The Shifting Protections of War Correspondents under International Law – the example of Israel and the Palestinian Territories and South-East Europe

Written by Simon Levett

 

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Journalists are continually subject to harm or the threat of harm during their reporting in foreign wars. The US based Committee to Protect Journalists states that at least 24 journalists have been murdered in 2022 so far globally. 

The surge in armed groups such as Islamic State and Al Qaeda after September 11, 2001, have also led to the increased targeting of war correspondents with corresponding unsafe conditions. Journalist for the Wall Street Journal Daniel Pearl was beheaded whilst reporting on the deteriorating situation in Pakistan in 2002. Many media staff have also been deliberately targeted.

According to a 2022 report by the United Nations Economic, Social and Cultural Organisation, enforced disappearances, journalists reporting as “missing” and arbitrary detentions are key concerns for the international community.

Any measure to ensure the protection of such journalists should acknowledge the threat faced by journalists seeking to cover wars domestically as seen by the example of Julian Assange and Laura Poitras.

Israel and the Palestinian Territories

At least one journalist has been killed in Israel and the Palestinian Territories so far in 2022. However, many more have been excluded from reporting by restrictions put in place by the Israeli authorities.

There are well-publicised procedures for the accreditation of foreign journalists wishing to enter Israel. However, the Geneva Conventions do not take notice of whether (or not) a journalist has been accredited by a state party. Nor does the protective scope of the Geneva Conventions guarantee that a foreign journalist can access a territory, which is the remit of International Human Rights Law.

The Geneva Conventions classify all war correspondents as belonging to the category of the “civilians” according to Article 79 of the First Additional Protocol to the Geneva Conventions. War correspondents who accompany the armed forces according to Article 4(A)(4) of the Third Geneva Convention are also classified as “civilians” under this provision. War correspondents are entitled to the protections “civilians” enjoy under the Fourth Geneva Convention.

Shireen Abu Aqleh was a “civilian” journalist shot in Jenin in the Palestinian Territories on 11 May 2022. Israeli authorities argued that it was not possible to determine whether or not she was killed by indiscriminate shooting by a Palestinian gunman or inadvertently by a soldier from the Israeli Defence Force. A United Nations investigation found that she had been targeted by the Israeli Defence Force.

The Israeli air force also bombed a tower block in Gaza City housing the offices of the Associated Press and Al Jazeera on 15 May 2021.

The Committee to Protect Journalists asserted that the bombing “raises the specter that the Israel Defence Forces is deliberately targeting media facilities in order to disrupt coverage of human suffering”. A consequence of this strategy could be a “chilling effect” to discourage journalists from reporting and is contrary to International Human Rights Law.

Certainly, targeting “civilians” can be lawful according to the doctrine of proportionality under Article 51(5)(b) of the First Additional Protocol where there is “incidental loss of civilian life” that is not “excessive in relation to the concrete and direct military advantage anticipated”. The Israeli military had claimed that that the tower block had housed Hamas military intelligence.

Furthermore, Article 34 of the Customary International Humanitarian Law study stated that “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”.

There are circumstances under which the activities of the journalist may amount to a “civilian” taking part in hostilities if they satisfy the definition in the Interpretative Guidance on the notion of Direct Participation in Hostilities under International Humanitarian Law.

The journalist might also indirectly participate in hostilities, through activities that are part of “the general war effort” or “war-sustaining activities”, with the specific mention of “media activities”.

South-East Europe

At least 12 journalists have been killed in The Ukraine so far in 2022 in Europe’s most recent conflict. It is likely that any future body holding Russia accountable for serious violations of international law in the Ukraine such as the International Criminal Court will also investigate how war correspondents could be targeted with apparent impunity.

International Lawyers have attempted to strengthen the protections for the modern war correspondent during Europe’s earlier war in the Balkans in the 1990s. This was seen in the decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) to protect ex-Washington Post journalist Jonathan Randal’s pledge to the secret identity of his sources.

In times of war, bodies such as the ICTY have also confirmed that media infrastructure can contribute to the war effort. The argument of the North Atlantic Treaty Organisation that Radio Television Serbia in Belgrade was a legitimate military objective during air-strikes in 1999 was accepted by the ICTY Prosecutor. NATO indicated that “strikes against TV transmitters and broadcast facilities are part of our campaign to dismantle the FRY propaganda machinery which is a part of President Milosevic’s control mechanism”.

In general, European media networks have been more willing to make sure that journalists meet certain, high standards of journalism. Journalist Klaas Relotius of Der Spiegel was forced to hand back his prizes and an inquiry was held when it was found that he fabricated whole investigations over a protracted period of time.

Conclusion

Journalists are not only the victims in International Law but they are its best defenders. The old adage is that if a tree falls in a forest and no-one hears it, does it ever really fall at all? 

Yet there is hesitancy shown by the international courts towards war correspondents as seen in the judgements of the International Court of Justice in Nicaragua and the United States of America (Merits) and Congo v Uganda (Merits). These decisions recommended that international lawyers exercise restraint before relying upon media reports as evidence of judicial purposes.

The Court in Nicaragua and the United States of America said “widespread reports of a fact may prove on closer examination to derive from a single source, and such reports, however numerous, will in such case have no greater value as evidence than the original source. It is with this important reservation that the newspaper reports supplied to the Court should be examined in order to assess the facts of the case, and in particular to ascertain whether such facts were matters of public knowledge”.

A greater rapprochement between war correspondents and international courts will enhance the international framework in the context of weak legal protections.

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Simon Levett
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Simon Levett is an international human rights lawyer and educator specialising in the protection of journalists reporting on war zones.  In 2018 and 2019, he undertook and published extensive empirical research with war correspondents in Israel, the Palestinian Territories and Australia. He has a Masters of Advanced Studies in International Humanitarian Law from the Geneva Academy of International Humanitarian Law and Human Rights. He has worked with the International Development Law Organisation, the United Nations Office for the High Commissioner for Human Rights, the International Criminal Tribunal for the Former Yugoslavia and the Diplomacy Training Program.

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