Last Updated on November 18, 2020 by LawEuro
The relevance of the study of issues related to ensuring the protection of the rights of journalists who fulfill their duties in extreme conditions, including in armed conflicts, is now difficult to overestimate, while in modern legal science this topic is given unduly little attention. The growth of international tension, the clash of interests of world powers lead to an increase in the number of local armed clashes.
The information war of recent years has been a part of the hybrid war, in connection with which, despite the active work of international and professional human rights organizations, reports of offenses and crimes committed against journalists and other media workers working in conflict zones have become more frequent.
The activities of reporters during active armed clashes are complicated by certain restrictions aimed at ensuring minimum access to certain information. Among such restrictions is the introduction of a curfew, the mandatory introduction of special documents and certificates confirming the status of an employee of the media. In such conditions, not only the direct conduct of the journalist’s professional activities can be complicated, but the application of the norms and guarantees of international humanitarian law to protect him as a civilian.
The provisions of the Geneva Conventions of 1949 provide for the division of armed conflicts into two main types: military conflicts of a non-international and international character [10, p. 129-134]. At the same time, the boundaries of the definition of a military conflict, especially for the first type, are not clearly fixed, which allows you to manipulate the status of the conflict, including to limit the rights of journalists.
The application of standards and safeguards for these types of armed clashes is differentiated under international humanitarian law. If in a situation of armed conflicts of an international character it is intended to provide reporters and media workers with the maximum amount of guarantees and rights of protection as civilians, then in a situation of non-international conflicts such guarantees and the right to protection are in some way limited. In addition, modern international humanitarian law provides for a different amount of legal guarantees to ensure security in relation to seconded, accredited journalists and independent reporters who are not seconded to any party to the conflict [18, p. 29-31]. In particular, for such media employees, who are most often freelance reporters, employees of independent and online media, the right to protection does not correspond to the duty of the military of a certain party to the conflict to protect them, while for accredited journalists the duty to ensure security provided for. In relation to the safety of reporters, not seconded and not accredited to any of the parties, such norms fix the situation of complete disregard in the legal field, regardless of the level of risk to life associated with their professional activities, and the objective threat of violation of rights.
In our opinion, this situation is discriminatory in the context of the unity of guarantees of the safety rights of journalists, regardless of their affiliation and secondment to one of the parties to the conflict, regardless of professional status, citizenship, attitude towards the conflict and professional status.
According to the norms of international humanitarian law, journalists do not have a special status and are equal to the civilian population in terms of guarantees of protection, including:
– they cannot be the object of attack by any of the parties to the conflict (clause 2 of Article 51 of Protocol I);
– they have the right to respectful of their property, except when this property can be used for military purposes or has a military character (Article 52 of Protocol I);
– A deliberate attack that caused serious bodily injury or death is related to war crimes (Article 85 of Protocol I) [8, p. 43].
The empowerment of journalists with the legal status of a civilian allows them to enjoy all the guarantees of security and security provided for such persons, which also applies to the situation of a journalist being detained or captured.
Classification of the limits of protection of the rights of journalists
The norms of international humanitarian law, despite the established guarantees, also provide for certain possibilities for their restriction, which is reflected in the category of protection limits. They can be classified according to various criteria. One example is their division into objective and subjective. According to another classification, protection limits may include situations where a journalist loses only actual protection or actual protection in combination with the right to provide it. The first group includes situations when a journalist is inside a military facility or uses a military uniform as clothing. Here, the parties to the conflict do not have an objective opportunity to recognize a journalist as a person who, according to the norms of international law, is granted the status of a representative of the civilian population, and therefore the actual protection is lost. In another case, for example, when conducting intelligence or using weapons to participate in a conflict, a media employee loses the right to protection in accordance with international humanitarian law, defining such journalistic actions as grounds for them to lose their respective status. It should be noted that international treaties and conventions do not enshrine objective norms for identifying a journalist, although such may be, for example, the presence of a special press distinction mark or a journalist’s certificate, as well as other signs that make it possible to fairly accurately identify the professional status of a media employee. Repeatedly, experts and scientists put forward a proposal on the need to define a single special sign that should distinguish a journalist from other persons in the context of hostilities, but there was no common opinion on the appropriateness of such a decision . It seems that the distribution of a distinctive symbol will not be able to solve the problem of ensuring the safety of journalists, since in an extreme situation he may forget to fix it, the sign may be damaged, etc.
A journalist may actually lose the ability to protect when approaching military sites or places of active armed clashes at a dangerous distance, while being directly inside an armed formation, when the enemy actually has no opportunity to distinguish the media employee from the combatant [7, p. 273-274]. In this context, there are three main problem aspects:
First, it is necessary to establish the maximum distance at which the journalist loses legal guarantees of protection. Obviously, finding him inside a military facility leads to an increase in the risk of death and damage to his property, because the enemy is deprived of the objective opportunity to identify the journalist and provide him with appropriate guarantees.
Secondly, the nature of the attack by one of the parties to the conflict on a military object has a significant effect. Thus, with a swift attack, an air attack, there is no opportunity to identify the journalist and provide him with guarantees of protection. If the nature of the attack makes it possible to identify the journalist and distinguish him from the combatants, then his actual protection must continue and be provided with appropriate guarantees of the attacking side.
Thirdly, the norms of international humanitarian law do not provide for the provision of special guarantees to a media employee located in the immediate vicinity of a military facility when he is captured by the enemy, and does not allow him to be protected in captivity. In our opinion, these norms should be clarified, and a journalist captured near a military facility should be granted the status of a prisoner of war.
International activities to ensure the protection of the rights of journalists in armed conflicts in different countries, the development of proposals to improve the guarantees of the rights of journalists and the mechanism for ensuring them, improving the legal regulation of the participation of media professionals are carried out with the active participation of international organizations. Thus, among the UN divisions, this problem is included in the range of functions of the Committee to Protect Journalists and several other bodies, including UNOPS and UNESCO. Aware of the importance in today’s world of ensuring freedom of speech and expression, regardless of circumstances, the UN adopted a number of documents supplementing Security Council resolution 1738 that deal with addressing the impunity of perpetrators of violations of the rights of journalists in armed conflicts, both international and non-international. Another milestone that marked the UN concern about the problem of protecting media personnel was the adoption in 2012 of the UN Action Plan to ensure the safety of journalists, including in areas of international conflict [2, p. 82]. The Plan provides for a number of activities involving the creation and operation on a regular basis of special commissions to investigate violations of the rights and incidents of murder of journalists, as well as other ways to streamline the law enforcement mechanism of providing appropriate guarantees and ensuring conditions for the realization of the right to freedom of expression and freedom of speech. In our opinion, despite the increased UN activity, the efforts undertaken by the international community should be recognized as minimal. Their insufficiency is confirmed by statistical data illustrating cases of violations of the rights of journalists and their deaths recorded in zones of armed conflict.
It should be noted that in recent years there have been frequent clashes, which can be attributed to non-international armed conflicts. For a long time, these conflicts were excluded from the zone of regulation of international humanitarian law.
Their inclusion in the legal field is connected with the adoption of the Geneva Conventions of 1949, one of the general articles of which obliged states to agree to limit violence in non-international armed conflicts. The fundamental value of this norm is reflected in the currently accepted title of the third general article – “Mini-convention”. Nevertheless, its provisions were imperfect and limited; they established minimum guarantees for the civilian population and other participants in non-international military conflicts. Thus, there were no indications of the procedure for ensuring the protection of civilians from individual and mass repressions, attitudes towards the property of the parties to the conflict and persons not taking active part in it, and other areas were not settled.
Legal protection of the population was strengthened by the First and Second Additional Protocols adopted in 1977, which strengthened the guarantees of protection for the entire civilian population in general, and also determined the minimum guarantees of legal protection for other persons who did not enjoy a more favorable protection regime [1, p. 408-417]. It complicates the provision of unified guarantees for the protection of the rights of journalists operating in a non-international armed conflict zone, the lack of clear criteria that allow identifying this type of conflict. Here, the opinion of I.I. Kotlyarova, based on attributing to this concept situations of armed clashes between non-state (non-governmental) armed groups and state armed forces of the state [6, p. 55].
In recent decades, several efforts have been made to eliminate the differences between armed conflicts of a non-international and international nature in order to form a common body of norms of international humanitarian law that allows considering all situations of armed conflict. Despite the fact that these efforts were not crowned with complete success, the gradual formation of international practice, certain changes in case law contribute to the de facto blurring the line between these two types.
The blurring of the boundaries between the generally recognized types of conflicts is particularly relevant today, when external actors are actively involved in the course and resolution of many internal military conflicts, pursuing their own geopolitical goals in such situations. The consequence is the application of more stringent safeguards, previously provided only for international armed confrontations or only for strictly non-international armed conflicts formally defined in Protocol II, are now increasingly applied to the interpretation of events, even the category of conflicts defined in common article 3. Solve the identified problems international organizations are also trying in the framework of the development of international human rights law, including through judicial precedents and adding new safeguards to protect human rights [13, p. 172-178] in terms of conflict, regardless of their characteristics.
Conflicts of a non-international nature, including due to the interest in their particular outcome of external actors, are becoming more intense. This is evidenced by the increase in the number of UN peacekeeping missions and the formation of international coalitions to assist any state in whose territory there is a confrontation between government forces and organized non-state armed groups. The combination of the noted characteristics of contemporary non-international conflicts complicates the drawing of the border between various types of armed conflicts inherent in international humanitarian law [5; 12].
One of the most important issues for the protection of journalists in non-international armed conflict is the problem of territorial boundaries of the application of international humanitarian law, which is not directly regulated by the provisions of the Conventions. To resolve it, the International Criminal Tribunal for the Former Yugoslavia indicated that certain provisions need to be applied not only in the area of actual military actions, but also in the entire territory controlled by the parties to the conflict until the moment of its official settlement. These provisions, which are not limited territorially, include “those that relate to the regulation of the protection of civilians and prisoners of war” . This makes it possible to extend the legal status of journalists as civilians, the stipulated right to protection and its guarantees under international humanitarian law to employees of the media operating throughout the state in which the internal armed conflict arose.
In conclusion, it can be concluded that the norms of international humanitarian law provide for a smaller amount of guarantees for journalists who carry out their professional activities in non-international armed conflicts.
This situation is primarily due to the need to protect state sovereignty. With all the objectivity of the division of conflicts into non-international and international in practical terms, it is not entirely justified and convenient. The consolidation of such a division allows interested parties to manipulate the status of internal conflicts and not provide guarantees for the protection of the rights of journalists provided for by international humanitarian law. Such an approach should clearly be recognized as inconvenient for practical application, especially in the context of the spread of hybrid wars and internal armed conflicts, the course of which is predetermined by the indirect participation and interest of external actors. The events of recent years confirm that an increasing number of armed clashes, which are non-international from a formal point of view, can also be attributed to interstate.
Increasingly, emerging as internal, many conflicts are characterized by a significant potential for becoming international. We support the opinion of V.S. Solodchenko, G.V. Alekseev [11, p. 65], M.Sh. Magomedov [7, p. 273-274] on the need to expand the scope of international humanitarian law, in particular, the rules that enshrine the peculiarities of the legal status and mechanisms for the protection of journalists. It is necessary to continue work on fixing in international conventions and agreements on fixing the obligatory guaranteed minimum of the rights of journalists who conduct professional activities in the zone of armed conflicts of various kinds, and to introduce a rule on the inadmissibility of the derogation of their rights.
Despite the active efforts of the international community, the statistics of violations of the rights of journalists and murders related to professional activities in a conflict zone are sad. According to the UNESCO monitoring data, about 75% of the murders of journalists in the world occurred in the world due to their professional duties in the zone of armed conflicts [18, p. eleven]. According to the “Committee to Protect Journalists,” from 2000 to 2015, the number of journalists who died for reasons that were authentically related to their professional activities doubled . Thus, the effectiveness of law enforcement practice in the studied area can still be characterized as low. The problem of impunity of perpetrators of crimes against journalists is also relevant. Existing problems have been repeatedly noted in the UN Resolutions, emphasizing the futility of the efforts of human rights organizations and the international community to ensure the rights of media professionals in the zone of armed conflicts . It should not be forgotten that ensuring the safety of journalists and combating impunity of the perpetrators of crimes against them is an obligatory part of the international obligations of states taken to ensure the conditions for the realization of the right to freedom of expression.
In connection with the aggravation of the situation, many organizations protecting the interests of journalists have repeatedly pointed out to the UN the need to establish the post of Special Representative of the Secretary-General for the Safety of Journalists . We support this proposal, since only the institute of special representation contributes to ensuring close cooperation and coordination of all parties interested in solving this problem, giving it political weight at the international level, creating conditions for operational and legitimate actions to protect the rights of journalists in armed conflicts.
In modern conditions, the actual problems are also the provision of conditions for the unimpeded professional activities of journalists, the development of mechanisms to carry out prevention and detection of crimes and offenses both at the domestic and international levels.
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