Reporting from the Front Lines: An Evaluation of International Humanitarian Law Protecting Journalists in War Zones

Minji Kang
Introduction to Journalist Protection in War Zones

With Russia's recent invasion of Ukraine, and the ever-growing reliance on the news for factual information, the world depends on journalists who collect first-hand accounts from conflict zones. In an attempt to get near the action, war correspondents risk their lives documenting live videos, photos, or film footage on the battlefield. It has been reported that at least 23 civilian journalists and media workers have been killed in the line of duty during the Russo-Ukrainian War as of May 5th, 2022. The Russian invasion of Ukraine is of paramount importance in journalism, with its enormous number of correspondents reporting from the war zone. The process for journalists to get into Ukraine is comparatively easier than in other countries where journalists aren't granted access, as in the 2012 Anthony Shadid case, where a Middle East reporter died of a fatal asthma attack while trying to receive a visa to Syria (Gladstone, 2012). Additionally, the amount of live tweeting by professional reporters on military movements and atrocities is unprecedented. Given the significance of the work that war correspondents produce during an armed conflict, it is of utmost importance to grant military correspondents maximum protection.

Unfortunately, since the start of the war in Afghanistan in the early 2000s, it has been an increasing trend that journalists receive little to no protection and are oftentimes considered a liability. The targeted killing of Marie Colvin in 2012 and the murders of American journalists– epitomized by ISIS's execution of James Foley in 2014 – speak loudly to how belligerents gorge on fear-mongering tactics, intentionally attacking media personnel for publicity. Similarly, Russia's firing on the Sky News team, along with the Russian military's fatal shooting of American documenter, Brent Reauid, illustrates the looming dangers imposed on journalists in war zones. In April of 2022, a longtime war photojournalist working for Fox News, Pierre Zakrzewski, and Oleksandra "Sasha" Kuvshynova, a 24-year-old Ukrainian journalist working as a consultant for the network, were killed as their vehicle came under fire while they were reporting (Darcy and Stelter, 2022).

To combat such atrocities, international law must secure de facto protection for journalists in war zones and reaffirm their importance to the public. The existing instruments of the Geneva Conventions and Additional Protocol I offer some protection to journalists covering international armed conflict, but the lack of special identification and international recognition of these treaties still leaves potential risks for journalists in war zones. Advocacy groups such as the Press Emblem Campaign (PEC) have argued for an introduction of an internationally protected and recognized emblem similar to the Red Cross as a means by which journalists can be identified as persons deserving special protection. Such can be achieved through granting a new status for journalists where journalists cannot be said to have directly participated in the armed conflict without a proven intention to incite violence and therefore receiving immunity from direct targeting. Accordingly, similar to the Montecatini draft examined before the ICJ in 1968, a specialized treaty that designates journalists as deserving of special protection beyond the proscription of arrest, detainment, and harassment is necessary. Additionally, forming an International Committee for the Protection of Journalists under the authority of the United Nations would be beneficial in enforcing the newly adopted treaty.

The Illegality of Attacks on Journalists and News Media

Freedom of expression and the concomitant right to receive information are "meta rights" – rights upon which the realization of many others depend (Heyns and Srinivasan, 2013). Journalists deserve special recognition not only for their heroic acts facing life-threatening conditions on a daily basis but also for the role they play in informing society of the atrocities of war. It is, therefore, a collective right beyond personal freedom of expression when a journalist opens a space for different voices to be heard. The information journalists document and disseminate is the bedrock of democracy and accountability. International Humanitarian law grants journalists and news media protection from illegal attacks, even when used for propaganda purposes, which cannot be considered military objectives. In other words, journalists receive the general protection enjoyed by civilians and civilian objects unless they engage in military action.

The Working Definition of Protected Journalists

With the advancement of information and communication technology, the dissemination of information is no longer restricted to print media. The internet has enabled various forms of Communication where social media users play a critical role in dispersing information to a wide range of audiences. To better protect journalists, however, there must be a distinct recognition conferred upon these professionals working in conflict zones. International humanitarian law distinguishes between two types of journalists operating in war zones: war correspondents accredited to armed forces and independent journalists. War correspondents are "specialized journalists who, with the authorization and under the protection of belligerent armed forces, are present in the theater of operations with a view to providing information on events related to the hostilities" (Balguygallois, 2004). These war correspondents enjoy officers' privileges as followed by the history of World War II and the Korean War, unlike independent journalists who only receive civilian protection. According to the 1975 UN Convention, independent journalists are referred to as "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" (Balguygallois, 2004). The UN Convention's definition of journalist is similar to how the Council of Europe defines the term as they recognize "any natural or legal person who regularly or professionally engages in the collection and dissemination of information to the public via any means of mass communication" (Susi, 2019).

These definitions broadly encompass and identify online journalists, reporters, and photographers as a protected category, including those in direct support of these occupations, including stringers or drivers. If anything, there must be a consensus in defining which types of media personnel should be entitled to claim protection under the proposed treaty. The ill-defined categories of journalists make it harder to ensure safety beyond granting them civilian status. The military authorization sets the war correspondents and freelance journalists apart. The Geneva Convention's Article 79, Optional Protocol I includes both war correspondents and freelance journalists, but only war correspondents are given additional protection when captured (Moore, 2009). This provision excludes independent and embedded journalists from enjoying the same privileges given to war correspondents. Hence, it is crucial to include the aforementioned journalists in the same category as war correspondents.

For the purpose of this paper, journalists should be considered "any media personnel accredited by the International Journalist Committee who engage in the active reporting of military conflict to provide information on events related to the hostilities." The civilian protection journalists generally receive only goes so far as to provide them with fundamental rights granted to civilians which protect them from murder, torture or brutality, and discrimination, according to the 159 articles of the Fourth Geneva Convention. Unfortunately, and as evident in countless news reports covering the tragic deaths of innocent civilians, the 159 article is insufficient in protecting journalists, not to mention regular civilians. Thus, by granting independent and embedded journalists a special status equal to war correspondents, it would be more effective in identifying and ensuring protection for those media personnel.

Existing Laws on Protecting Journalists

At first glance, international humanitarian law does not seem to provide considerable protection for journalists, given that the only two explicit references to media personnel protection primarily emanate from Article 4 (A) (4) of the Third Geneva Convention and Article 79 of the Additional Protocol I. Nevertheless, the provisions are, by and large, quite comprehensive when compared to other humanitarian laws. Most of the discrepancies in the law and its effectiveness stem from the lack of recognition of existing laws, as well as inherent shortcomings in ambiguous definitions of who receives protection.

Article 4(A) of the Third Geneva Convention

Article 4 (A) relates to the prisoners of war, which defines and lists those who have fallen into the power of the enemy. Article 4(A) provides that war correspondents, among many other categories, are entitled to the prisoner of war status as a "person who accompanies the armed force without actually being members thereof." (ICRC, 2020). They are given authorization from the armed forces, which they accompany, and provided with an identification similar to an annexed model. They are treated as civilians who have a right not to be an object of attack, and once captured, they are given a special "prisoner-of-war" status. Again, because international humanitarian law distinguishes independent journalists from war correspondents, this provision only covers the identified war correspondents. Hence, independent journalists who are not accompanied by the military force do not receive special protection and are left to their own devices when entering a war zone. In civil wars, international law does not differentiate the two media personnel and treats them equally as civilians, which adds an extra layer of complexity to the already ill-defined term.

Article 79 of Additional Protocol I to the Geneva Convention

In compensating and further clarifying the rights journalists enjoy, Article 79 under the Additional Protocol I of the Geneva Convention provides journalists with the rights and protection granted to civilians in international armed conflict in conjunction with Article 50. It not only purports to protect journalists engaged in dangerous missions but also guards them against the adverse effects of hostilities. Specifically, journalists engaged in dangerous professional missions are protected given that they "take no action adversely affecting their status as civilians, and without prejudice to the right of war" and are given identity cards issued by the government (UN, 1977). Protocol I only extends to situations of international armed conflict and to journalists who are either exposed to the dangers of the battlefield or fall captive.

While the Additional Protocol I is ostensibly comprehensive in listing the rights and protection given to journalists, it misses the mark by not creating special statuses for journalists as it deems "any increase in protective signs tends to weaken the protective value" (Balguygallois, 2004). Critics argue granting special statuses and distributing more identification cards would not necessarily lead to better protection. However, such reasoning overlooks the unintended consequences of the inability to hold the perpetrators accountable, leading to issues of impunity when these provisions have undoubtedly been violated. While the deaths of many internationally renowned journalists receive the media spotlight, the stories of lesser-known reporters fade in injustice.

The Protection of Embedded Journalists

The critical limitation of the Article 4(A)(4) of the Third Geneva Convention and Article 79 of the Optional Protocol stems from the ambiguity surrounding "embedded" journalists who are accompanied by military troops in wartime. With the rise of targeted killing of journalists, accompanying armies in the field is usually how journalists can document and disseminate information first-hand. Given that ISIS, Al-Qaeda, and the Taliban have a record of targeting foreign journalists and taking them hostage, it is near impossible to guarantee the safety of journalists if they roam around the battlefield with a clear indication that they are, in fact, foreign media personnel documenting the horrors of the military conflict. Embedded journalists are, therefore, an immediate and practical solution to dodge direct targeting. Yet, ironically, they are not given any explicit protection under international humanitarian law. Granted, some public perceptions of embedded journalists are more skeptical than others. The fact that a majority of foreign journalists are assigned to American and British combat units raises issues of media biases favoring Western Democracies, and the military public relations with the international public are much harder to disentangle from the popularity of the US policy abroad (Paul and Kim, 2004). While this comes with a set of criticisms that the journalists would inevitably become more partial to their military hosts, which may lead to deteriorating the objectivity of their profession, the compromise between safety and professionalism appears inevitable (Levett, 2017). Military conflict unavoidably involves combat between two belligerents that differ in their values and belief systems.

The heated debate surrounding the media objectivity of embedded journalists is solely up to the professionalism of the reporters who work in alignment with their integrity. Journalists must rely on their professionalism to psychologically detach from their assigned units. Additionally, if journalists can spot and report on the shortcomings of the military units they are assigned to, their professional integrity will prevail every time. Overall, the issue of international law in treating embedded journalists comes from its failure to accommodate and recognize the significantly growing numbers of embedded journalists. International law must, therefore, critically review the importance of embedded journalists and grant them special recognition of protection when they are exposed to danger or taken hostage at the hands of the belligerents.

The Importance of Embedded Journalists

The embedded reporters draw the public's attention closer to the atrocities of the war and enable a high level of access to the battlefields. Embedded journalism establishes satisfactory access to military operations and outcomes, allowing journalists to deliver unprecedented documents of war experiences in real-time. The military receives more favorable coverage than it would have had if they were not for embedding journalists. And it is clear that the public saw a type of picture that they had never had an opportunity to see before (Brooks et al., 2003). In analyzing the guidelines of safety measures for reporters under the embedded press system, it should be noted that the risk these journalists face is comparable to that of the soldiers they travel with. To safeguard embedded journalists whose gathered information effectively helps people exercise their democratic rights, international humanitarian law must set specific provisions directly related to such occupation.

Loss of Protection

Given the Additional Protocol I Articles 79 (2) and 51 (3), the protection of journalists is forfeited when they partake in armed hostilities. This is in accordance with the civilian protection journalists are granted. Article 51 (3) provides that "direct participation in the hostilities" are "acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces" (UN, 1977). Hence, it is only when a journalist participates in military combat he will lose immunity and become a legitimate target of attack. The engagement in propaganda cannot be considered direct participation, as civilian morale cannot be construed as a legitimate military objective to harm the opposing combatants. The failure to abide by these standards may increase the risk of journalists being targets of war, as substantiated in the case of the 2003 CNN armed crew incident in Iraq. The CNN crew covering the Iraq invasion that came under fire on its way to Tikrit responded with an automatic weapon. This incident in the Iraqi city represented the first time that media vehicles traveled with private security guards, which was unseen and unheard of during the 1991 Persian Gulf Wars. (Getlin, 2003). Such behavior sets a dangerous precedent and increases the risk of journalists being targets of attacks, as combatants can mistake any journalist's vehicle as a potential threat, ultimately leading to hostilities. The confusion and disobedience to the guidelines set by the international community jeopardize all other journalists covering wars. Hence, it is not only the international community's responsibility but also the media personnel's conscious effort to abide by the guidelines that can lead to full legal protection.

Case Study: War Crimes Against Journalists

Maria Catherine Colvin was an American reporter who worked for the British newspaper The Sunday Times. She dedicated her whole life to writing vivid dispatches from places only a few Western correspondents would dare to go: Chechnya, East Timor, and Syria, where she was killed by a deliberate artillery attack in 2012. Losing her eye in a grenade attack in Sri Lanka did not stop her from shedding light upon wartime stories and informing the world of the atrocities and horrors of war. On February 22nd, 2012, Colvin was killed along with a French photographer Rémi Ochlik after the Syrian government shelled the media center they were in. In Colvin v. Syria, a case brought to the United States District Court for the District of Columbia by Marie Colvin's siblings found the Syrian Arab Republic liable for the extrajudicial killing of Colvin. The suit was filed under the Foreign Sovereign Immunities Act 28 USC §1330 and 1605A, which provides jurisdiction over US nationals who were injured or killed by state sponsors of terrorism and their officials, employees, and agents. The plaintiffs argued that the Syrian government launched a premeditated targeted artillery attack against the Media Center in Baba Amr. The journalists and media personnel in the Media Center were unarmed civilians who did not partake in the military operation nor violated the guidelines set by international humanitarian law. The court reasoned that Colvin and other journalists were targeted because of their profession for the "purpose of silencing those reporting on the growing opposition movement in the country" (Colvin v. Syria, 2019). The court agreed with the plaintiff that the active killing of these professionals has a chilling effect on reporting events worldwide that extends to "inhibit the gathering and reporting of news" in war zones (Anderson v. Islamic Republic of Iran, 2012).

The court found that the premeditated attack on Baba Amr Media Center constituted a war crime that violated international law. The extrajudicial killing violated Article 3 of the Fourth Geneva Convention, Article 79 of Additional Protocol I, and Rule 34 of the ICRC's compilation of customary international law. In reaching its verdict, the court ordered the Syrian government to pay $302 million in entitling Colvin's family to compensatory damages for the economic losses resulting from the wrongful death, for the personal injury resulting from the intentional infliction of emotional distress, and for solatium. While Marie Colvin's case exemplifies a somewhat successful redress of wrongful death, given that Colvin's family was entitled to financial compensation, there are cases where the justice for lesser-known journalists who fell victim to military operation goes unserved. The plaintiff, Cathleen Colvin, was able to file a lawsuit under the Foreign Sovereign Immunities Act 28 USC §1330 which only extends to US nationals. This should be codified in the international legal system where if a journalist falls victim to a military attack, the victim or relatives who have been subjected to killing and torture abroad by a foreign government can seek compensation.

A New Provision in Protecting Journalists in War Zones

Given the many identified flaws of the existing international doctrine on protecting journalists, there should be a new provision for journalists similar to the Montecatini Draft presented by the UN Convention in 1968. The Montecatini Draft was set forth to protect journalists by establishing an independent committee under the United Nations composed of several members of the UN Secretary-General from a list of designated press magazines (Howard, 2002). The objective of this committee lies in the official identification and registration of journalists on dangerous missions. The journalists' identification card provides their name, age, nationality, occupation, and the name of the press organization they work for. To analyze the benefits of the draft, the identification system further promulgates the effects of the legal protection conferred on journalists. Once identified, the committee will be able to actively monitor the safety of these journalists. However, considering the increased number of embedded journalists in modern times, compared to 1968 when the original draft was suggested, requiring journalists to carry identification cards and wear a recognizable emblem in war zones may increase the risk of being exposed and ultimately get targeted for their profession.

The International Declaration on the Protection of Journalists is a proposed resolution by the International Press Institute partnered with the Al Jazeera Media Network, the International News Safety Institute (INSI), and the Africa Media Initiative (AMI). The declaration summarizes and re-emphasizes the international humanitarian protection of journalists operating in dangerous environments to guarantee their safety and combat impunity (International Press Institute, 2021). One benefit of this draft is that it is two-fold; it covers the principles relating to the protection of journalists and extends these protections by setting a guideline for media organizations to follow.

It extensively covers the rights enjoyed by journalists and acknowledges the value of cooperation between state institutions and media organizations. For instance, one of the action items required for media organizations includes the allocation of financial resources to adopt the best safety protocols. This could be achieved as a form of mandatory safety training for all journalists, including digital safety and emotional and psychological well-being. Additionally, this proposal is the first to recognize gender-specific safety concerns, calling for media organizations' dedicated attention to female journalists, which sets it apart from other preceding documents. As such, incorporating these agreements into a new resolution will further develop and strengthen procedures for ensuring physical and psychological safety as well as digital security for journalists.

To improve the effectiveness of the Montecatini and the International Declaration on the Protection of Journalists, there must be four revisions made to the original drafts that include but are not limited to (a) conferring new special status to all journalists regardless of their affiliation, (b) appointing a diversity of news outlets as members to the newly built international journalist committee, (c) setting a cybersecurity team to protect the data and information of journalists registered in the system, and (d) reinstating the obligation of combatants to warn in advance of an attack.

First and foremost, regardless of the journalist's status of being an independent reporter, war correspondent, or embedded, all and any media personnel should be given special status and the entitlement to prisoner-of-war status when captured by the opposing combatants. Unlike war correspondents, independent journalists work at an increased risk of not receiving fundamental protections to be free from acts of violence, intimidation, and insults. Considering the importance journalists hold in disseminating critical information about armed conflicts, any action against these professions should be considered war crimes and held liable. Moreover, the newly established International Journalist committee should appoint a myriad of media outlets to combat and control the issue of embedded journalists publishing favorable news of their accompanied units to maintain the impartiality of the reports. One of the main criticisms of the increased number of embedded journalists derives from the loss of objectivity. Such issues can be regulated by appointing a number of media outlets that represent different sides of the story.

Furthermore, to curb the influence of hackers infiltrating digital systems to identify journalists, there must be a cybersecurity team to protect against any hostile security breaches. As evident in the Marie Colvin case, the Syrian government did not hesitate to attack the Baba Amr Media Center center once it identified the location. To prevent premeditated armed attacks on journalists, a team of cybersecurity personnel should be hired by the committee to monitor the safety of journalists and deter any security breaches.

Last but not least, there must be an advance warning of an attack for the purposes of evacuation. While this is codified in Article 57 (2) (c) of Additional Protocol I, the prevalence of undeclared attacks makes the provision futile. For the purposes of ensuring accountability of such attacks, it should be reinstated and recognized by the international community that any attacks on journalists who are not directly partaking in military operations to be considered a war crime.

Conclusion

With the nature of modern warfare vastly changing the role of news, the existing international law fails to protect journalists working in dangerous regions and leaves the perpetrators of war crimes unpunished. This article examined the role of international humanitarian laws– especially, Article 79 of the Additional Protocol I and Article 4 (A) (4) of the Third Geneva Convention– and their shortcomings in defining the protected categories of journalists. The new status of journalists reflects a desire to acknowledge their unique function of informing the public. In this regard, the expansion of international humanitarian law and the establishment of a committee dedicated to the welfare of journalists on dangerous missions can only increase and benefit the existing schemes. Furthermore, this new provision takes into account the growing importance of embedded journalists who have facilitated better military-press relations and enhanced the news coverage of military conflicts. That said, building upon the basic enforcement infrastructure and codifying resolutions necessary will help promulgate the ultimate goal of ensuring appropriate protection for the press.

References

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