47 Winter 2025 they enjoy the same protections as all other civilians.17 Those protections include, but are not limited to, the prohibition of making them the primary target of an attack and attacking them directly. However, protection against direct attack does not mean that any killing or injuring of a journalist necessarily qualifies as a violation of the journalist’s protected status. Although journalists qualify as civilians, they may be incidentally killed or injured by an attack directed against a lawful target. Lawful targets include persons who, by their status or conduct, are not or no longer protected civilians. This includes, but is not limited to, members of State or non-State organized armed groups and civilians directly participating in the hostilities, or objects that by their nature, location, purpose or use make an effective contribution to the enemy’s military action. Journalists engaged in their professional activities in areas of armed conflict will often follow military units and non-State armed groups or they will get close to persons or objects qualifying as lawful targets. Thus, they risk “losing effective protection,” if they expose themselves to the dangers of such lawful attacks.18 As rightly stated, “journalists who enter areas of military operations assume a significant risk that they could be injured or killed incidental to an enemy attack or from other dangers.”19 In this context, it is important to note that IHL does not prohibit “collateral damage,” which constitutes attacks against lawful targets that cause or are expected to cause incidental loss of life or injury to civilians, including journalists. According to Article 51(5) (b) AP I, which is reflective of customary international law,20 such attacks are only prohibited if the expected collateral damage “would be excessive in relation to the concrete and direct military advantage anticipated.” A journalist who is in or in the vicinity of a lawful target under attack does not enjoy a higher degree of protection than any other civilian. Accordingly, a single journalist incidentally injured or killed by a lawful attack will hardly count as prohibited excessive collateral damage. And even if the injured or killed journalist is part of a larger group of civilians expected to be incidentally harmed, this does not render the attack illegal. The word “excessive” should not be misunderstood as being synonymous with “extensive.” Even the expectation of a high number of civilian casualties does not necessarily render an attack unlawful. Moreover, the concept varies in accordance with the anticipated military advantage. The greater the military advantage anticipated from a lawful attack, the less likely any expected collateral damage will qualify as “excessive.” As emphasized in the ICRC Commentary on AP I, “it should not be forgotten that the appearance of a journalist on the battlefield is unlikely to have the effect of putting an end to the exchange of fire so that he can do his job.”21 3.2 Professional Activities Protected? The wording of Article 79 AP I does not suggest that the professional activities of journalists are specifically protected under IHL. However, according to the ICRC Customary IHL Study, practice “indicates that journalists exercising their professional activities in relation to an armed conflict must be protected.”22 The practice relied upon by the ICRC calls on the parties to the conflict to ensure the safety of media representatives and refrain from any harassment or intimidation of journalists as well as from denial of full and unhindered access.23 Seemingly, the ICRC advocates for the protection of journalist activities. However, the practice referred to is limited to arbitrary or other unjustified interference with the professional activities of journalists, including detention and murder. This does not justify a conclusion that a journalist’s professional activities enjoy special protection under IHL. Of course, from a policy perspective, journalists may be considered to “play a vital role in free societies and in providing information about armed conflict.”24 Still, under the law of war, there is no special right for journalists to access areas of military operations without the consent of the State conducting those operations. The law of war does not prohibit States 17. LAW OF WAR MANUAL, supra note 7, at ¶ 4.24.1, states that “Journalists do not form a distinct class of persons under the law of war, but instead receive protection through the general protections afforded civilians. Thus, in general, the rights, duties, and liabilities applicable to civilians also apply to journalists.” 18. Pilloud, Sandoz, Swinarski, Zimmermann, and ICRC, supra note 12, at ¶ 3269. 19. LAW OF WAR MANUAL, supra note 7, at ¶ 4.24.2.1. 20. Ibid., at ¶ 5.12. 21. Pilloud, Sandoz, Swinarski, Zimmermann, and ICRC, supra note 12, at ¶ 3270. 22. Henckaerts and Doswald-Beck, supra note 10, at 117. 23. Ibid., at 117. 24. LAW OF WAR MANUAL, supra note 7, at ¶ 4.24. 25. Ibid., at ¶ 4.24.2.2.
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