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Commentary - Measures of protection for journalists
    [p.917] Article 79 -- Measures of protection for journalists


    [p.918] General remarks

    3245 The circumstances of armed conflict expose journalists exercising their profession in such a situation to dangers which often exceed the level of danger normally encountered by civilians. In some cases the risks are even similar to the dangers encountered by members of the armed forces, although they do not belong to the armed forces. Therefore special rules are required for journalists who are imperilled by their professional duties in the context of armed conflict. (1)

    3246 It must be stressed from the outset that Article 79 is a rule of international ' humanitarian ' law: it purports to protect journalists engaged on dangerous missions from the harmful effects of armed conflict. Neither the right to seek information nor the right to obtain information are at issue in this provision.

    The state of the law before 1977

    3247 Article 13 of the Hague Regulations Concerning the Laws and Customs of War on Land annexed to the fourth Hague Convention of 1907 provides that "Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters" are entitled in case of capture to prisoner-of-war treatment on one condition: that they are in possession of "a certificate from the military authorities of the army which they were accompanying". This solution was retained by the Geneva Convention of 27 July 1929 Relative to The Treatment of Prisoners of War (Article 81 ).

    3248 However, the Third Convention of 12 August 1949 is no longer satisfied with granting analogous treatment but its Article 4A (4) accords captured war correspondents the status of prisoner of war. Thus war correspondents are included among those who accompany the armed forces without actually being members thereof. However, only those correspondents who have special authorization permitting them to accompany the armed forces fall under this category: accredited correspondents. An identity card issued by the military authorities will assist them in proving their status. (2) Wounded, sick or shipwrecked war correspondents fall under the protection granted by the first and Second Conventions (Article 13 ).

    3249 Apart from these special rules for war correspondents authorized to accompany the armed forces, international humanitarian law instruments dating from before 1977 do not contain any special provisions relating to journalists or their mission.

    [p.919] Historical background of this provision

    3250 The historical background to Article 79 is special in that this provision did not result from the draft of Protocol I submitted to the Diplomatic Conference by the ICRC on the basis of consultations with government experts. It originates elsewhere. In fact, the United Nations General Assembly, on a French initiative, in 1970, authorized the Economic and Social Council, and through it the Human Rights Commission, to draw up a special draft convention with a view to protecting journalists on dangerous missions. (3)

    3251 At the request of the General Assembly, successive drafts for such a Convention were submitted by the Human Rights Commission to the two sessions of the Conference of Government Experts for consideration. (4) The majority of experts welcomed the proposal to provide special protection for journalists in view of the importance of transmitting as much information as possible on events during armed conflict.

    3252 Invited by the United Nations General Assembly to express its views on the draft articles drawn up by the Human Rights Commission, (5) the CDDH did so during the second session, though in an unexpected way. Instead of limiting itself to commenting on the United Nations draft, an ad hoc Working Group of Committee I considered that the protection of journalists on dangerous missions should be dealt with in the context of an instrument of international humanitarian law and not in a special convention.

    3253 Thus the Working Group submitted to Committee I a draft article to be included in Protocol I -- the future Article 79 -- and an annex. (6) These texts were successively accepted by Committee I (7) and in plenary (8) without opposition and without any further modifications except minor drafting changes.

    3254 However, an interesting controversy arose during the discussion in Committee I: in fact, one delegation submitted an amendment which would have obliged journalists claiming protection under Article 79 to wear a protective emblem clearly visible from a distance in the shape of a bright orange armlet with two black triangles. (9) This proposal was rejected primarily on the basis of the following argument: by making the wearer of the armlet conspicuous to combatants, such means of identification might make the journalists' mission even more dangerous; similarly it was argued that in this way the journalists would be likely to endanger the surrounding civilian population. (10)

    [p.920] 3255 The information which should be shown on the identity card was also the object of some discussion in Committee I. (11)

    3256 In 1975 the United Nations General Assembly acknowledged the solution adopted by the Diplomatic Conference "with satisfaction". (12) Since then there has been no further action on the initial idea of drafting a special convention on this subject. The specific problems raised by the protection of journalists on the battlefield form part of the whole body of humanitarian problems posed by armed conflict. The Geneva Conventions, and now the 1977 Protocols, are the appropriate framework for any rules on this matter. Moreover, as one delegate remarked during the discussion in Committee I, including the provision on journalists in a humanitarian law instrument should have the effect of making these Geneva Conventions and the Additional Protocols more familiar to those very journalists, since they would be more interested in consulting them. (13) International humanitarian law can only benefit from this.

    Paragraph 1 -- Status of journalists

    3257 Journalists engaged in a professional mission in an area of armed conflict are civilians in the sense of Article 50 ' (Definition of civilians and of the civilian population), ' paragraph 1, of Protocol I. In other words, a journalist, who is undoubtedly a civilian, does not lose this status by entering an area of armed conflict on a professional mission, even if he is accompanying the armed forces or if he takes advantage of their logistic support. Moreover, paragraph 1 of this article does not create any new law; it clarifies and reaffirms the law in force regarding persons exercising the functions of a journalist in an area of armed conflict without being an accredited correspondent in the sense of Article 4A(4) of the Third Convention.

    3258 As became clear in the Diplomatic Conference itself, the wording of paragraph 1 is not entirely satisfactory. (14) In fact, a journalist on a professional mission in an area of conflict should not merely be ' considered ' as a civilian, he ' is ' a civilian in accordance with the definition contained in Article 50 ' (Definition of civilians and of the civilian population), ' paragraph 1, of Protocol I. Thus this provision is merely declaratory and does not create a new status. There can be no doubt about this. The fact that Committee I refrained from modifying the wording of this paragraph which the Working Group had proposed, despite the criticisms raised during discussions, does not allow for any alternative conclusion regarding the meaning delegates intended the text to have. The Committee did not want to change the draft because it did not wish to reopen the discussion on a finely balanced text, the result of a compromise taking all the views into account. (15)

    [p.921] 3259 Indirectly this paragraph at the same time clarifies the status of war correspondents protected by Article 4A(4) of the Third Convention: they are civilians. In fact, Article 50 ' (Definition of civilians and of the civilian population), ' paragraph 1, of Protocol I, referred to in Article 79 , includes the categories of persons mentioned in Article 4A(4) of the Third Convention in its definition of civilians. (16)

    3260 The text does not define what is meant by a "journalist". (17) Thus the ordinary meaning of the word must be taken. Although the etymology calls to mind correspondents and reporters writing for a daily newspaper, the present use of the word covers a much wider circle of people working for the press and other media. The definition contained in draft Article 2(a) of the International Convention for the Protection of Journalists engaged in Dangerous Missions in Areas of Armed Conflict (18) could serve as a guide for the interpretation of Article 79 . According to that definition:

    "The word "journalist" shall mean any correspondent, reporter, photographer, and their technical film, radio and television assistants who are ordinarily engaged in any of these activities as their principal occupation [...]"

    3261 Thus the term "journalist" is understood in a broad sense.

    3262 However, anyone who, as a member of the armed forces, has a function connected with information within the armed forces is not a journalist in the sense of Article 79 . (19) He shares the fate of all other members of the armed forces.

    3263 What is meant by "dangerous professional missions in areas of armed conflict"? The meaning of the words is clear: any professional activity exercised in an area affected by hostilities is dangerous by its very nature and is thus covered by the rule. It is not necessary to give a precise geographical delimitation of such "areas of armed conflict" from either a legal or a practical point of view. In fact, journalists enjoy the rights to which they are entitled as civilians in all circumstances.

    3264 The concept of a "professional mission" covers all activities which normally form part of the journalist's profession in a broad sense: being on the spot, doing interviews, taking notes, taking photographs or films, sound recording etc. and transmitting them to his newspaper or agency. The military or civil authorities may subject such activities to controls in order to ensure that they comply with the rules they have laid down.

    3265 To sum up, a journalist on a dangerous professional mission is a civilian and enjoys the protection granted civilians by the relevant provisions of international humanitarian law. This solution is preferable to the approach chosen by the United Nations draft, namely, of creating a special status for journalists. In fact, any increase in the number of persons with a special status, necessarily [p.922] accompanied by an increase of protective signs, tends to weaken the protective value of each protected status already accepted, particularly that of medical personnel. In short, the efficacy of protection and the credibility of the whole system of protection would have suffered. By avoiding this pitfall the Diplomatic Conference came to a wise solution.

    Paragraph 2 -- The protection granted journalists

    3266 Paragraph 2 lays down the legal consequences of what is said in paragraph 1. As civilians, journalists enjoy the protection afforded civilians: all the provisions of the Conventions and of Protocol I relating to the protection of civilians apply to them.

    3267 Such protection extends to two factual situations which are governed by rules of international humanitarian law. On the one hand, the journalist who is directly exposed to the dangers of the battlefield enjoys the legal protection granted by the Geneva Conventions, Protocol I and customary law, which protect the individual against the effects of hostilities. Thus, for example, the journalist on the battlefield may not be a target, since all civilians enjoy immunity from attack (Article 51 -- ' Protection of the civilian population, ' paragraph 2). On the other hand, a journalist who falls into the power of a Party to the conflict continues to be subject to the protection of the law applicable to civilians as such, in accordance particularly with the fourth Convention.

    3268 Journalists engaged in dangerous professional missions may claim the protection granted by instruments of humanitarian law "provided that they take no action adversely affecting their status as civilians". Thus it is quite clear that in case of any direct participation in hostilities they would forfeit for the duration of such participation the immunity they enjoy as civilians (Article 51 -- ' Protection of the civilian population, ' paragraph 3). For the interpretation of this restriction on protection, see the commentary on Article 51 ' (Protection of the civilian population), ' paragraph 3 (supra, p. 618).

    3269 In this context it should also be recalled that a journalist risks losing effective protection (even if he does not lose the ' right ' to protection to which civilians are entitled) if he closely follows a military unit engaged in action or if he gets too close to a military objective, since these are both legitimate objectives for attack. In the same vein, if he wears clothing which too closely resembles military uniform, he will incur risks of a similar nature. In all these cases he therefore acts at his own risk: in exposing himself to danger in this way he would forfeit protection de facto. On the battlefield a combatant cannot reasonably be asked to spare an individual whom he cannot identify as a journalist, i.e., as a protected person.

    3270 In general it should not be forgotten that the appearance of a journalist on the battlefield is unlikely to have the effect of putting an end to the exchange of fire so that he can do his job. For that matter, Article 79 does not require this.

    3271 Finally, this paragraph provides that the rules laid down in Article 79 are without prejudice to the "right of war correspondent accredited to the armed forces to the status provided for in Article 4A(4) of the Third Convention". This makes it clear that the special régime accorded by the Third Convention to [p.923] accredited war correspondents is not affected by the new law of 1977, and that it continues to be fully in force. Thus two categories of journalists may be operating in an area of conflict: journalists accredited to the armed forces, and "freelance" journalists. If they were captured, the former would be prisoners of war, while the latter would be civilians protected under the fourth Convention and this Protocol.

    Paragraph 3 -- Identity Card

    3272 The identity card mentioned in paragraph 3 is not a constitutive element in creating the legal status of its bearer. It merely serves to "attest to his status as a journalist". This card is a means of proving his status when this should be necessary, particularly if he is arrested or captured.

    3273 It is not obligatory to carry an identity card. Thus failure to possess an identity card should not be prejudicial to a journalist in the power of a Party to the conflict.

    3274 The card should be issued by the authorities either of his own State or the State of residence or the State where the press agency or organization employing him is situated. Can one deduce from this provision that the applicant has a right to obtain a card? As the status of journalist is not defined in Protocol I, States will act according to their own national rules or practices to define the relevant criteria. Therefore there is in any case some degree of discretion. Taking this margin of appreciation into account, it may be stated that the relevant States (insofar as they are Parties to Protocol I) have an obligation to issue such cards to journalists once the conditions are fulfilled.

    3275 As the list of competent authorities that may issue such cards is exhaustive, it is clear that it is not up to a supranational organization to do so. Any fears that Article 79 might introduce a system of permits or licences, run by a supranational organization with controls, are unfounded.

    3276 The format of the identity card is specified in Annex II of the Protocol, and paragraph 3 refers thereto. (20) The card and the required information is based on the model identity card provided for persons accompanying the armed forces under Article 4A(4) of the Third Convention (see Annex IV to the Third Convention).

    3277 The identity card reproduced in Annex II is only a model on which cards to be issued by the competent authorities should be based. Thus States have some degree of latitude as regards the lay-out of their identity cards. However, there are limitations. It seems clear that a card issued by a national authority must contain, in one form or another, all the information specified in the model. Other information may be added where necessary. (21) It also seems essential that the text [p.924] entitled "Notice" should be shown on the front of the card. In fact, this "notice" explains in a few sentences the significance of the identity card and the rights of its bearer. (22)

    3278 Some delegates considered that the card should also be written in the current language of the area where the journalist is engaged on his mission. (23) However, this proposal was not pursued for purely practical reasons, i.e., lack of space on the card. The national authorities have the right to add the local language or languages to the five languages shown on the model, and it is highly desirable that they should do so. They are also free to omit one or other of the languages proposed by Annex II if there is no practical necessity for it being included.

    ' H.P.G. '


    NOTES

    (1) [(1) p.918] For a general analysis, see H.-P. Gasser, "The Protection of Journalists Engaged in Dangerous Professional Missions", IRRC, January-February 1983, p. 3;

    (2) [(2) p.918] ' Commentary III, ' Art. 4A(4), pp. 64-65;

    (3) [(3) p.919] Resolution 2673 (XXV) of 9 December 1970; cf. C. Pilloud, "Protection of Journalists on Dangerous Missions in Areas of Armed Conflict", ' IRRC, ' January 1971, p. 3;

    (4) [(4) p.919] Resolution 2854 (XXVI) of 20 December 1971 and reports of the Conference of Government Experts, first session (paras. 507-515) and second session (Vol. I, para. 3.73-3.93). The final version of the draft United Nations Convention can be found in document A/10147 of 1 August 1975;

    (5) [(5) p.919] Resolutions 3058 (XXVIII) of 2 November 1973 and 3245 (XXIX) of 29 November 1974;

    (6) [(6) p.919] Report of the Working Group, O.R. X, p. 75, CDDH/I/237;

    (7) [(7) p.919] Ibid., p. 57, CDDH/219/Rev.1, para. 190;

    (8) [(8) p.919] O.R. VI, p. 256, CDDH/SR.43, para. 93;

    (9) [(9) p.919] O.R. III, p. 303, CDDH/I/242;

    (10) [(10) p.919] O.R. VIII, pp. 368-371, CDDH/I/SR.35, paras. 8-23;

    (11) [(11) p.920] Ibid., pp. 311-319, CDDH/I/SR.31, paras. 1-53;

    (12) [(12) p.920] Resolution 3500 (XXX) of 15 December 1975 and, by implication, Resolution 32/44 of 8 December 1977;

    (13) [(13) p.920] O.R. VIII, p. 313, CDDH/I/SR.31, para. 11;

    (14) [(14) p.920] Ibid., pp. 313-314, paras. 13 and 19;

    (15) [(15) p.920] Statement of the Chairman of the Committee, ibid, p. 319, para. 53;

    (16) [(16) p.921] Cf. commentary Art. 50, supra, p. 610;

    (17) [(17) p.921] As Art. 4A(4) of the Third Convention does not define the term "war correspondent";

    (18) [(18) p.921] Document of the United Nations A/10147 of 1 August 1975, Annex I;

    (19) [(19) p.921] Nor, for that matter, within the meaning of Art. 4A(4) of the Third Convention;

    (20) [(20) p.923] On the subject of Annex II, see the correction made by the Swiss Federal Political Department to the original copies of the Protocols (Notification of 6 November 1978) indicating that a heading relating to the names of issuing countries should be added in Russian on the front of the identity card of journalists on dangerous missions;

    (21) [(21) p.923] Several delegates requested that it should be obligatory for the card to have the thumbprint and the religion of the bearer, but these proposals were not accepted in Committee I (O.R. VIII, pp. 311-319, CDDH/I/SR.31, paras. 1-53). National authorities are free
    to require such items;

    (22) [(22) p.924] For the model card, see Annex II to Protocol I, infra, p. 1303;

    (23) [(23) p.924] For the discussion in Committee I, see O.R. VIII, pp. 311-319, CDDH/I/SR.31, paras. 1-53;