First they came for the journalists… Maria Roche

News of the deaths of Sunday Times reporter Marie Colvin and French photographer Remi Ochlik and the serious injuries of photographer Paul Conroy and Edith Bouvier, a freelance journalist reporting for Le Figaro, from a mortar shell that hit the building in Homs, Syria that they were using as makeshift media centre has saddened and shocked reporters and readers. So does a sobering list of more than fifteen of their professional colleagues who have also died reporting the Arab Spring.  Worse still are reports that the journalists may have been deliberately targeted by the Syrian government forces.  It is a reminder that journalists are offered too little protection by international law.

It is clear from the many tributes to her that Ms Colvin was an extraordinary person:  a woman of verve, replete with humanity, she was fearless in the face of carefully assessed and weighed risk.  In 2001 after losing an eye in a grenade attack by a Sri Lankan government soldier whilst reporting on the Tamil Tigers, she wrote:

“I am not going to hang up my flak jacket as a result of this incident … I have been flown to New York, where doctors are going to operate on my injured eye. They have told me it is unlikely I will regain much use of it as a piece of shrapnel went right through the middle. All I can hope for is a bit of peripheral vision. Friends have been phoning to point out how many famous people are blind in one eye. They seem to do fine with only one eye, so I am not worried. But what I want most as soon as I get out of hospital is a vodka martini and a cigarette.”

Unfortunately, as extraordinary as Ms Colvin was, the fate that befell her has become all too commonplace. Geoffrey Robertson QC and Andrew Nicol QC cite a statistic from the Committee to Protect Journalists that in the 15 years to 2006 a total of 580 journalists were killed globally in the course of their work. CPJ reports that in 2011 48 journalists were killed, where the motive was confirmed: a 24% increase on the previous annual average. The International News Safety Institute calculates that worldwide in 2011 124 journalists and media staff were killed with other deaths still under investigation.   On 23 November 2011, to mark International Day to End Impunity, Jim Boumelha, President of the International Federation of Journalists remarked:

“From Somalia to Sri Lanka, Mexico to The Philippines and Pakistan through Iraq and Eritrea, journalists continue to be put to the sword in total impunity … The overwhelming majority of victims are local and national journalists who are denied both the protection and justice by their own governments. Today, we are honouring their memory but also making a determined statement of intent to make the end of impunity the lasting legacy of their sacrifice.”

Both CPJ and INSI agree that in 2011 the four most dangerous countries to be a journalist were Pakistan, Libya, Iraq and Mexico.  Insurgent groups are known to prize journalists, as not only are they frequently soft targets but their deaths can bring publicity to a cause; whilst State forces target journalists to draw a veil over their activities and shut off that most efficient of policemen, publicity. Chambers, Steiner & Fleming state that after Taliban leader Mullar Mohammed Omar offered a $50,000 bounty for dead journalists in November 2001:

“Being a journalist reporting the Afghan war appeared to be more dangerous than being an American or British soldier.”

Utilising violence, intimidation and harassment against media professionals is a grave interference not just with their human rights, but also with the freedom of expression of their audience.  Article 10(1) ECHR protects the right of to “receive“, as well as impart, information and ideas “without interference by public authority and regardless of frontiers“.  Referring in his March 2010 report to attacks on journalists in Afghanistan, the UN Secretary-General noted that:

“closely linked to impunity and the abuse of power are attacks on freedom of expression, carried out by both State and non-State actors”

Attacks on journalists are also attacks on democracy, for, as Richard Clayton QC and Hugh Tomlinson QC state:

“the most persuasive vindication of freedom of expression is that it secures the right of the citizen to participate in the democratic process.” [at §15-01]

The ICTY Appeals Chamber in Randal held that journalists reporting on conflict zones served “a public interest” because they:

play a vital role in bringing to the attention of the international community the horrors and reality of conflict.” [Prosecutor v. Radoslav Brdjanin & Momir Talic “Randal Case”]

The Application of International Humanitarian Law

International humanitarian law offers some protection to media professionals. A distinction is made between two categories of journalists working in conflict zones: war correspondents accredited to armed forces and independent journalists.

Article 13 of the Hague Convention 1907 provides that war correspondents, defined as those who follow an army without directly belonging to it, should, if they fall into the hands of opposing forces, be treated as prisoners of war and receive minimum standards of humane treatment.

Article 4A(4) of the Geneva Convention Relative to the Treatment of Prisoners of War 1949 provides that war correspondents are in the categories of persons to be treated as as prisoners of war so, if wounded or sick, they have identical rights to  treatment including the right to receive assistance from international relief agencies.  No special status is accorded to war correspondents under the Conventions – they are defined alongside other non-combatant crew such as “supply contractors, members of labour units or of services responsible for the welfare of the armed forces“.

Under both Conventions, the rights afforded to war correspondents are contingent on receipt of authorisation from the armed forces that they accompany.  Obvious difficulties ensue in modern conflicts, where ‘armed forces’ can be more diffuse and disordered than envisaged in 1907 and 1949.

Under Article 79 of Protocol I to the Geneva Convention 1977, journalists in areas of international armed conflict are afforded the same protections as civilians provided that they take no action adversely affecting their status as civilians:

“Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1″

This designation is very restricted, depending on an engagement in a “dangerous professional mission” and failing to protect journalists in civil wars and internal armed conflicts, such as that currently occurring in Syria. The authors of Protocol I did not want to create a special status for journalists on the grounds that:

“any increase in the number of persons with a special status, necessarily accompanied by an increase of protective signs, tends to weaken the protective value of each protected status already accepted“. [Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 at §3265]

It is also worth observing that amongst the countries that have not ratified this Protocol is Pakistan, where 42 journalists are recorded as having been killed since 1992.

One may question why the designation is necessary at all: journalists are civilians. The implications of  limiting express recognition of this fact to international armed conflicts are disturbing.   The ICRC study of Customary International Humanitarian Law does consider that whilst the Protocol:

“does not contain any specific provision on civilian journalists, their immunity against attack is based on the prohibition on attacking civilians unless and for such time as they take a direct part in hostilities.” [Chapter 10, page 115].

and further that:

“The obligation to respect and protect civilian journalists is included in other instruments pertaining also to non-international armed conflicts” [Chapter 10, page 116].

In international armed conflicts, the intentional directing of attacks against the civilian population as such or against individual civilians not taking direct part in hostilities is defined as a war crime under Article 8(2)(b) of the Rome Statute of 1988.  In non-international armed conflicts, under Article 8(2)(c), war crimes include serious violations towards non-combatants including:

“Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

Robertson and Nicol consider that the failure to expressly refer to journalists in drafting of the Rome Statute of 1988, which created the jurisdiction of the International Criminal Court to try war crimes, was a missed opportunity [at §11-069 of Media Law]. Moreover, the murder of an individual journalist may not meet the threshold criteria for ‘war crimes’ under Article 8(1) of the Rome Statute that the act be “committed as part of a plan or policy, or as part of a large scale commission of such crimes”.  Arguably the reported intent behind the shelling of the makeshift media centre in Homs to “rid Syrian soil of journalists” should fall into the first part of this definition.

Media equipment is also a ‘civilian object’ within the meaning of Article 52 of Protocol I, thus should not be the object of attack or reprisals.   Attacks should be strictly limited under Article 52(2) to military objectives. Under Article 52(3) there is a presumption of civilian usage in the event of doubt.  The express protection of civilian objects is limited, however, to international armed conflicts both under Protocol I and Article 8(2) of the Rome Statute of 1988.  Further, under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, “military objectives” can encompass media facilities, if they make an effective contribution to military action and their destruction offers a definite military advantage.

The Need for Greater and Clearer Protection

Consequently, Robertson and Nicol maintain at §11-069 of Media Law that the current regime is insufficient, as to merely classify journalists under Article 79 as “civilians” fails to highlight the public interest they serve.  They submit that there should be an international crime of:

wilfully killing a journalist during an armed conflict, whether international or internal.”

Such a specific crime would “stress the unique and essential role played by war correspondents” and act a greater potential deterrent to soldiers, who may otherwise fail to perceive journalists who are enemy nationals or embedded with opposition forces as “civilians“.   Alexandre Balguy-Gallois argues for a new international instrument that reaffirms the international humanitarian law applicable to the media in times of armed conflict; clarifies concepts including that of “direct participation in the hostilities”  and acts as forceful reminder of the obligation to repress grave breaches of international law rules against journalists.

I agree.  This is not to say that war journalism is an unalloyed good.  War correspondents have been criticised, by Galtung amongst others, for too frequently taking as their model sports journalism, with its focus on a zero-sum game, thus failing to embrace conflict resolution as an essential aspect of their paradigm. In 2003, Greg Dyke accused US networks of having “wrapped themselves in the American flag and swapped impartiality for patriotism” in their reporting of the Iraq war. It has been said that the adoption of neutral objectivity can mute “reportage of the brutality of war and the suffering of victims, helping turn war into a watchable spectacle rather than an insufferable obscenity”. The commercial hunger for audience figures drives a greater regard for impact than accuracy.  Further difficulties arise with embedded journalists since:

“a reporter who travels with an army, sharing C-ration peanut butter and watching friends fall dead, finds it hard to separate himself from the men around him”  [Rosenblum – Coups & Earthquakes: Reporting the World for America. New York. 1979 page 173].

Still, as Tim Allen and Jean Seaton note:

“the situation of journalists in extreme predicaments, wars, famine, natural disasters, is unusual … there is always an appalling gap between the journalist’s own front line experiences and the places in which their reporting is received: in comfortable remote homes. Journalists in these conditions occupy a strange territory, one with burdens and privileges.”

By the very nature of the circumstances on which they report, war correspondents inevitably live in difficult conditions and “worst of all, continual fear, and danger of violent death“.  When others flee conflict, war correspondents seek it out.  But there is a significant difference between accepting the inherent risks of a conflict situation and becoming a military objective. No journalist should also face the continual fear and danger of deliberate targeting for seeking to elicit and disseminate the truth.

The natural limitations of international humanitarian law must also be acknowledged, particularly when conflicts are fought by disjointed insurgent groups, child soldiers and ill-disciplined rebels.  Feinstein records a female reporter from the Kosovo conflict stating:

“I do think that the Serb militia, as much as they might be brutal, would not even contemplate raping a journalist.  Chechens would probably do it. [And] a bunch of African kids, stoned, what does the Geneva Convention mean to them?”

Nevertheless, although such limitations are inevitable, the sanction for killing journalists should more clearly be greater than the disapprobation of the international community.

Journalists must adopt a fundamental respect for human life and human rights as their a priori ethic.  The prosecution of three Rwandan journalists for hate propaganda during the 1994 genocide is a reminder that journalism, like nuclear physics, can be a harmful profession. It should no longer be that “the first casualty when war comes, is truth”.  Neither should it any longer be true that the first casualties when war comes are journalists.

Philip Knightley in his seminal book declared that, due to the military constraints on war reporting, “the age of the war correspondent as hero is over”.   Reading and watching the dispatches of Ms Colvin and her colleagues, I cannot agree. Theirs is a heroism that deserves a greater degree of protection from international humanitarian law.

Maria Roche is a barrister at 1 Crown Office Row.  This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks