It is not only on the global level that actors crucial to the promotion and development of international humanitarian law are to be found: regional institutions that are relevant to humanitarian law exist throughout the world - in America, Africa, Asia, Australia and Europe. For reasons of space I will limit myself to two European institutions, the European Union and the Council of Europe. They are very different networks within the broader context of global government.
A. The European Union
As the UN the European Union had, in its early days, a somewhat distant relationship to international humanitarian law. The European Union and its predecessor, the European Community, initially focused on economic and political questions and began to deal with human rights issues only afterwards, and gradually. It was not until the late 1980s that the organization began to take into account the convergence of various branches of international law, including humanitarian law. The conflict in the former Yugoslavia and the Gulf War in 1991 were the turning points.622 Since then, the European Union has referred to international humanitarian law on a regular basis. Today the European Union deals with international humanitarian law on three levels: the political and legal, the financial and the operational.
One of the principal challenges to the application of international humanitarian law in contemporary situations of warfare remains the lack of political will by parties to armed conflicts to respect international humanitarian law and to prevent its violations. Luis Michel, the former European Commissioner on International Cooperation, Humanitarian Aid and Crisis Response, requires the European Union to take a leading role in enforcing this will of the international community enforcing this will of the international community:
“Il est clair que l’Union européenne peut et doit exercer un rôle de premier plan pour faire mieux respecter le droit humanitaire, à la mesure de son autorité politique et morale reconnue. Il en va du respect par l’Union Europénne de ses propres valeurs éthiques fondamentales».623
During the last five years, the European Union therefore undertook major steps concerning its politics on international humanitarian law: In December 2005 the Council of the European Union adopted the European Union Guidelines promoting compliance with international humanitarian law624. The Guidelines are the basis for the European Union.625 Union to incorporate international humanitarian law as a core consideration of its Common Foreign and Security Policy and of the Union’s relations with third States.626 A second landmark in this context was the European Consensus on Humanitarian Aid.627 The Consensus can be seen as a common vision guiding all common European Politics on humanitarian aid. The document names as a common objective “to provide a needs-based emergency response aimed at preserving life, preventing and alleviating human suffering and maintaining human dignity wherever the need arises if governments and local actors are overwhelmed, unable or unwilling to act”.628 While doing so all European Union actors are firmly committed to uphold and promote the fundamental principles of humanity, neutrality, impartiality and independence. The Consensus further states, that the European Union will strongly and consistently advocate for the respect of international law, including international humanitarian law and it refers to the Guidelines mentioned above and the commitment to operationalise them in the external relations of the European Union.
Next to these general pillars, different institutions of the European Union seem very likely to incorporate international humanitarian law into their mandates. The European Council e.g. adopted some key instruments in the context of means and methods of warfare, like a European Strategy against the proliferation of Weapons of Mass Destruction629. The newly built position of a High Representative of the Union for Foreign Affairs and Security Policy is another good example. He or she can and should endorse and strongly advocate the application of international humanitarian law630. Also the European Parliament offers a good forum to bring up and discuss themes relating international humanitarian law631.
The second level of the Union’s contribution to international humanitarian law has a financial character. The European Union – according to internal sources - is the world’s leading aid donor632. It provides 55% of international humanitarian aid. Of this amount, 30% comes from the ECHO and 25% directly from Member States. ECHO transfers those funds to others, such as various UN agencies, NGOs and the ICRC. The financial aid follows the principle of “Good Humanitarian Donorship”, listed as one of the common principles and good practices in the European Consensus633.
The third level of the European Union referring to international humanitarian law is the operational one. Several forces of the Union are placed in conflict zones during or after an armed conflict. Their mandates cover humanitarian missions, peace keeping and peace enforcement634.
In the last few years, the European Union regularly calls upon all warring parties to comply with the standards of international humanitarian law and has consistently condemned breaches of humanitarian law in conflicts like those in Afghanistan, Iraq, Chechnya or Sierra Leone635. The Union also had a clear position in favour of the establishment of the ICC636. Jakob Kellenberger, President of the ICRC, sees the main challenge of the European Union in determining appropriate mechanisms and courses of action in order to put in practice the legal instruments in existence637.
«La communauté international a un nom, c’est l’humanité. Forger pour cette humanité des valeurs communes fortes et justes, partagées par tous, en faire les repères intangibles d’une éthique universelle, c’est mon ambition, c’est l’ambition européenne, cela doit être notre engagement»638.
B. The Council of Europe
The main purposes of the Council of Europe, which was established in 1950, are to protect human rights, the rule of law and democracy639. The Council has played an outstanding role in the development and promotion of human rights throughout Europe and beyond it. Its most notable achievements are the drafting of the European Convention of Human Rights and the creation of the European Court of Human Rights, a unique mechanism for ensuring judicial protection of human rights on the international level. The Council’s main area of involvement is the protection of human rights. However, certain institutions of the Council of Europe also concern themselves with international humanitarian law. After all, as the preamble to its Statute declares, the Council pursues world peace based on justice. In Chapter III, we examined the practices of the European Court of Human Rights with regard to international humanitarian law. Most of the other institutions of the Council of Europe also play a role of one kind or another in the promotion of humanitarian law.
Like the bodies of the United Nations, the International Court of Justice and the European Union, the Council of Europe began to take heed of international humanitarian law only a couple of decades after its founding. Since the 1980s, institutions of the Council - the Parliamentary Assembly, the Committee of Ministers, and sub-Committees of both bodies - have referred to humanitarian law on a regular basis. They emphasize the importance of the Geneva Conventions, monitor the human rights situations in war zones, call upon all warring parties to comply with the standards of humanitarian law and condemn breaches of humanitarian law in specific conflicts640. A case in point is the European Commission for Democracy through Law, better known as the Venice Commission, which - in its Opinion of 12–13 December 2003 on “The Possible Need for Further Development of the Geneva Conventions” – examined various questions concerning the further refinement of the founding principles of international humanitarian law641. It gave particular attention to whether humanitarian law in its present state was capable of dealing adequately with the new forms of terrorism and whether terrorists should not enjoy complete protection under humanitarian law. The Commission concluded that when it is applied correctly, existing humanitarian law affords adequate protection in the fight against terrorism. That is, it saw no urgent need for further development of the Geneva Conventions, but it also did not intend to discourage the development of humanitarian law642.
The role of non-governmental organizations in international humanitarian law
Non-governmental organizations (NGOs) working in the area of international humanitarian law have functions similar to those working in other areas. In general, their tasks are: monitoring, opinion making, standard-setting, fact-finding, and exposing violations643. In a way, NGOs represent “international civil society” or “world opinion”644. For the purposes of humanitarian law, the public exposure of violations is an important and influential supplement to the powerful but discreet activities of the ICRC645. As one of the first NGOs to involve itself with issues of international humanitarian law, Médecins Sans Frontières has nearly four decades of experience in monitoring compliance with humanitarian law; this NGO emerged from the Red Cross Movement after the Biafra War in the late sixties; it defined the humanitarian space in which it acts in a similar way as the Red Cross but instead of choosing discretion in order to better serve the victims its policy is to speak out about what it witnessed in the field.646. Human Rights Watch, Amnesty International, and others have also made considerable contributions to expert and public reporting, analysis and advocacy647. As a result of the efforts of NGOs, public interest in and understanding of humanitarian law has grown significantly in recent years648.
While some NGOs are concerned with the legal framework of international humanitarian law, others provide humanitarian assistance to civilian populations649. I would like to focus on organizations of the former type. They often link various branches of law - humanitarian law, human rights law, refugee law and others that are pertinent - whereas the “institutional guardians” of each of these bodies of law specialize in their particular areas650. NGOs introduced humanitarian considerations into disarmament negotiations and achieved astonishing results. Furthermore, NGOs are particularly keen to create networks of organizations working in the same or in similar areas. But they also try to link up actors of many different kinds. In international humanitarian law, the growing association between NGOs and professional military analysts and theorists is one example. For instance, during the Gulf Wars, and in Kosovo and Iraq, Human Rights Watch produced sophisticated and influential bomb damage assessments in order to juxtapose the conduct of war with standards of humanitarian law such as the principles of proportionality and the prohibition against the infliction of unnecessary suffering651.
Let me give two examples of NGOs’ efforts bearing fruit: the result in both cases was a total ban on weapons whose use was widespread and of long standing.
A. Banning anti-personnel mines652
The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, also known as the Ottawa Convention or the Mine Ban Treaty, was adopted by the Diplomatic Conference on a Total Ban of Anti-Personnel Land Mines at Oslo on 18 September 1997. It was opened for signature in Ottawa on 3 December 1997 and entered into force on 1 March 1999, half a year after the 40th instrument of ratification had been deposited.
The International Campaign to Ban Landmines (ICBL) played an important role in the adoption of the treaty. The campaign was launched in 1992 by a group of six NGOs: Handicap International, Human Rights Watch, Medico International, Mines Advisory Group, Physicians for Human Rights and Vietnam Veterans of America Foundation. Having witnessed the appalling destruction wrought by anti-personnel mines on the communities in which they were working, these NGOs were determined to bring about a comprehensive solution to the issue. The formation of ICBL enabled them to coordinate their activities653. At the time, the movement did not expect to have the impact that it did. As Jody Williams, who won the Nobel Peace Prize (together with ICBL) in 1997, wrote a few years later: “When the [ICBL] was formally launched in October of 1992, few imagined that the grassroots movement would capture the public imagination and build political pressure to such a degree that, within five years, the international community would come together to negotiate a treaty banning antipersonnel landmines.”654 The campaign grew steadily after its inception - it would eventually include 1,400 NGOs - and was conducted in more than 90 countries. Williams described it in this way:
“The overall strategy of the International Campaign has always been to press for national, regional and international measures to ban landmines - and in the post-Treaty period, to insure its universalization, implementation and Treaty compliance. Because the Campaign is a loose coalition, spread all over the world and working at a number of levels, clear and consistent communication has been critical to its success.”655
Another crucial point was the fact that NGOs changed the nature of the debate - considerations of political and State security were displaced by those of humane values - drawing the attention of the media and the general public to the issue, and ultimately educating States about the limited military usefulness and the appalling consequences of the use of landmines656. They argued that every day 70 persons were badly injured, or even killed, by landmines; the great majority of these were civilians whose lives were being imperilled years after hostilities had ended. The ICRC, with its expertise in this area, played a prominent role in this campaign.
More than 10 years after the Convention’s entry into force, the ICBL is still active, and lobbying for: “Implementation of the Convention (i.e. reporting by States Parties, destruction of stockpiled mines, adoption of national implementation measures such as legislation and financial assistance for mine clearance and victim assistance); Humanitarian mine action programmes that are geared to address the needs of mine-affected communities; Support for landmine survivors, their families, and communities to enable them to deal with the immediate aftermath of an injury and the medium- and long-term consequences; Universal membership and the promotion of the spirit of the Convention through lobbying of non-members and of armed opposition groups to halt mine use, production or transfer, wherever this takes place.”657 The ICBL and other NGOs pursue these goals by actively participating in inter-State (review) processes, cooperating with the media, organizing public events, undertaking research and monitoring implementation of and compliance with the Convention658.
NGOs play a crucial role in pushing for universal acceptance of international conventions and compliance with their provisions. They monitor and, when necessary, condemn and stigmatize breaches of international law, forcing States and the international community into action.
B. Banning cluster munitions
The Convention on Cluster Munitions, which was adopted in Dublin by 107 States on 30 May 2008 and signed on 3 December of the same year, brought about a total ban on cluster munitions. It does not permit the use, stockpiling, production or transfer of cluster munitions under any circumstances. At the time of writing, 104 States had signed and 30 States had ratified the Convention659. It entered into force on 1 August 2010. The Convention is the result of the ‘Oslo process,’ which got under way in February 2007 with a global conference on cluster munitions660. This result was achieved within a remarkably short period because of close cooperation between like-minded States, international organizations and civil society: the Cluster Munitions Coalition, the ICRC, the UN, and many States were involved.
The Cluster Munitions Coalition, which began the worldwide campaign for a ban on cluster munitions, is a network made up of more than 200 civil society organizations from more than 80 countries, and with a number of different interests: disarmament, peace and security, human rights, assistance for victims, the clearance of cluster munitions, women’s rights, and so on. It is an international organization whose aim is to raise awareness of the harm done to civilians by cluster munitions; and it now works for a better protection of civilians from these weapons by promoting universal adherence to and full implementation of the Convention on Cluster Munitions. NGOs throughout the world are involved on the national level in the task of educating governments, the public and the media about cluster munitions: the Coalition supports these efforts661. The Coalition has the main objective to protect civilians from the effects of cluster munitions. It propelled the emergence of a global norm prohibiting the use, production, stockpiling and transfer of cluster munitions and promotes its universal ratification662. The Coalition also promotes effective implementation of and full compliance with the Convention by States Parties, encourages States not yet party to the Convention to take similar steps, and ensures effective monitoring of all such efforts by civil society663.
The “Oslo process” illustrates the importance of NGOs in setting standards664. The NGO in this instance, the Coalition, lobbied intensely: for instance, it passed out a great deal of information, mainly to delegations from the Third World, where expertise in the area of cluster munitions was scarce. This was one way for the Coalition to put pressure on governments that intended to weaken the proposed total ban. It also used other methods: informing the public by organizing meetings and awareness campaigns and lobbying elected representatives outside the confines of official conferences665. Here again, civil society organizations did not involve themselves with military logic and strategic thought. They invoked humanitarian values: they said that these weapons “offend[ed] the public conscience” and “[went] against everything we stand for as humanitarian and human rights organizations.”666 The Coalition’s efforts were successful: they were able to persuade governments to adopt a treaty enacting a total ban on cluster munitions667.
The media’s role in international humanitarian law668
"What we know about our society, indeed about the world we live in, we know through the mass media": this is the opening sentence of Die Realität der Massenmedien by Niklas Luhmann, the German legal scholar and sociologist669. Luhmann's point is especially true when it comes to war: this was confirmed yet again in Iraq in 2003. Media coverage has become an integral part of conflict, which often takes place as much at home – the struggle for public opinion – as in the war zone. The sophisticated communications technology now available has altered the role of the war reporter and blurred the difference between information and manipulation.
The media have a decisive influence on public opinion: they create interest and, in some instances, vigilance or a state of alertness. They have been termed a “public watchdog”670. Their enormous influence can be used for purposes that are benign, but it can just as easily be misused671. The media play an important role in situations of armed conflict and in humanitarian law.
A. The media: “Public watchdog” and objects of instrumentalization
War is now a media event all over the world672. With the advent of the modern mass media, and particularly since World War I, war reporting has come to play an important role in forming public opinion – to such an extent that the media have been accused of complicity in acts of war on several occasions673. Propaganda campaigns were a feature of both World Wars; networks of propaganda for controlling and mobilizing public opinion were built up and technical innovations like radio and television put into service for the military and subjected to military censorship674. Pictures of war were produced and publicized with the deliberate intention of winning public support for war675. The media were involved in this process: both willingly and unwillingly.
The Vietnam War of the mid-1960s is considered to be the first “television war.” With the emergence of television, it became more difficult to tell two different stories about one and the same war. Great distances did not prevent information from travelling quickly. The unrelenting coverage of events in Vietnam is considered to be one of the main reasons why public opinion in the US shifted and the US government came under increasing pressure to change its policies676. In this instance, media coverage revealed breaches of international humanitarian law and the suffering of civilians. And it helped to end the war. But this kind of coverage was possible only because journalists were allowed to move about relatively unhindered and were able to report freely on all aspects of the war. The war in Vietnam has also been called an “uncensored war.”677 The U.S. Supreme Court in New York Times co. v. United States678, in striking balance in favour of Freedom of speech, greatly contributed to this fact.
When the Gulf War erupted in 1991, the U.S. Administration and the military drew on the lessons of the war in Vietnam. Journalists were prevented by the US forces from moving freely and reporting was censored. Video material was published only when authorized by the military679. In some cases, journalists were intentionally misled, and sometimes information was revealed to the public only because doing so was thought to be helpful from a strategic point of view. At the same time, the Gulf War was one of the first wars to be subjected to non-stop coverage on television.
The use of media for military propaganda has a long tradition. Since the Second World War, and most notably in recent years, the use of media in times of conflict to influence public opinion has grown in importance and sophistication680. The attacks on the World Trade Centre in New York in September 2001 were regarded as an act of war by the US government. Never before had such an event been followed “live” on television all over the world.
In the 2003 Iraq war, a new strategy for controlling journalists emerged, in the form of “embedded journalism”681. About a hundred journalists were selected by the United States Department of Defense, prepared for the war in special courses and “embedded” with troops on the front: they lived with the troops, moved around in the conflict area with the troops in military vehicles, etc. It was claimed that these members of the media were independent, but in fact they moved with the armed forces and reported directly from places where hostilities took place682. In this sort of journalism, inevitably, it was not the journalists who decided what to report.
Private videos brought to light atrocities commited at Abu Graib. Also, a decade after massacre, private videos influenced both public opinion about the Srebrenica affair and the actual judgement of the International Criminal Tribunal for the former Yugoslavia. The Hirondelle foundation has been working to ensure that in the areas of Africa affected by the “forgotten conflicts” there are radio stations that inform and influence listeners by means of humanitarian “messages”. Thus, although the media frequently fail to provide the accurate reporting needed by the public, some members of the media are putting forward solutions to the problem..
B. Responsibilities of the media
Obviously, the media can use their influence for better or for worse. They have done so during wars – at their onset and up to the end - with positive and with adverse consequences. On the one hand, they can be instrumentalized by governments and the military, take sides of their own accord, stir up hatred, incite one ethnic group to attack another, fan fear or dehumanize the enemy. For example, during the 1992 war in Bosnia and Herzegovina, the media was harshly criticized for “[putting] out false and inflammatory information and [stirring] up the climate of hatred and mutual prejudice that fuels the conflict.”683 Radio Télévision Libre des Mille Collines (RTLM) played a part in the Rwandan genocide of 1994. It incited people to commit genocide and crimes against humanity. In The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, the International Criminal Tribunal for Rwanda declared that:
“… [RTLM’s broadcasts were] a drumbeat, calling on listeners to take action against the enemy and enemy accomplices, equated with the Tutsi population. The phrase ‘heating up heads’ captures the process of incitement systematically engaged in by RTLM, which after 6 April 1994 was also known as ‘Radio Machete.’ The nature of radio transmission made RTLM particularly dangerous and harmful, as did the breadth of its reach. Unlike print media, radio is immediately present and active. The power of the human voice, heard by the Chamber when the broadcast tapes were played in Kinyarwanda, adds a quality and dimension beyond language to the message conveyed. Radio heightened the sense of fear, the sense of danger and the sense of urgency giving rise to the need for action by listeners. The denigration of Tutsi ethnicity was augmented by the visceral scorn coming out of the airwaves - the ridiculing laugh and the nasty sneer. These elements greatly amplified the impact of RTLM broadcasts.“684 All three of the accused were found guilty of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide and crimes against humanity.
However, the media also often use their influence in more benign ways; they often meet their responsibilities. The media have, during the course of a number of conflicts, reminded States of their duty to comply with humanitarian law and repeatedly called attention to breaches of international humanitarian law by various parties. The primary role of the media is to investigate facts. And that may lead them to uncover violations of human rights and humanitarian law, and promote compliance with international humanitarian law. Like other actors in this area, the media can – and often do – indirectly contribute to the development and implementation of humanitarian law, e.g. the protection of civilians685 and the prosecution of war criminals. It has been argued that “the strongest possible case for respect for the Third Geneva Convention [on the treatment of prisoners of war] was in fact made when the infamous pictures of starved prisoners of war hit the front pages worldwide.”686 Thus, “journalists can be partners in humanitarian endeavour by reporting appropriately on acts of war, i.e. by holding parties to conflict responsible under specific articles of the Geneva Conventions.”687Furthermore, the media can contribute to public opinion by serving as a force for peace. Since public opinion has a decisive influence on decisions about war and peace – remember the war in Vietnam – careful and purposeful media reporting can, indirectly, do so as well688. Broadcasting images of prisoners of war
The images of US prisoners of war in Iraq and of hooded Iraqi prisoners behind bars that were circulated throughout the world were met with all the outrage, indignation and anger that could have been expected. On several occasions, in the territory of States involved in the war, the media showed images of prisoners of war, sometimes in humiliating situations and apparently being intimidated. Those images were also taken up and broadcast by the television networks of other countries not involved in the war, unleashing a public debate around whether broadcasting of such images was lawful or whether it constituted a breach of international humanitarian law. According to Article 13 of the Third Geneva Convention, prisoners of war "must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity". It follows from this article that the broadcasting of such images is not lawful if the prisoners' faces are recognizable. It should be pointed out that showing images of prisoners of war is not explicitly forbidden under Article 13. However, the generally accepted interpretation is that it is prohibited to show images of identifiable prisoners of war.689
The question also arises as to whether it is a breach of international humanitarian law for television networks in other countries to pick up such prohibited images, and whether non-belligerent States are obliged to refrain from broadcasting them on their national networks. In practical terms, rebroadcasting unlawful images is also a breach of Article 13 of the Third Geneva Convention since, under Article 129 of the Third Geneva Convention, all the States party to that Convention are obliged to take measures to uphold the Convention and to "suppress all acts contrary to its provisions".690 As the Article is addressed to all the States party to the Convention and not only to belligerents, it follows that neutral countries too have to take such measures. Governments can therefore at least be expected to give appropriate instructions to their public broadcasters and their supervisory bodies. If the initial broadcasting is prohibited, there appears to be a justification for prohibiting rebroadcasting of the material and for requiring the States concerned to take measures to prevent it. In connection with the war in Iraq, there were only very few instances where such measures were taken for the sake of compliance with international humanitarian law. By way of example, the French national regulatory authority for radio and television, the, decided that the faces of prisoners of war had to be electronically blurred when they were broadcast or alternatively that they should only be shown from behind.691
However, unblurred images of prisoners of war and of the dead are sometimes used deliberately as instruments of psychological warfare and war propaganda to demoralize the enemy. It is therefore pertinent to ask what legal status should be given to facilities that broadcast of such images in wartime.
These examples demonstrate the importance of the media’s role in encouraging compliance with humanitarian law. As Niklas Luhmann has said, we must be aware of the fact that what we know about war, we know through the media. Keeping that in mind, it is certainly appropriate to ask, “whether journalists have a responsibility to report on armed conflicts in terms of what constitutes a violation of international humanitarian law.”692 Several attempts have been made to regulate the nature of reporting; and some people have called, less ambitiously, for responsible and careful reporting. Several organizations have suggested that ethical considerations should figure more prominently in the relationship between politics and the media. They propose a change of paradigm: from war journalism to a journalism of peace. Put another way, what they are saying is that peace should be the vital aim of all journalistic involvement with conflicts. This should not happen in such a way as to cause the media to lose their objectivity and neutrality, but in a way that militates against the instrumentalization of the media, calls upon and enforces the qualities of neutral and objective reporting to maintain peace, and promotes respect for the principles of humanitarian law. (Unclear. How can a “way” do all this?) There seems to be widespread agreement that war is too important a matter to be left completely to the military and that, especially in war, journalists have a central role to play in providing information, offering an alternative view, raising public awareness and, ideally, in educating their audience. Their work is of value only if it is regarded not as a trade, a business and a vehicle for senseless sensationalism, but as having a higher purpose, underpinned by professional ethics, with an educational role and firmly rooted in law.
Looking back to the First World War, Walter Lippmann, a well-known publicist of the time, observed that nobody actually saw the war: neither men in the trenches nor the commanding general; and that, what the correspondents saw, occasionally, was the terrain over which the battle had been fought and that they was being reported day by day was what they were told at press head quarter.693 Things have changed since. Mass media are omnipresent and have an enormous responsibility. They are responsible for informing the public and this will always prompt attempts by the media to manipulate information or by some to manipulate the media. Wide-ranging and competitive reporting sharpens people's awareness of issues related to human rights and to humanitarian law. Journalists are a force for public accountability. It is in the public's interest to have reliable information. The journalist's job is to provide it.
C. Protection under International Law
In order to be able to responsibly fulfil their proper functions, journalist need – in peace as well as in war – to be granted a space of liberty in which to operate profesionally; in war they need a special protection; and media infrastructers must be protected from the effects of war.
1. A space of liberty
Such liberty is, first of all, garanteed in human rights law. Article 19 para 2 of UN-Covenant of Civil and Political Rights provides that everyone “shall have the right to freedom of expression”. Similar garantees are provided for in State Constitutions. They are, as a general rule, also applicable in times of armed conflict. However, freedom of expression may – as is expressly stated in Article 20 of the Covenant, may not be used for purposes of propaganda for war and it is further stated in this Article that any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law but special limitations on the freedom of expression are permitted, and the process of weighting liberty of communication and public interest has proved to be delicate in judicial practice. The European Court of Human rights has on several occasions ruled that freedom of the press must be accompanied by duties and responsibilities. It is not always a simple matter, however – as demonstrated by the Jersild case, in which a journalist interviewed racists and broadcast their views – to know where to draw the line between press freedom and criminal responsibility.694 A similar reasoning is to be found in domestic jurisprudence when interpreting corresponding provisions in domestic law. The New York Times decision of the U.S. Supreme Court is a case in point . Freedom of speech gave greater priority over wishes the powers of the U.S. President.
Excursus: The Randal affair
The tightrope walked by war correspondents, between responsibility and freedom of opinion and of expression, is illustrated especially well by the Randal affair. Jonathan Randal worked for several years for the Washington Post. In an article he wrote in 1993, he quoted the former Bosnian-Serb housing minister Radoslav Brdjanin as follows: "Those unwilling to defend [Bosnian-Serb territory] must be moved out to create an ethnically clean space." In January 2002, Randal was subpoenaed to testify before the International Criminal Tribunal for the former Yugoslavia in the case against Brdjanin, who was charged with persecution and expulsion. The Tribunal affirmed that Randal's testimony would be useful for the case. Randal refused to appear before the Tribunal. In June 2002, The Trial Chamber confirmed the subpoena. Randal appealed. He explained to the Appeals Chamber that court testimony from members of the press corps could result in damaging the press’s ability to report from war zones. The Tribunal, he stated, had made two errors. The first was its failure to recognize that as a journalist he should enjoy a special status that freed him from the obligation to give evidence. The second error, he said, was that he had been subpoenaed by mistake. Regarding the first error, Randal said that covering wars without the special status he referred to would imperil both the journalist and his sources, and that if journalists were forced to testify, it could result in their being barred from access to important information. Regarding the second error, he stated that while he was indeed the author of the article, it was another journalist who had conducted the interview with Brdjanin. In support of Randal, 34 media organizations sent an open letter demanding that journalists be called as witnesses only if their testimony was absolutely essential for the case and if the information required was not available from other sources695.
There was the danger that this would cause an unwelcome shift in focus: journalists, instead of reporting on human rights violations, would themselves become victims. And that would have serious consequences. The court also recognized that while the work of war correspondents was in the public interest, that interest conflicted with the public interest in legal proceedings that should be able to draw on the widest possible range of resources. Journalists should testify only when their testimony was central to the proceedings. The Appeals Chamber therefore upheld Randal's appeal, overturned the Trial Chamber's decision and set aside the subpoena696.
In this case, Randal based his arguments on the key human right to a free press. The Tribunal's decision sent a signal and will be of consequence in the future. It is generally accepted that a free press has a key role in liberal democracy and the rule of law, for it is precisely in wartime that that freedom is curtailed.
2. Special protection of journalists under international humanitarian law
Exposed as they are to the physical threats of armed conflict, war correspondents take grave risks day-in day-out. They can die in a hail of bullets or be blown up by a bomb. In addition, they frequently fall victim to arbitrary violence and threats of violence from political authorities or armed forces that take a dim view of their activity. The number of attacks against representatives of the media has risen dramatically.697 How can journalists in general and war reporters in particular be protected? International humanitarian law contains several provisions designed to protect journalists and ensure that they are able to carry out their work. The following will illustrate the position of war reporting under international law and the specific problems that arise.
Accounts of journalists being wounded and taken prisoner prompts one to ask what the law has to say about them. Both the 1899 and 1907 Hague Conventions on rights and duties in wartime698 and the 1929 Geneva Conventions on the treatment of prisoners of war refer to “correspondents”.699 The law applicable today regarding the treatment of war correspondents is laid down in the 1949 Geneva Conventions and the Additional Protocols of 1977.700 The term “journalist” covers all media personnel, that is, everyone responsible for collecting, processing and disseminating information, including photographers, cameramen and support staff.701 There were basically three categories of journalist covering the invasion of Iraq: 1) “embedded” journalists who were integrated directly into the armed forces; 2) journalists working in Baghdad, whose presence was officially approved – but also monitored – by the Iraqi information ministry; 3) free and independent journalists. These three categories will now be examined more closely.
1) Generally speaking, persons who follow armed forces without belonging to them enjoy civilian status. They must have an identity card issued by the armed forces which confirms their status. If captured, they have prisoner-of-war status. Thus the Geneva Conventions place war correspondents in a singular position, a grey area somewhere between combatant and non-combatant. In practice this means that if the unit into which they are incorporated is attacked, they may not be attacked provided that they do not take part in the fighting. Under Article 50 of Additional Protocol I, if they take part in the hostilities they lose their protection (granted to civilians under Article 51) for the period during which they take part. The importance of this fact should not be downplayed since a journalist can be prosecuted for passing on to the armed forces the information he or she gathers. A war correspondent who engages in espinonage loses his right to prisoner-of-war status in the event of capture. The fact that a journalist wears a military uniform in no way affects his status. But it does make it difficult for enemy forces to distinguish between the non-combatant journalist and the combatants. In the event of doubt, the individual must be treated as a civilian.
2) The second category includes the journalists working in Baghdad with the permission of the Iraqi authorities at the time of the invasion. Almost all were staying in the Palestine Hotel and were subjected to round-the-clock surveillance by the Iraqi government, until its collapse. The surveillance included visits guided by the police to hospitals and severely bombed neighbourhoods to show the journalists how badly Iraqi civilians were suffering. Iraq was trying to use foreign media outlets for its own propaganda purposes. Journalists in this category are covered by Article 79 of Additional Protocol I. They have civilian status under the Protocol, provided they do nothing to jeopardize that status. To document his status as a journalist, each must carry identity papers issued by the government of the country of which he is a national, of which he is a resident or in which he is working.
3) The third category are freelance journalists working somewhere in the war zone. They face the greatest risks since they are inadequately protected by international law. Freelancers who are captured are protected in some cases by the Fourth Geneva Convention, particularly when the journalist concerned is a national of one of the warring parties (for example an American captured by Saddam Hussein’s forces). Journalists who are citizens of a neutral State are not protected by the Fourth Convention if their government has diplomatic representation in the State in whose power they find themselves.
Recent decades have seen a debate about how journalists on dangerous missions can be better protected. When Article 79 of Additional Protocol I was being prepared, it was suggested that journalists display an emblem recognizable from far off. This was refused on the grounds that such an emblem would make reporting even more risky because it would draw the enemy’s attention to the fact that a journalist was present, which in some cases could endanger the surrounding area, and with it the civilian population. Another proposal was to create a special status for journalists. The Geneva Conventions and their Additional Protocols assign special status to certain categories of person, including medical personnel, clerics and ICRC delegates. More could have been added, but there was the risk that additions could weaken the protection for those already enjoying it. It would therefore appear wise, in political and practical terms, to avoid assigning journalists any special status since this might endanger individuals who act directly to help people affected by the fighting. In addition, any special status requires strict monitoring to reveal misuse. The discussion about protecting journalists by means of an instrument of international law has nevertheless achieved one thing – it has made journalists more familiar whith international law and prompted them to take a greater interest in the subject. International humanitarian law can only benefit from this.
3. Attacking media facilities
On 26 March 2003, the US and British air forces bombed the Iraqi television building in Baghdad, two days after Iraqi television had broadcast images of intimidated US prisoners. The network remained off the air for several hours before broadcasting was able to start up again. The justification given for the attack was that the Iraqi state television channel – which was controlled by Saddam Hussein – was an important instrument of Iraqi war propaganda and therefore constituted a legitimate target.
The attack on the Iraqi television building is reminiscent of NATO’s attack on the Serbian television station and its transmitting tower in April 1999. NATO too defended its attack on the grounds that the tower contained facilities that were important for the war effort and that those facilities had been used, among other things, for Serbian war propaganda. The attack not only caused considerable material damage; at least 10 and perhaps as many as 17 people died, and a number of civilians were wounded. The bombing elicited major protests from the international press, and the question of the attack’s legitimacy in international law was raised. To answer that question, we need to decide whether the television tower is a military objective or a civilian object.
It is impossible to say a priori whether a television tower is a legitimate military objective, as this depends not on the nature of the building but on the use actually made of it. The broadcasting facilities may have served civilian purposes or military ones such as transmission of commands and war propaganda. NATO tried to draw up a list of all “legitimate targets”. This is impossible, because the decision whether something is or is not a legitimate target can only be based on the immediate circumstances (except in the case of a purely military facility). A list of this kind weas nevertheless suggested and was to include “oil and other power installatioins, communications installations, including broadcasting and television stations and telephone and telegraph stations used for military communications”. It must however be emphasized that the inclusion of an object, for example a railway line or a main line of communication, in a list of this kind does not mean that it is a military objective and therefore a “legitimate” target in reality. According to Article 52 of Protocol I additional to the Geneva Conventions, the following are military objectives: “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
Furthermore, civilians and civilian objects may only be attacked subject to application of the proportionality principle. According to Article 57(2) of Protocol I, “an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, (…) which would be excessive in relation to the concrete and direct military advantage anticipated”. The attacker is also bound to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects (…) but are military objectives”. These rules have customary status. Whether or not NATO obeyend them is still disputed. Owing to the lack of information available to it, the International Tribunal for the former Yugoslavia decided not to pursue the case. It was virtually unthinkable that NATO’s attack on the television tower in Belgrade could be found to be unlawful. It would therefore seem to indicate that television towers per se should be categorized as civilian objects. It was the circumstances that determined whether or not it was legitimate to bomb the tower in Baghdad. At the present time, the question has not been definitvely answered.
Alongside questions relating to the law of war, human-rights issues may also arise in connection with such borderline cases. One illustration is a complaint filed by several Yugoslaw citizens against NATO before the European Court of Human Rights. Several of their relatives had been killed in the NATO attack on the Serbian television station. The plaintiffs claimed that several core human rights had been violated by the bombing, namely the right to life (Article 2 of the European Convention on Human Rights, or ECHR), the right to freedom of expression (Article 10 of the ECHR) and the right to an effective remedy (Article 13 of the ECHR). The Court declared the complaint inadmissible on the grounds that Yugoslavia did not fall within the territorial applicability of the ECHR as set out in Article 56 and that the European Court of Human Rights therefore did not have jurisdiction to hear the case.
Although the case was ultimately not heard on the merits, it demonstrates the important and fundamental nature of human rights and the role they can play in cases concerning the media, information and war reporting.
At first glance, it is hard to grasp why reporting on war enjoys so much prestige in the media, as it concerns itself mainly with military achievements and political situations702 and is comparatively indifferent to the suffering of civilians. Reportage from the victims’ perspective – i.e. from a humanitarian angle – is sorely lacking today. And yet, even small doses of reportage on themes of humanitarian concern – which lie at the heart of international law – can have a great impact. It is individuals or groups of individuals who shape the law and, through their ideas, see to it that humanitarian law is effective. Those who report on war, and the media in general, serve as vehicles for the ideas of those who themselves shape humanitarian law. As a well-known legal scholar, Philip Allott, has said, “The world revolution is a revolution not in the streets but in our minds.”703
Violence attracts the media, and war more so than any other type of violence. Cameras capture war and its effects: tank columns, firefights, crowded hospitals, plundered museums, gaping holes in television stations, wrecked houses and schools, press briefings from senior officers and streams of refugees. Journalists set out not only to portray the events of war but also to analyse them and to bring to light strategic plans and command sequences. The essence of the journalistic ethos is to report in a truthful, comprehensive and balanced manner. Yet the ancient Greek playwright Aeschylus noted two and a half millennia ago that truth is the first victim of war.
Truth is often the victim of war. “Live” reports are frequently too bound up with the event itself to be adequately thought out – they end up being impressionstic, emotion-ridden spectacle. In many cases an objective view must await future works of critical scholarship and even literature to put the events in their proper perspective, provide background and explain complex processes. One thinks of the ancient Greek Thukydides, the first critical war historian, and of Theodor Fontane, who wrote “war books” in the form of historical fiction. Dealing with the fraught matter of fact versus fiction, Ernest Hemingway – himself a gifted journalist who reportet on the Spanish Civil War – remarked that all good bookd were alike in that “they are truer than if they had really happened”. The finest purely literary portrayal of the tragedy of war is probably still Homer’s account of the Trojan War. But here too the reader is practically shielded from the pitiless reality by the artistic power of language.
What conclusions can be drawn from all that has been said in this chapter? During the period immediately after the Second World War, the contribution to international humanitarian law made by the United Nations, the International Court of Justice, regional organizations and the Non-governmental Organisation was marginal at best. For various reasons, promotion and monitoring of compliance was left mainly to the International Committee of the Red Cross. This institution was for very laong the only actor of consequence in the field of humanitarian law and humanitarian action. Some of the NGOs now active in the area of humanitarian law were not in existence then. The United Nations was concerned primarily with peace. Its ideals did not include the regulation of war. But things have changed. To be sure, the ICRC remains the unique symbol and a most powerful, effective driving force in humanitarian law and politics. But there is a growing desire among many organizations, regional and international, for involvement with humanitarian law, to study and to contribute to it. A worldwide network has emerged that contributes to the development and promotion of humanitarian law. The individual contributions of particular institutions may seem rather vague and fragmented in nature. If we look only at the work of the Human Rights Council or the European Union, we may wonder whether the work of any single institution can substantially alter international humanitarian law. However, in a globalized world, this does not seem to be the right approach. If we were to take a more detached view, we would see that it is exactly the sum of all the insubstantial-seeming little pieces of work that create the whole picture. The activities of the International Committee of the Red Cross, the various bodies of the UN, the action taken and the missions deployed by the Security Council, the establishment of precedent-setting ad hoc tribunals and the permanent International Criminal Court, the case law of international and regional courts, the contributions of regional organizations, the work of NGOs, global reportage on and promotion of humanitarian law through the mass media: it is all these efforts that have cumulatively made respect for international humanitarian law a matter of public concern all over the world.
We observe, in sum, that a deep shift in international relations has taken place and that a new conceptional thinking is required. Anne-Marie Slaughter rightly observed that a global world of networks is emerging and she concluded, to good reasons, that this network should be guided by “general ‘constitutional’ norms”. She claims that some “sort of constitutional principles” (i.e. global deliberative equality, legitimate differences, checks and balances, subsidiarity must operate at a metalevel across all types of government networks across all types of government networks, specifying basic ground rules for how the members of these networks treat each other and what the basic division of labor is between them.704705This is the view underlaying the philosophy of this book, too, and how it is expressly referred to at several places. And I would like to stress in concluding, that networks are certainly necessary for a smooth functioning of a “New World Order”, but – as the case of the International Committee of the Red Cross demonstrates: institutional independence, liberty of judgement and of action of an organisation might in some respect, and in many situation serve victims and potential victims better than to be integrated in a bureaucratic superstructure. The constitutional principle that Anne-Marie Slaughter refers to includes cooperation values of pluralism. Pluralism means the capacity of actors to fulfil their specific mandate and by doing this to contribute valuably to in an optimal way. This means for the International Committee of the Red Cross to have access to and to protect those suffering, be it by proceeding in a confidential way or by speaking out if serious and repeated violations of international humanitarian law are at stake, if the ICRC has itself confirmed these violations or if they are notorious, if discreation of bilateral members did not allow to change the situation and if a public appeal is in the interest of the victims.706ASS überprüfen