaire found our- selves in possession of information that tribunal investigators could not physically retrieve. Investigators then had not received permission to cross into Zaire, where retreating Hutu interahamwe had left piles of documents detailing everything from gun smuggling to plans to attack Rwanda in their wake.544
And also in recent conflicts in Libya and Syria, news providers were the first to arrive on the scene of horrific situations of alleged war crimes.545 Through this first-row experience, news providers face a high chance of being subpoenaed as witnesses for criminal proceedings and trials.546 This conflicts with a long tradition in hrl: namely, that freedom of expres- sion protects news providers from testifying in court. The jurisprudence of regional human rights bodies, such as the ECtHR and the IACtHR, established on an international level that journalists benefit via freedom of expression from a testimonial privilege which allows them to deny statements in court. Only very severe interests of national security can overrule this privilege.547 None of the cases before the ECtHR or the IACtHR concerned a news provider covering an armed conflict. Such cases, however, appeared before the icty and other international criminal courts. This led to the question of whether this testimonial privilege is also valid in proceedings before international criminal
544 icty, Randal Case, Amici Curiae Brief, Exhibit A, Annex of the Testimony of Elizabeth Neuffer, paras 6–10. 545 See e.g. ai, The Battle for Libya, 2011. 546 See e.g. Jones, Compelling War Correspondents to Testify, 2006, p. 138. 547 The ECtHR’s case law has a tradition of outweighing the confidentiality of journalist’s sources to public interests: ‘The protection of journalistic sources is one of the basic condi- tions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watch- dog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected’. ECtHR, Goodwin v the uk, para. 39. Other cases before the ECtHR concerned mostly whistleblowing and other criminal behaviour, but no news providers in armed conflict. On the ECtHR’s case law on testimonial privileges see CoE, Rec R (2000) 7 and for case law of the American continent see Kraut, Randal, 2004.
A The Function of Testimonial Privileges in International Criminal Trials Testimonial privileges guarantee the right to non-disclose certain types of information. The owner of such a privilege is allowed to refuse to answer ques- tions about these types of information in court. Generally, the reason for such a privilege is the protection of a relationship in which open communication is important to society. In consequence, the cost to the legal system of losing access to the privileged information is outweighed by the benefit to society of open communication in the protected relationship. Testimonial privileges in international criminal trials lie therefore at the heart of a clash of different interests: the interests of prosecutors, of the accused and of news providers. First, prosecutors have the interest and the duty of accessing all relevant evidence which can prove the guilt or innocence of the accused with the aim of the reconciliation of the truth. They are guard- ians of the public’s right to truth and interest in effective law enforcement and fair administration of justice. Therefore, all possible evidence, including wit- ness statements of news providers who were touched by alleged crimes, is relevant. Second, the accused have the right to a fair trial and the presumption of innocence. They have an interest in questioning all witnesses who accuse them, including news providers who reported about their alleged crimes. This right to examine, or have examined, the witnesses against oneself is codified in all major human rights treaties and in the statues of the icc and the un ad hoc Tribunals.548 In many cases, the right to cross-examination, including a denun- ciation of the credibility of the witness, is the most important procedural tool of the defence of the accused. Nevertheless, this right is not absolute.549
548 See for instance, Article 14 (3) iccpr, Articles 7–9 achr, Article 21 (4) (e) icty Statute, Article 20 (4) (e) ictr Statute, Article 67 (1) (e) icc Statute. 549 According to the icty’s opinion in Tadic, the protection of victims and witnesses is an acceptable reason to limit the accused’s right to a fair trial and does not automatically result in a violation. icty, The Prosecutor v Tadic, tc Judgement, para. 28; icty, Randal Case, Protective Measures, para. 31. See further on the balance of these interests: Zahar and Sluiter, icl, 2008, pp. 275ff; Zappalà, Human Rights in International Criminal Proceedings, 2005, pp. 241ff.
Third, news providers have an interest in securing the safe conduct of their work as guardians of the public’s right to information, which also means a guarantee of the confidentiality of their sources. If information is of interest for a trial and cannot be obtained otherwise, it is often very sensitive informa- tion. Frequently, the more sensitive the information, the more likely it was pro- vided to the news provider in confidence with the guarantee that the source would not be publicly disclosed.550 All together, these three interests form a moral dilemma: Either the rights of the accused and the power of the prosecution are restricted by guaranteeing a testimonial privilege for news providers; or news providers have to testify in court and freedom of information is restricted, which includes the confidenti- ality of the sources of news providers. Consequently, privileges are somewhat counterintuitive in a system designed to arrive at the truth.551 By granting many and expansive privileges, courts undermine their own possibilities of fact-finding. Therefore, and because the aim of courts is to bring war criminals to justice, such privileges should only be exceptional.552
B A Testimonial Privilege for News Providers? This section aims now at determining what privilege for news providers is use- ful and accurate before international criminal tribunals. Thereby, the heart of the inquiry should be whether the decreased accuracy of fact-finding caused by extending such privilege to news providers is less harmful to the interna- tional community as a whole than the detrimental effects that denial of privi- lege may have on the work of news providers.553 For this purpose, I will first outline the general parameters in icl for testimonial privileges (a). Then, I will give some examples of news providers who appeared as witnesses in interna- tional criminal trials (b). Subsequently, I will present two landmark decisions of the icty and the Special Court for Sierra Leone (scsl) regarding news pro- viders (c and d). And ultimately, I will discuss a possible testimonial privilege for news providers before the icc (e). a Testimonial Privileges in International Criminal Law In icl there are three absolute types of testimonial privileges: a privilege against forced self-incrimination and the incrimination of family members, a lawyer-client privilege and a privilege specifically accorded for members and
550 Boas et al., International Criminal Procedure, 2011, p. 370. 551 Buchanan, Freedom of Expression and International Criminal Law, 2004, p. 623. 552 Berman, Evidentiary Privileges, 2005, p. 245. 553 Cf. ibid, p. 256.
554 Rule 97 of the icty and ictr Rules of Procedure and Evidence and icty, The Prosecutor v Delalic, Subpoena to an Interpreter and scsl, Prosecutor v Birma, Witness TF1-150; icty, The Prosecutor v Simić, Separate Opinion Judge Hunt, para. 35. See further Boas et al., International Criminal Procedure, 2011, pp. 368ff; Powles, Privilege From Testimony, 2003, p. 475. 555 icty, The Prosecutor v Delalic, Subpoena to an Interpreter, para. 20. 556 icty, The Prosecutor v Blaskic, Review tc, para. 43. 557 icty, The Prosecutor v Blaskic, Protective Measures, paras 24–32. 558 Rule 98 of the icty and ictr Rules of Procedure and Evidence. More on that subject, see Powles, Privilege From Testimony, 2003, pp. 467–478; Buchanan, Freedom of Expression and International Criminal Law, 2004, pp. 617, 621. 559 icty, The Prosecutor v Stakic, Witness Testimony. 560 Cf. Introduction, pp. 5ff. 561 His testimony was used in other cases applying Rule 92ter about written statements and transcripts of previous testimonies. icty, The Prosecutor v Radovan Karadžić, Witness Vulliamy, para. 2 and Annexes.
Dutch journalist Aernout van Lynden (Witness rm 515), who covered the war from 1991 until 1995 for the British network SkyNews, was also a frequent witness whose testimony was used in the cases against Stanislav Galić, Slobodan Milošević and Momčilo Peršić in 2001, 2002, 2003, 2009 and 2010.562 In his 32 page-long witness statement, van Lynden described his observations and experience of the shelling and sniping campaign against the civilian popu- lation of Sarajevo by Serb forces. He further described interviews with Mladic and Karadžić and the lack of utilities, food and essential services in Sarajevo as well as evidence of malnutrition. In sum, he gave evidence about a number of facts that, if true, constitute war crimes.563 Another example of a news provider witness is Zoran Petrović-Piroćanac, a Serbian journalist, who was present in and around Srebrenica in July 1995.564 At the time, he videotaped the events taking place in Srebrenica. He testified in the cases Prosecutor v Popović et al. in 2007 and in Prosecutor v Tolimir in 2011. His testimony was further used in the Karadžić case.565 In all these cases, the news providers testified voluntarily. American reporter Jonathan Randal, however, who was also subpoenaed by the court, refused to testify before the icty, which led to the landmark decision concerning a testi- monial privilege for news providers before international criminal tribunals. c The Randal Case The so-called Randal case originated with an article by Jonathan Randal pub- lished in February 1993 in the Washington Post. In this article, under the head- line ‘Preserving the Fruits of Ethnic Cleansing; Bosnian Serbs, Expulsion Victims See Campaign as Beyond Reversal’, Randal attributed a number of statements to Radoslav Brdjanin, one of the accused before the icty.566 Brdjanin is a former deputy prime minister of the Bosnia Serb Republic who played a key role in the ethnic cleansing during the conflict. He was captured
562 See e.g. icty, The Prosecutor v Mladić, Witness van Lynden. 563 Ibid, paras 14ff, 85. 564 Petrović-Piroćanac could therefore be compared with a modern citizen journalist. Interestingly and unlike the other journalist witnesses, he was a witness for the defence, who still called Karadžić ‘Mr President’ in the examination. icty, The Prosecutor v Radovan Karadžić, Witness Petrovic-Pirocanac II. 565 icty, The Prosecutor v Radovan Karadžić, Witness Petrovic-Pirocanac I. See moreover the example of a recorded telephone conversation by a journalist, which included the word ‘extermination’. ictr, The Prosecutor v Renzaho. 566 Randal, Preserving the Fruits of Ethnic Cleansing; Bosnian Serbs, Expulsion Victims See Campaign as Beyond Reversal, The Washington Post, 11 February 1993.
567 Fact Sheet of the icty on the case of Radoslav Brdjanin, avaliable at:
indulge in academic exercises or attempt to decide issues that may well be very interesting and related to the so-called journalistic privilege in the multi- facets in which it is presented, but go beyond, and have no bearing on what is really involved in, and truly relevant to, the subject-matter of the Motion.572
Moreover, the tc said that freedom of the media was ‘only marginally’ involved in the Randal case and that this trial was the wrong place to ‘scrutinize the status, role and privilege of journalists reporting from conflict areas’.573 The amici highlighted the severe consequences of such an approach in the sense that it would seriously frustrate the newsgathering and reporting functions of war correspondents because it limits them in their ability to access newswor- thy information in conflict zones.574 And much more, ‘[b]y compelling reporters to testify whenever the Tribunal determines that they might have pertinent testi- mony, the Tribunal will rob war correspondents of their status as observers and transform them, [sic] into participants’575 and finally to ‘unarmed foot soldiers’ of the court, thus undermining their credibility and independence.576 In sum, they stated that forcing reporters to testify against their sources will make future sources more hesitant to talk to the press, particularly in war zones.577 At this stage, a very small procedural bypath of the Brdjanin case – the subpoena of one single witness – itself became a very big and time-consuming proceeding that would thereafter be remembered famously as the Randal case. In the appeal proceedings the ac tackled three relevant questions to answer in the case: First, is there a public interest in the work of war correspondents?578 Second, would compelling war correspondents to testify in a war crimes tribunal adversely affect their ability to carry out their work? And third, what test is appropriate to balance the public interest in accommodating the work of war correspondents with the public interest in having all relevant evidence available to the court?579
(1) Is there a public interest in the work of war correspondents? The first question must be understood in connection with the function of tes- timonial privileges. The reason for such privileges is the protection of a
572 Ibid. 573 Youm, Journalist’s Privilege, 2006. 574 icty, Randal Case, Amici Curiae Brief, paras 27, 30. 575 Ibid, para. 21. 576 Ibid, para. 31. 577 Ibid, para. 28. 578 I refer here to war correspondents because this was the terminology used by the icty’s ac. 579 icty, Randal Case, ac Decision, paras 35ff.
(2) Would compelling war correspondents to testify in a war crimes tribunal adversely affect their ability to carry out their work? With regards to the second question, the court acknowledged that it is impos- sible to determine or evaluate the effect that an obligation to testify would have on the work of war correspondents.582 However, a negative effect could not be disre- garded and the potential impact upon the newsgathering function and safety of war correspondents was great.583 What really matters – according to the ac – was that correspondents could be forced to become key witnesses against their inter- viewees.584 The ac saw then two consequences of a duty to testify: Possible sub- jects for an interview might talk less freely and deny access to information and territory. Newsgathering might therefore become more difficult. Second and sub- sequently, the ac assumed that war correspondents might shift from being observ- ers to being targets of human rights violations.585 In this point, the ac admittedly followed unconditionally the opinion of the amici curiae brief and concluded that a general duty to testify for war correspondents should be rejected.
(3) What test is appropriate to balance the public interest in accommodating the work of war correspondents with the public interest in having all relevant evi- dence available to the court? With regard to the third question, the ac held that the ‘pertinence’ test the tc had applied was unsatisfying because it applies the same balance as to all
580 Ibid, para. 36. 581 Ibid. 582 Ibid, para. 40. 583 Ibid. 584 Thereby, the ac divided the two aspects of publishing an interview (mostly the very pur- pose of giving an interview) and testifying against the interviewed person on the basis of that interview. 585 icty, Randal Case, ac Decision, para. 42.
The compelled journalist’s testimony would provide admissible evidence that (1) is ‘of crucial importance’ to determining a defendant’s guilt or innocence; (2) cannot be obtained ‘by any other means or from any other witness’; (3) will not require the journalist to breach any obligation or confidence; (4) will not place the journalist, his family, or his sources in reasonably apprehended danger; and (5) will not serve as a precedent that will ‘unnecessarily jeopardize the effectiveness or safety of other journalists reporting from that conflict zone in the future’.587
The amici curiae, on the other hand, urged – listing a number of domestic law examples – a model that was rooted in the very restrictive us practice of testimo- nial privileges for journalists.588 According to this test, news providers shall not be ordered to testify unless an affirmative showing is made that the evidence in question is (1) essential and that it is (2) not available elsewhere.589 For the condi- tion ‘essential’ to be satisfied the testimony must, first, be critical to determining the guilt or innocence of a defendant; and second, the information cannot be obtained by any other means.590 The second condition requires the party seeking the subpoena to establish that it cannot obtain the evidence in any other way – from other witnesses, articles, sources or otherwise. Hence, the burden of show- ing that all other available avenues of obtaining information have been exhausted falls upon the party seeking the subpoena, not upon the reporter.591
586 Ibid, paras 45ff. 587 Summarised in Heeger, Testimonial Privilege, 2005, p. 218. 588 icty, Randal Case, Amici Curiae Brief, para. 37. The us has a long tradition of media fighting their role as witnesses in criminal trials that started already in 1735 with the Zenger Trial. Today, different shield laws and us Department of Justice policy regulate when to subpoena journalists and testimonial privileges of the media. For an overview on us law on testimonial privileges see Schmid, Journalist’s Privilege from 1973 to 1999, 2002; Youm, Journalist’s Privilege, 2006; McDonald, Under Fire, 2003, p. 137; Heeger, Testimonial Privilege, 2005, p. 217, fn 20. For the recent trial about the testimonial privi- lege of cnn journalist John Walker Lindh and his reporting on Afghanistan, joined by a big number of powerful media outlets, see: us District Court Virginia, us v Lindh. 589 icty, Randal Case, Amici Curiae Brief, para. 24. 590 This ‘essential’ standard must clearly be distinguished from ‘relevant’ or ‘pertinent’. With the latter standards, nearly every statement made during wartime could be used in trials of war crimes. Ibid, para. 44. 591 Ibid, para. 45.
In the ac’s view, the tests proposed by both the applicant and the amici curiae were too strong and would therefore leave significant evidence inadmis- sible. The ac therefore composed its own two-pronged test:
1. The evidence sought must be of direct and important value in determin- ing a core issue in the case. 2. It must be demonstrated that the evidence sought cannot reasonably be obtainable elsewhere.592
Since the ac described the test proposed by the amici curiae as too strong, the first criteria should be understood to be less strong than ‘essential’ in the sense of being critical to determining the guilt or innocence of the defen- dant. Nevertheless, it must be of ‘direct and important value’ and ‘a core issue in the case’ must be at stake.593 The second criteria is the same as in the amici test, only with the added ‘reasonably’, which is of no big factual relevance. However, the ac did not apply this test on the concrete case. It only noted in an obiter dictum that it was difficult to imagine that Randal’s testimony would be of direct and important value in determining a core issue in the case.594 In the end, the ac followed the amici curiae brief in most of the relevant aspects and applied therefore a strict us policy of a very strong protection of the source of news providers. The decision reads itself therefore almost as if it were an advisory opinion for Randal’s position.595 The ac then referred the case back to the tc. It is not surprising that the tc felt that its hands were tied when rul- ing the second decision on the subpoena of Randal. Therefore, its ruling turned out to be very short, simply admitting Randal’s newspaper article into the evidence.596 However, the test model of the icty ac leaves several aspects unresolved. Who, for instance, falls under the category of a ‘war correspondent’, the term
592 icty, Randal Case, ac Decision, para. 50. For a summary of the different positions of the amici curiae, the prosecutor and Randal, see Jones, Compelling War Correspondents to Testify, 2006, pp. 147–153. 593 icty, Randal Case, ac Decision, para. 50. 594 The prosecutor, on the other hand, claimed that even with the standard of the amici, Randal’s subpoena could not be avoided. Ibid, para. 54. 595 Similar, Fairlie, Evidentiary Privilege of Journalists, 2004, p. 806. 596 It only mentioned very briefly the presumption that war correspondents ‘serve a public interest in providing accurate information from a conflict-torn area’. icty, Randal Case, tc Decision, para. 36.
It is the particular character of the work done and the risks faced by those who cover the events occurring in the conflict zones that it [sic] is at stake in the present case.597
In a next step, the court weighted the interest of the public to receive informa- tion from correspondents in times of war higher than in peace times. However, it is important to note that the court understood ‘war correspondents’ differ- ently from the definition of ihl (travelling with the armed forces without being a member thereof) defining them as:
individuals who, for any period of time, report (or investigate for the pur- poses of reporting) from a conflict zone on issues relating to the conflict.598
This terminology is more general and can therefore be understood, even if not explicitly stated by the ac, as including all news providers who cover armed conflicts.599 Another aspect that has been criticised is the indifference of the test to the confidentiality of the information received. In the case at hand, Randal did not assure Brdjanin confidentiality for his interview. The information of this already-published interview was also far less sensitive than other confidential sources would be. The prosecution recognised this important aspect and had argued that there should not be a privilege for already published material and openly identified sources, as was the case in Randal. A denial of privilege in such a case would not result in a higher risk for war correspondents. The inter- est in protecting freedom of expression was therefore not so high as with regards to confidential information.600 Before, the tc had similarly treated a published article as equivalent to a public statement of the author. And when
597 icty, Randal Case, ac Decision, para. 29. 598 Randal’s counsel suggested to interpret the term war correspondent in its ‘ordinary etymo- logical meaning’, while the counsel of the amici curiae noted that a definition should include ‘people who gather information for dissemination to others’ and that in other definitions this sometimes has ‘involved being a regularly paid employee of a newspaper or publication’. Fairlie, Evidentiary Privilege of Journalists, 2004, p. 808. 599 For a critic on the limitation on ‘war correspondents’ see Kraut, Randal, 2004. 600 icty, Randal Case, ac Decision, paras 41ff.
601 Neuffer was a correspondent for the Boston Globe and had covered the Gulf War, Croatia, Bosnia and Kosovo, Rwanda, and Afghanistan. One year after her testimony, she died in a car accident in Iraq. icty, Randal Case, Amici Curiae Brief, Exhibit A, Annex of the Testimony of Elizabeth Neuffer, paras 10ff. 602 icty, The Prosecutor v Mladić, Witness van Lynden, Annex B, para. 13. 603 See similarly Heeger, Testimonial Privilege, 2005; Tumber, Journalists, War Crimes and International Justice, 2008, p. 265. 604 Fairlie, Evidentiary Privilege of Journalists, 2004, pp. 808f. 605 icty, Randal Case, tc Decision, para. 26.
The interview was furthermore conducted with the assistance of an uniden- tified translator X.606 This is usually the case for many news providers who do not speak the language of the region they are reporting on. Thus, in most cases there is another source available, such as the interpreter, the stringer or similar media support staff that could testify in an interview or similar occurences in the news-gathering process. It is, however, questionable whether staff assisting a professional journalist similarly benefit from the testimonial privilege. However, the added information through a testimony of the journalist who wrote the article must consequently be of such high interest that it fulfils for itself the two-pronged test of the privilege. Only the dissenting opinion of Judge Taya sheds light into this aspect. He explains that Randal would have been questioned about more than only the already-published article, namely, about some very personal impressions only the interview partner can witness in a personal conversation. In particular, Brdjanin’s ‘alleged pleasure at being compared with Ariel Sharon and on his knowing smile when reference was made to the “final solution”’.607 Taya, however, rejected the testimonial duty of war correspondents about unpublished matters and argues that the ac’s test is only applicable to the verification of public information and to such surround- ing circumstances as relate to the accuracy of the published information. According to him, an even stricter standard should be applicable to the testi- mony of unpublished information.608 In addition, it must be noted that Jonathan Randal had already retired from his work as a journalist at the time of the icty trial. As a consequence, there was no need to protect his future work in other armed conflicts. This argument may, however, be disregarded because of the general nature of the question and its effects not only on Randal but on all news providers. In light of all these unanswered leftovers, the decision of the ac appears in a poor light. This caused severe criticism in the legal doctrine, and, especially with regards to the two-pronged privilege test, opinions differ a great deal; for some it is too loose, overly broad and not fact-specific; for others it is too tight.609
606 Randal, Preserving the Fruits of Ethnic Cleansing; Bosnian Serbs, Expulsion Victims See Campaign as Beyond Reversal, The Washington Post, 11 February 1993. 607 icty, Randal Case, ac Decision, Separate Opinion Judge Taya, paras 2, 6. 608 Ibid, paras 6, 10. 609 See e.g. Fairlie, Evidentiary Privilege of Journalists, 2004, p. 806; Jones, Compelling War Correspondents to Testify, 2006, pp. 133–167; Schlesinger, The Prosecutor v Brdjanin and Talic, 2003, p. 240.
Journalists bear witness to some of the worst crimes that humans perpe- trate against one another but, having described such moments to their audi- ence, have they fulfilled their responsibility? Or should they be prepared to take the stand in court to play a part in the trials of alleged war criminals? I understand his [Randal’s] reluctance: reporting the war was a some- times harrowing, occasionally lonely and often companionable experi- ence. But there was no moment of the war quite as lonely and as intimidating as sitting in that witness chair for two days under cross- examination by lawyers who are out to – as one of them told the New York Times – ‘roast Mr Vulliamy on a spit so that no one ever again believes a word he writes’.611
Nevertheless, Vulliamy stated that Randal, the Washington Post and their law- yer Geoffrey Robertson were dangerously wrong:
I believe there are times in history – as any good Swiss banker will tell you – that neutrality is not neutral but complicit in the crime. This is, by the way, to distinguish between neutrality and objectivity: the first is moral; the second is fact-specific – we describe what we see objectively and that is sacrosanct. But what we objectively report need not lead us to neutral conclusions.612
610 Vulliamy, An obligation to the truth, The Observer, 19 May 2002. 611 About his reunion with Milan Kovacevic, one of the accused in The Hague, Vulliamy fur- ther wrote: ‘I will never forget the look of raw hatred Kovacevic threw me across the court- room at our third and final meeting. I was on the stand for two and a half days, mostly at the hands of the defence. It was an utterly solitary experience. Defense lawyers crawled all over my notebooks demanding to know about telephone numbers in the margins, and “context.” A contorted attempt to say I had fabricated the nature of the camps was draffed into open court. Finally, I was discharged; Kovacevic died of a massive heart attack a few days later (on my birthday), and I was accused by a Serbian magazine of his murder’. Ibid. 612 Ibid.
The court needs reporters to stand by their stories on oath. The work of some journalists has already had an impact beyond mere ‘reporting’: in El Salvador, East Timor, Rwanda, the Balkans and elsewhere. …My belief is that we must do our professional duty to our papers and public, and our moral and legal duty to this new enterprise. Why should journalists of all people – whose information will be of such value – perch loftily about the due process of law?613
Vulliamy further doubted that a duty to testify turns journalists into targets.614 Yet the reply of Roy Gutman, diplomatic correspondent for Newsweek, followed promptly:
If they [the icty and other courts] think in the long term, they would realize that journalists can serve as an early warning system against the perpetration of war crimes, but the moment they compel journalist to testify, they will discourage them from doing that job.615
And also Paul Greenberg, a Pulitzer prize-winning journalist, described a sub- poena for a reporter as a death warrant for those who will come after.616 A group of other – mostly European – reporters backed Vulliamy’s view.617 The vast majority of them, however, did not argue with their professional duties but with the moral obligations of every human being and citizen.618 The
613 Ibid. 614 Somewhat ironically, he stated that ‘good reporters put themselves in danger, whether they testify or not’. He further compared the claim of Randal with the rules of the Italian mafia. Ibid. 615 Quoted in Schlesinger, The Prosecutor v Brdjanin and Talic, 2003, p. 241. 616 Ibid. 617 Cf. Simons, Reporter Testifies in Milosevic Case, Fueling Debate on Witnesses, nyt, 29 August 2002; Jones, Compelling War Correspondents to Testify, 2006, pp. 158f. 618 See, for instance Lindsey Hilsum, a freelance journalist working during the genocide in Rwanda who testified before the ictr in the Akayesu case and stated that as a journalist she could have argued against testifying, but as a human being she could not. Or bbc reporter Jacky Rowland, who testified against Slobodan Milosevic and said that testifying in court is an extension of the role of journalists to bear witness. Or former bbc corre- spondent Martin Bell, who testified in the Tihomir Blaskic case and said that journalists ‘are a citizen first and a journalist second’. Cf. Simons, Reporter Testifies in Milosevic Case, Fueling Debate on Witnesses, nyt, 29 August 2002; Jones, Compelling War Correspondents to Testify, 2006, pp. 158f.
619 Tumber denies such an apparent divide between uk and us journalists and argues on the basis of interviews with involved journalists that the willingness to engage with and to assist investigators differs little between uk and us colleagues. However, he states at the same time that it is fair to assume that the news organisations in the us are more con- cerned about testimonials of their employees. Tumber, Journalists, War Crimes and International Justice, 2008, p. 263. 620 Fairlie, Rulemaking from the Bench, 2004. Saul contradicts and finds that the test effectively balances the competing interests. Saul, International Protection of Journalists, 2008, p. 127. 621 scsl, Prosecutor v Birma, Witness TF1-150. 622 See above, pp. 317ff. 623 Rule 70 provides a ‘limited testimonial privilege’. Bierbauer and Jenkin, Reporter’s Privilege Cases, 2003, p. 137. 624 Ibid, p. 138. 625 scsl, Prosecutor v Taylor, Witness tf1-355.
626 Ibid. 627 Easterday, Charles Taylor Trial Report, 2009, p. 10. 628 scsl, Prosecutor v Taylor, Witness TF1-355, para. 1. 629 Easterday, Charles Taylor Trial Report, 2009, p. 10. 630 scsl, Prosecutor v Taylor, Witness TF1-355. Hassan Bility testified further before the scsl in the ruf case; in the us case against Taylor’s son, Chickie Taylor; and in the Dutch case against Guus van Kouwenhoven. For the monitoring transcripts of the Charles Taylor Trial Report on 14 January and 6 March 2009, see Easterday, Charles Taylor Trial Report, 2009, p. 10.
those who provide facilities and conditions to allow newsgathering to be carried out, in particular a journalist who receives assistance to travel to a conflict zone to gather information, as well as those who provide information.634
The tc rejected the argument of the defence to draw a line between different kinds of information because both types assist journalists in producing infor- mation which might otherwise remain uncovered.635 It stated that similar to other sources, in the absence of such a privilege, facilitators might be deterred from assisting the press and informing the public on matters of interest:
Further, both a ‘facilitator’ and a ‘source’ may run similar risks to person safety and/or face other reprisals as a result of their willingness to assist a journalist in his or her reporting. This is especially true in situations of conflict, where tensions are heightened, where the threat of violence may be imminent and where ‘accurate information is often difficult to obtain and may be difficult to distribute or disseminate as well’.636
The tc therefore found that the unnamed helpers were journalistic sources ‘as they are persons who provided assistance or the conditions for a newsg athering function to be carried out’.637 Echoing the two-pronged Randal qualified-privileg e test and Judge Robertson’s dissenting opinion in the Birma case, the tc found that the names of the facilitators were not of direct and important value to a core issue in the case.638 Consequently, Bility did not have to disclose the names of his facilitators.
631 scsl, Prosecutor v Taylor, Witness TF1-355, para. 4. 632 The defence proposed alternatively to hold a closed or private session. Ibid, paras 6f. 633 Ibid, para. 10. 634 Ibid. 635 Ibid, para. 25. 636 Ibid. 637 Ibid. 638 The tc denied moreover the application of three international organizations as amici curiae (Article 19, Privacy International and the Media Legal Defence Initiative), stating that it was ‘neither necessary nor desirable for the tc to hear from the Applications in order to properly determine the Defence Motion’. Ibid, paras 29f, 33.
To summarise, the scsl confirmed the two-pronged test of the icty for a qualified privilege of journalists.639 It further refined the test to also include facilitators (persons who provided assistance or the conditions for a newsgath- ering function to be carried out) in the definition of ‘sources’. This interpreta- tion can be understood as weighting the identity of someone who helps a journalist do his reporting as just as worthy of protection as the identity of the source of information. This is of high importance for the protection of media support staff. However, the tc of the scsl did not go so far as to create an abso- lute privilege for a journalist’s confidential sources. Hence, we have seen that the icty and the scsl have both granted testimonial privileges to news providers. Yet despite the relatively coherent jurisprudence of both courts (consisting of only two cases), several questions – especially concerning the role of confidentiality – remain unanswered. It is therefore pertinent to analyse how the major court of icl, the icc, has approached the issue of testimonial privileged for news providers. e Toward a General Privilege for Journalists Before the icc? The icc was a fresh start in icl; it is not bound by the jurisprudence of the ad hoc Tribunals and of other courts. Nevertheless, their experience and case law is considered a strong source of interpretation.640 Rule 73 of the icc Rules of Evidence and Procedure stipulate testimonial privileges for icrc employees, medical doctors, psychiatrists, psychologists, counsellors, religious clergy and a catch-all provision that covers all other professions, as long as they can cumu- latively show credibly that:
(a) communications occurring within that class of relationship are made in the course of a confidential relationship producing a reasonable expecta- tion of privacy and non-disclosure; (b) confidentiality is essential to the nature and type of relationship between the person and the confidant; and (c) the recognition of the privilege would further the objectives of the icc Statute and the Rules of Evidence and Procedure.641
It is not entirely clear whether news providers would fall under this rule. The rule itself may already be regarded as the decision of the international
639 scsl, Prosecutor v Taylor, Decision on Amicus Brief, para. 2. 640 For an analysis of the effect of the jurisprudence of the ad hoc Tribunals on the icc, see Fairlie, Rulemaking from the Bench, 2004, pp. 257ff. 641 Rule 73 (2–4) icc Rules of Evidence and Procedure. Heeger, Testimonial Privilege, 2005, p. 233.
(1) the importance of the testimony sought from the war correspondent for the outcome of the trial; (2) whether the information sought to be obtained from the war correspon- dent might be obtained elsewhere; (3) whether protective measures (anonymous testimony, witness-protection programme, etc.) could be provided to the war correspondent to alleviate the risks identified in the Randal case; (4) whether the fair rights of the accused would be sufficiently respected if the war correspondent’s testimony was not compelled.643
In order to fully remove all ambiguity in this area, in my view, this catalogue must be extended with the following questions:
- What is considered to be ‘a source’? - Supposing that news providers benefit from a testimonial privilege, would the privilege be qualified or absolute? - Does the confidentiality of the source make a difference for the application of the privilege?
642 icc, The Prosecutor v Lubanga, tc Judgement, pp. 1318f. 643 Jones, Compelling War Correspondents to Testify, 2006, p. 167.
With regards to the source question, the icc should follow the scsl and support a broad interpretation of sources.644 The scsl correctly acknowl- edged that both ‘facilitators’ and ‘sources’ run similar risks to person and safety and face other reprisals as a result of their willingness to assist a news provider. Providing both information and assistance to news provid- ers can be crucial for the commission of their work, especially in conflict zones where the turbulent environment requires additional assistance and support. Concerning confidentiality, the judges would not be absolutely free to answer this question. So far, the information in the Randal case was an inter- view, so clearly ‘on the record’, while the information in the Bility case was based on a promise of confidentiality, and hence an ‘off the record’ act. But neither the icty nor the scsl considered whether information was provided in confidence. However, the requirements of Rule 73 (2) (a) and (b) foresee that confidentiality is essential to the nature and type of relationship between the person and the confidant. With respect to news providers, this can but does not need be the case. The situation of Randal’s interview with Brdjanin would clearly not fulfil this requirements; the identity of the facilitators of Bility, on the other hand, would. Even with regard to the icrc, it was disputed whether there is an opinio juris for a customary rule of confidentiality for the icrc’s work.645 It can therefore be expected that this question might be even more disputed in the case of news providers.646 That being the case, the requirement of the icc Rules of Procedure and Evidence do not lend support to one single privilege test that would include all sources of news providers, because it can be argued that Rule 73 cannot
644 Cf. above, pp. 329ff. 645 See the strong separate opinion by Judge Hunt in the Simic case arguing against an abso- lute privilege for the icrc (also for confidential information) but for a strong test. According to him, the correct test is ‘whether the evidence to be given by the witness in breach of the obligations of confidentiality owed by the icrc is so essential to the case of the relevant party as to outweigh the risk of serious consequences of the breach of confi- dence in the particular case. Both the gravity of the charges and the availability of means to avoid disclosure of the fact that the evidence has been given would be relevant to that determination. Where the breach of confidentiality leads to the serious risk of damage which exists in the present case, the test must be correspondingly more severe’. icty, The Prosecutor v Simić, Separate Opinion Judge Hunt, para. 35. Further Berman, Evidentiary Privileges, 2005, p. 260. 646 Arguing for such an interpretation, yet in a very sweeping way, Zappalà, Human Rights in International Criminal Proceedings, 2005, p. 243.
Step 1: Articulate the Policy The value of a privilege is not to serve as a personal benefit to journal- ists, to confirm their independence and the accuracy of their work, or offer a shield to protect their sources from prosecution, but rather to foster and protect journalistic independence and the process of gather- ing news.
Step 2: Define Who Benefits from the Rule The definition of ‘war correspondents’ of the Randal case is too narrow and has a different meaning in ihl. Heeger suggests that the icc should make clear that protection will be extended to any individual working as a journalist for gain or livelihood and is collecting news intended for use by a news outlet or in publication. According to Heeger, this also includes editors and supervisors. I support a functional protection of news
647 Gasser, however, argues that all information gained from a confidential relationship is automatically privileged and does not fall under the obligation to testify. He concludes that journalists also gain from this rule. Gasser, Protection of Media Workers, 2009, para. 12. 648 The outline and titles are taken from the five-step model of Heeger, while detailed com- ments on every step were added by the author. Heeger, Testimonial Privilege, 2005, pp. 239–241. Furthermore, only very few scholars have addressed a possible testimonial privilege of news providers before the icc. See Jones, Compelling War Correspondents to Testify, 2006, p. 167; Buchanan, Freedom of Expression and International Criminal Law, 2004, p. 623; Berman, Evidentiary Privileges, 2005, pp. 241–277.
providers, as the term is understood in this study.649 Therefore, the scope should also include freelancers, facilitators such as media staff (including the definition of the Bility case), as well as citizen journalists.650
Step 3: Define the Scope of the Privilege Heeger underscores that it is not the information but the independence of the news provider that is aimed to be protected by the privilege. Therefore, the confidentiality of the information should not play a role for the privilege. This may be true, but the scope of the privilege should also acknowledge all the other interests at stake: the rights of the accused, the interest in justice and the protection of freedom of expression and the right to information. A qualified test, which leaves room for a case-by-case examination, is therefore to be preferred. Moreover, the Rules of Procedure and Evidence of the icc do not leave room for an absolute privilege.
Step 4: Establish a Pre-Trial Procedure There shall be mandatory consultations held between the court, the jour- nalist and the party seeking the disclosure.
Step 5: Apply a Balancing Test For a specific balancing test for news providers, the following aspects ought to be considered:
(a) The information was provided to the journalist under confidentiality; (b) the information is essential or vital for the determination of guilt or innocence of the defendant; (c) the information cannot be obtained from any other source651 and (d) the disclosure of the source has no direct deteriorating effect on the risk to the journalist, his next of kin or other reporters working in the region.652
649 Cf. Chapter 2, pp. 111ff. 650 Heeger moreover suggests that the court could hold an evidentiary hearing on whether the individual claiming the privilege qualifies for the privilege and may consider factors such as the individual’s previous published works and efforts to secure publication of the work now under dispute. Heeger, Testimonial Privilege, 2005, pp. 240f. 651 The ac’s terminology of ‘reasonably’ in the Randal case could be added, even without making a big difference. 652 Cf. Bermann, who argues for a two-pronged test: (1) The evidence sought is of direct and important value in determining a core issue in the case, and (2) the evidence sought is unavailable from any other source. Berman, Evidentiary Privileges, 2005, p. 275.
According to this model, confidential information will always be protected by the testimonial privilege for news providers. Only in very rare cases – where the disclosure of certain information has no direct effect on the risk for news providers, the information cannot be obtained from elsewhere and when it is essential for guilt or innocence – can news providers be subpoenaed to testify before the icc. This test guarantees that the testimony of a news provider should be a last resort and only used when the potential value of the facts mer- its the risk that the disclosure will have a chilling effect on the ability of news providers to obtain information and inform the public.653 This test is therefore a narrowly tailored and accurate yardstick to restrict freedom of expression and the right to information of news providers in exceptional circumstances and is in line with the general requirements provided by hrl. Nevertheless, including when protected by the privilege, it is always a personal choice of news providers whether they want to testify or not.
8 Essence of Part II Over the second part of this chapter we have seen that hrl and ihl allow certain limitations of the functional protection of providing news. Yet such limitations must always be in line with the general restrictions of hrl. As a result, restrictions on access to the territory of a conflict, punishment for espio- nage, criminal liability for speech, the prohibition and punishment for the exposure of protected persons to public curiosity, targeting of media facilities, and testimonial duties for news providers before international courts must (1) be provided by law; (2) be necessary to address either: the protection of national security or of public order, public health or morals; the respect of the rights and reputations of others; or propaganda for war or the advocacy of national, racial or religious hatred that constitutes incitement to discrimina- tion, hostility or violence; and (3) be proportional in relation to the intended purpose. These past sections have given a series of tools to assess the necessity and proportionality of measures in each of these special fields and will hope- fully help to remove the still-governing ambiguity in these areas.
III Conclusion III: Strengths and Lacunae of the Functional Protection
This chapter focused on the functional protection of providing news in armed conflict in international law. Besides the thin protection of news pro- viders, ihl does not offer a range of provisions that apply to the activity of
653 Cf. Boas et al., International Criminal Procedure, 2011, p. 370.
654 ictr, The Prosecutor v Nahimana, Amicus Brief, p. 2.
Chapter 1 of this book identified seven main categories of risks for news pro- viders in contemporary armed conflicts: targeting, kidnapping, restricted access to the battlefield by various means, destruction of media facilities and confiscation of equipment, censorship, hacking, and defamation and fake accusations. Chapters III and IV then showed that international law offers a wide range of provisions and concepts that protect the agent as well as the activity of news providers. The agent of the news provider is well protected under both ihl and hrl. And while ihl offers only a thin protection of the activity, hrl backs this up by the established right to free expression as well as through new emerging concepts for a right to information. In addition, icl can serve as an interpretative guidance and complete areas where ihl and hrl are nebulous or offer no definitive answer, as for instance in the context of dph and of media facilities as military objectives. However, ihl links the protection of news providers to a large extent to their nationality, and distin- guishes them moreover in different groups: war correspondents and journal- ists engaged in dangerous professional missions. This limited and irregular scope of the personal protection in ihl is not optimal.1 Yet, besides this irreg- ularity, the protection of news providers in international law is rather comprehensive. The high risk to the life and work of news providers in combat zones stems therefore not from an insufficient protection in the law, but rather from practi- cal problems and weak enforcement of this law. Practical problems are often linked to the identification and visibility of news providers in armed conflicts. Identification in general plays a crucial role in ihl because it establishes differ- ent types of status which are connected to different rights.2 This is especially critical for war correspondents who are travelling with the armed forces and for news providers who are reporting at the frontline of a civil war. In these environments, it is very difficult for the enemy to distinguish news providers as illegitimate targets from combatants or rebel fighters which are legitimate
1 See the similar argumentation of Frank la Rue who calls it one of the main factors that weaken the protection of journalists. un sr FoEx, Annual Report 2009, para. 45. 2 A uniform may serve as circumstantial evidence of the wearer’s status in the legal sense, it is however not accepted as absolute proof that he or she is indeed a member of the armed forces. Geiss, Name, Rank, Date of Birth, 2005, p. 724.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004288850_007
3 Cf. Chapter 1, pp. 65ff. 4 Cf. Article 8 gcs I–III; Article 9 gc IV; Article 5 ap I. 5 See also Article 132 gc III and Article 149 gc IV, which establish a procedure for enquiry that nevertheless depends on the parties’ agreement. 6 See e.g. the reports of the international fact-finding commission on the Gaza conflict or the Commission of Inquiry for Syria: International Commission of Inquiry, Report on Syria (2013); Goldstone Report (2009). 7 Cf. Article 146 and 147 gc; Articles 80 and 85 ap I. 8 See Chapter 4, pp. 299ff. The assessment of national military jurisprudence goes beyond the scope of this study. Moreover, such cases often take place in the context of criminal proceed- ings, which is not the subject of this study. Nevertheless, some general suggestions for domes- tic institutional design will be given in this chapter. 9 See for instance: IACommHR, Bustíos v Peru; IACtHR, Blake v Guatemala; ECommHR, Tekin v Turkey. However, the case of the attack on rts Belgrade was rejected by the ECtHR as inad- missible: ECtHR, Banković et al. v Belgium et al. So far, there have also not been any cases for international courts or the un HRComm that were rooted in the conflicts of Iraq, Afghanistan, Libya, Syria or Gaza.
10 While the Inter-American human rights bodies have followed this approach for many years, the ECtHR has only recently also joined this approach. See Chapter 4, pp. 210ff. 11 Almost all authors in the field identify impunity as the major obstacle to a functioning protec- tion of news providers: Düsterhöft, The Protection of Journalists, 2013, p. 16; Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 304; Balguy-Gallois, Le rôle des médias, 2010, p. 95; Saul, International Protection of Journalists, 2008, p. 118; Browne and Probert, Safety of Journalists Research Pack, 2012, p. 52; Joint Declaration sr FoEx (2010), para. 3. 12 This statistic is drawn from the internal list of unesco, which follows the regular calls on member states to report on the judicial follow-ups for ongoing investigations of killings of news providers. The list is available on unesco’s website. However, this statistic is not complete. Out of 501 cases, member states have not even answered one-fourth of the unesco requests. Since this procedure is carried out on a voluntary basis, unesco can- not force the member states to share their information on the cases. 13 Ibid. 14 Heyns and Srinivasan talk of 88 per cent, and the cpj Journalists of 94 per cent. Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 311; un sr FoEx, Annual Report 2010, para. 94. 15 Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 312.
16 Ibid. 17 Saul, International Protection of Journalists, 2008, p. 99. 18 Cf. Chapter 1, pp. 71ff. 19 See for an overview of recommendations, the following list of documents: un hrc, Res 21 (2012); un hchr, Safety of Journalists, Report (2013), paras 47–68. 20 In 1957, the International Federation of Editors in Chief held a conference in Lisbon and discussed the issue without coming to an unified solution. The issue was similarly included in the agenda of the Tehran Conference on Human Rights in 1968. Kirby and Jackson, Protection of Media Personnel, 1986, pp. 7f; un ga Res 2444 (1968). See also Howard, Need for Protection, 2002, pp. 513ff.
I Legislative Changes
In view of unwelcome situations, the first reaction of lawyers is often to call for legislative change. This reaction is rooted in the belief that news rules have the power to shape new worlds. Unsurprisingly, such calls for legislative changes have also emerged in the face of the unsatisfying protection of news providers in armed conflicts. This section will present and examine the most promising ideas for such legislative changes, which are: a unification of the personal pro- tection of news providers under ihl (1); the creation of a special emblem for news providers in ihl (2); different approaches to strengthen the normative protection of the activity to provide news in both ihl and hrl (3); the cre- ation of a new international crime (4); a proper international convention for the protection of news providers (5); and finally, the achievement of political leverage through soft law (6).
1 Unification of the Personal Protection under International Humanitarian Law The first normative change examined in this section is a unification of the per- sonal protection under ihl. This suggestion is rooted in the present dichotomy between war correspondents and journalists engaged in dangerous profes- sional missions in ihl, a dichotomy that appears neither necessary nor useful.22 Embedded journalists do the same work unilaterally working reporters do. Both have an equally important role for society to know about different perspectives on armed conflicts. They should therefore benefit from the same protection.23 A pow status carries certain privileges but also entails significant disadvan- tages. Namely, pows can be detained until the end of hostilities.24 This can be
21 For an overview of the historic development of the issue, starting in the era of the League of Nations, see Mukherjee, Internationalization of Journalists’ ‘Rights’, 1995. 22 Cf. Chapter 3, pp. 116ff. 23 Similarly Düsterhöft, who calls this distinction outdated. Düsterhöft, The Protection of Journalists, 2013, p. 15. She further argues for the creation of a single and comprehensive special protection that applies to all journalists in iac and niac. 24 Cf. Chapter 3, pp. 193ff.
2 Creation of a Special Emblem for the Media The second normative change examined in this section is the creation of a special emblem for the media. As far back as the 19th century, a military gen- eral proposed that correspondents should be visibly distinguishable from sol- diers when covering wars. They should therefore wear a white uniform ‘to indicate the purity of their character’.28 This idea came back during the prepa- rations of ap I29 and experienced a revival in the last decade: The Press Emblem Campaign (pec), an organisation founded in 2004 in Geneva with the aim ‘to recall the principles and rules of ihl protecting journalists and the news media during armed conflicts’30 suggested a new convention which includes also a
25 See Chapter 4, pp. 317ff. It must however be recalled, that the icty’s understanding of war correspondent should not be understood in a specific ihl light since the court made no reference to any ihl rule whatsoever. 26 Arguing in favour of such a change: Pape, Schutz der Presse, 2013, pp. 44, 46. 27 See similarly Geiss, The Protection of Journalists, 2008, p. 310; Balguy-Gallois, Le rôle des médias, 2010, p. 105. 28 Extract from a conversation of Union General Irvin McDowell and war correspondent William Howard Russell in My Diary North and South. Knightley, The First Casualty, 2004, p. 19. 29 During the preparations, the Venezuelan delegation proposed that all journalists pro- tected under Article 79 should wear a sign visible from a far distance. Such a sign should have the shape of a bright orange armlet with two black triangles. This suggestion was rejected of a majority of the delegates because they feared that such a sign would in fact increase the risk of journalists of being targeted. Report of the Working Group, p. 256, CDDH/SR.43, para. 93. See also Pape, Schutz der Presse, 2013, pp. 55–59. 30 Find more information on the initiative at:
PRESS
special emblem for the media composed of five capital letters ‘PRESS’ in black on a circular orange background:31 pec suggests that this distinctive emblem must be worn in a clearly visible manner, either on an armband on the upper arm, or on a cloth covering the chest or back.32 Vehicles, professional equipment and media installations should also be marked with the emblem.33 According to the pec, such an emblem would be issued from associations or federations of journalists at the request of the journalist and/or his or her employer. These associations and federations may be the same that issue identification cards for journalists.34 However, it would be optional, not mandatory, for journalists to wear such an emblem.35 The idea of a special emblem for the media is at first sight a good idea. It is the legal embodiment of an already-existing practice. Its introduction would promote the already-existing protection of the media in ihl and surely endow the protection of the media in armed conflict with additional political weight and therefore facilitate political pressure for investigations into future attacks on persons or objects wearing the emblem. It is, however, questionable whether such an emblem would have a practical effect on media casualties in armed conflicts. That is to say, the emblem would not have any other legal consequences than the unified visibility of news
31 Article 7 (2) pec-Draft Convention. Different versions of the emblem are available at:
36 Cited in Howard, Need for Protection, 2002, p. 524. 37 Cf. Düsterhöft, The Protection of Journalists, 2013, p. 20; Saul, International Protection of Journalists, 2008, p. 125. Similar, Farthofer, Journalist in Armed Conflicts, 2010, p. 6. 38 ihl recognises special status for the icrc, medical personal and civil defence organisations. It has been said that a special status for news providers could also lead to claims for special protection for human rights workers and other ngos working in the conflict zone. See Geiss, The Protection of Journalists, 2008, pp. 314f; Sandoz et al., Commentary ap I, 1987, Nr. 3265; Balguy-Gallois, Le rôle des médias, 2010, p. 105; Pape, Schutz der Presse, 2013, pp. 60–64.
Originally, the gcs and their aps were drafted to protect the most vulner- able people who suffer the most. War is a crazy environment. Rules are overlooked. The clearer the rules are, the less the differences, the better it is. We have to keep in mind, that people who are fighting the war, need to understand one distinction. Those who are fighting, and those who are not. …The more signs parties have to look at, the more they get confused.41
It is hence important to keep ihl simple. This is also one of the premises stated at the outset of the legal analysis of this book.42 During combat, soldiers and rebel fighters are afraid of losing their own lives. Distinctions of ihl must therefore be possible to answer quickly and with a yes or no. That is something a human being in a stressful situation is able to decide. News providers are civilians and should hence be recognisable as such. Today, they often look like soldiers wearing helmets, vests and big cameras. This appearance is not only a question of normative design of ihl but also purely an issue of practical identification. In addition to the reasons stated above, the practical implementation of the distribution of such ‘PRESS’ emblems could be critical, since it is not clear who falls under the protection of the emblem.43 Any political compromise about the personal scope of this protection results in a reduction of the protection in the field. It is therefore wiser to stay with the current ihl framework and rec- ommend all news providers to use such a voluntary emblem if the danger of being targeted is not too high.
39 Geiss, The Protection of Journalists, 2008, p. 315. 40 Agreeing: Farthofer, Journalist in Armed Conflicts, 2010, p. 5; Disagreeing: Geiss, The Protection of Journalists, 2008, p. 314. Geiss writes that contrary to religious and medical personnel, news providers are not considered neutral and in the interest of all parties to the conflict. Moreover, he states that in view of the specific dangers of current war report- ing, the adoption of such a status is not useful. Similarly: Pape, Schutz der Presse, 2013, p. 44; Balguy-Gallois, Le rôle des médias, 2010, pp. 95, 105. 41 Dery, How Does ihl Protect Journalists in Armed Conflict Situations? Conference, On the Front Line of Accountability, tmc Asser Institute, 2011. 42 Chapter 2, pp. 100ff. 43 Balguy-Gallois, Le rôle des médias, 2010, p. 105.
3 Normative Strengthening of the Functional Protection It has already been said multiple times: since the importance of news providers for society as a whole lies in their activity, it is this activity that should be pro- tected first. To this end, already-existing bases of the functional protection – ihl and hrl – could be extended to include new rules explicitly protecting the activity of ‘providing news’. Two ideas for such rules, one for each framework, will be outlined as a third category of normative changes in this section.
A Article 79a ap I: Media It was Gasser who introduced the idea that it would be helpful to clarify the protection of the activity of ‘news providing’ in ihl in order to bypass possible derogations and limitations of freedom of expression and the right to informa- tion.44 A new article encompassing this idea could read as follows:
Article 79a45 Media
The gathering and processing as well as the distribution of information by civilians with the aim of sharing it with a wider public for the purpose of providing news is a civilian activity. The communication between civilians about the development of hos- tilities is a civilian activity as long as it does not include confidential mili- tary information. The parties to a conflict shall not interfere with such activity as long as it does not constitute direct participation in hostilities. The civilian population has a right to know about the development of hostilities as long as it does not interferes with military tactics. Media facilities and equipment are civilian objects. Their partial or total destruction must offer a clear military advantage and comply with all other principles of the Geneva Conventions and their Additional Protocols.
However, every rule of ihl is limited by the principles of military necessity and proportionality. And since news providers are per se civilians and their activity of providing news is civilian, such an additional article or paragraph would not offer additional protection. It would, however, clarify the already existing protection of the activity in hrl by introducing it in ihl. And a clear rule in no need of
44 Geiss, The Protection of Journalists, 2008, p. 319. 45 Article 79a is an optional title for the case of an amendment to ap I. Evidently, in a differ- ent normative context, this title must be adapted to the relevant framework.
B A Human Right to Internet Access As outlined in Chapter 4, it can be argued that hrl offers already a partial right to news, collectively as well as individually.46 This right covers state-held infor- mation in general and specifically information about serious human rights vio- lations. However, so far, there is no human right in sight that gives a right to information to any bearer whatsoever, or a right to Internet access. Such a right – as it is known, for example, in Finland47 – would, together with very tight derogation clauses, clearly strengthen the position and work of news providers.
4 Creation of a New International Crime The fourth method to foster enforcement by normative changes discussed in this section is to increase the negative consequences of non-compliance with a rule. International law has few tools to address individuals directly. Yet, one such tool offers harsh consequences for breaking certain rules: namely, indi- vidual criminal responsibility.48 Therefore, it could be argued that killing a news provider should be made an international crime.
A Creation of an Explicit War Crime Several scholars and organisations have argued that killing a news provider should be made a war crime.49 The killing of a news provider or of many news providers can, however, already amount to a war crime under article 8 icc Statute. However, the condition for that is that these killings were commit- ted as part of a plan or policy or as part of a large-scale commission of such crimes.50 The only option with a different angle but same result is therefore to
46 See Chapter 4, pp. 239ff. 47 See the example of Finland, which holds Internet access to be a fundamental right for all citizens with the consequence that every household will have at least a 100 mb connec- tion by 2015. Browne and Probert, Safety of Journalists Research Pack, 2012, p. 66. 48 On the state level, the equivalent legal concept would be state responsibility. However, this issue is far too wide to include it at this stage of this study. 49 Robertson, War Crimes Courts and Why Killing Journalists Should be made a War Crime, Conference, On the Front Line of Accountability, tmc Asser Institute, 2011; Howard, Need for Protection, 2002, p. 525; rwb, Comments, un Plan of Action, 2012. 50 Article 8 (1) icc Statute.
Le fait de lancer des attaques délibérées contre les journalistes, les profes- sionnels des médias, pour autant qu’ils aient droit à la protection que le droit international des conflits armé garantit aux civils et aux biens de caractère civil.51
The introduction of such a section into the icc Statute is not an easy political task.52 It is further questionable, whether such a crime surpasses the necessary threshold criterion as part of a large-scale commission.53 And ultimately it must be kept in mind that the prosecution of attacks against civilians and civil- ian objects are among the most difficult charges to prove in icl.54
B Creation of an Explicit Crime against Humanity So far, no one has argued for the establishment of a new crime against humani- ty.55 Killing a news provider can, similarly to war crimes, already constitute a crime against humanity, although only when committed as part of a wide- spread or systematic attack directed against any civilian population.56 And again, the only way to strengthen this already-existing rule is to include a new category of crime against humanity that specifically lists news providers in article 7 icc Statute. It could then, again, be argued that proving that attacks against news providers were part of a ‘widespread or systematic’ attack against the civilian population is not very likely. However, if one looks at the numbers of attacks on news providers in recent conflicts such as Libya or Syria, this it not unlikely and is only as hard to prove as all the other categories of crimes
51 Re-printed in: Balguy-Gallois, Le rôle des médias, 2010, p. 103. 52 Cf. the long process that led to the inclusion of the crime of aggression into the icc Statue. See Chapter 4, pp. 282ff. 53 Düsterhöft, however, argues that the specific mentioning will vest the attacks with expres- siveness, which certainly reinforces the interdiction and criminal nature of targeting news providers, eliminating any justifications on the basis of misunderstanding. Düsterhöft, The Protection of Journalists, 2013, pp. 20f. 54 See Wuerzner’s article summarising the respective case law and its procedural particu- larities. Wuerzner, Charges for the Crime of Attacking Civilians, 2008. 55 It is mentioned exclusively in the Annex of the London Statement, Annex, para. 1. 56 Article 7 icc Statute.
5 An International Convention for the Protection of News Providers Several authors identified an international convention as the most desirable solution for a stronger protection of news providers.59 The option of such an international convention is therefore the fifth normative change discussed in this section. The Initiative on Impunity and the Rule of Law, a co-research proj- ect of the City University London and the Centre for Freedom of the Media at the University of Sheffield on the impunity of violence against news providers, sees one of the benefits of such a convention in the political leverage in the diplomatic fora:60 that is, a specific convention systematizing the various exist- ing obligations in respect to news providers would attach particular stigma to breaches by states. The study points out that such a strategy has already func- tioned in relation to the prohibition of torture: While the prohibition was present in every single human rights instrument adopted since the udhc in 1948, the adoption of a un Convention on Torture as well as of a European Convention on Torture has given remarkable weight to the prohibition, which today is indeed considered to be a peremptory norm of international law (ius cogens).61 The merit of such a convention could effectively be to systematise all exist- ing obligations of ihl, hrl and icl regarding news providers, which are cur- rently spread all over international law. Thus, such a text would (1) include protection from: arbitrary killings, arrest, kidnapping and detention; illegiti- mate deportation or other restrictions on access to the territory; interruption
57 Cf. Chapter 1, pp. 45ff, 58ff. 58 Cf. Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 326. 59 Horsley et al., Initiative on Impunity and the Rule of Law, 2011, p. 39; Tang, Protection of Journalists, 2008, p. 163; and with a concrete draft: pec Draft Convention. See also Düsterhöft, who is doubtful whether such a document is feasible in the sense of being a legal text and therefore prefers non-legal means that restate and clarify the current law. Düsterhöft, The Protection of Journalists, 2013, p. 17. 60 Horsley et al., Initiative on Impunity and the Rule of Law, 2011, p. 39. 61 Ibid.
all times in war and peace, during international armed conflicts (oppos- ing two or more States), non international conflicts (opposing many groups inside the boundaries of a State) and in cases of serious internal violence, which includes local conflicts, civil unrest, targeted killings, kid- napping, authorized and unauthorized demonstrations.67
This provision does not only ignore the different legal frameworks of armed conflicts and peace times, it also misses a logical and consequent pattern by
62 Ibid. 63 Browne and Probert, Safety of Journalists Research Pack, 2012, pp. 10f. 64 Ibid. 65 Ibid. 66 pec Draft Convention. See further the draft Convention of Hong Tang covering several aspects that are also mentioned in the pec Draft Convention. According to Tang, attacks on journalists are war crimes and crimes against humanity. However, a detailed explana- tion of this interpretation is missing. Tang, Protection of Journalists, 2008, pp. 131, 154ff. 67 Article 1 pec Draft Convention.
68 Ibid. 69 Article 3 (3) pec Draft Convention. 70 Article 2 (4) pec Draft Convention. 71 Article 6 (2) pec Draft Convention. 72 Article 5 (3) pec Draft Convention. 73 In the case that a state party or even a non-party to the Convention is not able to investi- gate violence against journalists in an impartial manner, the Committee will establish a commission of enquiry. Articles 10 and 5 (3) pec Draft Convention. 74 Article 8 pec Draft Convention. 75 Articles 8 and 9 pec Draft Convention.
While some of the ideas of the draft, such as the emblem, a commission of inquiry or the obligation to training and compensation by the journalists’ asso- ciations and employers are good, the language and enforcement concept of the pec Draft Convention are far too political and seem a little naive. The two drafters of the convention are currently lobbying on a state level for this draft. However, the first reactions of states, such as the statement of the Swiss Federal Council, show that states are still very reluctant to support the pec Convention.76 The idea of a convention is not new. It had also been discussed in the 1970s after French foreign minister Maurice Schumann delivered a speech before the un ga calling for action for the protection of journalists in armed conflicts in 197177 and came to the light again during unesco’s new design of ‘mass com- munications policies’ and the project of a ‘new information order’ in the midst of the Cold War.78 The ipi started another initiative for a convention in 1985, trying to redirect the discussion to a place outside the political frame of unes- co.79 The result of this approach was the Sadi Report, named after Waleed Sadi, a member of this commission. This initiative also did not have a long life on the international agenda.80 In all these episodes, the topic of the protection
76 Answering a motion of a member of the Swiss parliament, the Federal Council explained that it considers the pec convention not the right tool to address the problems facing the field. Swiss Parliament, Motion Rennwald, Tinte, nicht Blut soll fliessen, (2010). 77 After his speech and an intervention by the un Secretary General, Resolution 2673 (XXV) on the protection of journalists engaged in dangerous missions in high areas of armed conflict was adopted by the un ga. This resolution led to a draft for a convention of the Human Rights Commission presented in 1971. The draft was, however, a political compro- mise with a very limited scope of protection. However, it is ultimately this draft that led to the adoption of Article 79 ap I. For more details on this period and the reprinted draft see Kirby and Jackson, Protection of Media Personnel, 1986, pp. 9f. Further Young, Journalists Covering the Globe, 1982. un ga Res 2673 (1970) para. 8, Nr. 4–7; un ga Res 2854 (1971), para. 2; un ga Res 3058 (1973). 78 This process mainly took place within the then newly established International Commission for the Study of Communication Problems, presided over by Sean MacBride. A high number of the petitions discussed in the commission concentrated on linking the protection of journalists to the content and quality of their reporting. For example, crite- ria were chosen to measure the objectivity of journalism, a methodology that is very dan- gerous in the light of contemporary approaches to freedom of expression, because it offers the perfect legal means for censorship. Kirby and Jackson, Protection of Media Personnel, 1986, pp. 9ff; Howard, Need for Protection, 2002, pp. 521ff. 79 Kirby and Jackson, Protection of Media Personnel, 1986, pp. 13f; Howard, Need for Protection, 2002, pp. 518f. 80 For background on the Sadi Report and other initiatives of this period, see Zanghi, Protection of Journalists, 2005, pp. 146ff. Further Pape, who even takes it as a starting point for future reforms: Pape, Schutz der Presse, 2013, pp. 88–92.
6 Political Leverage through Soft Law Despite the constant lobbying efforts of civil society organisations, there is not yet sufficient political will to negotiate a binding treaty on the protection of news providers.83 Supporters of such a convention should therefore focus first on constant pressure toward the establishment of such political will. In international law, political will can be measured by state practice and the so-called opinio juris, the conviction to be obliged to certain behaviour in inter- national law. As long as some rules are not part of a binding treaty or a custom- ary norm, soft law guides the way to this end.84 Despite its lack of binding force, soft law nevertheless produce significant legal effects.85 The alternative solution to the establishment of a binding treaty is therefore to pressure state practice toward the adoption of different soft-law instruments
81 Kirby and Jackson, Protection of Media Personnel, 1986, p. 12. For a background on the blockade during the Cold War, with a special focus on licencing and ethics codes for jour- nalists, see Young, Journalists Covering the Globe, 1982; Howard, Need for Protection, 2002, p. 523; for a historical analysis and a comparison of these different initiatives, see Mukherjee, Internationalization of Journalists’ ‘Rights’, 1995. 82 The framework of unesco is less adequate for this project because of its lack of legal competence in the subject of human rights and, most importantly, of ihl. See further Heyns and Srinivasan, who argue against a new global treaty for the protection of news providers but mention the possibility of a sectoral convention within the framework of the International Labour Organisation. Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 320. rwb also rejects the idea of a global treaty, see Balguy-Gallois, Le rôle des médias, 2010, p. 95. 83 See also Düsterhöft, The Protection of Journalists, 2013, p. 17. 84 See Thürer, who describes soft law as extra- or paralegal norms in the twilight between law and politics. Thürer, Soft Law, 2009, p. 160. 85 Ibid, pp. 160 and 177.
7 Essence of Part I To conclude this section, it can be said that out of all these initiatives, the nor- mative strengthening of the protection of the work of news providers through an additional article declaring news providing a civilian activity in ihl, on one side, and through a new human right to Internet access, on the other side, are the most promising ideas. In addition, the long-term goal for comprehensive protection should be the adoption of a global treaty on the protection of news providers. In the meantime, short-term initiatives should focus on fostering political will for such an instrument via the emergence of corresponding soft law.
II Institutional Changes
The second category of approaches presented in this chapter includes sugges- tions for institutional changes. Overall, the aim of such institutional reforms is to tackle impunity. Most often, impunity for crimes is the result of a lack of awareness on the part of the public and authorities, a lack of a stable and inde- pendent judicature and other institutions, or simply a lack of resources. It is therefore crucial to assure an independent, politically and financially strong and functioning institutional framework for the fight against impunity on a global as well as national level. Therefore, the next sections will first outline the current institutional framework within the un and other regional fora that
86 For an overview see the next section, pp. 362ff. 87 See e.g. the 1959 Declaration of the Rights of the Child, the 1963 Declaration on the Elimination of All Forms of Racial Discrimination and the 1967 Declaration on the Elimination of Discrimination against Women, which have been transposed into legal obligations in the 1989 Convention on the Rights of the Child, the icerd, and the 1979 Convention on the Elimination of All Forms of Discrimination against Women, respec- tively. Horsley et al., Initiative on Impunity and the Rule of Law, p. 39.
1 Prevailing Responsibilities within the International Community A unesco as the Centre of Gravity It comes as a surprise for many that within the un framework unesco has the mandate to promote the protection of news providers and fight impunity of violence against them. This originates from unesco’s mandate, which includes protecting and furthering not only human rights in general but espe- cially mass communication and the free flow of ideas by word and image.88 One of unesco’s five sectors deals with ‘Communication and Information’.89 Within this sector the Division for ‘Freedom of Expression and Media Development’ (fem) and its subdivision ‘Freedom of Expression’ together with the unesco field offices around the world execute the organisation’s work promoting freedom of expression through awareness-raising and moni- toring activities.90 The fem Division conducts workshops on safety issues, organises safety trainings, gives policy advise to national legislation projects and raises funds for such projects and the implementation of un and unesco programmes. The mandate of unesco shapes the role of the organisation as a protector and promoter of the existing legal framework. Therefore, unesco generally does not lobby for any legislative adjustments to the legal basis of the
88 Article 1 of unesco’s Constitution requires the organization to ‘further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations’. To realize that, unesco is requested to ‘col- laborate in the work of advancing the mutual knowledge and understanding of peoples, through all means of mass communication and to that end recommend such interna- tional agreements as may be necessary to promote the free flow of ideas by word and image’. 89 Currently, a discussion is taking place to reform and reorganise this five sectors. The author of this study spent half a year conducting research at unesco’s headquarters in Paris in the fem Division. All information that has been collected while working with unesco will forthcoming be displayed by ‘knowledge of the author’. 90 Knowledge of the author.
B ipdc as a Motor of the Latest Process Another important actor within unesco – and the actual motor of the current enforcement process95 within the un – is the International Programme for the Development of Communication (ipdc). The ipdc is a unesco programme designated to support media projects in order to seek a secure and pluralistic media landscape in developing countries.96 In 2006, the safety of journalists was the subject of a thematic discussion during the Intergovernmental Council of the ipdc. Two years later, the Director
91 Knowledge of the author. 92 unesco, Res 29 (1997). 93 Knowledge of the author. 94 ngos can have consultative or associate status to unesco. A list of ngos working together with unesco is available at:
General of unesco presented as a follow-up to the thematic debate the first report on the Safety of Journalists and the Danger of Impunity.97 On this occa- sion, the Council adopted a decision giving the ipdc a central role in monitor- ing the follow-up of killings condemned by unesco’s Director General.98 Since then, every two years the Director General of unesco has submitted to the ipdc Council a report concerning the status of the judicial inquiries con- ducted into each of the killings condemned during the last biennial.99 During the same session in 2008, the ipdc Council also requested that the un Secretary General include the issue of the safety of journalists in his next reports on the protection of civilians in armed conflict.100 This request finally lifted the issue to the agenda of the un General Assembly.
C un Security Council as the Guiding Lighthouse Within their normal mandate, the un Security Council and the un General Assembly also deal with the issue of the protection of news providers. In both fora the issue forms part of the broader topic of the protection of civilians in armed conflicts.101 The Security Council, however, has something like the role of a leading lighthouse within the whole un architecture. If it places a subject on his agenda, this basically bestows a legitimacy of priority within the agenda of the international community and brings the topic automatically into the spotlight of attention. And this is exactly what happened in 2006 with the adoption of resolution 1738, which was the first un Security Council resolution calling for the protection of journalists in armed conflicts.102 This resolution was like an accolade for all the lobbying efforts of civil society on the matter.
97 unesco, Report on Safety of Journalists and Impunity (2008). 98 This decision urges member states to inform the Director General of unesco on a volun- tary basis of the actions taken to prevent the impunity of the perpetrators and to notify him of the status of the judicial inquiries conducted on each of the killings condemned by unesco. ipdc, Decision on Safety of Journalists (2008). 99 unesco, Report on Safety of Journalists and Impunity (2010). See also ipdc, Decision on Safety of Journalists (2012). 100 ipdc, Decision on Safety of Journalists (2008). For an overview of the roles of all actors in this process, see Horsley et al., Initiative on Impunity and the Rule of Law, 2011, pp. 28f. 101 Cf. e.g. un sc Res 1973 (2011); un sc Res 2096 (2013); un sc Res 1483 (2013); un sg Report on Civilians in Armed Conflict (2010), para. 16; un sg Report on Civilians in Armed Conflict (2009), para. 19; un sg Report on Civilians in Armed Conflict (2012), paras 14f. 102 un sc Res 1738 (2006). See further also Security Council resolutions 1973 (2011), 2096 (2013) and 1483 (2013): un sc Res 1973 (2011); un sc Res 2096 (2013); un sc Res 1483 (2013).
The General Assembly on the other hand, had long discussed the situation of news providers in armed conflict as a separate issue always in connection with a specific conflict or country report.103 But in 2013 the Third Committee of the General Assembly also adopted the first resolution exclusively on the pro- tection of journalists.104
D un Human Rights Council and Special Rapporteurs as the un’s Human Rights Conscience The milestone resolution 1738 in 2006 triggered a domino effect of other actions on the protection of news providers within the un framework: Subsequently, the topic was followed up by the special procedures mandate holders, the so-called Special Rapporteurs of the hrc: In 2008 and 2009 the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, highlighted for the first time in a longer paragraph the tense situa- tion of journalists in his annual reports.105 In 2010, he even dedicated one annual report exclusively to the protection of journalists.106 During the same time, the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, also included a special focus on media workers and journalists into her annual reports.107 And in 2012, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, also joined the discussion by dedicating his annual report to the topic of arbitrary killings of journalists.108 The un hrc also swiftly joined the discussion on the protection of journal- ists. In June 2010, it held a special panel on the topic, although still outside the official agenda. Two years later, it delivered a joint statement on the safety of journalists, which was ultimately followed by the adoption of the first un hrc
103 See e.g. the resolutions on the situations of human rights in Afghanistan in 1997 and Kosovo in 1999: un ga Res 51/108 (1997), para. 9; un ga Res 53/164 (1999), paras 5, 18f. See further ga resolutions 2673, 2854 and 3500: un ga Res 2673 (1970); un ga Res 2854 (1971); un ga Res 3500 (1975). 104 un ga Res Safety (2013). See moreover the reports of the Secretary General: un sg Report on Civilians in Armed Conflict (2010), para. 16; un sg Report on Civilians in Armed Conflict (2009), para. 19; un sg Report on Civilians in Armed Conflict (2012), paras 14f. 105 Another Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression had already highlighted the issue of the safety of journalists before. The term ‘censorship by killing’ was, for instance, already used by Abid Hussain in 2001. un sr FoEx, Annual Report 2001, para. 28; un sr FoEx, Annual Report 2008, paras 32ff; un sr FoEx, Annual Report 2009, paras 43–50, 64–67. 106 un sr FoEx, Annual Report 2010. 107 un sr hr Def, Annual Report 2009; un sr hr Def, Annual Report 2011. 108 un sr esaex, Annual Report 2012.
E Equal Developments in Regional Frameworks Besides the un bodies, regional organisations have also dealt with the protec- tion of news providers. The oecd, the AfCommHR and the Organization of American States have similar special representatives for the protection of free- dom of expression and the media; the Council of Europe also issued several recommendations on the protection of media during armed conflicts and ten- sion.112 Regional and national human rights committees and commissions – such as, for instance, the Doha Forum 2012 organised by the Qatari National Committee for Human Rights, held in Qatar in January 2012 – similarly dis- cussed the issue.113
F Civil Society as a Constant Booster The protection of news providers is a topic that has been followed up for many years by different actors of civil society. They all have different financial and political backgrounds and focus on the issue from different angles, many of them having a much longer history in the field than all the international bodies men- tioned above. To name only a few of the most established: The International Press Institute, the cpj, rwb, the International News Safety Institute and Article
109 un hrc, Res 21 (2012). 110 See further the statements of the High Commissioner on Human Rights on Somalia (1995) and Burundi (1996). un hchr, Somalia (1995), para. 2; un hchr, Burundi (1996), para. 11. 111 On the outcome of this panel discussion, see un hrc, Report (2014). See moreover un hrc resolutions s-2/1 and s-9/1 concerning the attacks on media installations and allow- ing access as well as safe media corridors in conflict zones. 112 CoE, Rec R(96)4 (1996); CoE, Declaration 284 (1998). 113 Recommendation Doha Forum, 2012.
19 have conducted a multitude of projects to educate news providers on the legal background of their work and to prepare them for dangerous assignments. An interesting, newer actor in the field is ifex, an international alert system founded in 1992 by unesco, the International Federation of Journalists and a dozen other free expression organisations.114 ifex is a coordinated mechanism to rapidly expose free expression violations around the world. Today, ifex counts more than 90 independent organisations that have together built a vibrant free expression community dealing mainly with political campaigns, awareness-raising projects and advocacy.115 ifex is specifically interesting because it was the first step toward building an international forum that brings together and coordinates all the efforts of so many different organisations.
2 Quest for an Appropriate Global Forum While the last section focused on the responsibilities as they are currently in place, this second section will present some of the ideas that have been made to strengthen the enforcement process by creating new institutions or procedures. First, I outline the un Plan of Action on The Safety of Journalists and the Issue of Impunity (un Plan of Action), a new tool to foster coordination of all involved actors in the field of the protection of news providers (A). In a second step, I pres- ent a series of suggestions that have been made in scholarship, including new mandate holders, new enforcement bodies and new monitoring systems (B-F).
A The un Plan of Action The un Plan of Action is the result of a process that began in 2010 when 39 unesco member states serving at the ipdc unanimously requested that the
114 Find more information at:
Director-General of unesco consult with member states on the feasibility of convening an inter-agency meeting of all the relevant un agencies with a view to formulating ‘a comprehensive, coherent, and action-oriented approach to the safety of journalists and the issue of impunity’.116 Con sequently, unesco organised a first un Inter-Agency Meeting on the Safety of Journalists and the Issue of Impunity at its headquarters in Paris in September 2011. Representatives of un agencies, programmes and funds met at unesco with the aim to draft an action plan to improve the safety of jour- nalists and combat impunity. In preparation for this meeting, unesco had prepared a draft un Action Plan aimed at establishing a coordinated inter-agency information-sharing mechanism to strengthen the contribution of each actor within as well as out- side the un and enhance organization-wide coherence on the issue of the pro- tection of journalists, as well as cooperation with member states and civil society. In short, the Plan aimed at coordinating all actors on all levels involved in the protection of journalists worldwide. The broad and ambitious goal of the Plan was to create a free and safe environment for news providers in both conflict and non-conflict situations and to combat impunity for attacks on them. The first un Inter-Agency meeting was attended by a wide range of interna- tional and regional institutions, independent experts, professional organiza- tions, media groups, ngos and states that provided recommendations to the draft of unesco.117 The un Chief Executives Board subsequently adopted the draft of an un Action Plan in April 2012 and unesco was assigned to coordi- nate the execution of the Plan.118 In November 2012, a second un Inter-Agency Meeting was held in Vienna with the aim of formulating a common strategy consisting of separate steps,
116 Cf. ipdc, Decision on Safety of Journalists (2010). 117 The political commitment was high given the presence of a number of high-level staff of different organisations, such as Jānis Kārkliņš Assistant Director General of Com munication and Information, unesco; Christof Heyns, un Special Rapporteur on extra- judicial, summary or arbitrary executions; Frank La Rue, un Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; Alison Bethel McKenzie, Executive Director, International Press Institute; and William Horsley, International Director, Centre for Freedom of the Media. unesco, Operationalizing the un Plan of Action (2012/2013), p. 2. 118 Although unesco oversees and coordinates this implementation phase within the un framework, its role is not one of control but one of coordination that can be compared with a compass for all stakeholders. Its main task is therefore to assure that everybody involved in the process is aware of what all the others are doing (knowledge of the author).
119 unesco, Implementation Strategy, un Plan of Action (2012). 120 China, for instance, commented in the first draft that a sentence mentioning citizen jour- nalists should be deleted because of the lack of a unanimous global definition of the term. rwb contrarily argued that non-professional citizen journalists and netizens should be included. Annex II of the Report by the Director General of unesco to the Inter governmental Council of the ipdc, unesco, Report to ipdc (2012); rwb, Comments, un Plan of Action, 2012. See for an overview unesco, Operationalizing the un Plan of Action (2012/2013), p. 7. 121 Knowledge of the author. 122 unesco Plan of Action, para. 6.
UN UNESCO
September 2011 1stUN Inter-Agency Meeting in Paris
April 2012 UN Plan of Action approved by UNESCO Plan the UN Chief Executive Board
November 2012 2ndUN Inter-Agency Meeting in Implementation in the Vienna regular UNESCO strategy
Implementation Strategy on a global and national level
February 2013 Implementation in the rst pilot countries
B A Special Rapporteur or Unit for Violence against News Providers While the un Plan of Action and the unesco Plan are procedures and strate- gies that are currently under implementation, other ideas of new institutions to improve the enforcement of the existing legal framework are still to be enacted. The Doha Forum, for instance, suggested the appointment of a Special Rapporteur on the protection of journalists by the hrc.123 This is an interest- ing approach, namely because, despite being a very small institution, Special Rapporteurs can act very quickly and independently because they act as indi- viduals.124 They are un experts with the main tasks of fact-finding supervising, consulting, advising, monitoring and reporting.125 However, they have no power to enforce human rights. And despite the expectations that they act as human rights activists, diplomats, academics and governments advisers, all the work they perform is pro bono. They have – in good cases – one personal assistant, but not even an office in Geneva.126 Notwithstanding, Special Rapporteurs are the perfect actors to move from a confrontational approach toward a constructive one; from naming and
123 Recommendation Doha Forum, 2012, para. 5. 124 See e.g. Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013. 125 They have also been described as the ‘crown jewel’ of the un human rights machinery or the ‘frontline human rights troops’. Subedi, un Special Rapporteurs, 2011, pp. 202f. 126 Ibid, pp. 212, 217.
C A Global Monitoring Report Another idea to foster enforcement of the existing legal framework is a global monitoring report. Such a report would be the result of a process that monitors all attacks on news providers and the ensuing investigations into the attacks by states and should be published at the highest political level. Thus, such a report would summarise the follow-up investigations of states and name and shame cases of prevailing impunity. However, a similar system is already in place with the biennial reports of the Director General of unesco.129 unesco requests that states inform the Director General of unesco on a voluntary basis of the actions taken to pre- vent impunity for the perpetrators of violence against news providers and to notify of the status of the judicial inquiries conducted on each of the killings condemned by unesco. The results of this feedback are published in a report every two years. However, this report and its outcome are not very well known among the public; it is also not well presented on unesco’s website.130 Thus, the information for such a monitoring report exists already; it is just not well presented to the public. An improvement of this situation is thus foremost a question of public relations and communication. Nevertheless, this unesco reporting mechanism has another flaw: unesco is not one of the major players in the human rights area, as are, for example, the un hrc or the un High Commissioner on Human Rights. Thus, the political attention and commitment of states to comply with human rights requests of unesco might accordingly be lower. If the same reports were to be submitted
127 Ibid, p. 228. 128 Cf. above, pp. 360f. 129 See above, pp. 357f. 130 On the contrary, the unesco website compels each reader to calculate his own statistics with all the separate documents available on the website relating to each case. See the website, available at:
D Blacklist Procedure The above-mentioned procedure could even be completed by a blacklisting of states that do not comply with the legal guarantees for news providers. Pape suggests a similar procedure to the one applied within the un for the fight against use of child soldiers: a so-called list of shame.131 In 2001, with resolution 1379, the un Security Council mandated that the un Secretary General open a list of states and actors that do not comply with international standards regard- ing the recruitment of child soldiers.132 A working committee monitors this pro- cedure and issues recommendations for the implementation of international standards. The mechanism had its intended effect. States as well as non-state actors showed a strong interest in being deleted from the list.133 The Taliban, for instance, issued a press statement that they recognise international rules for the recruitment of child soldiers and that they will not recruit them any longer.134 A similar blacklist could be established for states and non-state actors which do not comply with international norms protecting news providers.
E A New Enforcement Body Multiple actors suggested that the task of monitoring the compliance of states with their obligation to protect news providers should be performed by a new, independent group of experts. rwb suggested, for instance, a body that moni- tors the enforcement of un sc resolution 1738 and presents its findings each year during the unesco General Conferences.135 In addition, the idea of rwb proposes that this body would be tasked with advising the un Secretary
131 Cited in Pape, Schutz der Presse, 2013, pp. 89f. 132 Ibid. 133 Ibid. 134 Ibid. 135 rwb, Comments, un Plan of Action, 2012.
General on the drafting of the section on the safety of journalists in his next reports on the protection of civilians during armed conflicts. pec suggested the creation of a similar body, namely, a new and indepen- dent ‘International Media Committee’.136 Horsley, on the other hand, suggested a new ‘Committee for the Protection of Journalists’ in coordination with the adoption of a new convention on the protection of journalists.137 Both pec and Horsley suggest that experts with experience in human rights and media law as well as journalists should be members of such a group or committee and not government representatives.138 In addition, all – rwb, pec and Horsley – sug- gest that news providers who have been victims of an attack, or their next of kin, could refer cases to this body and that the body would consider the case in a way similar to a court.139 The propounding of this idea is again a repetition of history. It was also included in the so-called Montecatini Draft of 1968,140 in an initiative of the International Press Institute in the 1970s,141 and at a unesco meeting in 1981.142 However, because of general clashes of values of information and free expression during the Cold War, these proposals disappeared from the international agenda. The advantage of such a new enforcement body would be that it is legiti- mated directly by the consent of states, the main actors of international law. Nevertheless, it does not make much sense to establish new bodies when there are already existing institutions – such as the un HRComm, the Inter-American human rights bodies, and the AfCommHR as well as the ECtHR – working in this field of expertise with a respective mandate to cover the issue of the pro- tection of news providers. The establishment of a system that deals with indi- vidual complaints therefore goes too far.
136 Article 5 (3) pec Draft Convention. 137 Horsley et al., Initiative on Impunity and the Rule of Law, 2011, pp. 40f. 138 Ibid. 139 Horsley claims further that not the exhaustion of all national remedies but only the effec- tive remedies shall be a criteria for the consideration of a case. Ibid; rwb, Comments, un Plan of Action, 2012. 140 For background on the Montecatini Draft, see Kirby and Jackson, Protection of Media Personnel, 1986, pp. 8, 13; Mukherjee, Internationalization of Journalists’ ‘Rights’, 1995, pp. 100ff; Howard, Need for Protection, 2002, pp. 514f; Zanghi, Protection of Journalists, 2005, pp. 146f. 141 At one of a series of meetings organised by the ipi the suggestion was made to establish an International Professional Committee for the Safety of Journalists. This committee should – similar to the idea of the Montecatini Draft – issue identification cards and reg- ister journalists who are working on dangerous assignments. 142 For a historical analysis and a comparison of these different initiatives, see Mukherjee, Internationalization of Journalists’ ‘Rights’, 1995; Pape, Schutz der Presse, 2013, pp. 48–53.
Another idea that has been forwarded and is more worthy of consideration is a subcommittee within the hrc. Such a subcommittee could be composed similar to the national delegations to the assembly of the International Labour Organisation, based on an equal number of representatives of governments as well as media workers’ ngos.143 The committee could be tasked with undertak- ing studies and issuing statements and recommendations, but could also receive communications from states, ngos and individuals and report back to the hrc.144 This option would be rather easy to implement since the un General Assembly would only have to approve an amendment to the Statute of the hrc.145 A similar idea was introduced by the Doha Forum, which suggested the cre- ation of a special unit within the un High Commissioner of Human Rights.146 Such a unit would be easier to establish as it concerns ‘only’ the High Com missioner’s internal design, which is technically based on the necessary bud- get. The unit would, however, be less visible in the public eye.
F Expanding Prerogatives of Existing Bodies and Procedures As foreseen by the un Action Plan, one option for better enforcement is to expand the prerogatives of existing bodies within the international framework. Namely, current procedures that deal with the area of conflict and human rights could shift or enlarge their focus on news providers in armed conflict.147 Such an existing body is the hrc, whose mandate could be enlarged to also include country visits to countries with a poor record on freedom of expression. Such a system of regular visits, drawing its inspiration from the 2002 Optional Protocol to the Convention against Torture, would raise the political pressure to fight impunity.148 However, this practice of visits is already within the mandate of the special procedures. It therefore goes along with the suggestion of a new Special Rapporteur for violence against the media and should be rejected.149 Another procedure that could put a special focus on the issue of news pro- viders in armed conflict is the system of the Universal Periodic Review (upr).150 However, the efficiency of this system is disputed. Frank La Rue, Special
143 Horsley et al., Initiative on Impunity and the Rule of Law, 2011, p. 41. 144 Ibid. 145 Ibid. 146 Recommendation Doha Forum, 2012. 147 For several options of the involvement of existing bodies see Horsley et al., Initiative on Impunity and the Rule of Law, 2011, p. 42. 148 Cf. the suggestion of ibid. 149 Cf. above, pp. 365f. 150 Cf. un hrc, Statement (2014), para. 9.
Rapporteur on the promotion and protection of the right to freedom of opin- ion and expression, stated:
My feeling is that the upr became a substitute for not having country Rapporteurs. The upr is a good idea in itself, but the upr is done through ambassadors … . So what you have is peers, and they may be constrained in criticising others, because it depends what the policies of their own country are. …So I think the upr has become a toothless lion. It is impor- tant, because everyone goes through it, and there is an exchange of reports. But the international media hardly pay attention, because there are never tough questions. And it’s not binding anyway.151
The upr is therefore not an adequate tool for fighting impunity of violence against news providers. With regards to the situation during armed conflict, in recent years, several international commissions of inquiry which analyse the compliance of the parties to a conflict with ihl and hrl have included evaluations of the danger to news providers in certain conflicts.152 This practice should be consolidated; that is to say, every international commission of inquiry should include an analysis of the situation of news providers in their reports. Such commissions of inquiry are the new investigators of conflicts in the 21st century and lay the groundwork for further legal proceedings and investigations, for instance by the icc. They deliver recommendations and are often more authoritative in the public eye than any other legal decision. Nevertheless, such commissions of inquiry have some disadvantages: often their mandate and their legitima- tion are not clear; and furthermore their methods and procedures are not clari- fied, such as the rights to a fair trial of the accused in the final report.153 For all these reasons it is therefore better that the aforementioned bodies shift their focus to news providers in the context of their involvement in the un Action Plan. This is feasible within the current framework; an additional change of their mandate or procedure is therefore not necessary.
151 Frank La Rue, Transcript of an Interview, available online at:
3 Institutional Design on the National Level A functioning international framework is essential to foster the enforcement of the existing legal norms of international law. Nevertheless, the responsibil- ity to protect news providers and investigate violence against news providers lies with the states.154 Ensuring accountability on a national level is therefore a key element in the prevention of future attacks. An effective and functioning domestic criminal justice system is therefore essential for the investigation and prosecution of all violence against news providers. As a consequence, the focus in the fight against impunity must be on the professionalism of national criminal justice systems prosecuting crimes against news providers and on the prosecutors, police and judges.155 However, there is not one institutional solution that heals all weaknesses of all national mecha- nisms. Every state has its own prerequisites and therefore needs other mea- sures that reinforce and complete its current enforcement bodies. The report of the un High Commissioner on Human Rights summarised this accurately:
The exact nature of each given system for protection may differ, as each system must be tailored to address the varying causes of the violence that exist in each context and to meet local needs, including the needs of the journalists affected and other media professionals.156
In general, the professionalism and independence of the criminal system is essential. Therefore, training of the police and judges on freedom of expres- sion is pertinent. The professionalism of investigations can be facilitated through the development of protocols and other working methods of the police and prosecutors.157 In addition, information-gathering mechanisms such as databases should be established to permit the gathering of verified information about threats and attacks against news providers. Where civil society groups have established such information-gathering mechanisms, they should share them with the authorities to facilitate the use of information.158 However, general improvement measures for countries with weak public
154 Such investigations must be effective, prompt, thorough, independent and impartial. A lack of financial resources for the administration of the criminal system is, according to the un HRComm, no justification for unreasonable delays in the adjudication of criminal cases. un HRComm, Mukong v Cameroon; un hchr, Safety of Journalists, Report (2013), para. 57; Chapter 4, pp. 136ff, 142ff, 158ff and 208ff. 155 See also Düsterhöft, The Protection of Journalists, 2013, p. 22. 156 un hchr, Safety of Journalists, Report (2013), para. 49. 157 Ibid, para. 57. 158 Ibid, para. 58.
A Crimes against News Providers as Public and Federal Offences Crimes against news providers regularly fall under the usual offences of crimi- nal codes, such as murder, assault, threat, etc. One measure to strengthen the independence and political power of national prosecution is to convert crimes committed against news providers into federal offences. This idea was imple- mented in Mexico through a recent constitutional amendment.159 Other examples of legislative adjustments in the criminal system include a new press law in Poland, which provides for the same sanctions to be imposed against those who use violence against news providers as those who use violence against public officials; or a recent amendment to the Serbian criminal code to criminalize threats against news providers performing their professional duties.160 Another very simple but useful legislative measure would be to recognise crimes against news providers as ex officio crimes. This means that such crimes must be investigated and prosecuted by the authorities as soon as they have knowledge of such crimes. Thus a complaint of the victim is not a necessary precondition for prosecution.161 This approach acknowledges that violence against news providers is not only criminal because of the physical power used against them but also because of its attack on the society’s right to informa- tion. It is therefore, like the examples listed above in this section, a very useful tool to address impunity.
159 Ibid, para. 20. Apparently, Brazil has initiated a similar process. See Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 326. Similarly mentioned in the strategies of the Human Rights Council to address impunity: un hrc, Statement (2014), para. 5. 160 The criminal code of Serbia includes ‘endangering of the safety of a journalist’ as a crime punishable by a maximum imprisonment of eight years. This provision was applied for the first time in 2010 when three persons were convicted for threatening Brankica Stankovic, a journalist from the Belgrade-based television station B92. un hchr, Safety of Journalists, Report (2013), para. 22; Browne and Probert, Safety of Journalists Research Pack, 2012, pp. 47f. 161 Moreover, this domestic criminal adjustment fulfils the human rights obligations stem- ming from freedom of expression, which obligate states to investigate as soon as they know, or even as soon as they ought to have known, about violations of freedom of expres- sion. See Chapter 4, pp. 136ff and 142ff.
B Special Prosecutor for Crimes against Freedom of Expression A special embodiment of prosecution can also be a useful adjustment to foster investigative powers, as the case of Colombia shows: there, the Public Prosecutor's Office established a special sub-unit which conducts investiga- tions into crimes committed against news providers.162 In Mexico, a Special Prosecutor for Crimes against Freedom of Expression similarly has the author- ity to directly start, coordinate and supervise investigations into crimes against news providers. At the same time, he is also involved in the systematization of information with regards to violence against news providers.163 The ad hoc establishment of special units is also an option that must be kept in mind. Serbia, for instance, created in January 2012 such an ad hoc commis- sion to review the investigations of the killings of three prominent journalists – Dada Vujasinović, Slavko Ćuruvija and Milan Pantić – in the 1990s.164 Such a committee was also established in 2000 to investigate the killings of five jour- nalists in East Timor in 1975.165 These institutional approaches follow the understanding that crimes against news providers are not an individual but public theme, and in fact, one of national security. Out of these options, the establishment of a permanent body with independent power to start, supervise and terminate investigations as well as, when appropriate, prosecute is the preferable solution because it guar- antees political and financial independence.
C Special Protection Programme for News Providers In Colombia, a special protection programme established in 2000 for journal- ists and social communicators addresses threats and violence against media professionals. As part of the programme, ngos monitor threats against news
162 Freedom House and flip, El programa colombiano de protección a periodistas, 2012. See also recommended strategies of the Human Rights Council in 2014: un hrc, Statement (2014), para. 5. 163 un hchr, Safety of Journalists, Report (2013), para. 23. See also Rochín and Sepúlveda, Proteccion legal en Mexico, 2012, pp. 24ff. Apparently, Guatemala has initiated a similar process to create a prosecutor office for attacks on news providers. See Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 326. 164 un hchr, Safety of Journalists, Report (2013), para. 24. 165 The five journalists were attacked by the Indonesian army during its invasion into East Timor in the town of Balibo. They were all working for Australian news outlets. The investigations into their killings were therefore supported by the Australian State New South Wales, home of one of the killed journalists. The commission which investi- gated the killings published a concluding report in 2007. For more details see Pape, Schutz der Presse, 2013, p. 91.
4 Precondition for Institutional Changes: Allocation of Adequate Resources The implementation of these legislative or institutional measures will form part of a long political process on the international as well as on the national level. The respective national authorities and international bodies must there- fore be equipped with adequate resources for such a long process, including every partial step of it and the respective lobbying efforts. At this point, unesco can serve as an illustrative example of an institution that faces high expectations but has very scant financial means. The un Action Plan includes a nine-page list with short-term, mid-term and long-term mea- sures and goals on a global, regional and national level that unesco should coordinate in the years to come. To name just a few extracts of these measures:
– To map the un actions and activities and the work of intergovernmen- tal and non-governmental international organizations related to the safety of journalists and the issue of impunity.
166 For background information on the legislative, financial and institutional embodiment of this protection programme, see Freedom House and flip, El programa colombiano de protección a periodistas, 2012. 167 This initiative is the result of the inclusion of previously separate protection programmes for the protection of judges, prosecutors, witnesses, human rights defenders, journalists and others. un hchr, Safety of Journalists, Report (2013), para. 25. 168 See the transcript of an interview with Frank la Rue, available online at:
– T o organize international and regional conferences among member states to discuss and share information on the issue. – To encourage that law enforcement agencies be given sufficient resources and expertise to carry out effective investigations into attacks on journalists and to develop practices that respect the legal rights of members of the media, including their unhindered access to informa- tion during public protests or in cases of civil and public unrest. – T o develop training manuals targeting state institutions such as police and prosecutorial services and to adapt such manuals to local needs. – T o introduce the issue of freedom of expression, including the safety of journalists, in university and secondary school education. – To create a database of global safety trainers developed at local level and available to work in respective regions including accessible, real-time emergency response mechanisms for groups and media organizations. – T o ensure that journalists are provided with proper safety training and equipment both in peace time and in conflict. – T o provide journalists with support on trauma and other forms of extreme stress in the course of their duties, if needed. – To promote technical knowledge gained from ict experts on the con- stantly evolving matters pertaining to digital security, which are essen- tial in equipping journalists and bloggers to assess risks and protect themselves and their sources. – Promote the creation of a monument, street, etc. in honour of journalists.170
This very long list includes practical, institutional and legislative measures that advise, report, control, promote and research the issue of safety of jour nalists. To increase visibility, websites shall regularly be updated, info material be translated and a common hashtag used in social media (#Journosafe).171 The strategy also proposes to include the topic in all possible vessels and events of the un system, such as the undp Human Development Index, the unesco Media Development Indicators, the Forum of the United Nations Alliance of Civilizations, the wsis meetings, the un Group on the Information Society and the mandate of the un peacekeeping operations. Overall, it is a multi- disciplinary and comprehensive strategy involving all kinds of actions. But after all these promising words, it is interesting to note that within unesco, exactly one person is responsible for the follow-up of this un Plan of
170 unesco, Implementation Strategy, un Plan of Action (2012), pp. 8ff. 171 Ibid, pp. 8ff, 19.
Action.172 This is rather surprising facing the length of the list of actions that shall be taken. Evidently, it is useful to list and label all actions that every wheel in the global system can possibly take. But it is also necessary to ensure enough manpower to implement these ambitious goals. Otherwise, these promises remain nothing but ink on paper. Similarly, when the un Action Plan was launched in the first pilot country, South Sudan, in early 2013, unesco issued a press statement announcing this event and underscoring its importance for the implementation of the un Plan of Action. However, it is important to know that in the field office in South Sudan, there is no additional staff member engaged who works specifically on the issue of the safety of journalists. The already very small number of staff in Juba can only include the topic in their regular daily work without special expertise or funding.173 The situation of unesco is in this regard particularly critical. Since the admission of Palestine as a full member of the organisation in fall 2011, the us cut its contribution to unesco, which accounted over 20 per cent of the organisation’s budget.174 Since then, the organisation has faced severe budget cuts in staff and projects.175 At the same time, ngos, member states and professional organisations involved in the un Plan of Action have high expectations of unesco’s leading role in this process and its support of all other actors.176 The placement of this issue within the framework of unesco is therefore rather unfortunate. Currently, the only option to raise money for projects on the safety of journalists is from external sources, such as founda- tions or states outside the regular budget of unesco. With this practice, the fem section of unesco is – at least for the time being – on a good track.177 But the special procedures mandate-holders also do not have strong struc- tural or financial support. As already mentioned, they have no salary or wage because being a Special Rapporteur is a voluntary job. A un Special Rap porteur, for instance, has two journeys a year paid (travelling expenses and accommodation).178 It is therefore crucial to raise awareness not only of the
172 In intensive periods before big international meetings, interns and the superiors of this persons as well as additional staff are also involved. However, basically, within the whole organisation, there is only one project manager responsible for the whole field of the safety of journalists (knowledge of the author). 173 Knowledge of the author. 174 Knowledge of the author. 175 As an example, in the fem Division, the budget for projects was cut by 80 per cent. 176 Knowledge of the author. 177 Knowledge of the author. 178 Frank La Rue, Transcript of an Interview, available online at:
5 Essence of Part II Over this section we have seen that during the last decade, all major un organs dealing with human rights, such as the un Security Council, the un ga, the un hrc and its Special Rapporteurs, the un High Commissioner on Human Rights and unesco, have been involved in attempts to foster the enforcement of the protective framework regarding news providers. The adoption of the un Plan of Action added additional pressure to all these and other actors in the inter- national community that are in touch with the protection of news providers. However, the implementation of the un Plan of Action has yet to prove that it is more than just ink on paper full of good intentions. Out of suggestions for future institutional adjustments, a global monitoring report placed under the office of the un Secretary General and a blacklist procedure similar to the fight against child soldiers are the most promising ideas to effectively tackle impu- nity. In addition, measures on the national level, such as the inclusion of fed- eral and official crimes of violence against news providers in domestic legislation, special prosecution units and protection programmes are useful and necessary adaptions to effectively foster enforcement in countries with a poor human rights record on news providers. Overall, the precondition for all such legislative and institutional changes is the allocation of adequate resources. This last issue is often a question of politics and factual circum- stances, which leads us directly to the next section that deals with practical changes to improve the protection of news providers.
III Practical Changes
While most un bodies and legal scholars focus on legislative and institutional changes, the Committee of Ministers of the Council of Europe realised as far back as 1996 that besides all legislative and institutional problems, the protec- tion of news providers is to some extent simply a question of prevention and practical feasibility.179 Prevention can have many forms and address the pro- tection of news providers from different angles. Civil society organisations offer a wide range of practical protection-enhancement measures. Unfor tunately, most of them are not well known in the public nor in journalistic
179 Appendix to CoE, Rec R(96)4 (1996). See further Heyns and Srinivasan, Protecting the Right to Life of Journalists, 2013, p. 331; Casier, Protection effective des journalistes, 2012.
1 Raising Awareness Unequivocal political commitment of all actors assigned with the implemen- tation and enforcement of the protection of news providers is a prerequisite of any system of protection.180 There is a strong link between political will and effectively addressing impunity. unesco’s Constitution highlights this con- nection poignantly when saying:
[S]ince wars being in the minds of men, it is in the minds of men that the defences of peace must be constructed.181
Therefore, the highest political offices as well as the public must be aware of the severe situation and the effects of impunity of crimes against news provid- ers. Sean MacBride’s description of political commitment in 1979 is still valu- able today:
My experience is that whenever journalists are killed, arrested or kid- napped there is a general public outcry for a time. Governments are then wiling, and even enthusiastic, for a time, in support of efforts which pro- mote an international convention. However, once the original shock and horror which accompanies the killing or disappearance of journalists passes, the enthusiasm for remedial action begins to wane; the problem is then relegated to the ‘lost property compartment’ of government inter- est…until the next episode or tragedy.182
Hence, the awareness exists sporadically but lacks a constant character.183
180 un hchr, Safety of Journalists, Report (2013), para. 50. See also Düsterhöft, The Protection of Journalists, 2013, p. 21. 181 (Punctuation added) unesco Constitution, 16 November 1945. 182 MacBride, The Protection of Journalists, 1979, p. 18. 183 This assessment is still true: Attention to the risks of news providers in armed conflicts was, for instance, specifically high in international media after the deaths of Tim Hendrington and Chris Hondros in 2011 in Libya and after the attack on Marie Colvin and Rémi Ochlik in 2012 in Syria, but weakened again after a couple of months.
Therefore, unesco started to celebrate World Press Freedom Day every year on the 3rd of May. In addition, starting in 2014, the 2nd of November will be proclaimed as the International Day to End Impunity for Crimes against Journalists.184 In addition to both dates, rwb, unesco and ifex and other organisations regularly lead campaigns that raise awareness of the importance and the background of the protection of news providers in the public. Such – sometimes very provocative and interactive – campaigns are very useful tools to gain and strengthen public support and provide adequate resources.185 In addition, news companies have also started honouring their fallen col- leagues: the bbc, for instance, inaugurated the memorial ‘Breathing’ on the rooftop of their headquarters in London. The sculpture built by the Spanish art- ist Jaume Plensa was unveiled in 2008 by Ban Ki-moon and shines every evening at 22 o’clock, remembering the colleagues that lost their lives covering news.
2 Education and Training A vital tool for the prevention of casualties among news providers is their ade- quate preparation for dangerous assignments. ngos and professional associa- tions for journalists in particular offer a wide range of instruments that facilitate adequate preparation for such missions. The most promising of these instru- ments will be presented in this section, summarised under the categories: (A) guidelines, (B) training programmes, and (C) journalistic professionalism.
A Guidelines rwb, the International Federation of Journalists, the cpj, the International News Safety Institute, Article 19, Fondations Hirondelle and a number of other civil society organisations developed different guidelines for news providers working in dangerous regions. These ‘handbooks’ and ‘survival guides’ focus on a wide range of practical and legal issues directly addressed at news providers and are in the field often more helpful than any legal analysis of their protection.
184 Cf. un ga Res Safety (2013), para. 3. This date was chosen in commemoration of the assas- sination of two French journalists in Mali on 2 November 2013. Before, from 2011 until 2013, the 23rd of November was celebrated as the International Day to End Impunity. This date is the anniversary of the 2009 Amapatuan massacre in the Philippines, also known as Maguindanao massacre. In this incident, 32 journalists and media workers were murdered. It is up today the single deadliest attack against news providers that has ever taken place. 185 See as a good example a review of the campaign for 23rd November 2012, available at:
While rwb’s 2002 ‘Charter for the Safety of Journalists Working in War Zones or Dangerous Areas’ is a general outline of the most important princi- ples of protection, its ‘Handbook for Journalists’, created in 2008 together with unesco, is a much more detailed booklet covering all sorts of relevant issues in the field.186 Besides the basic legal foundation of the protection of news providers in armed conflict, the booklet contains health precautions (including vaccination details); information about first aid; management of traumatic stress; journalistic ethics; explanations of cluster munitions, sniper fire, different types of anti-personnel mines and their occurrence (including drawings), as well as specific briefings on behaviour in certain situations, such as:
If you are threatened with a bomb attack In the case of an anonymous telephoned threat, play for time and ask: When is the bomb set to explode? Where is it? When was it put there? What does it look like? What kind of bomb is it? What will set it off? Did you personally place the bomb? Why? What is your name? Who are you? Where can you be contacted?187
If you’re kidnapped – Do not resist or try to escape unless you’re sure you can. – T ry to remember as many useful details as possible, about voices, smells, noise, movements and how long they take. – Accept food, water and anything that can improve your health so you can stay in the best possible physical and mental condition. – Get the kidnappers to call you by your name. This will get them to see you as a person and make things more relaxed. – Try to speak to someone, do something to occupy your mind and con- centrate on something. – Aft er you’ve been freed, you’ll be medically examined and ‘interro- gated’. This is vital. Also try to find someone to confide in about what happened. Do not keep the experience to yourself.188
Overall, the handbook contains a catalogue of very practical advice in a size that fits into every news provider’s pocket.
186 rwb, Charter for the Safety of Journalists Working in War Zones or Dangerous Areas; rwb and unesco, Handbook for Journalists, 2010. 187 rwb and unesco, Handbook for Journalists, 2010, pp. 22f. 188 Ibid, pp. 40f.
The International News Safety Institute prepared a similar list of recom- mendations for news providers working in dangerous environments. Tips of this list include, for instance:
– Most conflict zones require an ability at least to run, hike and endure discomfort. Ensure appropriate jabs and carry basic medi- cal kit with clean needles. Wear internationally recognised bracelet with caduceus symbol and record of allergies, blood group etc. If in a conflict area with us forces, consider writing your blood group on your boots – that’s what American troops do, so that’s where their medics would look first. – Carry cigarettes and other giveaways as sweeteners. Stay calm and try to appear relaxed if troops or locals appear threatening. Act friendly and smile. – Carry emergency funds and a spare copy of your id in a concealed place such as a money belt. Have a giveaway amount ready to hand over. – Keep emergency phone numbers at hand, programmed into satellite and mobile phones, with a key 24/7 number on speed dial if possible. Know the location of hospitals and their capabilities. – Familiarise with weapons commonly used in the conflict, their ranges and penetrating power so you can seek out the most effective cover. Know incoming from outgoing. Know what landmines and other ord- nance look like. Do not handle abandoned weapons or spent munitions. – W ear civilian clothes unless accredited as a war correspondent and required to wear special dress. Avoid paramilitary-type clothing. Avoid carrying shiny objects and exercise care with lenses. Reflections of bright sunlight can look like gun flashes. – N ever draw maps of military positions or establishments in your note- book nor should you show unusual interest in military equipment.189
The handbook of rwb and unesco seems to provide the most practical and comprehensive instructions out of all sorts of ‘survival packages’.190 As the
189 Find a much longer list of recommendations at: B Training Programs When entering a conflict zone, news providers should be emotionally pre- pared and properly trained for all situations they may face during their assign- ment. As Frank La Rue pointed out correctly, ‘The lack of training is the lack of security’.192 Security trainings for news providers have been offered since the 1990s.193 Traditionally, they have been conducted by former British or American military personnel focussing on personal-awareness skills oriented toward combat risks and battlefield hazards, along with emergency first aid.194 In most cases, the training consists of tailor-made packages designed to meet the needs of local and regional news providers.195 Since 2004, the International News Safety Institute has provided pro bono safety training to more than 2,000 news providers in 29 countries.196 Courses include complex field simula- tions that challenge news providers to apply their skills and train their behav- iour, for instance in a kidnapping scenarios. rwb offers trainings on safety and stress management as well as on ihl in cooperation with the French Red .org/?IJ_manuals> (last accessed October 2014); from the Federación Internacional de Periodistas at Cross and the French Army.197 From time to time the field offices of unesco, in collaboration with local organisations, also offer training courses for local news providers.198 And the Rory Peck Trust offers a fund for such training for freelancers.199 In addition to these traditional hostile-environment trainings, digital safety and technology are also increasingly relevant and essential for successful assignments in armed conflicts.200 The main problems on the individual digital front are often self-protection and protection of journalistic sources.201 Moreover, as outlined in Chapter 1 of this book, one of the most essential tools of contempo- rary reporting is satellite technology.202 This technology is specifically pertinent in regions where the Internet and other international connections are unreli- able or have been shut down by the authorities, as in Syria and in Libya. The importance of an independent satellite channel was manifested in the Rixos crisis, when the captured group of news providers used a satellite phone to contact the icrc.203 However, the use of this technology also bears many risks. In the case of the killing of Marie Colvin and Rémi Ochlik in Homs, for instance, many sources suspected that the Syrian authorities had tracked their satellite signals. Training of digital skills of news providers to overcome such problems and hide their digital footprints can therefore improve their protec- tion considerably. Such courses on digital safety teach basic techniques, such as how news providers build the necessary temporal and geographical distance between the event and their online posts, tweets or reports, how to han- dle their passwords, and also more complex issues like cyber security, cyber crime, copyright safeguard, censoring, jurisdiction and defamation online, and so forth. C Journalistic Professionalism During the 2nd Inter-Agency meeting in Vienna a representative of a civil society organisation recounted the story of a course he had recently given to 197 Details are available at: 3 Crisis Management and Equipment Besides previous education and training, adequate equipment when actually engaging in a combat zone is also vital for a comprehensive protection of news providers. In addition, appropriate and fast crisis management helps reduce 204 Oral Statement at the 2nd un Inter-Agency Meeting on the Safety of Journalists, 2012. 205 Wilesmith, Reporting Afghanistan and Iraq, 2011, p. 60. See also Casier, Protection effective des journalistes, 2012, pp. 6ff. 206 cpj Website, Killed Journalists, 1992–2013, 6 February 2014. 207 See for instance the courses of the Doha Centre for tv reporters, social media and Internet research. A Protective Equipment Full and adequate equipment is an essential component of the protection of news providers on dangerous assignments. Every news provider should be fully equipped with gear appropriate to the situation he covers. In armed con- flicts, this can include wearing body armour and helmets, carrying detectors, or ingesting oral tablets to block or act against possible biological or chemical agents.208 In the case of embedding with military forces, body armour is a pre- condition.209 Armoured vehicles and up-to-date communication equipment as well as survival and first-aid kits facilitate the protection. During specific coverage of demonstrations, anti-stab vests or baseball caps with metal plates offer additional protection.210 All such equipment requires different care and must be properly stored and periodically inspected. B Emergency Insurances and Funds News providers working in armed conflict also require a safety net including adequate insurance for the event of injury, illness or death.211 This is particu- larly pertinent to local journalists, citizen journalists and freelancers, who are often victims of attacks but do not benefit from the support of a big media house. Traditional insurance policies often exclude injuries or death resulting from armed conflict or other situations in high-risk regions. Therefore, a spe- cial insurance policy for such situations must be finalised. Several private contractors, most of them located in the uk, offer insurance policies of this kind. Established companies include, for instance, the Banner Financial Group,212 Bellwood Prestbury,213 Crisis Insurance,214 Safe Passage 208 Charter rwb, Principle 4; Appendix to CoE, Rec R(96)4 (1996), Principle 1 (1) (c). 209 However, wearing armour during the coverage of criminal matters is not recommended because it may cause a journalist to be mistaken for a law enforcement agent. 210 Smyth, Journalist Security Guide, 2014. 211 unesco, Operationalizing the un Plan of Action (2012/2013), p. 18; un sr FoEx, Annual Report 2007, para. 60. 212 More information available at: International215 or the Dart Centre, which offers help for journalists with trauma symptoms.216 rwb, together with Escapade Insurances, also offers pol- icies for photographers, journalists and freelancers.217 Contrary to insurance policies, which are preventive tools to circumvent financial shortages in the event of crisis, emergency funds are activated when an emergency is already imminent. Several civil society organisations offer such safety funds for news providers, and a big number of them additionally offer instant help: the International Federation of Journalists Safety Fund, for example, was established to provide immediate financial relief to particular news providers in a critical situation.218 The cpj offers assistance when a news provider needs medical care following attack or mistreatment in prison, legal assistance during trials, or when a news provider is forced to go into exile or hiding. However, the cpj receives such a high volume of requests that it claims on its website that it is not able to respond to everyone who needs assistance.219 The Rory Peck Trust for Freelance Newsgatherers and Their Families pro- vides such financial assistance to freelancers and their families. Moreover, the fund also covers safety-training courses for freelancers before going into hos- tile environments.220 The Frontline Club Fixers Fund offers similar services to fixers and their families.221 Similar funds are offered by the Walkley Foundation,222 Reporters Respond,223 the pen Foundation,224 Frontline 215 See: Defenders,225 Agir Ensemble pour les Droits de l’Homme,226 seemo227 or the Doha Centre for Media Freedom.228 C Emergency Hotlines In the year 2014, four emergency hotlines offer services for news providers in dangerous situations. Each of these hotlines has a slightly different focus but all of them aim at providing instant advice and support. The oldest is the 24/7 hotline of the icrc.229 The hotline assists in cases of disappearance, capture, arrest or detention of news providers. Through its mandate in armed conflict, the icrc is often already present in the region and circulates relevant informa- tion of missing news providers through its offices and delegates. Although this hotline has existed for many years, they are not very well known in journalistic circles. This became evident during the Rixos crisis, as an account of one of the captured news providers stated: [T]hey kept the line open the whole time, they were calling us every few hours checking on our condition and trying to get access to us. We never knew there was an icrc hotline…. There were more than 30 journalists in there, and I don’t think any of us knew there was one.230 It is important to say that the hotline does not offer intermediaries for negotia- tions with the captors of news providers. The icrc can simply offer services 225 Front Line Defenders offers security grants up to us�6,000 to improve physical security of an organisation, digital security, communication security, legal fees or other expenses. Contact: [email protected] and It’s not always possible to help, and we have to be honest about that. We want [the hotline] to be known about and used but we don’t want to give the impression that once you phone up, everything is going to be OK – we’re not superman.231 Nevertheless, such a hotline can at minimum relieve the psychological pres- sure of the victims and their next of kin.232 rwb offers a similar hotline,233 as does Front Line Defenders, to support all human rights defenders with the additional service of secure email support through an encrypted channel.234 The International News Safety Institute offers free advice and an initial point of contact for cases of hostage-taking.235 However, this service also excludes representation in negotiations with the kidnappers; the service focuses much more on an informal helpline offering guidance and contact with appropriate security experts, news entities and other victims of hostage-taking. Another address for emergency advice is the website of Dr Feinstein, a South African psychiatrist working in Toronto. Feinstein did several studies about the effects of the work of news providers in war zones and related trau- mata and works in cooperation with the International News Safety Institute and cnn.236 His homepage offers a self-assessment for affected news provid- ers with respect to depression, posttraumatic stress disorder, trauma history, 231 Ibid. 232 See e.g. the account of one of the captured journalists in the Rixos Hotel in ibid. 233 Contact: +33 147 77 414, 24 h/7d; [email protected]. 234 Contact: + 353 (0) 1 21 00 489, 24 h/7d; secure email available at: D Anonymous Reporting and News Blackout on Hostage Cases News providers traditionally gain professional knowledge, respect and recog- nition by their reports. To the rest of the world, this work is presented through the publication of the author’s byline together with the relevant information. The correct citation of the author is therefore essentially the credit for the work of news providers. However, as a reaction to the unsafe environment for its employees and sources in Syria, the New York Times adopted an unusual but efficient approach: it stopped citing bylines of its news items. More precisely, it stopped citing the real name of the writers and the sources of its pictures. Instead, the newspaper referred only to ‘an employee of the New York Times in Syria’.237 This practice of withholding information may be essential for the protec- tion of the sources and reporters in the field because possible perpetrators do not even know for whom they have to search within the territory of the armed conflict. However, it is not in the interest of every news provider not to be cited for his or her work. Therefore, this is more an option for regular employees of media houses and less for freelancers. The complete publication of all author bylines and sources in the aftermath of the conflict or after the termination of their assignment can resolve the disadvantages caused by this practice. A similar practice of withholding information was adopted with regards to news providers held captive by armed forces, rebels or criminals. Namely, news entities as well as the families of victims ever more often decide not to publish information on the hostage-taking. For instance, when freelance journalist James Foley was kidnapped in Syria in 2012, his family waited six available at: 4 Shared Responsibility It is complicated to include non-state actors and entities in international law decision-making processes, since international law was traditionally designed by and for states. Nevertheless, the participation of news outlets in the global process is essential for the protection of news providers.245 The protection of 238 Smyth, Do News Blackouts Help Journalists Held Captive? cpj Blog, 26 February 2013. 239 Ibid. 240 Ibid. 241 Ibid. 242 Smyth correctly held that negotiations with kidnappers could be more difficult if they become aware that they are holding a ‘big fish’. Ibid. 243 See Smyth, who recommends a range of guidelines to follow when deciding about the benefits of a news blackout. Ibid. 244 See moreover Recommendation Doha Forum, 2012. 245 Appendix to CoE, Rec R(96)4 (1996), Principle 1 (2). – ensur e that their employees are specifically trained for the coverage of armed conflict. – tak e all necessary steps to provide adequate insurance before sending or employing personnel on dangerous assignments.246 – inform staff and freelancers of any special training offered by nation- ally or internationally qualified bodies and give them access to it. – arr ange a mandatory first-aid training for all news providers working in hostile environments. – assign news providers to dangerous missions on a strictly voluntary basis. Every reporter should have the right to refuse and terminate such an assignment without explanation. Editors should beware of exerting any pressure on news providers to take additional risks.247 – choose experienced staff or freelancers who are used to crisis situa- tions. Journalists covering a war for the first time should not be sent there alone and should be accompanied by a more experienced reporter. Furthermore, editors should systematically debrief staff after their return and systematically collect their experiences.248 Self-regulation of private companies, as has been seen in other branches of inter- national law, is a useful tool to address the lack of commitment and financial pres- sure of media entities.249 In October 2012, a group of media entities met in London to discuss the progress of the protection of news providers within the un system.250 Unfortunately, the members of this meeting missed this opportunity to draft guide- lines for their own commitment to the protection of news providers. Instead, they drafted a resolution expressing their dismay at the failure of governments and dis- appointment about the lack of effectiveness of previous un interventions for the protection of news providers. Basically, they shifted all responsibility for this issue 246 See also Appendix to CoE, Rec R(96)4 (1996), Principle 2; rwp Charter, Principle 6. 247 Cf. rwb Charter, Principle 2. 248 Cf. ibid, Principle 3. 249 Such processes could e.g. be witnessed with regards to private military companies. 250 Besides representatives from research institutes and civil society organisations, partici- pants attended from Al Jazeera, bbc, cnn, Commonwealth Media Group, the Daily Telegraph, the Guardian, Sky News, the European Broadcasting Union, Radio Netherlands Worldwide, Radio Free Europe, Thomson Reuters, and the World Association of Newspapers and News Publishers, as well as representatives from newspapers from Pakistan, Italy, Mexico, Turkey, Sri Lanka, the Philippines and Somalia. – Seek information and advice from the high risk team; – Complet e a full written risk assessment and apply the necessary safety control measures; – Ensur e those involved have the right training and/or experience for the assignment; – Identify and use appropriate safety equipment; – Make adequate contingency plans and arrangements in case of emergency; – Obtain the appropriate level of management authorisation.252 A catalogue of such requirements for assignments to armed conflicts could form the basis for an international self-regulation process of media houses by themselves for themselves. However, as the London Statement exemplifies, the political will and commitment of the media community is not yet there for such a project. Another possibility to pressure involvement of media companies would be to mandate the provision of insurance policies in domestic labour legislation or on a global level within the International Labour Organisation. A global obligation to insure would offer the necessary incentives for media companies (through pressure by the terms of the insurance policies) to provide adequate training and effective gear to reduce the risk of attacks. Unfortunately, this study lacks sufficient time and space to discuss this idea in greater detail. This may, however, be an issue that deserves further attention. 5 Essence of Part III Over the past section we have seen that a series of practical adaptions can make a large difference for the protection of news providers in armed conflicts. First and foremost, news providers must be well equipped and insured when 251 London Statement, Annex, para. 3 reads: ‘Media houses are encouraged to provide proper safety training and insurance to all staff, stringers and associated personnel’. 252 See rwb and unesco, Handbook for Journalists, 2010, pp. 42ff. IV Conclusion IV: New Rules – New World? At the outset of this chapter, I stated that the insufficient protection of news providers stems mainly from practical problems and weak enforcement of the existing protective legal framework. Over the last pages, I have examined the potential and feasibility of all sorts of normative, institutional and practical changes to compensate for these flaws. Many of the suggestions for reforms that were put forward to foster enforcement were admittedly full of good intentions but fail to effectively improve enforcement.253 Nevertheless, some of the initiatives and ideas are worth further consideration in the political debate. The normative reform ideas focus essentially on highlighting the already- existing obligations of states through a new and more visible provision or instrument. This may be accomplished through the inclusion of new rules that underscore the functional protection of news providers in ihl and in hrl or via the long-term goal of a global treaty on the protection of news providers. However, the reactions of states to respective initiatives have shown that the political will for the adoption of such a global treaty is still not sufficient. The adoption of such a treaty must therefore be a long-term goal. Meanwhile, ini- tiatives should focus on fostering political will for such an instrument via the emergence of corresponding soft law. Institutional changes, on the other hand, have mainly focused on the fight against impunity through empowering international and national authorities. The un Plan of Action, for instance, is a welcome initiative to coordinate and 253 Such as, for instance, the pec Draft Convention or Pape’s suggestion to reform Article 4 gcs. See above, pp. 344, 352ff. At the outset of this study I roughly diagnosed how news providers covering war, the ancient hero of all reporters, have increasingly become victims of their own story and frequent targets in contemporary armed conflicts. In this study I have endeavoured to provide a detailed analysis of the reasons for this development and of the answers international law offers for them. First, I have looked at the factual background and political context of contemporary armed conflicts. In a second step, I have raised a series of questions that should guide the legal analysis throughout this book. Over the last four chap- ters, I have answered all these questions, coming to the result that the legal protection of news providers and their activity in international law is rather comprehensive. I Convergence of Legal Regimes Overall, the convergence between different legal regimes of protection, namely ihl, hrl and icl, contributed to the search for effective solutions and to the strengthening of an all-embracing protection of news providers. While the per- sonal protection of news providers is largely governed by ihl, which guaran- tees them the treatment as civilians, hrl completes this protection where necessary. It does that for instance by offering protection during niac or through the protection of individuals who fall outside the scope of protected persons of the gcs. While primarily elaborated in ihl, it is also hrl that sets the fundamental baseline for targeting and detention of news providers in armed conflicts. At the same time, icl gives a hand where ihl is unclear, as for instance in the context of dph. The functional protection of providing news, on the other hand, is mainly ruled by hrl, specifically by its established right to free expression and new emerging concepts to a right to information. Also in this area ihl and icl complete this protection by specifying certain categories of restrictions of hrl. ihl, for instance, deals with spies, the protection of certain individuals from public curiosity and the requirements for targeting media facilities. icl, on the other hand, offers with its still-young corpus of jurisprudence a consid- erable basis for balancing restrictions of the functional protection via criminal liability for speech and through testimonial privileges for news providers before international criminal tribunals. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004288850_008 Throughout the whole analysis, one major frontline of legal scholarship was regularly exposed: the divide between different positions of legal schol- arship with regards to the question of where to draw the line between unprotected and criminalised speech in international law. This debate is a still-unresolved issue and will be subject to further discussions that will consequently affect the protection of news providers in all sorts of legal areas. Certain stages of the analysis needed to be elaborated in a very detailed manner, mostly because the law that governs the issue is stated in broad terms and difficulties arose when applied to particular scenarios of providing news. This was the case in the context of dph, media facilities as military objectives, criminal liability for speech and testimonial privileges for news providers before international criminal tribunals. While a lot of these issues may seem academic, they could have a strong impact on the protection and activities of news providers in the field. Having a clear legal framework is essential to adequately address and engage with all relevant actors, including reminding states and non-state actors of their obligations regarding news providers. It was therefore worth the additional time and effort to clarify these complex areas. However, despite the comprehensive protection in international law, attacks against news providers are on a constant rise. The last chapter of the analysis then showed that this factual development is to a large extent rooted in practi- cal problems as well as in the weak enforcement of the normative framework. To address and compensate for these flaws, I have discussed a range of ideas and identified some concrete measures that may help in reducing practical complications for news providers while engaged in armed conflicts and in fos- tering enforcement of the law. This study therefore laid the groundwork for eventual legislative and institutional reforms to consolidate the protection of news providers in armed conflicts. II Is It Bravery, or Is It Bravado? However, the potential of the media to cause severe damage must be taken seriously. The tremendous acceleration of the contemporary news cycle is able to trigger immense effects on public opinion and the political process. Today, with the help of social media, news can produce social earthquakes with an uncontrollable echo. Using this power, mass media can also easily be misused: It has not only the potential to increase participation in armed conflicts by facilitating coordination but also direct effects on behaviour due to its content. Nevertheless, the risks of restraining speech put some of the core pillars of democracies at stake. The ac of the ictr formulated this poignantly in the Media Trail when stating: From an ex post perspective, courts and commentators may often be tempted to claim that no harm, and in fact much good, could come from the suppression of particularly odious ideas. In many instances, hate speech seems to have no capacity to contribute to rational political dis- course. What, then, is its value? The reason for protecting hate speech lies in the ex ante benefits. The protection of speech, even speech that is unsettling and uncomfortable, is important in enabling political opposi- tion, especially in emerging democracies.1 However, to repeat once more: the issue covered in this book does not deal with any sort of speech. It covers news coverage during armed conflicts, which takes place in a time when individuals are exposed to the most extreme forms of powers. In such environments, independent witnesses are needed who report about human rights violations and other cruel behaviour of all actors in the conflict. Ultimately, news providing assures the enforce- ment of some of the most fundamental rules of international law, namely the prohibition of war crimes, genocide and crimes against humanity. To enforce these provisions, the world needs to know when these rules are being broken. And this knowledge cannot be produced while sitting behind news desks back in secure areas. Marie Colvin, the queen of all war correspon- dents killed in an attack in Syria in 2012, summarised this need once like the following: In an age of 24/7 rolling news, blogs and twitters, we are on constant call wherever we are. But war reporting is still essentially the same – someone has to go there and see what is happening. You can’t get that information without going to places where people are being shot at, and others are shooting at you.2 1 ictr, The Prosecutor v Nahimana, ac Judgement, para. 10. 2 Marie Colvin, Truth at All Costs, speech made at a memorial service honouring the journalists and their support staffs that died on the front lines, 10 November 2010, held at St Bride Church, London. Transcript of the speech available at: Of course, war coverage is a risky business. But it is a business society needs. As a consequence, society needs to protect it and make its environment as favour- able as possible – including through the most adequate legal guarantees. The provisions in place provide for an adequate balance for restricting only the most severe forms of speech that directly effect others while ensuring the greatest possible guarantees for free speech. This leaves a wide margin for political propaganda, with good reason. Hence, when parties to armed con- flicts kill people because they do not like what they say, they change the rules of war.3 With respect to the governing rules of war, parties to armed conflicts must accept that ultimately good arguments are the best way to dismantle bad arguments. So, then, is the work of news providers in armed conflicts, as the title of this book ultimately asks, bravery, or is it bravado? The analysis of this book showed that international law guarantees a comprehensive protection of their person and their work. Thus, the main task of civil society acting as the moral voice of the international community4 is now to enforce this framework and to ensure that news providers can report on the horrors of war with accuracy and with- out prejudice. Civil society must ensure that all these legal guarantees are more than simply protocols of good intentions — and thus that the level of risk is worth the story, so that news providing is indeed an exercise in bravery, not bravado. 3 Fisk, Once you kill people because you don’t like what they say, you change the rules of war, The Independent, 23 April 1999. 4 Cassese, Plea for a Global Community, 2012, p. 143. International/Regional Treaties 1863 Instructions for the Government of Armies of the United States in the Field. Adopted: 24 April 1863 1907 Regulations concerning the Laws and Customs of War on Land annexed to Convention (iv) respecting the Laws and Customs of War on Land. 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Authors and Institutions Human Rights Watch 55, 189, 298 ifex 358, 362, 379 Balguy-Gallois 119n18, 122n32, 123n34, 151f, International Criminal Court 88n41, 92n56, 156n201, 167n257/259, 290n415, 187, 281, 284f, 331–336, 370 309n530, 350n52 International Law Commission (ilc) 99f, Benesch Susan 175n297, 176–182, 268–276, 352, 355 281f International Press Institute (ipi) 4, Bishop Cheryl Ann 218n58/60, 222, 253 105, 354 Bluntschli Johann Caspar 117n3 Boiton-Malherbe Sylvie 122n30, 125n43, Kearney Michael G 180, 266–276, 281–284 166n256, 259n249 Knightley Phillip 6–10, 29, 34, 40f, 297–299 Boothby William H 81n8, 122n32, 165n249– Koskenniemi Martti 99, 101, 169, 229n131 see 251, 167n262, 174, 183, 189n366 also Systemic integration and Buergenthal Thomas 92n58, 94n66, 110 International Law Commission Cassese Antonio 10, 83n18, 398 Melzer Nils 155, 162, 164–166, 169f, 174, 182f, Clausewitz Carl von 19 309n531 Committee to Protect Journalists 3f, 50, 58f, Meron Theodor 83, 130, 278, 281 66, 78n267, 105, 298–302, 361f, 379, Milanovic Marko 99f, 103 381n191, 386 Muenkler Herfried 20, 23 Creveld Martin van 19 Naqvi Yasmin 226, 227n118, 230, 241 Diggelmann Oliver XI, 103n109 Dinstein Yoram 49n142, 94n66, 127n57, Pape Katja 119n18, 153f, 167, 195, 206n3, 249, 131n73, 289, 311n539 252, 264n271/273, 265n275f, 344n26, Dunant Henry 7, 90n44 354n81, 367, 393n255 Pocar Fausto 275n337, 278f Gasser Hans-Peter 26n36, 79n1, 81, 90n44/47, 91n50, 120n24, 123f, Reporters without Borders 4, 42, 50, 58, 105, 125n44/46, 131, 167n257, 180n332, 114n153, 297–301, 350, 361, 367f, 191n375, 217n56, 247n193, 262n263/265, 379–382, 386, 388 270n306, 294n437, 334n646, 348 Geiss Robin 85n29, 125n46, 154n194, Schindler Dietrich 79n1, 81f, 103 167n257, 190n372/374, 194n393, 195n402, Schmitt Michael N 21f, 174, 183 246, 252n214, 257n238, 260n251, 262, Sen Amartya 230 291f, 308, 339n2, 344n27, 346n39, Special Court for Sierra Leone (scsl) 91, 347n40f, 348n45 315, 328–331, 333 Goldstone Richard 9n40, 24n27, 49n143, 95, Stiglitz Joseph E 217n56 257n240, 340n6, 370n153 Thürer Daniel XI, 6n23, 20n3, 22n14, 24n27, Henderson Ian 14, 126f, 150n175, 154n195, 33n70, 79n1, 83n18, 90n44/46f, 91n50, 59n290, 289n408f, 290, 294n438, 305n509, 94n66, 109n134, 112n146, 60n221 306–311 Trinidade Antonio Augusto Cancado 101 Horsley William 351n60f, 359n101, 363n118, Tumber Howard 26n37, 328n618 368f Tutu Desmond 101 Blog, blogger vxii, 4n17, 16, 25, 42–44, Direct participation in hostilities (dph) 51–54, 63, 67f, 105n117, 107f, 166, 220, 375, 164–191, 164–166, 187–191, 397 196f, 290–292 Bully syndrome 22, 71 through armament 189–191 through hate speech 183 Causation 175–183 through incitement to genocide 175–183 Censorship 4, 6, 8, 29f, 69, 76,188n8, 234, through military information 187f 246n192, 251f, 275, 286, through speech crimes 168–187 Citizen journalism xvii, 23f, 59–61, 66–74, Education 379–384 105–108, 113–115, 124, 132, 150, 203, 220, El-Masri Case 224, 227f, 238 223, 332, 335, 364n121, 385 Embedded journalists 1, 37–42, 72, 119f, 150, Civilian 22–24, 68–71, 126–129, 132–134, 173, 203, 298, 343 150–154 Embedding rules 38, 193n391, 258, 262 Civilianisation 68–71 Emblem see Special emblem Civilian population 21, 126–129, 137, Emergency hotline 47, 387–389 150f, 157, 171, 279, 281, 290, 300–311, Equipment 4, 24, 61f, 66, 75f, 174, 194, 199f, 346f 287, 288, 337, 348, 375, 384f, Civil war 76, 133, 137, 138n113, 145–147, 150 Espionage 2, 60, 77, 197, 208, 249f, 259–262, see also American Civil War 338 cnn Effect xvii, 26–29 Ex officio crime 372 Collateral damage 150–158, 160, 294 Collateral Murder 2 see also WikiLeaks Fikret Alić 9 Collective right to expression 231–237, 243 First World War 7f, 29n54, 118 see also Right to free expression Fixer xvii, 58, 65f, 114, 386, 394 Collective right to information 230f, 243, Forced disappearance 145–147, 224–228 see 349 see also Right to information also Kidnapping Commercialisation 22–24 Fourth power 5–10, 25–29, 32–36, see also Compulsory Membership Opinion 209f, 232f, Watchdog 240, 251 Freedom of expression 208–216, 231–237, Contribution to military action 290–292 244–246 Couso Case 41, 297–300, 340 see also Functional protection 206–338, 348 Hotel Palestine Crimea War 6f Gaddafi Moammar 44–47, 71f, 191 Criminal liability for speech 184, Gaddafi Saif al-Islam 187f 265–286 Gaza 3, 49–56, 67, 95, 255–257, 303f Crime against humanity 187, 265, 268–282, Guerrilla 20, 145, 160, 228n126 309, 318, 350f, 397 Customary law 84f, 87, 92, 102, 127–134, Harassment 4, 214f, 280 190, 205, 225f, 241f, 262, 276, 280, Hashtag xvii, 48, 52, 375 289n408, 333 Hate speech 171–173, 183, 196, 203, 253, Customary Law Study (cl-Study) 13f, 265–267, 271, 273–282, 302, 397 130–134, 190, 192, 201 Hors de combat xviii, 118, 126, 148, 162, 262 Cyberwar 24f, 73, 383 Hostage taking 128n62, 133, 388–390 see also Kidnapping Demilitarisation 22–24 Hostilities 124, 165 see also Direct participa- Derogation 100n102, 244–247, 337, tion in hostilities (dph) 348f Hotel Palestine 41, 64, 76, 286f, 297–301, 304 Detention 46f, 62, 147–149, 191–205, 211f, see also Couso Case 216, 264 see also Internment and Arrest Hotline see Emergency Hotline Digitalisation 66–68 Human rights law (hrl) 92–103 Identity card 117–121, 125, 262 Media Trial 269–273, 277–282 Ideology 25, 42n116, 280, 355, Methodology 11–13 Illegitimate journalists 3, 49, 55f, 158f, Military analysts 30–32 188f, 203 Military necessity 91, 154–158, 165, 195, 203, Information operation 29–32 see also 250–252, 302, 309n531 Media operation Military objectives 153, 170, 174, 286–292 International criminal law (icl) 89–92 Military Tribunal for the Trial of German International Committee of the Red Cross Major War Criminals (imt) 178–184, (icrc) 13f, 47, 50, 84, 91n55, 123f, 130f, 268f, 280, 283f 164–168, 201, 315f, 333, 387f Military tribunals 201f International convention for the protection of news providers 351–355 National security 248–252 International Day to End Impunity for Crimes Miranda Case 142, 214f, 235 against Journalists 379 nato 8, 15, 71, 75f, 151–156, 286f, 292–296, International humanitarian law 301f (ihl) 89–92, 104–103 Netizen xviii, 4n17, 364n121 Internment 191–193, 196–201 see also News blockade 28, 50, 71, 252, 255, 257, 337 Detention and Arrest News providers, definition 103–115 Impunity 78, 140f, 229, 341f, 351f, 356, New wars 19–25 362–366, 374f, 378f Nuclear Weapons Case 8, 11, 96f, 128, 150, see Incitement to genocide 171f, 175–185, also Lex specialis 265–273, 292, 309–311 Insurances 65, 385–387, 391f Omarska 8f, 316 Iraq 1f, 26, 28, 30–32, 34, 37–44, 66, 71, 73f, Operation Cast Lead 49–51 120, 258, 262f, 297–301, 364 Operation Iraqi Freedom 1 Islamic State 3 Operation Pillar of Defence 49, 51–56 Israel Defence Forces (idf) 3, 33, 49–56, 71f, 74, 157–159, 188f, 229, 255, 257, Parachute journalism 64f, 73 287, 303f Personal protection 116–205 Phan Thị Kim Phúc 8 Journalists engaged on dangerous Protected persons 120, 128n61, 193, 198f, 201, professional missions 121–126, 132 207f, 262–265 Privatisation 22–24, Karadžić Radovan 9, 316f Press Emblem Campaign 344–348, 352–355, Kidnapping 1, 57, 75, 144–149, 380, 382, 394 388–390, see also Hostage taking and Propaganda for war 248, 253, 265–267, Forced disappearance 272n317, 282–286 see also Aggression Proportionality 150–154, 186, 203, 302 Lex specialis 96–98, 101f, 195, 200, 246f, 260, Professional journalists xviii, 106–115 262 see also Nuclear Weapons Case Public Curiosity 262–265 London Statement 350, 392 Public offence see also Ex officio crime Lybia 2, 24, 28, 44–49, 57, 62, 71f, 76, 75, 138, 187f, 191, 259, 301f, 313, 350, 383 Randal Case 119, 317–328 Restrepo Case 215f, 233–235 Media facilities 286–312 Right to life 135–144, 160–163 Media objects see Media facilities Right to liberty 144–147 Media operation 29–32 see also Informa- Right to information 137, 218–242, tion operation 253–255 Media support staff xviii, 66, 105, 109, 114f, Right to Internet access 349 124, 132, 325, 331 Right to news 239–242, 349 Right to truth 237–239 Testimonial privilege 312–336 see also Rixos Hotel 2, 47–49, 187f, 383, 387f Randal Case, Birma Case and Bility Case Rwanda 27, 34, 91, 176–180, 267–272, Torture 2, 45n126, 101, 133, 147–149, 194, 211, 289–292 227, 228n126, 245n189, 318, 351 Training 37f, 74, 87, 354, 357, 371, 375, 379, Second World War 29n54, 34, 66, 71n247, 91, 382f 119n16, 150, 266–269, 280n367, Trnopolje 8f Social dimension see Collective right Twitter xvii, 16, 44, 47–49, 62, 67, 77, 107f, Social media 25, 29, 33, 51–54, 59–61, 66–68, 157, 397 see also Social media 68–71, 375 see also Twitter, YouTube and Citizen Journalism Ubuntu 101 Soft law 108, 287, 355f un Plan of Action for the Safety of Journalists Special emblem 344–347 and the Issue of Impunity 5, 362–365, Special prosecutor 372f 370, 374–377 see also unesco Special rapporteur 9, 95, 108, 219, 225, 249, 256, 288, 358, 360f, 364f Vietnam 8, 29n55, 66, 71n247 Spy see Espionage State of emergency 93n62, 139n117, 161n227, Wall Opinion 49, 96, 98 244–247 see also National security War correspondents 6–9, 117–121, Streicher 175n301, 178f, 268 132, 193–195, 204f, 260, 319–325, 328, Stringer xviii, 65n224, 325, 392n353 see 334, 343f also Fixer War crime 128, 133, 155, 194, 252, 264–274, Syria 3, 28f, 56–62, 65f, 69f, 71f, 138, 158, 289, 294, 308f, 349f 263f, 389 Watchdog 5, 70, 220–223, 236, 239, 243, 253, Systemic integration 99f, 169 313n546 see also Fourth power WikiLeaks 2, 41n111, 167n258, 299n477, 300 Tadic Case 84, 87f, 120, 180, 275f, 280, World Press Freedom Day 379 314n549 Targeting 55f, 73f, 158–191 YouTube xviii, 2, 16, 33, 51–54 see also Technology 20–22, 24–25, 61f, 66–68, 77, 383 Social media