According to a trophy video initially posted on YouTube but since removed, U.S. Journalist Jim Foley was beheaded by ISIS yesterday, further attesting to the group’s depravity. The FBI has concluded that the video seems to be authentic. Foley had disappeared in Syria in November 2012 while covering the war. He had not been heard from since. As we reported earlier today, Foley was apparently killed in retaliation for U.S. airstrikes in Iraq. Also shown on the video is another U.S. journalist, Steven Sotloff, who was kidnapped on the Turkish border with Syria in mid-2013. According to his captors, Sotloff’s life apparently hinges on what the United States does next in the conflict. [Update: Sotloff was apparently beheaded two weeks later]. Unprecedented violence directed against journalists has been one of many grim features of the war in Syria. Indeed, Syria has been declared “the most dangerous place in the world for journalists”. Other U.S. journalists are among the victims of this conflict. Maria Colvin was killed in 2012 when a media center was, apparently, deliberately attacked. Matthew Schrier was captured and tortured by the Islamist Al-Nusra Front; he miraculously escaped in July 2013. Austen Tice disappeared in 2012 and remains missing. The Committee to Protect Journalists (CPJ) has compiled records on over 60 journalists killed in Syria since 1992 in direct reprisal for their work, while caught in cross-fire, or while on a dangerous assignment. A number of journalists remain missing in Syria in addition to Tice and Sotloff. The kidnapping of journalists is often not widely reported in an effort to enable negotiations for their release.
To commemorate the great risks assumed by journalists, and on the day Maria Colvin was killed, the CPJ and Reporters without Borders (RSF) launched on February 22, 2013, “A Day Without News”. This campaign helped to raise awareness of the great risks assumed by journalists and prompt unprecedented action in United Nations. For example, under the presidency of the United States, the Security Council held an open debate on July 17, 2013, on the protection of journalists that built on Security Council Resolution 1738 of December 2006, which was devoted to this topic. That resolution recalled that
“the deliberate targeting of civilians and other protected persons, and the commission of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security, and reaffirms in this regard its readiness to consider such situations and, where necessary, to adopt appropriate steps;”
Following the kidnapping and murder of two French journalists in Mali in November 2013, the U.N. General Assembly adopted its first resolution dedicated to promoting the safety of journalists and calling for greater accountability for attacks on members of the media (Resolution 68/163 of December 18, 2013). Specifically, this resolution:
“Condemns unequivocally all attacks and violence against journalists and media workers, such as torture, extrajudicial killings, enforced disappearances and arbitrary detention, as well as intimidation and harassment in both conflict and non-conflict situations; … [and]
Urges Member States to do their utmost to prevent violence against journalists and media workers, to ensure accountability through the conduct of impartial, speedy and effective investigations into all alleged violence against journalists and media workers falling within their jurisdiction, and to bring the perpetrators of such crimes to justice and to ensure that victims have access to appropriate remedies.”
In December 2013, the Council hosted an Arria-formula meeting with members of civil society and NGOs, including Fatou Bensouda, the Chief Prosecutor of the ICC. The involvement of the ICC in these discussions was apt. It goes without saying that the deliberate killing or mistreatment of a war correspondent constitutes a war crime under international law. The killing or mistreatment of U.S. journalists is also a war crime under U.S. law, triggering the application of our domestic war crimes statute. (Other statutes also allow for the prosecution of the intentional killing of a U.S. citizen abroad). As we have discussed, the U.S. can exercise jurisdiction over war crimes only when they are committed by, or against, a U.S. national (or member of the Armed Forces of the United States) per 18 U.S.C. §2441. So, all of the harm to U.S. journalists described above can serve as the basis for U.S. prosecutions. Punishable acts of relevance to these attacks include: torture, cruel or inhuman treatment, murder, mutilation or maiming, and taking hostages. The latter crime is defined as:
“The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.”
Obviously, securing the custody of defendants poses the real challenge. In this regard, the apparent involvement of the FBI is welcome.