Let’s be clear: violence against journalists can stop. It ends with accountability. If States fulfill their duty to protect journalists; if States meet their international commitments, journalists will be able to do their jobs freely and safely. International human rights law contains binding obligations to guarantee the safety of journalists. Additionally, in the last ten years there has been an unprecedented increase of international soft law. Implementation and accountability, however, are gaps that must be filled. Do this and the safety of journalists will be guaranteed, along with citizens’ access to the information needed to take decisions about their lives and the future of their democracies.

 

The right to freedom of expression: A right of all

The right to freedom of expression is protected in Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR), as well as in regional human right treaties. Article 19 of the ICCPR requires States to guarantee everyone the right to freedom of expression, including the “freedom to seek, receive, or impart information or ideas of any kind”, regardless of frontiers, and through any media of a person’s choice, including online.[1]

 

While the scope of this right is broad, Article 19(3) provides for its restriction in limited circumstances. States must show that any restriction satisfies a strict three-part test. Restrictions must be provided by law, based on a precisely drafted law, and be accessible, to enable individuals to modify their conduct accordingly; in pursuit of a legitimate aim, as per Article 19(3) for the rights or reputations of others, the protection of national security, public order or public health or morals; and necessary and proportionate, where the state must demonstrate in a specific and individualised fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.

 

The ICCPR contains a number of other obligations relevant to the safety of journalists, including the right to life (Article 6) and the freedom from torture (Article 7). States are also obliged to guarantee individuals’ freedom from arbitrary detention (Article 9) and ensure the right to a fair trial (Article 14). The ICCPR also requires States to guarantee freedom from “arbitrary or unlawful” interference in one’s privacy, of particular importance for protecting journalists’ private communications, their access and use of anonymity and encryption tools.[2] Moreover, it sets out the right of all people to equality and non-discrimination (Article 2), further developed by the Convention on the Elimination of Discrimination against Women (CEDAW) that creates specific obligations for States to end discrimination against women, defined as “any distinction, exclusion or restriction” based on sex characteristics which has the effect or purpose of restricting or negating women’s enjoyment of human rights, such as the right to freedom of expression.[3] Other binding treaties, such as the International Convention on the protection of all persons from enforced disappearance, sets out specific obligations that can address the increasing enforced disappearances of journalists in reprisal for their work.

 

International Humanitarian Law (IHL), which governs the law of armed conflict, also has a say. Journalists, media professionals and associated personnel are specifically protected by IHL as civilians, provided they take no action adverse to this status. This means that any deliberate attack against a journalist by a party engaged in an armed conflict constitutes a war crime, and those responsible must be brought to account.[4]  The Security Council has reaffirmed these obligations through resolutions on the protection of journalists in armed conflict.[5]

 

The safety of journalists: an increasing matter of soft law

Soft Law is not toothless. International commitments made by States are not empty words and States must be held accountable. In the last ten years alone, a dozen resolutions have been passed in the UN system, including UNESCO, specifically on the safety of journalists. This was not always an issue of particular concern in the UN system. Since the 1970’s, when there were many intense debates about the protection of journalists covering conflict situations,[6] it was not until 2012 when the UN Human Rights Council (HRC) and the UN General Assembly (UNGA) started to pass biennial resolutions on the safety of journalists.[7] 2012 was also the year of the first ever UN strategy: the UN Plan of Action on the Safety of Journalists and the Issue of Impunity.[8] Since 2012, ensuring a safe environment for journalists made its way to two resolutions by the UN Security Council in 2006 and 2012, and to one UNESCO resolution focused on impunity in 1997.[9]

 

UNESCO, the UN agency with the mandate to promote the right to freedom of expression has also played an increasing role. In 1997, it passed the first resolution focused on impunity on crimes against journalists and asking the UNESCO Director General to condemn the physical attacks against journalists. Since then, there has been a condemnation for every killing of a journalist. This information is collected in the database of the UNESCO Observatory of Killed Journalists.[10] Based on these condemnations, in 2006 UNESCO started to request States to provide information on the judicial inquiries. Information is published in a biennial report on this issue.[11]

 

At the regional level, intergovernmental organisations have also looked at the protection of journalists. In Europe, for example, the Council of Europe (CoE) adopted a very comprehensive Recommendation on the protection of journalism and safety of journalists and other media actors[12] and an implementation guide that provides guidance and examples on how to translate into action what is agreed on paper.[13] Almost tens year earlier, the CoE had adopted a declaration specifically on the protection and promotion of investigative journalism “convinced that the essential function of the media as public watchdog and as part of the system of checks and balances in a democracy would be severely crippled without promoting such investigative journalism.”[14] In 2018, the Organization for Security and Co-operation in Europe (OSCE) also passed a Decision on the safety of journalists recognising the importance of investigative journalism and that the ability of the media to investigate “without fear of reprisal, can play an important role in our societies, including in holding public institutions and officials accountable.”[15]

 

All of these texts have increasingly included additional aspects and nuances on the issue of the safety of journalists. While at the beginning concerns were around physical safety and impunity, resolutions have increasingly recognized the importance of legal, digital and psychological protection, as well as the need to approach the problem with a gender lens, among other considerations. Behind these improvements, there are also years of work by civil society groups, journalists’ associations and media to collect and analyse data to be used for evidence-based advocacy in the international sphere.

 

So, what have States committed to?

Resolutions on the safety of journalists commit States, based on their existing international human rights law obligations, to act on three fronts: prevention, protection and prosecution and remedy, as follows: [16]

 

Prevention:

• Create and maintain a free and safe enabling environment for journalists, media workers and civil society, as they play a vital role enhancing the safety of journalists;
• Condemn all attacks against journalists and the prevailing impunity;
• Refrain from denigrating, intimidating or threatening the media and journalists, or using misogynist language towards women journalists, that undermining trust in media;
• Ensure national laws, policies and practices are fully in compliance with obligations under international human rights law and do not interfere with journalists’ independence;
• Refrain from the misuse of overbroad or vague laws to repress legitimate expression, including defamation and libel laws, laws on misinformation and disinformation or counter-terrorism and counter-extremism legislation as well;
• Ensure business entities and individuals are not using strategic lawsuits against public participation to exercise pressure on journalists;
• Cease to and refrain from intentionally preventing or disrupting access to or dissemination of information offline and online;
• Respect freedom of journalists to have access to information held by public authorities.

 

Protection:

• Establish early warning and rapid response mechanisms against threats;
• Take measures to address sexual harassment and other forms of sexual and gender-based violence;
• Protect journalists, in particular those covering protests and elections;
• Allow encryption and anonymity and refrain from employing unlawful or arbitrary surveillance techniques;
• Protect journalists’ confidential sources;
• Enhance information-gathering and monitoring mechanisms, also those by civil society.

 

Prosecution and remedy:

• Ensure the conduct of impartial, prompt, thorough, independent and effective investigations into all alleged violence, threats and attacks;
• Create special investigative units or independent commissions, and consider appointing a special prosecutor;
• Adopt specific gender-sensitive protocols and methods of investigation and prosecution;
• Support capacity-building, training and awareness-raising in the judiciary and among law enforcement officers and military and security personnel on international standards and commitments related to freedom of expression and the safety of journalists;
• Ensure that victims and their families have access to appropriate restitution, compensation and assistanc

 

And who is a journalist after all?

One of the controversies that led to the fail attempt by the UN to pass a resolution on the safety of journalists in the seventies was the definition of a journalist. In 2011, the Human Rights Committee, a quasi-judicial body consisting of 18 independent human rights experts elected by UN member states responsible for providing guidance on States’ obligations under the ICCPR, shed light on this particular matter.[17] It describes ‘journalism’ as a function shared by a wide range of actors, including bloggers and others who self-publish information online or offline, avoiding a restrictive or formal definition of who deserves protection as a journalist, and making clear that schemes for registering or licensing of journalists are incompatible with States’ obligations.

 

In conclusion, the risks and attacks identified in this report are happening because States are not fulfilling their obligations and commitments. In many cases, governments or public officials are behind it. The more we know about international standards and commitments, the more we can hold governments accountable. The more we know, the more we can ensure the safety of journalists and the smooth functioning of our democracies, because without journalism there can be no democracy.

 

Silvia Chocarro is Head of Protection at ARTICLE 19. @silviachocarro

Cover image, with changes under CC.

 

[1] International Covenant on Civil and Political Rights, 1966, Art.19, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx#:~:text=Article%2019&text=Everyone%20shall%20have%20the%20right,other%20media%20of%20his%20choice.

[2] ARTICLE 19, Ending Impunity. Acting on UN Standards on the Safety of Journalists, November 2019,  https://www.article19.org/wp-content/uploads/2019/11/SOJ-Web.pdf

[3] ARTICLE 19, Freedom of Expression and Women’s Equality, Ensuring Comprehensive Rights Protection, October 2020, https://www.article19.org/wp-content/uploads/2020/10/Gender-Paper-Brief-1.pdf

[4] International Committee of the Red Cross. Customary International Humanitarian law, Rule 34, Journalists, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule34

[5] UN Security Council. Resolution 1738 on Protection of Civilians in Armed Conflict (S/RES/1738), 2006, https://undocs.org/S/RES/1738(2006) & UN Security Council, Resolution 2222 on Protection of Journalists and the Issue of Impunity (S/RES/2222), 2015, https://undocs.org/S/RES/2222(2015)

[6] Chocarro, Silvia. The United Nations’ Role in Promoting the Safety of Journalists from 1945 to 2016. In The Assault on Journalism. Building Knowledge to Protect Freedom of Expression. Edited by Ulla Carlsson and Reeta Pöyhtäri. Nodicom. Gothenburg, 2017 Page 45-61 https://www.nordicom.gu.se/sv/system/tdf/publikationer-hela-pdf/the_assault_on_journalism.pdf?file=1&type=node&id=38302&force=0

[7] UNESCO, Basic Texts Related to the Safety of Journalists, https://en.unesco.org/themes/safety-journalists/basic-texts

[8] UNESCO, UN Plan of Action on The Safety of Journalists, 2012, https://en.unesco.org/un-plan-action-safety-journalists

[9] UNESCO, Resolution 29 on Condemnation of Violence against Journalists, 1997, https://en.unesco.org/sites/default/files/ipdc_resolution_29.pdf

[10] UNESCO, Observatory of Killed Journalists, 2018, https://en.unesco.org/themes/safety-journalists/observatory

[11] UNESCO Director-General Report on the Safety of Journalists and the Danger of Impunity, 2020, https://en.unesco.org/themes/safety-journalists/dgreport/2020

[12] Council of Europe. Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States
on the protection of journalism and safety of journalists and other media actors, 2016, https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016806415d9#_ftn1

[13] Council of Europe. Implementation Guide to Recommendation CM/Rec(2016)4 on the Protection of journalism and safety of journalists and other media actors, 2020, https://rm.coe.int/safety-implementation-guide-en-16-june-2020/16809ebc7c

[14] Declaration Decl-26.09.2007 by the Committee of Ministers on the protection and promotion of investigative journalism, 2007, https://rm.coe.int/1680645b44

[15] OSCE, Decision No. 3/18 on the Safety of Journalists, 2018, https://www.osce.org/files/mcdec0003%20safety%20of%20journalists%20en.pdf

[16] This is a selection of commitments, mainly from HRC resolutions.

[17] UN Human Rights Committee, General Comment No. 34 on Article 19: Freedoms of Opinion and Expression (CCPR/C/ GC/34), 2011, https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf