Should the killing of journalists during conflict be considered as a war crime? Should journalists be embedded with troops in warfare, or not? Are journalists protected under the Geneva Conventions?

By Geraldine Coughlan in The Hague

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These are new questions that people are asking, since the release of the Wikileaks video last year - showing an American helicopter shooting and killing a Reuters photographer and driver in Baghdad in 2007.

57 killed
57 journalists were killed in 2010 and 51 were kidnapped. Around two-thirds of the cases of the killings of journalists are never solved. Only one in eight killers is prosecuted.

It is argued that journalists and correspondents deserve direct and special protection while covering conflicts.

But there is a host of legal problems in providing this protection. Ironically, for those whose excellent war crimes reporting led to the establishment of international tribunals.

Arc of protection
Geoffrey Robertson QC, says that journalists have little power. He represented the Washington Post reporter Jonathan Randal at the International Criminal Tribunal for the former Yugoslavia (ICTY) in 2003.

In a historic ruling the court granted war correspondents the privilege of being able to refuse to testify. They can only be compelled to give evidence when there is no other source of information available. 

Robertson says journalists need a specific war law provision. Not only to deter attacks but to provide an 'arc of protection' to help promote their role as 'providers of information.'

No distinction
Robertson says that in his view, "the deliberate murder of a journalist for reporting in a conflict zone should be a specific war crime. Of course, it is a crime to kill civilians, and journalists count as civilians. But they are not killed because they are civilians but because they are journalists." 

He finds that international law provisions for journalists are out of date. They are aligned with the First and Second World Wars, rooted in Article 13 of the 1907 Hague Convention.

This makes no distinction between a journalist and an officer. But it provides for war correspondents to be granted minimum standards of humane treatment as prisoners of war.

Gaping hole
Today, we have different kinds of journalists and different kinds of wars. Today, we have Wikileaks and freelance as well as embedded journalists.

Robertson points out that there is a 'gaping hole' in the Geneva Conventions, which contain no specific provision on the rights of war correspondents.

Some hope
Article 79 of Additional Protocol 1 offers some hope. It states that journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians, not officers. This grants them a higher level of protection if they are captured.

However, whether or not embedded journalists can be entitled to measures of protection as civilians, is still a ‘grey area.’ As they are accredited and affiliated to the military and therefore could be considered as officers.

Lobbying 
Robertson suggests that Article 8 of the 1998 Rome Statute establishing the International Criminal Court (ICC) is the way forward. 

He believes there should be a lobbying effort to amend Article 8, which relies on the definition of war crimes in the Geneva Conventions. But it makes no reference in the list of war crimes, to journalists – the profession that reported extensively on the signing of the Rome Statute.

Risking life
Now that there is more emphasis on what law can do to restrain barbarity, Robertson claims that – as journalists risk their lives to protect the truth in the overriding public interest, they warrant a specific legal instrument for protection during conflict.

He says the ICC and the countries that have ratified Protocol 1 of the Geneva Conventions should be put under pressure to recognise their failure to protect journalists.

Read also: Journalism - one of the world's most dangerous professions