17 Aug 2024 Freedom of expression, and the protection of journalists in conflict situations

Peter Prove

The first casualty of war is truth. This familiar adage has been attributed to many authors, from Chinese military strategist and philosopher Sun Tzu (c.544BC – c.496) and ancient Greek tragedian Aeschylus (c.525 BC – c.456 BC) to US Senator Hiram Warren Johnson in 1918. Indeed, the observation is effectively trite, since it is a conclusion that can all too easily be drawn from the common human experience of conflicts down through the ages, including – and perhaps especially – those of this current moment.

Along with truth itself, those who seek truth in the context of conflict often become victims of the violence unleashed in the confrontation between opposing military and political forces. This has particularly been the case in warfare in the modern era, due to the development of weapons with increasingly destructive power, the capacity to deliver destruction at ever greater distances, and often indiscriminate impacts (so-called ‘smart’ weapons technology notwithstanding). Alongside the technical evolution of weapons of war, developments in the field of communications technology have enabled propaganda to be deployed in more powerful, effective and insidious ways. Truth, and those who seek it, have become ever more vulnerable in face of this combined onslaught.

In the development of modern international law efforts have been made to establish principles that, among other things, afford protection to journalists and media professionals including while reporting on situations of armed conflict.

International human rights law – expressed especially in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) – requires States to guarantee everyone the right to freedom of expression, which includes the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media”. Accordingly, freedom of expression encompasses the right of the public to receive a wide variety of information provided by the media, as well as the right of journalists to gather and convey information. Article 19 (3) of the ICCPR allows for the restriction of freedom of expression if such restriction is provided by law, pursues a legitimate aim (such as the protection of the rights or reputations of others, national security, public order or public health or morals), and is necessary and proportionate.

Among the many international human rights mechanisms relevant to the protection of the right to freedom of expression and of journalists and their work,¹ the following play a special role:

• UN Human Rights Committee² (monitoring implementation of the ICCPR)
• UN Special Rapporteur on freedom of opinion and expression³
• UN Special Rapporteur on human rights defenders.⁴

With more specific reference to conflict situations, international humanitarian law (IHL) contains several relevant provisions.⁵ The illegality of attacks on journalists and news media in conflict situations derives in from the protection granted under IHL to civilians and civilian objects generally. IHL distinguishes between two categories of journalists working in conflict zones: “war correspondents” accredited to the armed forces, and other “independent” journalists.

According to the Dictionnaire de droit international public, the former category comprises all “specialized journalists who, with the authorization and under the protection of a belligerent’s armed forces, are present on the theatre of operations with a view to providing information on events related to the hostilities.” Provided they have been duly authorized to accompany the armed forces, war correspondents – though not part of the armed forces and still retaining the status of and protections due to civilians – are entitled to prisoner-of-war status if captured by opposing forces.

In 1977, Additional Protocol I to the Geneva Conventions (Relating to the Protection of Victims of International Armed Conflicts), extends the protection of IHL to other journalists who are not accredited to the armed forces. Article 79 of Additional Protocol I stipulates that all journalists “engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians” and “shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians.”

While Additional Protocol I applies only to international armed conflicts, and Additional Protocol II (relating to the protection of victims of non-international armed conflicts) makes no specific reference to journalists, Rule 34 of the 2005 study on customary international humanitarian law published by the International Committee of the Red Cross (ICRC)⁶ concludes 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” whether in international or non-international armed conflict. So, while it is true that protection measures for journalists are only codified in the case of international conflicts (Additional Protocol I), journalists also enjoy the protection granted to civilians in non-international armed conflicts.

Civilian objects and military objectives

Radio and television facilities are considered as “civilian objects” under IHL, and Article 48 of Additional Protocol I requires armed forces to distinguish between civilian objects and military objectives and to direct operations only against the latter. It follows that civilian objects, along with the civilian population, enjoy general protection under IHL.

However, these protections can be lost. The protection of civilians (including journalists) persists under international law so long as they do not take any direct part in the hostilities. Likewise, the immunity enjoyed by civilian objects is lost if they are used in ways that make an effective contribution to the conduct of hostilities incompatible with their civilian object status, and they may then be treated as legitimate targets.

Nevertheless, journalists and media infrastructure cannot be considered legitimate targets merely because they are disseminating propaganda, even though such an activity may indirectly support the war effort. An exception to this principle is recognized in relation to news media that disseminate propaganda inciting war crimes, acts of genocide or acts of violence – as in the case of Radio-Télévision Libre des Mille Collines and the newspaper Kangura in Rwanda in 1994 – which can become legitimate targets.

Even then, the lawfulness of an attack depends not only on the nature of the target – which must be a legitimate military objective – but also on whether the required precautions have been taken, in particular regarding respect for the principle of proportionality and the obligation to give due warning, so as to avoid, or at least limit, loss of human life, injury to civilians and damage to civilian objects.

Despite this complex web of principles under international law, recent experience indicates that observance of these protections for journalists and media professionals – along with observance of international humanitarian and human rights law in general – is fraying perilously. Declining respect for international law is greatly accelerated when leading members of the international community demonstrate obvious double standards in the application of these principles that should bind everyone equally.

And the extent to which civilians, civilian infrastructure (including especially hospitals and medical facilities) and humanitarian workers are now being attacked in Gaza, Ukraine, Sudan and in conflict situations elsewhere indicates a deep crisis of accountability to international humanitarian and human rights law. The activation of the leading judicial tribunals for adjudication of these matters – especially the International Court of Justice (ICJ) and the International Criminal Court (ICC) – is therefore not only appropriate but urgently necessary.

Within the wider humanitarian catastrophe of the war in Gaza, journalists are being killed at a rate with no parallel in modern history. As reported by the Committee to Protect Journalists (CPJ), as of 31 May 2024 at least 107 journalists and media workers – 102 Palestinians, two Israelis and three Lebanese – were among the more than 37,000 killed since the war in Gaza began.⁷

A 1 February 2024 press release by the UN Office of the High Commissioner for Human Rights reports a variation on these statistics, stating that “since 7 October, over 122 journalists and media workers have been killed in Gaza, and many have been injured. In addition, three journalists in Lebanon were killed as a result of Israeli shelling near the border of Lebanon. Four Israeli journalists were killed by Hamas in the 7 October attacks. Dozens of Palestinian journalists have been detained by Israeli forces in both Gaza and in the West Bank where harassment, intimidation and attacks on journalists have increased since the 7 October attacks.”⁸

Losing fragments of the truth

While the statistics may vary somewhat, the overall picture is clear. The highest recorded previous toll of casualties among journalists in a single year due to conflict is that in Iraq in 2006, when 56 journalists were killed. And as CPJ Program Director Carlos Martinez de la Serna poignantly – and relevantly for the purposes of this article – observed, “Every time a journalist is killed, injured, arrested, or forced to go to exile, we lose fragments of the truth.”⁹

Another leading watchdog on the right to access to free and reliable information, Reporters Without Borders (RSF), has lodged three successive complaints to the International Criminal Court (ICC) – on 31 October 2023, 22 December 2023 and 24 May 2024 – with regard to alleged Israeli war crimes against journalists. RSF says it has reasonable grounds for thinking that some of these journalists were deliberately killed and that the others were the victims of deliberate IDF attacks against civilians.¹⁰ According to RSF’s tally as at 5 April 2024, at least 105 were killed by Israeli airstrikes, rockets and gunfire, including at least 22 in the course of their work.¹¹

Gaza is, sadly, far from the only current context in which the same tendency is evident. For example, again according to RSF, more than 100 journalists have been the victims of Russian armed violence since Russia launched its large-scale invasion of Ukraine on 24 February 2022, eleven of whom were killed in the course of their work.¹²

Repression of independent journalism by legal action and imprisonment

But the threats to reporting, exchange of information and ultimately to the truth in the context of the proliferating conflicts around the world are not limited to the physical violence faced by journalists in war zones. The repression of independent journalism by legal action and imprisonment is rising rapidly. A CPJ prison census for 2023 documented 320 journalists behind bars, with the leading exponents of this form of repression being China, Myanmar, Belarus, Russia, Vietnam, Iran and Israel.

Censorship has long been a favoured tool of authoritarian governments, especially in times of conflict. The meteoric rise of censorship in Russia since its invasion of Ukraine, and in Israel against the background of the war in Gaza, are emblematic of this tendency.

Notoriously, independent journalists in Russia have been prevented from covering the activities of Russia’s armed forces in Ukraine by the threat of 15 years in prison, following the adoption of a law on 4 March 2022 that criminalizes the publication of information that is deemed to be “false” or to have “discredited” the Russian armed forces. A further law adopted on 29 June 2022 applied the stigmatising “foreign agent” label to any person who has received international support or is “under foreign influence” and who carries out political activities, collects information on military and military-technical activities, disseminates messages to the general public or participates in their creation. Those on the government’s register of entities to whom this label has been applied must declare that they are “foreign agents” on anything they publish.

This labelling aims to discredit media and journalists in the eyes of the public. It also imposes a heavy administrative burden, particularly the obligation to provide the authorities with statements of all income and expenses. Failure to comply with these obligations is punishable by fines or imprisonment for up to five years.¹³

Since the beginning of the war in Gaza, Israel has taken a spate of legal and administrative measures targeting both the production and consumption of information deemed to be contrary to national interests. Emergency regulations passed in October 2022 enabled the government to close foreign news outlets considered harmful to national security and national morale, and on 8 November 2022, the Israeli Knesset passed an amendment to the Counter-Terrorism Law, introducing a new criminal offence for the “consumption of terrorist materials,” with a maximum penalty of one year’s imprisonment. The amendment criminalizes the “systematic and continuous consumption of publications of a terrorist organization under circumstances that indicate identification with the terrorist organization.” This raises obvious concerns about the ramifications for freedom of expression and press freedom. The law’s broad terms are amenable to being weaponized against journalists and others who consume information from sources designated as “terrorist” by Israel.¹⁴

Moreover, the weaponization of disinformation through social media, turbo-charged by artificial intelligence (AI) tools, is undermining people’s capacity to distinguish untrustworthy content from accurate information, and weakening trust in the very idea of objective truth. This is a particularly acute challenge in the context of “information wars” accompanying armed conflicts, and in conflict-affected and divided societies where public institutions are weak and unable to neutralize such disinformation. While hardly a new phenomenon, latest generation communication technologies have exponentially increased the speed and spread of disinformation, and its impact in fomenting intercommunal division, hatred, distrust in public institutions, and heightened conflict risks in many current crisis situations.

The World Council of Churches (WCC) is alive to these threats, which are increasingly encountered in many situations in which we and our member churches and partners are working for peace, social cohesion and justice. We have been obliged to call more and more frequently for accountability to the principles of international humanitarian and human rights law,¹⁵ because of the increasing frequency, severity and audacity of violations of these fundamental principles. We devote considerable effort to promoting social cohesion through ecumenical and inter-religious cooperation in conflict-affected or conflict risk situations. And we are increasingly highlighting the toxic effects of misinformation – disseminated especially through social media platforms and enhanced by AI – on social cohesion, stability and sustainable peace.

Re-asserting the principles of international humanitarian and human rights law

Faced with the global proliferation of gross violence and injustice, and the prevailing crisis of trust and human solidarity, the primary response must be to reclaim and re-assert the principles of international humanitarian and human rights law that were articulated precisely to guard against repetition of the horrors perpetrated during the Second World War. To undermine those principles through repeated violation, complicity or selective application is to promote a return to the status quo ante of “total war” instead of “just peace”, of “might makes right” instead of the “rule of law”.

The WCC, as an international church organization that contributed directly to the articulation of some of these core principles, has a special role and responsibility in this regard, together with religious leaders and all those with moral authority. If this framework of legal and ethical accountability where to collapse, no limits would be placed on the use of violence.

Further, churches and religious leaders have great influence among their members and in their communities, and in many places also with their governments. They can be powerful countervailing voices against disinformation and hate speech, if they are equipped and empowered with the tools to identify and confront it. They can also be important supporters and advocates for journalists, media professionals and all those who seek the truth in the midst of crisis and controversy and to communicate that truth to others.

Finally, though it is evidently no guarantee of protection, scrupulous observance of the rules of professional ethics and independence of the press is even more important in the current difficult context, to help bolster recognition of journalists’ civilian status against accusations of participation in hostilities or of providing military advantage to one side of the conflict.

The freedom of expression is a fundamental human right in international law, and a fundamental value for community life and for human dignity. Journalists and media professionals who face mounting threats for reporting and communicating the awful truth of conflict and its impacts are defending against an attack on human solidarity and human dignity itself. They deserve our support.

Notes

1. More information on these mechanisms is available at https://www.ohchr.org/sites/default/files/documents/issues/ruleoflaw/How-HR-standards-mechanisms-protect-journalists.pdf

2 https://www.ohchr.org/en/treaty-bodies/ccpr

3 https://www.ohchr.org/en/special-procedures/sr-freedom-of-opinion-and-expression

4 https://www.ohchr.org/en/special-procedures/sr-human-rights-defenders

5 Geneva Conventions of 12 August 1949, including the Third Geneva Convention on the treatment of prisoners of war and the Fourth Geneva Convention on the protection of civilian persons in time of war, and the Additional Protocols of 8 June 1977, especially article 79 of the Additional Protocol I regarding the protection of journalists engaged in dangerous professional missions in areas of armed conflict. UN Security Council Resolutions 1738 (2006) and 2222 (2015) reaffirm many of these principles. See also https://guide-humanitarian-law.org/content/article/3/journalists/ and https://casebook.icrc.org/case-study/protection-journalists for relevant commentary, on which several aspects of this paper are based.

6 Henckaerts, J.M & Doswald-Beck, L : “Customary International Humanitarian Law” Volume 1: Rules, ICRC, 2005, p. 115-118

7 https://cpj.org/2024/05/journalist-casualties-in-the-israel-gaza-conflict/, 31 May 2024

8 https://www.ohchr.org/en/press-releases/2024/02/gaza-un-experts-condemn-killing-and-silencing-journalists, 1 February 2024

9 https://cpj.org/2024/05/journalist-casualties-in-the-israel-gaza-conflict/, 31 May 2024

10 https://rsf.org/en/rsf-files-third-complaint-icc-about-israeli-war-crimes-against-journalists-gaza, 27 May 2024

11 https://rsf.org/en/more-100-journalists-killed-six-months-gaza-where-international-community, 5 April 2024

12 https://rsf.org/en/two-years-after-death-fr%C3%A9d%C3%A9ric-leclerc-imhoff-ukraine-rsf-and-family-french-journalist-call-justice, 30 May 2024

13 https://rsf.org/en/russian-journalism-chained-kremlin-s-systemic-censorship-0, 1 September 2022

14 https://cpj.org/2024/05/attacks-arrests-threats-censorship-the-high-risks-of-reporting-the-israel-hamas-war/#hostile-censorship

15 See inter alia the WCC 11th Assembly statement on “The Things That Make For Peace: Moving the World to Reconciliation and Unity”, Karlsruhe, September 2022

Peter Prove is Director, Commission of the Churches on International Affairs (CCIA) at the World Council of Churches (WCC) since 2014 (responsible for WCC programs in the fields of human rights, peacebuilding and disarmament, and for relations with the UN system). Previously Executive Director, Ecumenical Advocacy Alliance (EAA), 2010-2014; Assistant General Secretary for International Affairs and Human Rights, Lutheran World Federation (LWF), 1997-2010; and a lawyer in private legal practice in Australia, 1986-1996.