About the author(s):
It is my great pleasure to introduce Dan Saxon as guest blogger on the site. Dan Saxon is currently a Visiting Professor at the Faculty of Law in the University of Utrecht, where he teaches international criminal law. Dan served as a prosecutor for 12 years at the United Nations International Criminal Tribunal for the Former Yugoslavia. He was the Leverhulme Visiting Professor in the Faculty of Law at the University of Cambridge during the 2010-2011 academic year. Dan is the editor of “International Humanitarian Law and the Changing Technology of War” (forthcoming) and the author of a number of publications concerning international law.
We are very pleased that Dan has chosen our blog to post this important analysis of the ethical and legal obligations of journalist in time of armed conflict. Here is Dan’s post!
Covering Syria: Ethical and Legal Obligations of Journalists*
According to the Committee to Protect Journalists, today Syria is the most dangerous place in the world to practice the profession of journalism. At least 23 international and Syrian journalists have been killed covering the Syria conflict since March 2011. In addition, several international journalists are currently being held by the Assad regime and the units of the FSA. Truly, the performance of the vast majority of the national and international journalists reporting from Syria since March 2011 has been courageous, and in some instances, heroic. Without their efforts, many of the historic and tragic events in Syria during the past two years would have remained unseen and unreported.
Nevertheless, with respect to a small minority of journalists, a shadow lies over their work. In their zeal to obtain a story, several journalists – including those from major news networks – have violated the moral principles and legal obligations codified in international humanitarian law (“IHL”). Journalists enjoy important protections under IHL and customary international humanitarian law provides that civilian reporters working in areas of armed conflict must be respected and protected as long as they do not take a direct part in hostilities. However, the purpose of this article is not to discuss the duties and obligations owed to journalists reporting from conflict zones like Syria. Rather, this article focuses on instances where journalists have ignored the protections due to prisoners under IHL in order to report about the events in Syria. I will try to recommend some basic practices which may assist journalists to carry out their work within the parameters of international law.
II. The Syria Conflict and the Potential for Journalistic Abuse
On 15 February 2012, CNN broadcast a dramatic (and probably illegal) video of one of its journalists who had bravely slipped into Syria and made contact with a unit of the fledgling “Free Syria Army” (“FSA”) CNN explained that it was not publishing the exact location of its reporter, appropriately, ”because of concerns for her safety.” The title of the story was “A Paid Killer in Syria Describes His Work.” The focus of the video was the story told by a wounded prisoner then being held somewhere in Syria by a unit of the FSA. The video broadcast shows bits of an interrogation conducted by one of the prisoner’s captors (with questions like “Why are you killing us?”) as well as a so-called “interview” between the CNN reporter and the wounded and blind-folded prisoner. With at least one of his armed captors present, the wounded prisoner “confessed” to the reporter that he had killed as many as 70 unarmed protestors on behalf of the Assad regime. The Syrian government had turned him, and others like him, into “monsters,” the prisoner explained. The CNN journalist described how the prisoner “seemed ready to give up the names” of other persons who participated in the kidnapping of opposition members. “There’s no way to confirm [his] story,” intoned the journalist. “Or be sure he hasn’t been coerced. But now he is a bargaining chip. His captors intend to trade him for some of those abducted.”
A starker case of journalistic abuse of international law standards was broadcast last month by Al Jazeera. There is no doubt that, tragically, the situation in Syria has degenerated into a full-blown civil war and is a non-international armed conflict for the purposes of IHL. In a story published on 17 October entitled “Captured Syrian Pilot Speaks to Al Jazeera,” a highly experienced correspondent “interviews” a Syrian pilot who had been shot down over the town of al-Bab and taken prisoner by members of the FSA. One of the pilot’s eyes was completely purple and swollen shut. As the filmed “interview” progresses in the presence of the prisoner’s armed captors, the journalist explains to the public: “We had no way to establish exactly how he had been treated before we got there, or what kinds of pressure he was under. But we wanted to hear his story.” Amongst other questions, the correspondent asked the prisoner: “Did you understand …. that you were bombing civilians?” The captured pilot appears frail and afraid in the video but the journalist explains that: “Most think the pilot’s innocence is feigned; a ploy to escape responsibility for his actions.”
In addition to the obvious propaganda value that the journalists’ “interviews” provide to one side of the Syrian conflict, the nature and tone of the questions and comments in the Al Jazeera broadcast implies the prisoner’s responsibility for war crimes; an especially dangerous allegation to make, given his vulnerable position, and a charge which may not be correct.
The creation and broadcast of these interviews raises important questions regarding the responsibilities of journalists in situations of armed conflict. To what extent should they be expected to understand the principles and obligations of IHL? To what extent should reporters, their editors and publishers apply these principles and rules to themselves and to their work?
Under the 1949 Geneva Conventions, prisoners of war must at all times be humanely treated. In addition, “they must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.” Furthermore, persons holding prisoners of war must in all circumstances treat them with respect and honour. No form of coercion may be inflicted on prisoners of war to obtain from them information “of any kind whatever.” More recently, article 45 of Additional Protocol I to the Geneva Conventions, applicable to international armed conflicts, grants the protections of “prisoner of war” status to persons taking part in hostilities who fall into the power of an adverse party. According to Additional Protocol II, similar protections are due to persons detained during non-international armed conflicts. For example, “their physical or mental health and integrity shall not be endangered by any unjustified act or omission.” Moreover, all wounded persons, “whether or not they have taken part in the armed conflict, shall be respected and protected” and no one should take advantage of their weakness in order to mistreat them or harm them in any way. Stated more broadly, according to a rule of customary international humanitarian law, persons hors de combat must be treated humanely.
The CNN broadcast described above, therefore, was a violation of at least the spirit (if not the letter) of IHL. CNN clearly made the prisoner an object of public curiosity and the fact that the prisoner was wounded only increases the likelihood that his captors took advantage of his weakness to exploit him for propaganda purposes. The CNN journalist herself acknowledged that she could not verify whether the prisoner was coerced into providing the information, but this circumstance did not stop her from performing her “interview” nor did it stop CNN from broadcasting the material with the knowledge that the status of the prisoner as a “bargaining chip” made him a likely subject of propaganda. We will probably never know the fate of this prisoner, whether the information attributed to him was true or not, or whether this broadcast had consequences for his safety and/or the safety of his family or others in Syria. The point, however, is that in this case, the journalist and CNN violated the tenets of IHL in order to produce a news story.
It is noteworthy, however, that at the time of the CNN interview, in February 2012, there was still debate amongst international organizations and human rights groups as to whether the ongoing violence in Syria constituted an armed conflict for the purposes of applying international humanitarian law. There was little doubt that the intensity of the violence in Syria at that time, particularly in places like Homs, Idlib and parts of Damascus, rose to the level required to constitute an armed conflict. But the existence of the second requirement for determining the existence of a non-international armed conflict, the organizational level of the disparate FSA units, was much less clear. In fact, due to the difficulties of gaining access to many parts of Syria, international institutions depended heavily on the observations of the limited number of courageous journalists who succeeded to enter the country and monitor the organizational capabilities of the growing insurgency at that time.
Not until 7 May 2012 did the President of the International Committee of the Red Cross (“ICRC”) publicly announce that the ICRC had determined that in two parts of Syria, the Governorates of Homs and Idlib, the unrest had reached the level of a non-international armed conflict under international law. In these two specific locations, the ICRC believed that the legal criteria of intensity and duration of violence, plus the organization level of the opposition armed groups known as the FSA, were present. That meant that in Homs and Idlib, at least, the parties to the conflict now had a duty to respect the rules of international humanitarian law, including the requirement that prisoners of war and others hors du combat be treated humanely.
However, in February 2012, three months before the CNN video was produced, there had been no such pronouncement from the world’s leading institutional authority on IHL. Did the journalist who made that video or her CNN supervisors have the obligation (or the ability) to perform a technical legal analysis concerning the organizational structure of the FSA for the purposes of determining the application of IHL? Could the journalist realistically have evaluated, for example, the questions relevant to this analysis e.g. whether the FSA was a unified belligerent force with a single chain of command stretching from its reputed commanders in Turkey down to the cities and towns and villages in Syria? Or was the FSA really a group of small, independent units operating in different locations? If the latter, could the journalist have analysed whether the different units coordinated their military operations? Were they all fighting for the same goals or did objectives vary along religious or ideological lines? Did they have the ability to communicate with each and to assist each other with logistical matters such as the re-supply of weapons, ammunition, clothing and medicine? Did FSA “soldiers” wear uniforms or at least some identifying markings, and did they respect the rules of IHL? Each of these questions can be difficult to measure in the best of times, by IHL specialists, and much more so in the violent and fluid environment of Syria. The assessment of each question impacts on whether the FSA constituted an “organized armed group”, for the purposes of determining whether, under international law, an armed conflict existed in all or parts of Syria, and thus, whether IHL must be respected.
Perhaps it would be unfair and unrealistic to place the responsibility to make determinations concerning the applicability of IHL on journalists, only a minority of whom could be classified as experts in the law of armed conflict. Nevertheless, international law will expect, for example, that all FSA commanders, be they an uneducated auto mechanic from Homs or a farmer from Idlib, will correctly apply the rules of IHL should these persons become commanders of FSA units. From this perspective, it does not seem unreasonable for the law to demand that all journalists – as well as editors and media executives who supervise journalists – learn and respect the basic principles of IHL. Moreover, the concept of humanity implies that “each individual is desirous of the treatment corresponding to his status and can therefore judge how he should, in turn, treat his fellow human beings.” Thus, even in situations where the existence of an armed conflict – and the application of IHL – may be unclear, common decency and ethics should warn any journalist against the use of “interviews” of detained persons.
Circumstances may arise where the publication of information in the media about prisoners and/or detainees may be beneficial for their interests. For example, the 1992 press photographs of emaciated prisoners standing behind barbed wire in the town of Prijedor, Bosnia and Herzegovina, cast the world’s attention on the operation of concentration camps by Bosnian Serb forces and the plight of non-Serbs incarcerated there. There is a distinct difference, however, between a still photograph that depicts the reality of detention conditions and an “interview” that extracts information from a prisoner which 1) may be false and 2) may place that prisoner and others in danger. The humanity principle underlying IHL may call for different judgements in different situations; but it should not permit the exploitation or endangerment of protected persons.
III. Possible Solutions to Reduce Confusion for Journalists and the Potential for Abuse of Detainees
In the edited volume, Crimes of War: What the Public Should Know, one contributor recommends that journalists keep a copy of the Geneva Conventions with them when working in conflict areas in order to better safeguard the rights and protections owed to them under IHL. In addition, journalists in war zones and editors and publishers who review their material should carry the Geneva Conventions and Additional Protocols as a tool to assist them to protect the dignity of other vulnerable persons who deserve the benefits of international law.
It is not my intention to advocate for limitations on freedom of expression. However, the right to receive and impart information carries with it certain duties and responsibilities. Thus, if journalists expect to receive the protections that IHL accords them, then international law, professional ethics and common decency should require them to perform their work without violating the rules and principles of IHL. The following six recommendations may help to ensure compliance with international law:
1. The amended ICRC commentaries to the Geneva Conventions should include a clear admonishment against the exploitation of prisoners by members of the media or others not directly associated with a party to an armed conflict;
2. Prior to their deployment, all journalists who cover armed conflicts (or situations of protracted violence that may not meet the legal threshold of an armed conflict) should receive sufficient instruction in the principles and rules of IHL so that they do not exploit prisoners or assist in their exploitation;
3. If journalists have any contact with prisoners-of-war or other detained persons, it should be limited to recording names, if requested, for the purposes of providing this information to the ICRC;
4. Major news outlets should retain legal advisers who will be available to address IHL issues presented by the work of journalists in the field, just as militaries use legal advisors to review and address legal issues that arise during the operations of their armies;
5. Furthermore, media outlets who cover armed conflicts should produce their own guidelines to prevent the broadcast of similar videos or the publication of such reports; and
6. To dissuade journalists from engaging in these kinds of activities, media outlets should pledge never to publish reports that violate rules of IHL and/or principles of humane treatment towards detained persons.
Adherence to these proposals would reduce the risk that belligerent parties to an armed conflict view journalists as propaganda tools of one side to the hostilities. Thus, in addition to ensuring that detained persons are protected from exploitation and other forms of humiliating or dangerous treatment, these measures also would improve the safety of journalists in the field.
To date, standard interpretations of IHL have opined that it is the detaining power which has a positive legal obligation to treat prisoners humanely as opposed to other individuals – like journalists – who may have contact with detained persons. One commentator suggested recently that perhaps the Geneva Conventions should be amended so that the prohibition against “public curiosity” also applies “to those who manufacture and distribute material that aids a government or non-state actors in the commission of crimes against POWs.” A ban so broadly expressed, however, would be subject to multiple interpretations (including virtually any news report that potentially supports a belligerent party) and could unfairly impinge on the right of the media to impart information and the right of the public to receive it. Moreover, the ICRC is presently revising its commentaries to the Geneva Conventions and the 1977 Additional Protocols. Thus, it may be more effective to insert a specific admonishment in the text of the commentaries about the exploitation of detained persons by members of the media or other individuals not directly associated with a party to the armed conflict.
It is possible for journalists to inform the public about the existence of prisoners-of-war and other detained persons, as well as their locations and general conditions, without contributing to the exploitation of these individuals for the benefit of their captors, the journalists, or both. Journalists can perform an invaluable service by locating, mapping and reporting about where prisoners are being held and by whom. Better training, more professionalism, and greater clarity in the law, however, are needed to avoid the situations of mistreatment of prisoners described in this article.
 “Lebanese Journalist Abducted by Rebel Group in Syria,” Committee to Protect Journalists, October 29, 2012, available at: http://cpj.org/2012/10/lebanese-journalist-abducted-by-rebel-group-in-syr.php.
 Under article 4 (A) (4) the Third Geneva Convention Relative to the Treatment of Prisoners of War (“GC III”) of August 12, 1949, persons entitled to the protections of “prisoners of war” include “war correspondents, …. provided that they have received authorization from the armed forces which they accompany who shall provide them for that purpose with an identity card….” Moreover, art. 79 of Additional Protocol I to the Geneva Conventions (“API”) provides that [j]ournalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1 … without prejudice to the right of war correspondents … provided for in Article 4A (4) of the Third Convention.” Thus, journalists enjoy all the protections afforded civilians by GC III and API. Nevertheless, two categories of journalists may be operating in an area of armed conflict: journalists accredited to the armed forces, and “freelance” journalists. If they were captured, the former would be prisoners of war, while the latter would be civilians protected under GC IV and API. ICRC Commentary to API, paras. 3266 and 3271, available at: http://www.icrc.org/ihl.nsf/COM/470-750102?OpenDocument.
 ICRC Customary International Humanitarian Law Study, Rule 34, available at: http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter10_rule34. My thanks to Robert Mahoney for this point.
 Arwa Damon, CNN, February 15, 2012, available at edition.cnn.com/2012/02/14/world/meast/syria-paid-killer/index.html.
 Anita McNaught, available at: http://www.aljazeera.com/video/middleeast/2012/10/20121017194751288492.html.
 Ibid, emphasis added.
 Ibid. ALSO CITE TO ABUSES BY JOURNALISTS ALLIED WITH REGIME.
 Article 13, GC III.
 Article 14, GC III. When journalists are held as prisoners of war, this includes “the right not to respond to interrogation.” William A. Orme, Jr., “Journalists, Protection of,” in Crimes of War: What the Public Should Know, Roy Gutman & David Rieff, ed., New York: W.W. Norton and Company, 1999, pp. 218.
 Article 17, GC III.
 According to Article 4 of AP II:
All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall at all times be treated humanely, ….
 Article 5 (2) (e) of AP II.
 Article 7 of AP II.
 ICRC Commentary to AP II, available at: http://www.icrc.org/ihl.nsf/COM/475-760012?OpenDocument.
 ICRC Study of Customary International Humanitarian Law, Rule 87, available at: http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule87.
 As depicted in another, horrific video posted recently on Youtube, apparently depicting the execution of a group of prisoners by the FSA, detained persons in Syria, in particular wounded prisoners, are extremely vulnerable to abuse. “Syrian Rebels Massacre 11 Prisoners in Saraqib, Syria.” Available at: http://www.youtube.com/watch?v=t5OLmnYpIXs&feature=endscreen&NR=1&oref=http%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3Dlvp1HXjXWIs&has_verified=1&bpctr=1352290880.
 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/19/69, 22 February 2012, para. 13, available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-69.pdf.
 Stephanie Nebehay, “Some Syria Violence Amounts to Civil War: Red Cross,” The Chicago Tribune, 8 May 2012, http://articles.chicagotribune.com/2012-05-08/news/sns-rt-us-syria-redcrossbre8470rd-20120508_1_list-of-syrian-figures-idlib-civil-war.
 For a view challenging a strict reliance on these two criteria for the purpose of determining the application of IHL, see Laurie R. Blank and Geoffrey S. Corn, “Losing the Forest for the Trees: Syria, Law and the Pragmatics of Conflict Recognition,” 46 Vanderbilt Journal of Transnational Law (2013), SSRN-id2029989.
 Until 7 May, all parties to the conflict, as well as states, international institutions and NGOs monitoring Syria could operate under the impression that international human rights law, rather than IHL, applied throughout Syria. Thus, the ability of the Syrian regime and its military and security forces to lawfully use lethal force against members of the opposition was quite limited. The ICRC’s announcement changed the rules of the game, at least in Homs and Idlib, and all belligerent parties in those regions had the right to use lethal force against military targets.
 In March 2012, the Syrian National Council, considered the leading group amongst a fragmented opposition movement, announced that it was forming a military bureau to coordinate the various armed opposition factions within Syria. But leaders of the FSA responded that it would not co-operate with this new bureau. “Opposition SNC Head Burhan Ghalioun ‘to Resign,” BBC, available at: http://www.bbc.co.uk/news/world-middle-east-18106592.
 ICRC Commentary to Article 13, GC III, available at: http://www.icrc.org/ihl.nsf/COM/375-590017?OpenDocument.
 Seth J. Frantzman, “The Media and War Crimes,” Jerusalem Post, 24 October 2012. The protection of prisoners against intimidation, insults and public curiosity represents moral values as well legal obligations. ICRC Commentary to Article 13, GC III.
 William A. Orme, Jr., “Journalists, Protection of,” pp. 218-220.
 See the Declaration on Freedom of Expression, InterAmerican Commission of Human Rights, Organization of American States, 2011, available at: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26&lID=1; Article 13, American Convention on Human Rights, November 22, 1969, O.A.S. Treaty Ser. No. 36; Article 19, Universal Declaration of Human Rights, December 10, 1948, U.N.G.A. Res. 217 A (III); Article 9, African Charter of Human and Peoples’ Rights, June 26, 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5.
 See Article 19, International Covenant on Civil and Political Rights, December 16, 1966, U.N.G.A. Res. 2200 (XXI) (holding that the exercise of the rights of freedom of expression, to seek, receive and impart information carries with it special duties and responsibilities, for example, to respect the rights or reputations of others); Article 10 (2), European Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, Euop. T.S. No. 5 (holding that the exercise of the freedom of expression and to receive and impart information carries with it duties and responsibilities, for example, to protect the health, reputation or rights of others or for preventing the disclosure of information received in confidence).
 Article 82, AP I.
 Frantzman, The Media and War Crimes.
 ICRC Commentary to Article 13, GC III, available at: http://www.icrc.org/ihl.nsf/COM/375-590017?OpenDocument.
 The commentary to Common Article 3 of the GCs also refers to the obligations of the belligerent parties to armed conflict, as opposed to other entities or individuals. “It is for the Parties to the conflict to conform to Article 3 and ensure the observance of all its provisions.” ICRC Commentary to Article 3, GC III, available at: http://www.icrc.org/ihl.nsf/COM/375-590006?OpenDocument.
 Frantzman, The Media and War Crimes.