46 No. 73 JUSTICE protection of journalists in non-international armed conflict. This begs the question whether Article 79 AP I is reflective of customary international law that also applies in non-international armed conflicts and to States not party to the Protocol. According to the ICRC Customary IHL Study,10 the “immunity against attacks is based on the prohibition on attacking civilians” and that this “conclusion is borne out by practice, even before the adoption of the Additional Protocols.11 While the practice relied upon by the ICRC may not satisfy everyone for recognizing the rule on journalists as having matured into customary international law, the present article will not go into greater depth. Instead, it will start from the premise that Article 79 AP I applies as customary international law in times of noninternational armed conflict. According to Article 79(1) AP I, journalists “shall be considered as civilians.” This formulation may not be misunderstood as introducing a new category of specially protected persons under IHL.12 Rather, civilian journalists are considered civilians under international humanitarian law (as distinguished from war correspondents who enjoy prisoner of war status when falling into the hands of the enemy).13 The need to address journalists in a separate provision is due to the fact that they are “engaged in dangerous professional missions in areas of armed conflict.” A journalist is an individual who “writes for newspapers or magazines or prepares news to be broadcast on radio or television.”14 This definition based on the ordinary meaning is too narrow because it does not take the technological and other developments in the media sector into account. Article 2(a) of the Draft Articles on the Protection of Journalists Engaged in Dangerous Missions in Areas of Armed Conflict15 defines 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 and who, in countries where such activities are assigned their particular status by virtue of laws, regulations or, in default thereof, recognized practices, have that status (by virtue of the said laws, regulations or practices). Although this definition goes beyond the ordinary meaning of the word “journalist,” it will not necessarily cover part-time reporters (i.e., those not engaged in the said activities as their principal occupation), freelance reporters (i.e., those without a recognized status under the applicable domestic law), or those reporting for new media, such as internet websites. According to the position taken here, the technological developments since 1975 cannot be ignored. Therefore, all those “being on the spot, doing interviews, taking notes, taking photographs or films, sound recording etc. and transmitting them”16 to outlets other than newspapers, agencies, radio or TV, including those who assist in such activities, also qualify as journalists. However, those activities must belong to their profession. The wording of Article 79(1) AP I expressly refers to “professional missions.” Accordingly, persons randomly engaged in any of the said activities and not engaged in a professional mission of a certain duration will not qualify as journalists. 3. Scope of Protection As regards the protection afforded to journalists, it is important to distinguish between prohibited direct attacks and incidental harm inflicted upon them. Moreover, one needs to bear in mind that the professional activities of journalists do not enjoy absolute protections under IHL. 3.1 Prohibited Attacks and Incidental Harm As demonstrated, persons qualifying as journalists by their professional mission are legally interpreted as civilians, and therefore do not belong to any category of specially protected persons under IHL. To that end, Article 79(2) AP I states that journalists “shall be protected as such under the Conventions and this Protocol,” meaning 10. Jean-Marie Henckaerts and Louise Doswald-Beck, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, VOL. I RULES 115 (2005). 11. Ibid., at 116. 12. Claude Pilloud, Yves Sandoz, Christophe Swinarski, Bruno Zimmermann, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, ¶ 3265 (Geneva: ICRC, 1987). 13. Ibid., at ¶ 3258. See also LAW OF WAR MANUAL, supra note 7, at ¶ 4.24.1. 14. CONCISE OXFORD ENGLISH DICTIONARY 767 (12th ed., 2011). 15. U.N. GAOR, 13th Sess., at annex 1, U.N. Doc. A/10147 (Aug. 1, 1975). 16. Pilloud, Sandoz, Swinarski, Zimmermann, and ICRC, supra note 12, at ¶ 3264.
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