Seminar and Inter-regional Dialogue on the protectjon of journalists - PDF document

Seminar and Inter-regional Dialogue on the protectjon of journalists Council of Europe – Strasbourg – 3 November 2014 The protectjon of journalists in internatjonal criminal law James K. Stewart, Deputy Prosecutor, ICC Protectjon of journalists under the Rome Statute Internatjonal criminal law extends the same protectjons to journalists as it does to civilians generally. Journalists are civilian non-combatants and belligerent forces must treat them as such. Targetjng them, depending on the context, may constjtute a war crime or a crime against humanity. I have in mind the horrifjc events that have recently occurred in Syria. I also bear in mind the tragic deaths of two Central African journalists and a French journalist in Central African Republic this year and the deaths of two French journalists in Mali last year, all in situatjon countries where the Internatjonal Criminal Court is engaged. Such individual murders may constjtute the war crimes of wilful killing or violence to life, depending on whether the armed confmict is of an internatjonal or non-internatjonal character. The murder of journalists may also constjtute crimes against humanity, if they are commitued as part of a widespread or systematjc atuack directed against a civilian populatjon, pursuant to a State or organisatjonal policy, by persons having knowledge of the atuack. Crimes against humanity targetjng journalists may take other forms too: imprisonment or other severe deprivatjon of liberty, torture, persecutjon, enforced disappearance, or other inhumane acts – journalists have been the victjms of such atrocitjes in the past and are so even today. 1

Returning to the law of armed confmict: under customary internatjonal law, as well as the Rome Statute, journalists are entjtled to all the protectjons afgorded to civilians – as long as they do not partjcipate directly in hostjlitjes and so lose their protected status. This has been the case for many years: I would refer you to Artjcles 51 and 57 of Additjonal Protocol I to the Geneva Conventjons and Geneva Conventjon IV, datjng from 1977 and 1949, respectjvely. Artjcle 79 of Additjonal Protocol I specifjcally provides for measures of protectjon for journalists. The protectjon of journalists, as civilians, from atuacks applies in the context of both internatjonal armed confmicts and non-internatjonal armed confmicts. In additjon, Artjcle 4 (A) (4) of Geneva Conventjon III confers a further level of protectjon to a limited category or class of journalists, namely, “war correspondents” accredited to armed forces. This category covers such persons who accompany armed forces without actually being members of them as long as they have authorisatjon to do so, such offjcial accreditatjon by the armed forces usually being proved by an identjty card. In additjon to being entjtled to all the rights granted to civilians, in case of capture, such persons are also entjtled to prisoner of war status and treatment, that is, to the protectjons afgorded by Geneva Conventjon III. So-called “embedded journalists” will ofuen fall within this special category of persons provided for under Geneva Conventjon III, since such journalists embedded in military units typically have the necessary authorisatjon and are under the protectjon of those military units which they accompany during operatjons in an armed confmict. As a practjce, this became more common during the 2003 war in Iraq. Accordingly, under internatjonal humanitarian law, a distjnctjon is drawn to some extent between journalists operatjng independently and war correspondents, a category that may include embedded journalists. 2

Such a distjnctjon stems from the notjon that, given the difgerent nature of their work, which involves a close relatjonship with the armed forces and access to the frontlines of combat, war correspondents are generally more exposed to risks and threats of harm. In reality, however, this may not always be the case: the daring nature of journalism today means that journalists who are not atuached to armed forces or accompanying military units are also ofuen at grave risk. I note that the Geneva Conventjon provisions regarding prisoner-of-war status and treatment in case of capture or detentjon do not apply in situatjons of non-internatjonal armed confmict, because POW status only applies in the case of internatjonal armed confmict. In situatjons of non-internatjonal armed confmict, the law treats all journalists in the same way, exclusively as civilians, and they have the same protectjons as do civilians. If media facilitjes become legitjmate military targets – for example, as centres of command and control – then the principle of proportjonality comes into play to alleviate against unduly high injury to civilians. I might also note, in passing, that journalists can themselves become the subjects of prosecutjon, if they incite genocide or other crimes, as happened in the so-called Media Case at the Internatjonal Criminal Tribunal for Rwanda, or ICTR, which arose out of media hate speech and incitement to genocide in Rwanda leading up to and during the genocide of 1994. My focus, however, is what provision internatjonal criminal law makes for the protectjon of journalists and correspondents doing their work of reportjng. In sum, there is protectjon for journalists in internatjonal criminal law generally, and under the Rome Statute partjcularly – but they are generally not treated as a special category beyond their obvious character as civilian non-combatants or as members of a civilian populatjon under atuack. Protectjon really comes down to efgectjve enforcement of internatjonal criminal law: can the perpetrators of crimes be successfully investjgated and 3

prosecuted, either before natjonal courts or, where natjonal authoritjes are either unable or unwilling to act, before the Internatjonal Criminal Court? In the ICC Offjce of the Prosecutor we are striving to achieve positjve results by improving the quality of our preliminary examinatjons, investjgatjons and prosecutjons. This involves the intelligent applicatjon of limited resources and the development of a multj-faceted approach to investjgatjons, so that we bring sound cases before the Chambers of the Court. As you know, the ICC is a court of last resort, since natjonal authoritjes have primary responsibility under the Rome Statute to investjgate and prosecute internatjonal crimes. Where natjonal authoritjes fail to act, either because they lack the capacity to do so or because they are unwilling to assume their responsibilitjes, then the ICC may step in. When the Prosecutor does act, however, she depends upon State cooperatjon in order to conduct her investjgatjons. This is how the Rome Statute is set up: we have to operate, generally speaking, through State legal mechanisms with the support of State authoritjes. Generally speaking, we receive good cooperatjon and support from States, but this is not always the case and lack of cooperatjon can present us with serious challenges. Another serious challenge we face is matching the resources we have available to the expectatjons victjms, communitjes afgected by mass atrocitjes and the internatjonal community have of us. Journalists play an increasingly important role in the work of the ICC, from providing evidence, to explaining our work, to scrutjnizing our performance. Role of journalists in confmict zones Journalists are the eyes and ears of the world in confmict zones: certainly for the general public, but also for government policy makers. 4

Reportjng on mass atrocitjes raises awareness about the sufgering of the individuals and communitjes afgected by them. It rouses the internatjonal community to actjon. It even generates through publicity some measure of accountability for mass crimes. In recognizing that war correspondents serve an important public interest, the ICTY Appeals Chamber observed: In war zones, accurate informatjon is ofuen diffjcult to obtain and may be diffjcult to distribute or disseminate as well. The transmission of that informatjon is essentjal to keeping the internatjonal public informed about matuers of life and death. It may also be vital to assistjng those who would prevent or punish the crimes under internatjonal humanitarian law… [See Brdjanin , Decision on Interlocutory Appeal, IT- 99-36-AR73.9, 11 December 2002, para. 36.] Journalists are ofuen the fjrst on the scene, almost in the role of “fjrst responders”, although in most cases to observe and report rather than to become directly involved in events. In this role, however, they record what is happening, meet witnesses, interview both victjms and perpetrators, connect with afgected communitjes, and expose atrocitjes and those responsible to the scrutjny of the world community. In this way, although they may not set out to gather evidence, in the sense that investjgators might do, they come into possession of evidence and informatjon of value to later criminal investjgatjons. Indeed, I believe many journalists feel a responsibility to “bear witness” to events – not necessarily in the sense of becoming an eyewitness called to testjfy in court, but in the larger sense of reportjng on events so that they cannot go unnotjced and unremembered, and with the sense that, if the public is made aware of what is happening, then it will rouse authoritjes within the internatjonal community to take actjon. 5