48 No. 73 JUSTICE from taking security measures to reduce the risk of disclosure of sensitive military information, such as members of military personnel, types of on-hand equipment, unit locations, and plans for future operations.25 The only legitimate conclusion that may be drawn from Article 79 AP I and the corresponding customary rule on journalists is the prohibition of arbitrarily denying them the protections afforded to civilians on the sole basis of their professional engagement. As stated in the ICRC Commentary on AP I, “the military or civil authorities may subject such activities to controls in order to ensure that they comply with the rules they have laid down.”26 4. Loss of Protection Solely gathering, transmitting, and disseminating information or otherwise engaging in the journalistic profession during an armed conflict is not sufficient to deprive journalists of their protections as civilians. This is clearly supported by the wording of Article 79(1) and (2) AP I. However, a journalist’s own conduct may result in losing the protections afforded to civilians under the Geneva Conventions, the Additional Protocols, and customary IHL. This stems from Article 79(2) AP I, which states that a journalist’s protection ceases as soon, and as long as, they take action “adversely affecting their status as civilians.” 4.1 Journalists’ Activities as Direct Participation in Hostilities Such action includes, but is not limited to, any activity qualifying as direct participation in the hostilities, which according to Articles 51(3) AP I, and 13(3) AP II, and customary IHL,27 deprives a civilian, and thus a journalist, from their lawful protection against direct attack.28 In this context it is important to bear in mind that some of the journalists in Gaza are Hamas operatives. The interpretation of the notion of direct participation in hostilities continues to be a highly contentious issue. The ICRC Interpretive Guidance has received considerable support, but it has also been criticized by States. This is not the right occasion for re-entering into the discussion whether the ICRC approach correctly reflects the current state of IHL or not. There should, however, be general agreement that the provision of militarily relevant information to the enemy, such as targeting data or on the location of units, qualifies as direct participation in hostilities rendering the respective journalist liable to be attacked. Such activity will be correlated to a sufficiently high threshold of harm because it is likely to “adversely affecting the military operations or military capacity of a party to the conflict.”29 Such acts will also meet the – not generally accepted – requirement of belligerent nexus, because it will be “specifically designed to directly cause the required threshold of harm [i.e., adversely affecting the military operations or military capacity] in support of a party to the conflict and to the detriment of another.”30 The wording of the treaty provisions on direct participation on hostilities (“for such time”) suggests that there is a temporal element. Specifically, a journalist’s loss of protection from direct attack depends on how long the journalist participated in an act that qualifies as direct participation in hostilities.31 According to an opposing view, repetitive activities of direct participation in hostilities must be assessed in sum, thus closing the “revolving door” until the respective civilian unambiguously opts out through extended nonparticipation or an affirmative act of withdrawal.32 These different approaches may result in far-reaching consequences. According to the ICRC, a journalist who regularly engages in an activity qualifying as direct participation would regain protection from direct attack after the completion of each specific act until they engage in such activity again. According to the opposing view, a journalist engaging “in a pattern of taking a direct part 26. Pilloud, Sandoz, Swinarski, Zimmermann, and ICRC, supra note 12, at ¶ 3264. 27. Nils Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law,” ICRC (May 2009), available at https://www.refworld.org/policy/legalguidance/icrc/2009/ en/68382 28. Pilloud, Sandoz, Swinarski, Zimmermann, and ICRC, supra note 12, at ¶ 3268 (“Thus it is quite clear that in case of any direct participation in hostilities they would forfeit for the duration of such participation the immunity they enjoy as civilians”). 29. Melzer, supra note 27, at 47. 30. Ibid., at 58. 31. Ibid., at 43. 32. See, inter alia, LAW OF WAR MANUAL, supra note 7, at ¶ 5.8.4.2. 33. Ibid.
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