Journalists: Shielded from the Dangers of War in their Pursuit of the Truth?

This piece explores the current protection afforded journalists under both general international law and IHL (Part I); the IHL status of journalists (both those embedded in the military and those reporting as freelance/independent journalists) (Part II); targeting decisions involving journalists (Part III); and the obligations under IHL upon those who capture and detain journalists (Part IV).

Main Findings

The work of the press during international or internal armed conflicts will always involve risks, which journalists often choose to take. The law cannot always protect them from the consequences of their own free decisions, or from the dangers they themselves seek to run.234 What the law can do is to offer them status under IHL which will bring with it obligations which will have to be observed by the belligerent parties. In conclusion then, freelance journalists and their equipment enjoy no special status in IHL and will always be presumed to retain their civilian status in both international and non-international armed conflicts.235 Embedded journalists, on the other hand, do enjoy a special status236 under IHL – that of ‘persons accompanying the armed forces without actually being members thereof’ – provided they can furnish the required identity card. As civilians, freelance journalists will enjoy the general humane protections afforded civilians provided they refrain from participating directly in hostilities. If they are found to be participating directly in hostilities they do not acquire combatant status. Once they are hors de combat, they revert to their primary civilian status. Should they fall into enemy hands after such resistance, they may be held to account for their unauthorised actions, but at all times will have to be treated humanely and afforded the fair judicial guarantees normally extended to civilians.

Policy recommendations/implications

As for embedded journalists, their civilian non-combatant status affords them the protections traditionally afforded civilians for so long as they refrain from any direct participation in hostilities. Any acts not traditionally associated with the role of a journalist, which meet the three requirements of threshold of harm, direct causation and belligerent nexus, will result in the withdrawal of protection. The risk which embedded journalists run is that they may lose their de facto civilian protection if they stay too close to a military unit or approach a military target in respect of which the proportionality rule would permit an attack.. If they fall into enemy hands, embedded journalists can only be detained where security reasons demand, and they are to be treated as POWs without actually having POW status. As for targeting decisions where journalists are involved, only those decisions which result in proportionate attacks on legitimate military objectives which satisfy the requirements of military necessity and advanced warning will be defensible under IHL. IHL is clear that civilian broadcasting operations can in some instances be classified as military objectives, particularly when they are dual-use sites being utilised for both civilian and military purposes. For the remainder, unless the media are used for ‘military purposes or to incite people to commit grave breaches of IHL, acts of genocide or acts of violence’ they remain immune from attack, even if they are broadcasting propaganda. Having said this, even when involved in any of these illegal acts, it is still incumbent upon commanding officers to limit ‘civilian casualties and damage to civilian objects’ by observing the requirements of military necessity, proportionality, distinction and effective advance warning.