IMPUNITY AND THE RULE OF LAW:

THE INITIATIVE FOR AN INTERNATIONAL FRAMEWORK TO PROTECT JOURNALISTS FROM VIOLENCE

AND COUNTER IMPUNITY

Legal Aspects Study

Dr Carmen Draghici (City University London)Dr Carmen Draghici (City University London)

  

Background:

Systematic violations of the fundamental rights of journalists

as they exercise their profession

Climate of impunity in respect of such violations

Non-compliance with human-rights obligations as regards the victims

Impact on freedom of expression and rule of law in societies concerned

Impunity and the Rule of Law initiative:

Identify the normative gaps under international law

Recognize enforcement gaps in current compliance-monitoring

mechanisms

Explore more effective solutions for the prevention/ sanction of violations

Existence of substantive norms across general human-rights instruments

1. General international law instruments

Binding instruments

UN Covenant on Civil and Political RightsEuropean Convention on Human RightsEU Charter of Fundamental Rights American Convention of Human RightsAfrican Charter on Human and People’s RightsArab Charter on Human Rights

right to life right to personal liberty and integrity freedom from torture freedom of expression right to an effective remedy

1. General international law instruments (cont’d)

Scope of provisions as interpreted by monitoring bodies:

Negative obligations: refrain from

• deliberate killings• ill-treatment• unlawful arrest• interferences having a chilling effect on all media operators/citizenry at large

Positive obligations:

conduct police/ military operations in such a way as to minimize loss of life adopt all necessary legislative etc. measures to protect journalists against

third-party violence/ intimidation prompt and effective investigations into suspicious deaths or allegations of

torture provide effective remedy to victims – identify and prosecute those responsible

1. General international law instruments (cont’d)

Further relevant provisions: humanitarian law

Applies in times of armed conflict alongside human-rights provisions (except for express derogations)

Protection of civilians in times of war - obligations of belligerent parties:

discriminate civilians from legitimate military targets observe proportionality in planning attacks likely to result in collateral damage

Protocol I to the Geneva Conventions:express recognition of civilian status of journalists

- reiterated in Security Council Resolution 1738 (2006)

1. General international law instruments (cont’d)

Non-binding instruments

• UN and regional level• Reinforce/ detail the scope of treaty obligations• Some address explicitly the issue of impunity

UN General Assembly

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

ECOSOC

Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions

African Commission

Guidelines and measures for the prohibition and prevention of torture, cruel, inhuman or degrading treatment or punishment in Africa

2. Measures Specific to the Situation of Journalists

Exclusively non-binding instruments

Human Rights Council: Resolution 12/16 ‘Freedom of opinion and expression’ (2009)

UNESCO: Resolution 29 ‘Condemnation of violence against journalists’ (1997)

UNESCO: Medellin Declaration Securing the Safety of Journalists and Combating Impunity (2007)

Council of Europe Parliamentary Assembly: Resolution 1535 (2007) on ‘Threats to the lives and freedom of expression of journalists’

Inter-American Commission on Human Rights: Declaration of Principles on Freedom of Expression (2000)

African Commission on Human and Peoples’ Rights: Resolution on the adoption of the declaration of principles on freedom of expression in Africa (2002)

call upon States to end the culture of impunity

require criminalization and independent investigations leading to the punishment of those responsible

2. Measures Specific to the Situation of Journalists (cont’d)

NGO-promoted instruments

e.g. Reporters Without Borders

Declaration on the safety of journalists and media personnel in situations involving armed conflict (2003)

contribution to standard-setting

incremental operation rather than swift solution

Implementation deficits

Lack of resources

affects implementation of positive obligations e.g. effective police and judicial systems

impairs the functioning of relevant international bodies

Reluctance to accept supra-national monitoring institutions

scarcity of international enforcement bodies with binding powers

A. Universal mechanisms for monitoring compliance

Security Council

binding powers circumscribed to situations amounting to a threat to the peace, a breach of the peace or an act of aggression (Art. 39 UN Charter)

no general law-enforcement competence e.g. in respect of peacetime killings and intimidating acts

Human Rights Committee

quasi-judicial procedure - individual communications optional jurisdiction non-binding (albeit authoritative) reports

A. Universal mechanisms for monitoring compliance (cont’d)

Other UN treaty-based monitoring bodies

Committee against Torture, Committee on the Elimination of Racial DiscriminationCommittee on the Elimination of Discrimination against Women

no power to adopt binding decisions

UNESCO International Programme for the Development of Communication

follow-up mechanism on a voluntary basis IPDC Council – meetings every 2 years focus on killings of journalists rather than all forms of violence and harassment

B. Regional mechanisms for monitoring compliance

more far-reaching enforcement mechanisms:regional courts issuing binding judgments on individual complaints

o Council of Europe – European Convention on Human Rights

compulsory jurisdiction of the European Court to receive individual complaints monitoring of execution by the Committee of Ministers

• can bring States before the Court for non-compliance (Protocol 14)• suspension and expulsion of States for serious human-rights violations

o American and African human rights systems

comparable but less incisive limits on the ability of the individual to bring a complaint many States have not ratified the Protocols giving the relevant courts

jurisdiction

B. Regional mechanisms for monitoring compliance (cont’d)

o Other regional systems - weaker enforcement mechanisms

Arab Human Rights Committee

periodic reports

ASEAN Intergovernmental Commission on Human Rights

consultative body

South Asian Association for Regional Cooperation

no human-rights body

B. Regional mechanisms for monitoring compliance (cont’d)

Factors impairing the effective access to a court

excessive length of the proceedings costs ignorance of the legal avenues available intimidation of lawyers

Possible legal responses to the current situation of violations and impunity

New international instruments for the protection of journalists; and/or New specific enforcement mechanisms

The case for a specific instrument/mechanism for the protection of journalists

vulnerability as a category - targeted on account of their profession

systemic effect of attacks against journalists • impact upon the public’s right to information • decline of democratic control over the ruling elites• chilling effect on every one’s freedom of expression

success of sectoral conventions special categories (children, women, minorities, disabled); or special rights (protection against torture, non-discrimination)

consolidate the guarantees in general instruments attach particular stigma to violations

1. Options concerning new instruments

1.1. International Convention

negotiated within the UN General Assembly or the UNESCO General Conference

systematize and detail existing obligations in respect of media workers

1.2. Declaration of Principles

UN General Assembly resolution express determination of the international community to counter impunity set the foundations for the adoption of a binding instrument

precedents: rights of child and women, racial discrimination

1. Options concerning new instruments (cont’d)

Appropriate forum: global instrument rather than regional action

cover regions with limited inter-governmental cooperation set uniform standards

< trans-border dimension of violence against journalists

Contents of the new conventional/ declaratory instrument

protection of journalists against attacks on their life protection against forced disappearances and kidnapping (by state or private actors) protection against arbitrary arrest protection against arbitrary deportation/refusal of entry protection against confiscation/ damage to property humanitarian law provisions

comprehensive codification of all applicable rules in a single instrument

2. Options concerning new enforcement mechanisms

2.1. New monitoring body

2.1.1 Ad hoc body of independent experts monitoring compliance of the new convention for the protection of journalists

mandatory competence to receive complaints mandatory power of inquiry

Advantages:

more expedite procedure avoid the loss of political pressure ensuing from fragmentation of initiatives

2. Options concerning new enforcement mechanisms (cont’d)2.1. New monitoring body (cont’d)

2.1. 2 Specialist sub-Committee within the Human Rights Council

an equal number of Gov’t agents and representatives of media workers’ NGOs model similar to International Labour Organization assembly delegations

empowered to: undertake studies issue recommendations report to the Council on individual/ NGOs/ State communications

+ Advantages: may receive easier approval - Disadvantages: lack of binding powers

2. Options concerning new enforcement mechanisms (cont’d)

2.2 Expand the prerogatives of existing bodies

2.2.1 Human Rights Council remove the prior consent requirement for country visits introduce a system of regular country visits introduce a mechanism of complaints for less exceptional cases

2.2.2 UNESCO

IPDC Council

non-binding reports on individual and collective communications power to undertake country visits

Advantage: autonomous media issues focal point increase visibility of the challenges facing journalists provide a centralized forum for reaction

Committee on Conventions and RecommendationsEnhance the individual communications procedure

2. Options concerning new enforcement mechanisms (cont’d)2.2 Expand the prerogatives of existing bodies (cont’d)

2.2.3 Regional courts

priority procedure for media violations

modelled after the EU post-Lisbon speed procedure for persons deprived of liberty

acknowledge the wider public implications on freedom of expression

2. Options concerning new enforcement mechanisms (cont’d)

2.3 Enhancing the effectiveness of existing organs within their current competence

States members of international bodies taking a more pro-active role

provisions on media protection in Security Council authorizations of peace-keeping missions

regional bodies - linking trade agreements with compliance with human rights

experience of EU conditionality for accession, association and cooperation agreements