Eduardo Bertoni: Prevent and punish violence against journalists
With the fatal assault on Charlie Hebdo in Paris, at the start of 2015, and the persistent sprouting of new statistics each year, it is evident that the oppressive violence against journalists is not dissipating. The best way to prevent it is to hold perpetrators accountable, according to Eduardo Bertoni, Director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at Palermo University, Argentina. What has been done, and what should be done to better prevent and punish crimes committed against media professionals? Bertoni suggests some answers in ths article that we publish as counterpoint to the international conference News organizations standing up for the safety of media professionals, held at UNESCO on 5 February 2016.
According to the Committee to Protect Journalists (CPJ), 1177 journalists have been killed worldwide, between 1992 and 2015. 779 of them were murdered (murder being defined as “a deliberate attack against a specific journalist in relation to the victim’s work”). 683 of these cases were never investigated. Both the trend of violence against journalists and the lack of convictions are as real today as they were in 1992. Yet despite the universality of the problem, there are recurrent main players in the nexus of affected countries; certain nations repeatedly appear as hotbeds for violence against journalists where the aggressors go untried and unpunished. The Arab region in general has the most prevalent attacks against journalists, followed by Asia, then Latin America, and then Europe and North America (more information).
The contexts differ, and there are a range of reasons for particular attacks and a range of remedies, depending on the particularities at hand. A war situation is particularly complex, with documentation being important so that there can be at least an opportunity for justice for journalists once peace returns. In other cases, the problems of killings and impunity are related to low capacity on the part of a state to protect journalists and punish attackers. In yet further instances, political actors are not adequately sensitized to the human rights issues, the wider relevance of attacks on journalists, or the political calculus in terms of the image of the authorities and the country at large. These varying situations point to different emphases in terms of responses. However, in all cases, the issue of impunity for attacks on journalists serves as a barometer for the ability of a state to protect citizens. The statistics demonstrate a correlation between high rates of violence against journalists and high rates of impunity more broadly.
The trends are not only geographically influenced, but also professionally. The majority of the attacks have occurred in the more traditional sectors of the press. According to the 3rd Annual Report Combating Impunity, published by the Doha Centre for Media Freedom, 36.7% of journalists killed in 2014 worked in television, while 22.94% worked in print. The rest were distributed between radio, the internet, and photojournalism. In 2013, UNESCO reported that from 2006 to 2013, 41% of journalists killed worked in print media, 26% worked in television, and 21% in radio. Almost all (94%) of these journalists worked local circuits and were male. Female journalists, however, frequently face other forms of persecution, such as harassment, threats, and rape, as shown in the 2013 International Women’s Media Foundation report.
Violence against the press as an attack on democracy
Simply put, violence against members of the press is an attack on freedom of expression, which in turn is an attack on democracy and human rights. International organizations have long recognized that an attack on the press is an assault on fundamental principles of democracy, namely transparency, accountability, as well as the right to hold opinions and to participate in public debates. Assaults against media workers suppress one’s right to access and attain information as well as to express and share ideas. Impunity for these crimes enhances this suppression of rights as there is little disincentive for committing such acts and thus the violent cycle is perpetuated.
While impunity is a much wider problem than the cases of journalists, there is a strong rationale to give special attention to resolving these attacks as a lever to promoting justice more broadly. It is vital to signal to the public that the state will act to ensure that freedom of expression can be used without fear, and that violent crimes in general will be properly investigated, prosecuted and punished.
International response: the role of UNESCO
The ongoing problem of impunity in many regions of the world has compelled responses from a number of international tribunals and intergovernmental organizations. UNESCO as the United Nations agency charged with promoting freedom of expression and coordinating efforts among other UN bodies, has spearheaded a number of international efforts to combat impunity for crimes against members of the media.
In 1993, on the recommendation of the UNESCO General Conference, the UN General Assembly designated May 3 as World Press Freedom Day. Since 1997, UNESCO has awarded a World Press Freedom Prize on this day to a “person, organization, or institution that has made an outstanding contribution to the defense and/or promotion of press freedom anywhere in the world, especially when this has been achieved in the face of danger.” The prize honors Guillermo Cano Isaza, a Colombian journalist assassinated in 1986. UNESCO also holds conferences on World Press Freedom Day, resulting in a number of important declarations that address journalist safety (Belgrade Declaration, 2004; Medellin, 2007; Carthage, 2012; San José, 2013; Paris, 2014; Riga, 2015).
In 1997 UNESCO General Conference adopted the Resolution 29, asking the Director-General of the agency to publicly condemn violence against journalists as “a crime against society,” and calling for member states to implement policies in order to facilitate the prosecution and sentencing of individuals who orchestrate these crimes. UNESCO Resolution 53, adopted in 2011, called on UNESCO and other organizations to monitor violence against journalists and cases of impunity and encouraged cooperation and dialogue between member state governments, institutions, and civil society organizations.
Since then, UNESCO has adopted several other resolutions and undertaken other initiatives to address the problem of impunity for crimes against the media, including the United Nations Plan of Action on the Safety of Journalists and the Issue of Impunity, which is perhaps its most significant contribution. In 2011, it organized a UN Inter-Agency Meeting on this topic and its conclusions were published in a comprehensive 2012 report, and an additional Work Plan, in 2013.
The philosophy of the UN Plan is to catalyse concerted actions across the whole of society, so that each constituent, and not least those linked to the rule of law, are inspired and informed of the role they can play.
Regional responses: the role of the courts
Various bodies of the Organization of American States (OAS) have addressed the issue of impunity for crimes against journalists in the Americas. The Inter-American Court of Human Rights, for example, has heard a number of cases related to crimes against journalist sand other media workers. The importance of timely and competent investigations in deterring future rights violations was explained in the Court’s 2009 judgment in the case of Ríos et. al. v. Venezuela: “The investigation of the violation of a specific substantive right may be a way to shelter, protect, or guarantee that right… In cases of extrajudicial killings, forced disappearances, torture, and other grave violations to human rights, the Tribunal has considered that carrying out an investigation ex officio, without delay and in a serious, fair, and effective manner is a fundamental element that contributes to the protection of certain rights affected by those situations, such as personal freedom, the right to humane treatment, and life.” In Ríos, the Court found Venezuela, through its failure to conduct an adequate investigation into the harassment and intimidation of a group of journalists, to have breached its obligations to respect the rights to humane treatment and the freedom to seek, receive, and impart information under the American Convention. The Court also suggested that criminal investigations and prosecutions are appropriate when violence is used to suppress freedom of expression.
The Council of Europe and the European Union have taken a number of steps to combat impunity for crimes against journalists. To take a recent example: in April of 2015, together with four partner organizations, the Council of Europe launched an internet platform to collect information “concerning serious physical threats to journalists and other media personnel, threats to the confidentiality of media sources and forms of political or judicial intimidation.” The European Court of Human Rights has also emphasized the key importance of freedom of expression as one of the preconditions for a functioning democracy. In the case of the Turkish daily newspaper Özgür Gündem, the Court noted, in 2000, that “genuine, effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals.” The applicants in this case, editors and owners of the newspaper, alleged in part that the government had failed to adequately address the harassment and violence directed at journalists, distributors, and others associated with their publication. The Court agreed and determined that the government had failed in its positive obligations to “take adequate protective and investigative measures” to safeguard the applicants’ right to freedom of expression, in violation of the European Convention on Human Rights.
The African Commission on Human and Peoples’ Rights adopted in October 2002 the “Declaration of Principles on Freedom of Expression in Africa” (available here).
In May 2012, African Commission adopted a resolution in Banjul, The Gambia, where it called on Somali authorities, the African Union and the international community to support the establishment of an Independent Commission of Inquiry to investigate the killings of journalists and other violent attacks against them, so as to end the culture of impunity (more information).
In June 2014, The Gambia was ordered by the Economic Community of West African States Court of Justice to pay US$50,000 to the family of murdered editor Deyday Hydara, as compensation for failure to effectively investigate the murder, and US$10,000 for legal costs (more information).However, there has been non-compliance by The Gambia with two earlier ECOWAS rulings, one on the disappearance of a journalist and another on the torture of a journalist (more information).
In June 2015, the African Court on Human and Peoples’ Rights, created in 1998, ordered the government of Burkina Faso to re-open the investigation into the killing of journalist Norbert Zongo and three others, 17 years earlier. The court reportedly ordered the payment of monetary damages and costs to the victims' relatives, instructed Burkina Faso to publish its judgment widely within the country, and ordered a report on implementation within six months (more information).
Countries’ responses : focus on Latin America
Several countries in Latin America have attempted to confront threats to freedom of information, expression, and the press due to journalist killings and subsequent impunity in various ways. Generally, the different types of programs implemented by the government in these situations can be broken down into three categories: programs of protection, special investigative bodies, and federalization of crimes against journalists.
One of the oldest and largest programs of protection that has been implemented in Latin America is the one in Colombia. The initiative emerged as a reactive, emergency response to a crisis situation at a time when Colombia had a very high rate of threats and killings of journalists and other vulnerable populations (more information). While initially meant to be temporary, the program now provides protection for 7,500 at risk people at a total cost of $600,000USD per day. The measures for protection range from bulletproof vests and the installation of security systems to armed escorts with vehicles to help leaving the country in the highest risk cases.
Another example of a protection program implemented in Latin America is the Mechanism to Protect Human Rights Defenders and Journalists, also known as the Committee to Protect Journalists, in Mexico. Although journalists and other vulnerable groups previously had a patchwork of other organizations to turn to, civil society began lobbying for the creation of this organization in 2010 in order to create a more centralized, effective, fast, flexible and reliable means of protection. The Mechanism became operative in November 2012 and in 2013 it was funded with more than US$ 9 million. Examples of some of the protective measures that have been provided by the Mechanism include regular police rounds to the person’s home or office, panic buttons and satellite phones that can be activated in emergency situations, and the instillation of cameras and/or alarm systems. The Mechanism also maintains a series of safe houses throughout the country.
Finally, and most recently, Honduras passed the Law of Protection of Human Rights Defenders, Journalists, Communicators and Operators of Justice in April 2015, creating the National System of Protection for Human Rights Defenders (Sistema Nacional de Protección para Personas Defensoras de Derechos Humanos). One of its components, The National Council for Protection will serve as the supervising body of the system with responsibilities that include, for example, recommending effective implementation techniques and reviewing annual reports by other departments. Its Technical Committee on Mechanisms of Protection is the body in charge of making risk assessments and determining the necessary protection measures.
Unlike programs of protection that focus primarily on mitigating or eliminating specific threats of harm, special investigative bodies are more concentrated on tackling the issue of impunity. An example that is unlike any other in the region is the International Commission Against Impunity (CICIG) in Guatemala. Created in 2006 this commission is the unique multilateral entity created in partnership with the United Nations to support the national government’s efforts to combat impunity and violence. It is an independent body from a political, organizational and financial standpoint. All of the staff is hired and trained in line with UN standards and, although the state provides office space and security, the commission is funded completely by private contributions from the international community. It's staff that is compromised of 162 international and national officials (as of 2013, the latest data available on their website).
The commission’s main goal is to dismantle and eradicate illegal and clandestine organizations in Guatemala and combat impunity more generally, not just against the press. It has been involved in several high profile cases, including most recently a customs fraud ring that lead to the arrest of 22 people (more information)
One final way that countries in Latin America have combated journalist killings and impunity is by the federalization of crimes against journalists. The purpose of federalization is to allow federal investigative bodies to pursue charges in circumstances involving attacks on freedom of expression. The federal government is generally considered by civil society to be at least somewhat more capable to battle against the corruption and intimidation that stands in the way of local authorities handling these cases properly.
Mexico, for example, passed a constitutional amending in June 2012 that modified Article 73 of the Constitution to give “federal authorities the power to investigate and try crimes committed against journalists, persons or premises which affect, limit or undermine the right to freedom of expression and information, or freedom of the press.” The Mexican Congress then passed a follow up law in April 2013 that implemented the broad guarantee of the amendment and allowed prosecutorial bodies to pursue charges even when the crime was not related to a standard federal crime. Brazil is another country that has been considering federalization legislation as violence has been increasing. In March 2014, Chief of the Human Rights Secretariat to the Presidency said federalization of crimes against journalists would be included in the following reforms. However, despite many requests from civil society for federalization, the legislation has yet to be passed.
Various Latin American governments, in countries with some of the gravest problems with crimes against journalists and impunity, have implemented programs and policies against impunity, albeit imperfectly. There are a number of steps that states can take to improve the efficacy of these programs and policies. Promoting coordination among local and federal prosecutors, police, legislators, and other government agencies is one of the ways. It is equally important for governments to ensure that the departments charged with investigating and prosecuting crimes against the media have the requisite resources to do so. Without an adequate budget and sufficient personnel, delays and lapses in investigations will continue, and effective prosecutions will remain rare. Prioritizing this issue, coordinating efforts among various governmental bodies, and providing adequate funding are crucial to ending violence against journalists and impunity in the region.
There is emerging jurisprudence from around the world, as well as growing numbers of good practices in how best to investigate cases so these come before the courts for due assessment. It is, in short, evident that lawyers, judges, prosecutors and police have a key role to play, within their mandate, in ending a scourge that has wide social visibility and ramification.
Combatting impunity for attacks on journalists: a development issue
The concern about attacks on journalists and impunity has emerged as an issue within the UN’s new Sustainable Development Goals that will guide many policy decisions around the world between 2016 and 2030. Goal 16 states: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” The issue of impunity for attacks on journalists as emblematic of wider social problems is very relevant to justice for all as a development goal. It also links particularly to the following three more specific targets under Goal 16: “significantly reduce all forms of violence and related death rates everywhere,” “promote the rule of law at the national and international levels, and ensure equal access to justice for all,” and “ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements”.
To assess each society’s progress towards achieving these three targets, the UN is currently developing relevant indicators. One that has been suggested by UNESCO and the Office of the High Commissioner of Human Rights is: “Number of verified cases of killing, kidnapping, enforced disappearance, arbitrary detention and torture of journalists, associated media personnel, trade unionists and human rights advocates (in the previous 12 months)”.
In these ways, the issue of safety of journalists and impunity is likely to become mainstreamed within the global development agenda for the next 15 years. It shows that safety of journalists and combatting impunity are not just rights questions, but also integral to the vision of what durable development looks like.
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Prof. E. Bertoni (Phd) currently teaches at Palermo University School of Law, Argentina, and is a Global Clinical Professor at New York University (NYU) School of Law. He is also the Director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at Palermo University.
E. Bertoni is the author of the study Prevent and Punish: In search of solutions to fight violence against journalist, to be published in the report on the international conference Ending Impunity of Crimes against Journalists. The conference was held at 9-10 October 2015 held at the Inter-American Court of Human Rights (San José, Costa Rica), and was organized by UNESCO, in cooperation with the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights of the Organization of American States.