The Scourge of Violence Against Journalists
The recently concluded high-level conference in Vienna, themed “Safety of Journalists: Protecting Media to Protect Democracy” and held on Nov. 3-4, has renewed attention to accountability for the violence and similar abuses that journalists endure. The commentary here is distilled and enlarged from my remarks at the conference, though it is not verbatim as I did not speak from a script and instead engaged in a Q&A-style discussion.
In October 2018, as many will recall, the world was treated to the horror story of a journalist who was disappeared in his country’s consulate in Istanbul. The report of the U.N. Special Rapporteur’s investigation into his violent death makes more ghoulish reading than some of the gorier kinds of horror movies out of Hollywood.
The circumstances of Jamal Ahmad Khashoggi’s story might be unique, but his killing as a journalist was not. By all accounts, the risk of being murdered is a plight that confronts journalists in many parts of the world. According to UNESCO, at least 1,564 journalists have been killed since 1993.
Just as distressing is the story of impunity that follows most of these killings. Again, according to UNESCO, nine of 10 such killings result in no investigation, let alone prosecution.
At the High Level Panel of Legal Experts on Media Freedom, an independent Venice Commission-style advisory body (on which I serve), these statistics are a matter of great concern. The High Level Panel has issued or sponsored a number of reports, especially encouraging states to investigate and prosecute these crimes. The Panel has specifically endorsed a report recommending actions that the international community can take to tackle this problem of impunity: the aim is to enhance accountability for violence and other abuses against journalists. Those recommendations include the following:
- There should be set up a standing international task force uniquely dedicated to investigations into abuses against journalists. That international task force will immediately spring into action to conduct investigation or support national authorities and NGOs into conducting genuine investigations; as well as collect and preserve evidence of abuses. That standing mechanism should be composed of vetted and trained investigators, forensic experts, and specialist lawyers. Ad hoc international precedents for such a mechanism already exist in the shape of the International, Impartial and Independent Mechanism (IIIM) for Syria, the Fact-Finding Mission for Myanmar (IIFFM), the Independent Investigative Mechanism for Myanmar (IIMM), and the U.N. Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD).
- In addition to a system for genuine independent investigations, the U.N.’s capacity should be strengthened to hold accountable (including politically) the worst abusers of journalists. This can be done in the following ways amongst others: (1) The investigative task force should be made available to the U.N. Special Rapporteur on Freedom of Expression and other U.N. entities that report on abuses against journalists. (2) The U.N. should create the position of a Special Representative of the U.N. Secretary General for the Safety of Journalists. It will give increased political weight to U.N. efforts to follow up on investigations into attacks on journalists. (3) The U.N. should systematically present to the Security Council and the General Assembly—and release to the global public—lists of countries and armed groups that are the worst perpetrators of attacks on journalists.
A Reflection on Using Existing Framework of International Law
The foregoing objectives must be pursued. Yet, the question remains whether there are other complementary ways that the objective of accountability can be pursued now or in future, together with any mechanism that will be created. A notable instance of such complementarity would be the possible uses of the outcomes of investigations conducted by the proposed special investigative task force that the High Level Panel has endorsed.
Is it useful to explore or keep in mind possibilities offered by the existing framework of international criminal law geared towards prosecution? In other words, is it possible to bring the killing of journalists within the broader scope of international crimes? Are there advantages to doing so?
Yes, is the answer to all three questions.
In international law, the following four crimes stand out as international crimes: the crime of aggression, the crime of genocide, war crimes, and crimes against humanity. There is no question that an act of violence or other abuse committed against a civilian during war would qualify as a war crime if linked to that war. The same goes for violence against journalists. For, they too are civilians.
But, of all four core international crimes, special attention should be paid to crimes against humanity. They are committed in peacetime and as in war. They are defined in terms of certain forbidden conducts committed as part of a widespread or systematic attacks against a civilian population. Those conducts include extermination, apartheid, enslavement, and deportation. But also the following crimes that are readily committed against journalists:
- Rape or other forms of sexual violence of comparable gravity
- Enforced disappearance (as in what happened to Jamal Kashoggi)
- Unlawful imprisonment and other severe deprivation of liberty
- Persecution of an identifiable group on any number of grounds internationally recognised as impermissible
- Other inhumane acts of a comparable kind.
International law doesn’t require that any or all these crimes must be committed against the same class of victims for the situation to amount to crimes against humanity. It is enough that any one (or a combination) of them is committed against a civilian population on a widespread or systematic basis. In those circumstances any person targeted as part of the broader attack will be seen as a victim of crimes against humanity. A hypothetical example could be a journalist of a different race or nationality targeted for reporting on the crime of apartheid or persecution (both of which are crimes against humanity), the primary victims of which are a certain group in a particular country different from that of the journalist. That journalist would be a victim of a crime against humanity.
The Value of Exploring the International Crimes Option
But what difference might it make in the quest for accountability if acts of violence or other abuses of journalists are possibly characterised as an international crime? The answer: It makes plenty of difference.
Prosecution at the International Criminal Court
To begin with, the proper characterization of a conduct as a crime against humanity would bring the conduct within the jurisdiction of the International Criminal Court: if the offence took place within the territory—or if the accused is a citizen—of a member state of the Rome Statute.
Beyond the possibility of prosecution at the ICC, the Rome Statute also provides an additional mechanism for prosecution of crimes against humanity, as States parties are required to enshrine the Statute’s norms in their national criminal law, through domestication. Many have done so, and others are expected to follow.
Furthermore, characterization of a conduct as a crime against humanity offers the possibility of universal jurisdiction: even aside from the Rome Statute, given the proscription of crimes against humanity in customary international law. Thus, any country can claim jurisdiction to prosecute the crime. The upshot is the removal of the crime from the exclusive jurisdiction of the national or local authorities that may after all be complicit in the crime through act or omission. As things now stand, certain countries, notably Germany (see here and here ) and Denmark (see here) are known to exercise universal jurisdiction to prosecute international crimes, especially war crimes.
It is also to be noted that the prospect of universal jurisdiction for crimes against humanity will be greatly enhanced by the eventual adoption of a convention on the prevention and punishment of crimes against humanity which the International Law Commission has now proposed to the U.N. in a set of draft articles. This will be a welcome development for accountability in international law, including in accordance with the hypothesis suggested in this commentary.
No Guarantee of Immunity
Another important value of exploring possibilities offered by international criminal law concerns questions of immunity. Most countries constitutionally recognise immunity from judicial proceedings for their senior officials, especially heads of state while in office. And states reciprocally recognise immunity for each other’s senior officials, especially heads of state. But, such immunity is not assured for any state official including a head of state implicated in an international crime. Immunity is definitely ruled out in relation to the proceedings of international criminal tribunals in the exercise of proper jurisdiction that they have. While, as noted, some states are inclined to respect immunity of officials of foreign states in national criminal proceedings, that inclination remains controversial, especially in the light of the Pinochet case in UK House of Lords, which cast serious doubt on the continued correctness of such immunity for international crimes when prosecuted in national courts. All of which is to say, immunity is currently not assured for crimes against humanity, even when prosecuted in foreign national courts let alone when prosecuted before an international criminal tribunal.
There is no reason to resign hope in the face of the distressing story of impunity that all too often attends the cycle of violence and other abuses that are inflicted upon journalists. Thus far, impunity has persisted, as accountability has been left in the exclusive province of states.
In the circumstances, the time has now come to consider different pathways to accountability. These approaches include forward-looking measures that should be adopted by the international community—notably, the establishment of an international expert investigative task force. In the meantime, it is possible also to consider present possibilities offered by the existing framework of international criminal law. These could give institutional jurisdiction to the ICC or universal jurisdiction to every state, by characterizing (where possible) particular acts of violence against journalists as an international crime. It is to be expected that the fact pattern in some cases will accommodate that possibility less readily than it will in others. But, much deterrence will result from the cases—however few—where that possibility will anchor accountability.