Can the ICC offer legal protection to targeted journalists?

On April 7 2014, Judge Sanji Mmasenono Monageng spoke at the BBC-CFOM Symposium on the protection of journalists and the issue of impunity held at BBC Broadcasting House in London. She delivered the most complete assessment made by a senior official of the Court in response to the question: Can the ICC offer its legal protection to targeted journalists? Judge Monageng is  the First Vice-President of the International Criminal Court. She made clear that her remarks reflect her personal view and do not represent an official position of the ICC.

The following are among the points made in the Judge’s Allocution to the gathering of global media representatives and editors, international legal experts and leaders of freedom of expression NGOs:-

The media “play(s) a vital role in bringing to the attention of the international community the horrors and reality of conflict, and in awakening the international community to the seriousness of the human rights situation during armed conflicts…” (ICTY Appeals Chamber on 11 December 2002).

The media’s role in justice is thus, for me,  indisputable. But it is also  this specific role – of an independent  and strong voice –  that leads to journalists  being targeted during armed conflicts… Journalists are also specifically  targeted, whether during popular uprisings, internal conflicts or simply  when trying to oppose dictatorships…

The Judge explained that before seeking to open an investigation, the ICC Prosecutor must ensure several criteria are met: those of jurisdiction, complementarity, gravity, and the interests of justice and of victims. Crimes against journalists can qualify as crimes against humanity, but only if these crimes  are part of a widespread or systematic attack against any civilian population.

‘Wilful killing or violence to the life of journalists and war correspondents …might be categorised as war crimes…

..but then the Prosecutor will not be considering specific attacks against journalists because of their work; the crime under consideration in such a case would be  the general attack which, among other civilians, included journalists as targets…

Judge Monageng drew a comparison between the role of journalists in conflicts and that of peacekeepers.

In comparison with the above-mentioned attack against the peacekeepers, one would need to establish that the attacks against journalists would have a grave impact on the local population, eventually by preventing them from alerting the international community on the seriousness of the human rights abuses and the gravity of the humanitarian situation in a given country. It could be argued that the crimes committed against journalists had severe consequences for the population as they allowed the regime in place to conceal the crimes committed against the civilian population and therefore to go on with their perpetration.

In the discussion that followed, Judge Monageng described as ‘a high threshold’ the conditions that must be met before the ICC could open an investigation or prosecution for crimes against journalists. She added ‘If you think about enforcement you need to get governments to amend the Rome Statute.’

NOTE: An amendment to the Rome Statute can be adopted by a two-thirds majority vote of the 122 States Parties, and come into force one year after it is ratified by seven-eighths of the states parties.

Read the full text of Judge Monageng’s speech to the Symposium here

Read more about the International Criminal Court here