f.          Protection of Journalists and Communications Media

296.      The Inter-American Court has noted that it is primarily through the communications media that a society exercises its right to freedom of expression.[699]  Therefore, “the conditions of its use must conform to the requirements of this freedom,”[700] meaning that the freedom and independence of journalists and media must be guaranteed.[701]  According to the Inter-American Court:

[F]reedom of expression is not exhausted in the theoretical recognition of the right to speak or write, but also includes, inseparably, the right to use any appropriate method to disseminate thought and allow it to reach the greatest number of persons. . . . Furthermore, it is essential that the journalists who work in the media should enjoy the necessary protection and independence to exercise their functions comprehensively, because it is they who keep society informed, and this is an indispensable requirement to enable society to enjoy full freedom.[702]

297.      As such, States have a special responsibility to protect journalists and communications media from attacks, intimidation and threats.[703]  The murder, abduction, intimidation and threatening of journalists, as well as the destruction of press materials, are most often carried out with two concrete aims.  The first is to eliminate journalists who are investigating attacks, abuses, irregularities, or illegal acts of any kind committed by public officials, organizations, or non-state actors.  This is done to ensure that the investigations are not completed or never receive the public debate they deserve, or simply as a form of reprisal for the investigation itself.  Secondly, such acts are used as an instrument of intimidation to send an unmistakable message to all members of civil society engaged in investigating attacks, abuses, irregularities, or illicit acts of any kind.  These practices seek to silence the press in its watchdog role, or render it an accomplice to individuals or institutions engaged in abusive or illegal actions.  Ultimately, the goal of those who engage in these practices is to keep society from being informed about such occurrences, at any cost.[704]

298.      Under the American Convention on Human Rights and other international law instruments, States have the obligation to effectively investigate the events surrounding the murder of and other violent acts against journalists and to punish the perpetrators.  The Inter-American Court has maintained that the investigation:

 . . . must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.  An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.[705]

299.      The Inter-American Commission on Human Rights has asserted that a State’s failure to carry out an effective and thorough investigation of the murder of a journalist and to apply criminal sanctions against the material and intellectual authors is particularly serious in terms of the impact this has on society.  This type of crime has an intimidating effect not just on journalists, but on all citizens, because it inspires fear of reporting attacks, abuses, and illegal activities of any kind.  This effect can only be avoided by concerted government action to punish those responsible for murdering journalists.  In this way, States can send a strong, direct message to society that there will be no tolerance for those who engage in such a grave violation of the right to freedom of expression.[706]

2.         International Humanitarian Law

a.         Protection of Journalists and Media Installations During Armed Conflict

300.      The following section will discuss the rules applicable under international humanitarian law that pertain to journalists and media installations, principally in connection with the protections applicable to civilians and civilian objects.  Most of these protections, in particular those dealing with the principle of distinction, are applicable to situations of both international  and non-international armed conflicts.[707]

301.      Under the rules and principles of international humanitarian law, applicable in both international and non-international armed conflicts, journalists are considered to be civilians and are entitled to the rights that this status implies, including those analyzed in other sections of this report.[708]  Journalists retain this civilian status so long as they “take no action adversely affecting their status as civilians.”[709]  Those journalists who serve as war correspondents accredited to a particular armed force in an international armed conflict are entitled to prisoner of war status if they fall under the power of the enemy.[710]  Any other journalist who is captured by an enemy power may only be detained if criminal proceedings are to be instituted against him or her or if imperative reasons of security justify internment.[711]  The status of journalists with respect to internal armed conflict is not explicitly defined,[712] however, journalists should be considered civilians in this type of conflict as well, so long as they do not engage in acts of hostility or participate directly in hostilities.[713]  It should be emphasized that the dissemination of information or the expression of opinions in favor or in disfavor of a party involved in the conflict cannot be considered as hostile acts and cannot render the person expressing such views or opinions a legitimate military objective.[714]

302.      Of course, journalists often assume risks that ordinary civilians do not, by virtue of their profession.  According to Hans Peter Gasser, “[a] journalist may [...] lose, not his right to protection as a civilian, but de facto protection if he stays too close to a military unit [...] since that unit is a lawful target of enemy attack (unless the proportionality rule prohibits the attack – Article 51, par. 5 (b)).  He thus acts at his own risk. The same applies to journalists who approach military targets.”[715]  The important point is that although journalists do not benefit from protections over and above those granted to ordinary civilians, they must never be the direct object of an attack, so long as engaged in vocational activities, in accordance with the principle of distinction.[716]  

303.      Media installations, such as television and radio stations, may be entitled to protection as civilian objects under international humanitarian law.[717]  Parties to a conflict are required to distinguish between civilian objects, which may not be attacked, and military objectives, which may be.[718]  Civilian objects are “all objects which are not military objectives,” as defined by Article 52, paragraph 2 of Protocol I.  Military objectives are those that “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”[719]  Objects which are normally considered “civilian objects” may become legitimate military objectives if they are “being used to make an effective contribution to military action;”[720] however, in case of doubt about such use, it must be presumed that it is not being so used.[721]  While media installations are not specifically mentioned as civilian objects, they should generally be considered as such, since their nature and location is generally not military-related, and since they are generally not used for military purposes or to make an effective contribution to the military action.  However, if media installations are used as part of a command and control or other military function, they may become legitimate military targets subject to direct attacks.

b.         Right to Know Fate of Relatives

304.      Another aspect of international humanitarian law that relates to the right to freedom of expression in international armed conflicts, in particular the right to information, is the right of families to know the fate of their relatives.[722]  Under Article 122 of the Third Geneva Convention, each Party to a conflict, as well as each neutral or non-belligerent power receiving such persons in its territory, must establish an official Information Bureau for prisoners of war in its power.  This Bureau is charged with gathering information regarding "transfers, releases, repatriations, escapes, admissions to hospital, and deaths" of prisoners of war and answering inquiries concerning prisoners of war.[723]  In addition, a Central Prisoners of War Information Agency must be established in a neutral country to facilitate the transfer of information about prisoners of war to their home countries.[724]  In cases of death of prisoners of war, Article 120 of the Third Geneva Convention provides for specific procedures to be followed regarding preparation of the death certificate, forwarding of the information to the Prisoner of War Information Bureau, medical examination of the body, and proper burial.  The Detaining Power must establish a Graves Registration Service so that graves may be found.[725]  The Fourth Geneva Convention contains similar requirements with respect to maintaining information concerning the fate of civilians interned in the course of armed conflict.[726] 

305.      Under Article 33 of Protocol I, Parties to a conflict have the duty to “search for the persons who have been reported missing by an adverse Party” and to hand over information obtained about such persons to an agency of the International Committee of the Red Cross, a national Red Cross agency, or the Protecting Power.[727]  Parties also have the responsibility of gathering information about individuals who have been held in captivity or who have died during or as a result of the hostilities, to facilitate the process of answering requests for information.[728]  Additionally, the Parties to a conflict must “endeavour to agree on arrangements for teams to search for, identify and recover the dead from battlefield areas, including arrangements, if appropriate, for such teams to be accompanied by personnel of the adverse Party while carrying out these missions in areas controlled by the adverse Party.”[729]  Finally, Additional Protocol I contains a provision requiring the establishment of an International Fact-Finding Commission to "enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol[.]"[730]  The foregoing rights and responsibilities complement and reinforce in times of war the "right to truth" under human rights law, described earlier.  

c.         Right to Send and Receive Information

306.      In international armed conflicts, prisoners of war have the right to write to their families immediately after capture and inform them of their "capture, address and state of health"[731] and to send and receive cards and letters.[732]  These cards and letters may be limited in number if it is deemed necessary, but may not be limited to fewer than two letters and four cards monthly, not including the "capture card."[733]  The detaining power may censor communications.[734]  In cases in which written communication is not feasible due to distance or other problems, prisoners of war must be permitted to send telegrams.[735]  Interned individuals have similar rights to communicate with family members.[736]  Additionally, the Fourth Geneva Convention provides for the right of  "[a]ll persons in the territory of a Party to the conflict, or in a territory occupied by it" to correspond with family members[737] and requires Parties to the conflict to facilitate communications between family members dispersed as a result of the war.[738]  This is subject to limited circumstances in which protected persons detained in occupied territory may properly be regarded as forfeiting their rights of communication under the Fourth Geneva Convention.[739]  These rights promote certain objectives similar to those promoted by the “right to truth" by providing relatives with means by which to receive information about the fate of family members.

307.      Prisoners of war also have the right to receive "articles of a religious, educational or recreational character which may meet their needs, including books, devotional articles, scientific equipment, examination papers . . . and materials allowing prisoners of war to pursue their studies or their cultural activities."[740]  This right is also protected in the case of interned persons.[741]

308.      Finally, prisoners of war have the right to make known to their captors or to the Protecting Power requests and complaints about the conditions of their captivity.[742]  These communications are not to be "considered to be a part of the correspondence quota referred to in Article 71."[743]  Moreover, even if such requests or complaints are determined to be unfounded, "they may not give rise to any punishment."[744]  Prisoners of war are also entitled to have representatives selected from among their members, who represent them "before the military authorities, the Protecting Powers, the International Committee of the Red Cross and any other organizations which may assist them."[745]  These representatives may also "send periodic reports on the situation in the camps and the needs of the prisoners of war to the representatives of the Protecting Powers."[746]  Interned individuals also have the right to present petitions to the detaining authorities regarding their conditions of internment, without fear of reprisal[747] and are entitled to select the members of an Internee Committee to represent their interests before the Detaining and Protecting Powers.[748]  Such rights complement and reinforce the function of freedom of expression in that they serve to allow oversight of the activities of the parties to a conflict for the protection of individuals' rights.

3.         The Right to Freedom of Expression and Terrorism

309.      Terrorism is a serious problem affecting public order and in some cases, national security.  Therefore, some subsequent limitations on freedom of expression or access to information related to fighting terrorism may be justified as measures that are necessary to protect the public order or national security.  Such measures must satisfy the strict test required by Article 13(2), set forth earlier in this chapter.[749]

310.      As has been reiterated throughout this report, the human rights guarantees found in the American Convention, the American Declaration and other international instruments apply fully in the context of addressing terrorism unless there is a legally declared state of emergency and the right limited is a derogable right.  Again, although the right to freedom of expression is a derogable right in states of emergency, States considering suspending any aspect of this right should always bear in mind the importance of freedom of expression for the functioning of democracy and guaranteeing other fundamental rights.  

            311.      Among the restrictions of freedom of expression that states are likely to impose in the context of fighting terrorism are prior censorship of publications related to terrorist activity or anti-terrorism strategies, subsequent liability for publication or dissemination of information or opinions related to such issues, withholding by the government of information related to such issues, restrictions on access to hearings and other governmental meetings on terrorism-related issues, and limitations on the right of journalists to protect their sources in order to assist law enforcement efforts.  Such restrictions may or may not be compatible with Article 13 of the American Convention. Particularly in the case of prior censorship, compatibility with Article 13 will depend on whether or not a lawfully declared state of emergency exists.

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