Legal Protection of the Media in Armed Conflict: Gaza

by | May 18, 2021

Media. Gaza Journalists. Al Jazeera English

 

On May 15, the Israel Defense Forces (IDF) conducted an airstrike on Al Jalaa Tower, a 12-story building in the Gaza Strip. Conducted as part of Operation Guardian of the Walls, the attack destroyed the tower, which housed the Associated Press and Al Jazeera offices, as well as civilian apartments. According to the IDF, the building “contained military assets of the Hamas terror organization” and was an example of unlawful human shielding. On Twitter, the IDF also claimed that Hamas “gathered intel for attacks against Israel, manufactured weapons & positioned equipment to hamper IDF operations” from the building.

Before executing the strike, the IDF warned occupants by phone that an attack on the facility was planned and afforded them an hour to evacuate; as a result, there were no casualties. However, the IDF noted that “Hamas & Islamic Jihad used this time to take items out of the building. We were willing to pay that price to not harm any civilians.”

In addition to the Al Jalaa Tower strike, Reporters Without Borders has claimed that the IDF had earlier destroyed the Al Jawhara Tower, which reportedly housed 14 media outlets, and the Al Shorouk Tower, from which seven outlets operated. Concerning these and other airstrikes, the IDF noted that it was “striking Hamas weapons stores hidden inside civilian buildings in Gaza.”

The attacks have drawn criticism. For instance, the Committee to Protect Journalists asserts that the Al Jalaa airstrike “raises the specter that the Israel Defense Forces is deliberately targeting media facilities in order to disrupt coverage of the human suffering in Gaza.” Amnesty International Palestine has called for a war crimes investigation, charging that “[t]he strike fits a pattern of Israel’s collective punishment of the Palestinian population.”

Such operations raise the issue of the legal protection journalists, media facilities, and reporting enjoy during both international and non-international armed conflict. This article surveys that topic. To illustrate how the relevant law applies, it concludes with a legal assessment of the Al Jalaa attack.

Protection of Journalists

The generally accepted definition of a “journalist” is found in the draft UN Convention on the Protection of Journalists Engaged in Dangerous Missions in Areas of Armed Conflict. Article 2(a) of that instrument describes a journalist as “any correspondent, reporter, photographer, and their technical film, radio and television assistants who are ordinarily engaged in any of these activities as their principal occupation.”

Protection during Detention and from Targeting

Certain journalists also qualify as “war correspondents.” If captured, they are entitled to prisoner of war status as “persons who accompany the armed forces without actually being members thereof” pursuant to Article 4A(4) of Geneva Convention IV (see also 1907 Hague Regulations, art 13; DoD Law of War Manual, sec 4.24.1.1; U.S. Army, Commander’s Handbook, para 3-26). To qualify as war correspondents, the armed force they accompany must authorize their presence, a requirement that does not attach to journalists more broadly. Those who are not war correspondents are sometimes labeled “unilateral” journalists. If interned, the latter are entitled to the protections interned civilians enjoy under Geneva Convention IV.

With regard to targeting law, however, there is no difference between war correspondents and unilateral journalists. According to Article 79 of the 1977 Additional Protocol I to the 1949 Geneva Conventions, “journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians …” (see also U.S. Army, Commander’s Handbook, para 5-56 and UNSC Res 1738). Thus, during an international armed conflict, they enjoy the protections civilian status affords, including protection from direct attack and consideration of their presence when applying the proportionality rule and requirement to take precautions in planning and executing attacks on military objectives (DoD Law of War Manual, sec 4.24.1).

The United States recognizes Article 79 as reflective of customary international law (2016 U.S. Army LOAC Deskbook, p 175). Acknowledgment of journalists’ status as civilians also appears in the military manuals of most other States (see e.g., UK Law of Armed Conflict Manual, para 8.18; Canada, Law of Armed Conflict Manual, sec 313-314; Germany, Law of Armed Conflict Manual, sec 516; New Zealand, Manual of Armed Forces, sec 14.7).

Neither Common Article 3 to the Geneva Conventions nor the 1977 Additional Protocol II—both of which govern non-international armed conflict for States that are Party to the instruments—mention journalists. Nevertheless, it has long been accepted that directing attacks against civilians during non-international armed conflicts like that underway between Israel and Hamas is unlawful. Accordingly, the experts who prepared the San Remo Manual on the Law of Non-International Armed Conflict concluded that “[j]ournalists engaged in their professional activities enjoy civilian status, even when they accompany fighters, unless they take an active (direct) part in hostilities” (sec 3.10). The two Tallinn Manual groups of experts came to an identical conclusion (Rule 139). And in the 1995 Situations in Chechnya case, the Russian Constitutional Court found orders and decrees that deprived journalists of accreditation in conflict zones to be unconstitutional. To the extent civilians enjoy protection under treaty or customary law governing non-international armed conflict, journalists enjoy the same protection.

A Negative Duty to Protect?

The ICRC takes an even broader view of the customary law protecting journalists. According to Article 34 of its Customary International Humanitarian Law study, “Civilian journalists engaged in professional missions in areas of armed conflict must be respected and protected as long as they are not taking a direct part in hostilities.”

Respect denotes a negative obligation to avoid harming journalists during armed conflict, one with which the United States certainly agrees. “Protect,” by contrast, implies a positive duty to take measures to ensure others do not harm journalists. The customary character of this positive obligation is the subject of disagreement among law of armed conflict experts (see, e.g., Tallinn Manual 2.0, pp 526-528).

The better view supports a duty to protect during international armed conflict based on the customary obligation to “ensure respect” (a term drawn from Common Article 1 of the Geneva Conventions) for the law of armed conflict during international armed conflict by individuals in areas under the control of a party if doing so is feasible in the circumstances. The precise parameters of the obligation are, however, indistinct. Moreover, it is far from certain that the duty extends to non-international armed conflict, although the ICRC has taken the position that it does (2016 GC I Commentary, para 125).

Loss of Protection

Article 79 of AP I conditions the protection journalists enjoy on their taking “no action adversely affecting their status as civilians.” This condition is a reflection of the loss of certain protections under the law of armed conflict when civilians “directly participate in hostilities.” The rule is found in both treaty (AP I, art 51.3 and AP II, art 13.3)  and customary law, and applies in international and non-international armed conflict. As an example, intentionally passing information of intelligence or targeting value to the enemy would amount to direct participation and deprive the journalist concerned of civilian protection for such time as he or she gathered and transmitted the information. However, mere reporting on the conflict, even if contrary to the interest of a party, does not qualify as direct participation. That said, the law of armed conflict does not prohibit the denial of access to an area of operations or the taking of measures to ensure sensitive military information is not disclosed (DoD Law of War Manual, sec 4.24.2.2; Joint Publication 3-61, Public Affairs, App. C)).

Military personnel engaged in journalistic activities, such as public affairs personnel, are combatants and never benefit from the law of armed conflict’s civilian protections. Similarly, members of organized armed groups like Hamas who perform propaganda or other media functions are not considered civilians for targeting law purposes (DoD Law of War Manual, sec 4.24.1.2). It must be cautioned that the ICRC and some States have taken the position that only organized armed group members who have a “continuous combat function” are targetable based on their membership in the group (Interpretive Guidance, pp 31-35). This is a flawed view, but it may lead States and non-governmental organizations to criticize operations that do not treat such individuals as civilians.

Protection of Media Facilities

In the same way that journalists are civilians, their facilities generally qualify as civilian objects. They, therefore, enjoy protection from attack by treaty (AP I, art 52) during international armed conflict (and peripherally by treaties such as Amended Protocol II  to the Convention on Conventional Weapons during non-international armed conflict) and by customary law during both international and non-international armed conflict (see also San Remo NIAC Manual, sec 1.1.5).

Loss of Protection When Used for Military Purposes

Should a media facility be used for military purposes, it may become a military objective. Military objectives are “those 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” (AP I, art 52.2; DoD Law of War Manual, sec 5.6.3). For instance, if a media facility is used to communicate information of military value, it qualifies as a military objective by use and may be attacked. Even if it is not the intended target, an attacker need not consider any incidental harm to the facility in the proportionality and precautions in attack assessments of an attack on another military objective.

Doubt

In case of doubt about whether a media facility is being used for military purposes, Additional Protocol I, Article 52.3, requires that it be presumed to be civilian. The degree of uncertainty necessary to benefit from the presumption is contextual and, thus, must be assessed on a case-by-case basis. However, the United States is not Party to Additional Protocol I, and its DoD Law of War Manual suggests that “no legal presumption of civilian status exists for persons or objects….” (sec 5.4.3.2).

That provision has been heavily criticized, and rightly so. Aside from legal analysis addressing the matter, there is a longstanding practice by the United States and other armed forces of refraining from attack in cases of doubt. This is a significant concern in the context of attacking media facilities because of their inherent communicative capabilities and because the line between providing news and transmitting information in a manner that could qualify as contributing to military action can be equivocal.

This issue of media facilities qualifying as military objectives was addressed in the Final Report to the Prosecutor [of the International Criminal Tribunal for the Former Yugoslavia] by the Committee established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. The incident in question involved a 1999 NATO airstrike on the Serbian TV and Radio Station in Belgrade, during which between 10 and 17 people died. NATO “stressed the dual-use to which such communications systems were put, describing civilian television as ‘heavily dependent on the military command and control system and military traffic is also routed through the civilian system.’” The Committee concluded,

[T]he attack appears to have been justified by NATO as part of a more general attack aimed at disrupting the FRY Command, Control and Communications network, the nerve centre and apparatus that keeps Milosević in power, and also as an attempt to dismantle the FRY propaganda machinery. Insofar as the attack actually was aimed at disrupting the communications network, it was legally acceptable.

If, however, the attack was made because equal time was not provided for Western news broadcasts, that is, because the station was part of the propaganda machinery, the legal basis was more debatable. Disrupting government propaganda may help to undermine the morale of the population and the armed forces, but justifying an attack on a civilian facility on such grounds alone may not meet the “effective contribution to military action” and “definite military advantage” criteria required by the Additional Protocols. (paras 75-76).

It would therefore appear clear that broadcasting and other media activities that enhance the morale of the civilian population or otherwise generate support for the broader war effort do not render the facilities used as military objectives or the individuals involved as direct participants in hostilities. Yet, the Report went on to observe, “if the media is used to incite crimes, as in Rwanda [the 1993 genocide], then it is a legitimate target.” Media facilities and equipment used to directly incite war crimes (such as attacking the civilian population), crimes against humanity, or genocide during an armed conflict undoubtedly qualifies them as military objectives. Those journalists who are directly involved are direct participants in hostilities on the basis that the incitement would be “likely to … inflict death, injury, or destruction on persons or objects protected against direct attack” (Interpretive Guidance, Constitutive Element 1).

Limitations on Attacks Affecting Civilian Journalists and Media Facilities

An attack expected to harm civilian journalists or media facilities is subject to the rule of proportionality and the requirement to take precautions in attack, which apply in both international and non-international armed conflict (AP I, arts 51 and 57, Customary Law Study, Rules 14 and 15). By the rule of proportionality, expected injury to civilian journalists and damage to civilian media facilities during an attack on a legitimate military objective must be considered together with other civilian injury or damage to determine whether it is “excessive” relative to the anticipated “military advantage” that the attacker will gain. If it is excessive, the attack is prohibited. Importantly, by the plain text of the rule, disruption of media activities or other activities that do not result in physical damage or injury does not qualify as collateral damage in the proportionality analysis.

The requirement to take precautions in attacks applies even when an attack against a military objective is proportionate. It obliges an attacker to use feasible means of verifying the target and select among available weapons, tactics, and targets to minimize civilian harm, including to civilian journalists and media facilities, at least so long as military advantage is not sacrificed. Additionally, an attacker must give “effective advance warnings of attacks which may affect the civilian population, unless circumstances do not permit” (AP I, art 57(2)(c)); Customary Law Study, Rule 20; DoD Law of War Manual, sec 5.11). Circumstances negating the obligation include those in which the benefit of surprise would be forfeited or where a warning might increase the risk to the attacker.

The Al Jalaa Tower Attack

There is no indication that the journalists based in the Al Jalaa Tower were engaged in activities that would qualify them as direct participants in hostilities. For instance, there is no suggestion that they were using the media facilities to support Hamas military activities. Similarly, there are no allegations that the media organizations concerned incited Hamas’ unlawful rocket attacks against Israeli population centers, each of which amounts to a war crime (over 3,000 as of 16 May). This being so, the journalists and their facilities were civilian in character and entitled to all attendant protections, including application of the rule of proportionality and the requirement to take precautions in attack.

The fact that the civilian media facilities in Al Jalaa Tower were destroyed implicates the rule of proportionality. When aspects of a target are clearly separate and distinct, harm to the part thereof that is exclusively civilian counts as collateral damage factored into the proportionality analysis (AP I, art 51.5(a)).

There is some disagreement on whether a building that contains both apartments or offices used for civilian purposes and others that have been converted to military use should be considered a military objective in its entirety or as consisting of separate and distinct entities. The better view, but one that does not appear to have achieved universal consensus, is that if an attacker can surgically strike that aspect of the building used for military ends, harm to the remaining sections must be factored into the proportionality analysis.

In this case, however, there is no indication that the IDF had intelligence indicating precisely which sections of the Al Jalaa Tower its opponents were using or that the IDF fielded weaponry capable of surgically neutralizing those sections and any conflict-related material therein. Therefore, if the Israeli reports of Hamas using the building are accurate, the entire building constituted a single military objective, damage to which did not have to factor into the IDF’s proportionality calculation.

As to the requirement to take precautions in attack, since the building itself housed Hamas’ material and operations, alternative targets were not on the table. Further, there is no indication that different tactics or weapons could have avoided civilian harm. Indeed, in that the building itself qualified as a single military objective and the attack injured no civilians, collateral damage (as that concept is understood in the law of armed conflict) was minimal. Video footage of the attack, which involved dropping a multi-story building in an urban area without significant damage to other structures in the vicinity, confirms that the strike was an impressive example of careful avoidance of collateral damage by the IDF.

The IDF’s hour-long warning of the attack was likewise a paradigmatic example of an effective warning. If IDF reports that Hamas and Islamic Jihad were able to evacuate the building and remove military material from the facility before it was struck are accurate, the warning appears to have exceeded that required by the law of armed conflict because it involved some sacrifice of military advantage by the IDF.

The IDF has accused Hamas and other Palestinian organized armed groups of using the presence of civilians and civilian media as shields against attack. These organizations have a long history of using human shielding as a tactic against Israeli attack and, on that basis, the IDF’s claim is colorable. However, during urban warfare, it is common to use civilian buildings for military purposes simply because the realities of the urban environment necessitate such use (U.S. Army, Commander’s Handbook, para 2.27). Absent an intent to shield, this practice does not violate the prohibition on human shielding. More facts would be required to confirm the intent of the Palestinian organized armed groups in Al Jalaa Tower before confirming a violation of the law of armed conflict on the basis of human shielding.

Counter-allegations that the IDF used the attack as a ploy to end unfavorable media are unsupported by the available facts. So long as the Israeli assertion that Hamas and other groups used the Al Jalaa Tower for military purposes is accurate, the building qualifies as a lawful military objective that may be attacked. Indeed, even if Israel harbored a secondary motive of putting an end to unfavorable media coverage, the attack would still be lawful, as attackers often have multiple objectives in mounting an attack. Only if the Israeli account was knowingly false would the operation be unlawful as a direct attack against a civilian object. An analogous analysis applies to charges that the attack amounts to collective punishment, for strikes on lawful military objectives are not collective punishment under the law of armed conflict.

Overall, the Al Jalaa strike mission planners appear to have carefully considered the law of armed conflict. The IDF’s Military Advocate General’s Corps’ international law specialists undoubtedly played a key role in the planning and approval of the operation, as they do in all IDF military operations (see here for a discussion of MAG practices). Based on open source information presently available, the strike complied with the law of armed conflict rules governing attacks, including those affecting the media.

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy. He is also Professor of Public International Law at the University of Reading, Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas, and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

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