ICC to protect journalists, and their sources
Reporters San Frontières (RSF), having issued multiple complaints to the International Criminal Court (ICC) has called on the court to investigate the deaths of journalists in Gaza. The ICC has assured RSF that it is looking into the matter.
The call comes in the wake of the grisly findings that, as of 15 July, 108 journalists have been murdered since the 7 October Hamas attacks on Israel and the invasion of Gaza, according to the Committee to Protect Journalists.
The ICC has indicated its willingness to hear evidence about criminal responsibility, with arrest warrants issued for Prime Minister Benjamin Netanyahu, defence chief Yoav Gallant and also three Hamas leaders, Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh, for war crimes and crimes against humanity.
It is a change of direction for the ICC, given that Israel is not a party to the court. Similarly, arrest warrants were issued against Russian president Vladimir Putin in March for the atrocities committed in the Ukraine. Russia is also not a party to the ICC.
Article 15(1) of the ICC statute holds that ‘the Prosecutor may initiate investigations propio motu on the basis of information on crimes within the jurisdiction of the court’. The Prosecutor may seek information from reliable sources to establish the seriousness of the information.
ICC investigators will encounter difficulties in their investigations as they may be blocked from accessing Gaza to find information about war-time atrocities. There has been next-to-zero access to Gaza by foreign correspondents, who remain confined to Jerusalem and Tel Aviv.
Any investigation will therefore be highly dependent on local journalists, who have continued to report on the conflict. Journalists, including foreign correspondents and freelancers, are protected as civilians under international law.
However, because they are considered civilians, journalists lack a special status in international law, meaning that the protection of their professional activities – according to the doctrines of distinction and proportionality – is implied rather being self-evident.
United Nations Security Council Resolution 2222 recalls its previous demand that ‘all parties to an armed conflict comply fully with the obligations applicable to them under international law related to the protection of civilians in armed conflict, including journalists, media professionals and associated personnel’.
Similarly, the ICC may have to respond to allegations that journalists ought to lose their protected civilian status because they have been connected to Hamas, as has been contended in this conflict and, in the past, for example, in relation to the bombing of the Al-Aqsa television station in Gaza in 2012.
Foreign correspondents who cooperate with the ICC have been reassured that the highly confidential nature of their activities – including their sources – will be protected. A decision before the International Criminal Tribunal for the Former Yugoslavia (ICTY) found in 2002 that a war correspondent working for the Washington Post did not have to disclose his sources to the tribunal despite the gravity of the charges. At any rate, the protection of journalists, however flawed, will certainly be central to any response by the organs of international law.
Simon Levett, UTS HDR Student
