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International Humanitarian Law and the Protection of Media Professionals Working in Armed Conflicts

01-12-2007 Article, by Knut Dörmann

The present note looks at the provisions in international humanitarian law (IHL) that protect media professionals and facilitate the exercise of their professional activity. It aims to demonstrate that the harm suffered by journalists and their teams could be significantly reduced if there were a greater respect for these laws and if they were more vigorously enforced.

Journalists and crew members who cover armed conflict run risks. They are exposed to the dangers arising from military operations; they can become the victims of battlefield hostilities, such as bomb raids, direct enemy fire or stray bullets, mine explosions…

Journalists and their accompanying team can also become victims of arbitrary acts of violence, such as murder, arrest, torture, disappearance, carried out by members of the armed or security forces or by non-state armed actors in the country where journalists are working.

Against this background, the present note looks at the provisions in international humanitarian law (IHL) that protect media professionals and facilitate the exercise of their professional activity. It aims to demonstrate that the harm suffered by journalists and their teams could be significantly reduced if there were a greater respect for these laws and if they were more vigorously enforced.

 Protection of journalists under existing law  

The scope of IHL is to spare persons not or no longer taking a direct part in hostilities from undue harm resulting from an armed conflict. Therefore, the instruments of IHL make no statements on the journalists'freedom of action or speech. They do not grant the right to enter a territory without the consent of the authority controlling it. They do however set the ground rules for their legal protection whenever they find themselves in a context of an armed conflict.

In IHL treaty law journalists are mentioned in two different ways. Firstly, the Third Geneva Convention (GC III) relative to the treatment of prisoners of war covers war correspondents. Secondly, the 1977 Additional Protocol I to the Geneva Conventions (AP I) deals specifically with journalists engaged in dangerous professional missions in areas of armed conflict. Both treaties apply to international armed conflicts.

War correspondents are representatives of the media who, in case of an international armed conflict are accredited to and accompany the armed forces without being members thereof. This would be the situation of most embedded journalists. Because these journalists are often “inserted” military units and agree to a number of ground rules obliging them to remain with the unit to which they are attached and which ensure their protection, they tend to be equated with war correspondents within the meaning of the Third Geneva Convention. While being civilians, they are entitled to the status and treatment of a prisoner of war in case of capture. An identity card as foreseen in GC III will be proof of this authorization, proof that the enemy can demand before deciding on his status. The war correspondent card plays a similar role to that of a soldier's uniform: it creates a presumption. If there is any doubt about the status of a person who demands prisoner of war status, that person remains under the protection of the 1949 Convention pending the decision of a competent tribunal, according to the procedure laid down in the second paragraph of Article 5 of the Third Convention. Thus all the protections of the Third Geneva Convention as supplemented by Additional Protocol I and customary international law apply to them.

Other journalists who cover armed conflicts enjoy the same rights and must abide by the same rules of conduct as civilians. Thus, if one replaces the term “civilian” in other provisions of IHL by the term “journalist and crew m embers” one gets a better idea of the protections IHL grants. The legal situation of war correspondents and other journalists differs only once they find themselves held in the hands of a party to a conflict.

Contrary to these rules applicable to international armed conflicts, journalists are not specifically mentioned in any treaty applicable to non-international armed conflicts. However, in such situations they are considered to be civilians / persons not or no longer taking a direct part in hostilities. All protections applicable to these persons also apply to journalists and their crews.

 Journalists facing the danger of combat operations  

 International armed conflicts  

A journalist on a dangerous professional assignment in a combat zone is a civilian. He or she is entitled to all rights granted civilians per se. AP I, Article 79, establishes this rule for international armed conflicts. Thus, journalists do not lose their civilian status by entering an area of armed conflict on a professional mission, even if they are accompanying the armed forces or if they take advantage of military logistic support.

Journalists are protected in the same way as all other civilians, independent of their nationality, provided that they do not undertake any action which could jeopardise their civilian status.

As civilians, journalists and their crew must under no circumstances be the object of a direct attack. Parties to an armed conflict have the obligation to take all feasible precautions to ensure that attacks are only directed at military objectives. Moreover, a deliberate attack causing the death or injury of a journalist would constitute a war crime. AP I and Art. 8(2)(b)(i) of the Rome-Statute of the International Criminal Court.

War correspondents accredited by military authorities, as mentioned in GC III, are protected in like manner to non-accredited journalists: they maintain their civilian status despite the special authorization received from military sources. Likewise, journalists must be respected whether or not they are in possession of an identity card for journalists engaged in dangerous missions. The card attests to their capacity as journalists; it does not create a civilian status.

While journalists and their crews do not lose their right to protection as a civilian, they (as any other non-combatant person) act at their own risk if they stay too close to a military unit or get too near to a military target. The unit or military target could be the object of a lawful enemy attack, and ensuing death or injury to the journalist or the crew would thus be considered a side-effect of that attack, that is, as so-called " collateral damage " . Such an attack is only unlawful, if the expected civilian death or injury is excessive in relation to the military advantage anticipated from the attack (proportionality rule). Art. 51(5)(b) AP I.

However, even in this scenario the prohibition of any direct attack against journalists and their teams stands.

Journalists are not protected against deliberate attacks if and for as long as they take a direct part in hostilities. A journalist's usual activities are covered by the immunity against direct attacks and do not constitute a direct participation in the hostilities. By accepting journalists as civilians, States agreed to let them do their job, i.e. take photographs, shoot films, record information, take notes and transmit their information and materials to the public via the media. However, if journalists overstep their role and the limits of their professional mandate, they risk being accused of spying or of committing other hostile acts.

 Non-International Armed Conflicts  

While journalists are not specifically mentioned in any treaty applicable to non-international armed conflicts, they are considered to be civilians. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law , Volume I. Rules, Cambridge University Press, 2005, pp. 115-118. The civilian population and individual civilians may not be the object of attacks, unless and for such time they take a direct part in hostilities.

Consequently, journalists and their teams benefit from the full protection granted by law to civilians, in both international and non-international armed conflicts.

 Journalists in the hands of a party to an armed conflict (whether by capture or arrest)

    

In international armed conflicts, the legal provisions applying to a journalist and his or her crew in the hands of a party to an armed conflict depend on a number of factors, including origin and nationality.

Local journalists arrested by their own authorities are subject to the law of their country. They may be deprived of their liberty if domestic legislation permits their detention. The authorities are bound by the guarantees and rules relative to detention laid down in their own legislation and in any international human rights provisions to which their State is party.

Otherwise journalists and their crews are protected by a range of IHL norms that apply to civilians and that are contained in the Fourth Geneva C onvention and in AP I, as well as in customary international law. In particular, they are entitled to an important number of fundamental guarantees. E.g. the following acts are prohibited, at any time and in any place whatsoever:

  • violence to the life, health, or physical or mental well-being of persons, in particular:

(i) murder;

(ii) torture, whether physical or mental, cruel or inhuman treatment;

(iii) corporal punishment; and

(iv) mutilation;

  • outrages upon personal dignity, in particular humiliating and degrading treatment;

  • collective punishment;

  • hostage taking.

Violations of most of these provisions constitute war crimes. The alleged commission of these acts must be investigated and prosecuted in accordance with relevant international and domestic law.

The armed or security forces of a State have the right, under specific conditions, to intern/detain people, including civilians, whom they find in an area of military operations. If arrested, detained or interned for actions related to the armed conflict civilian journalists and their crews must be informed promptly of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons must be released with the minimum delay possible and in any event as soon as the circumstances just ifying the arrest, detention or internment have ceased to exist.

If detained for penal offences, they are entitled to fair trial guarantees.

Journalists in enemy hands may be visited by representatives of the ICRC, who check on their conditions of internment. They have the right to communicate with their relatives.

While the above rules are spelled out in detail for international armed conflicts, the law of non-international armed conflicts is again less explicit. Nonetheless, it provides legal protection to all persons who do not take a direct part in the hostilities or have stopped to do so. It states that detainees must be treated humanely, without any adverse distinction. The same fundamental guarantees apply to them as in the case of international armed conflicts. IHL does not, however, offer much recourse against unjustified or excessive detention. This gap is however filled by human rights law. IHL does however foresee judicial guarantees in case of trial.

The ICRC normally offers its services to all parties involved in a non-international armed conflict.

 Assessment  

At first sight one could have the impression that IHL does not provide much protection for journalists and other media staff, given that IHL treaty law only contains two references to media personnel (war correspondents and journalists in dangerous professional missions in areas of armed conflict).

However, if one reads these provisions in the context of other provisions of IHL, the protection under existing law is quite comprehensive, namely for journalists in the hands of a party to an armed conflict, in particular if held in detention or if facing criminal proceedings.

With regard to the risks that media professi onals run on the battlefield, existing rules provide a solid and realistic basis for protection, at least on paper. It is difficult to imagine that States would be willing to grant much more extensive legal protection or that they would indeed be able to effectively ensure more protection in concrete battlefield situations.

The most serious deficiency is presently the lack of vigorous implementation of existing rules and the systematic investigation, prosecution and sanction of violations, rather than the lack of rules.

 How could protection be improved?  

 Better implementation of the existing rules  

As we have seen, the grounds for basic legal protection exist. As so often with rules of IHL, they are not sufficiently respected in practice. It should therefore be the foremost objective to work for improved compliance with these rules. This requires proper training and instructions for those who have to implement them, i.e. members of armed and security forces and of other armed groups. It also requires that those who violate the rules be held to account and, if found guilty of crimes, be sanctioned. Everyone is accountable to the provisions of international humanitarian law and all States have an obligation to ensure that these laws are known, respected and enforced.




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