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Would Journalists Lose Geneva Convention Protections If They Arm Themselves in Self-Defense?

Lawprof Kevin Heller (Opinio Juris) says no, despite the International News Safety Institute's contrary views. (Of course, the pragmatic costs-and-benefits question facing each journalist on this is separate from the legal question.)

Zed Pobre (mail) (www):
It could well be argued that since the United States has basically abandoned the Geneva Convention protections whether or not you're armed, and a number of other countries never followed them in the first place, that it is an utterly moot point.

If you're in a combat zone, and members of an army decide they don't like you, recent history shows that nobody at this point is going to rein them in.
3.1.2006 1:50pm
Robert Schwartz (mail):
What difference does it make? The United States doesn't, CNN to the contrary notwithstanding, shoot journalists intentionally, and no enemy we have fought in the last century has observed the Geneva Conventions. The best thing that journalists have going for them is that most terrorists know that the journalists are on their side.
3.1.2006 1:57pm
JohnAnnArbor:
It could well be argued that since the United States has basically abandoned the Geneva Convention protections whether or not you're armed,

Evidence? Or just propaganda?
3.1.2006 2:03pm
Houston Lawyer:
I remember an interview following a pitched battle outside of Bagdhad where our lightly armored forces were pinned down by an Iraqi ambush. An embedded journalist happened to be with our troops and was filming the whole operation. You may remember the scene of the soldier who was firing his rifle while being carried on a stretcher.

The news anchor was later interviewing the journalists who had this amazing footage. He was asked whether he was ever tempted to pick up a rifle and start shooting back. He said that at one point in time that they had almost gone "all hands". Fortunately, it didn't come to that, but I got the distinct impression that he was willing to pitch in if really needed.

I second the thought that none of our enemies with whom we've had a shooting war lately could be counted on to follow the Geneva Convention.

I find it interesting that the news desks were not happy with the imbeds, since they spent so much time with our troops that they bonded with them and their coverage showed it. Some journalists do need to be reminded that they are Americans first, and then journalists.
3.1.2006 2:42pm
Thief (mail) (www):
IIRC from my undergraduate international law class, going into a combat zone carrying any kind of weapon, even if you're just a four-year old kid with a grenade, means you are a "combtatant" and fair game. Openly carrying weapons of any kind is the key here; anyone who does is not a civilian WRT the Geneva Conventions.

But it seems that Robert is right here. The kind of people we're fighting right now in Iraq and Afghanistan have made it pretty much clear that they do not give a whit about the laws of war, and would just as soon saw your head off for being an infidel than debate the finer points of jus in bello with you.
3.1.2006 2:43pm
JohnAnnArbor:
I second the thought that none of our enemies with whom we've had a shooting war lately could be counted on to follow the Geneva Convention.

The most recent enemy who at least made a show of adhering to the Conventions (with many violations like summary execution for escape) was Nazi Germany. Japan, North Korea, China, North Vietnam, and Iraq in the first Gulf War didn't even bother to make a show of following them.
3.1.2006 2:47pm
cirby (mail):
From the first time they fired from a hospital, or directly attacked a crowd of civilians for effect, most of the bad guys gave up on the Geneva protections.

Pretty much the whole Iraq conflict after the first couple of days has been a non-Geneva war - even though the US and our allies have been giving a higher level of protection to the other side than is demanded by the Conventions. A roadside tribunal for each insurgent combatant would be right in line with what's permitted, for example.
3.1.2006 2:52pm
te (mail):

Evidence? Or just propaganda

I seem to recall seeing some photographs of POWs being lead around on leashes . . . Oh, wait, that was just the actions of a few bad apples.

I seem to recall considerable documented evidence of torture. Oh wait, that was just "pressure interrogation" which isn't covered by the Geneva Convention and, anyway, now that I think about it, those guys that have been sitting down in Gitmo for 3 years aren't even POWs, they're "unlawful combatants".
3.1.2006 3:18pm
Daniel Chapman (mail):
You're being sarcastic, but you pretty much nailed it from an international law standpoint.

Why do people keep assuming that "international law" has ANYTHING to do with moral justice? The Laws of War and the Geneva Conventions are a baseline... it would be impossible to get a large number of countries to agree to meet the highest standards, so they agreed to meet at least the lowest. Nothing more.
3.1.2006 3:33pm
Freder Frederson (mail):
A roadside tribunal for each insurgent combatant would be right in line with what's permitted, for example

Nonsense, Iraqi insurgents (as opposed to foreign jihadists) are specifically covered by Geneva and entitled to almost as many rights as POWs. Regardless, Geneva doesn't allow for a "roadside tribunal" for anyone. Everyone is entitled to some process to determine their fate if they are captured.

However, one group that are specifically designated as not being legal combatants by Geneva are all of the so called "private security forces". In any other circumstances (i.e., they weren't working for us), we would be calling them by their proper name--mercenaries.
3.1.2006 3:50pm
18 USC 1030 (mail):
This got a bit long, but it seems to me that the question over whether or not journalists lose Geneva Protections is moot. The better question is whether or not one that is not provided a protection can cause that protection to be removed based on future actions.

Well, I am not yet convinced that the Geneva Conventions are applicable in Iraq. Thus, I am not sure what protections could possibly be given up by the journalists chossing to arm themselves in self defense. I do not like this theory; however, it seems to me correct, that based on the four Conventions which the United States have ratified, the Geneva Conventions are not applicable in Iraq, as the circumstances do not meet the criteria therein set forth. They would meet the criteria set forth in the additional protocols, however, the failure of the United States to ratify the protocol moots the issue. As does the fact that the Conventions ought not to be applicable when dealing with an insurgency.

Now, the conventions do require that similar care be given to those whom are not entitled to Geneva Protections as would be provided to those entitled to such status. The United States can only ensure the enforcement of the Conventions of their own men and women. That is, the United States can say that they will protect journalists or ensure protection of Geneva Status; however, they cannot speak on behalf of the opposing party. Whether or not the United States has, thus far complied with the Conventions, nor does saying the Conventions are inapplicable prevent prosecution of war crimes. The Uniform Code of Military Justice applies at all times, and therefore can be enforced.

As to whether or not the Conventions apply, remember, the purpose of the Conventions were to prevent the army of one state from destroying an opposing state; the mechanism used was that of reciprocity between nations. The Conventions, were devised after WWII, based on the framework of that war. The current combat in Iraq does not resemble the charecteristics of WWII. The Conventions provided a Hobbesian method of law. One nation would protect the rights of another during armed conflict; for, that nation would protect their rights. This reciprocity, it was believed would force nations into following the Conventions based on the knowledge the enemy would as well.

The removal of this reciprocity renders the Conventions useless. In fact, they could possibly provide more harm than benefit. The United States has yet to ratify the 2nd additional protocol that which would direct the conflict into the realm of the Geneva Conventions. The protocol has not, as of yet, reached the status of Jus Cogens; therefore, without ratification the 2nd protocol is not to be enforced. Thus, the argument must be based on the Conventions, alone. The Conventions are to be respected when one nation, party to the Convention is engaged in combat with another nation, party to the Convention. If multiple parties are engaged in conflict, those that which ratified the Convention are only required to abide by the Convention when engaged with each other. If a non party to the Convention accepts the convention, in whole or in part, those provisions are to be followed by all parties.


Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.


Thus, the United States is engaged in conflict against an insurgency that which has not ratified the Convention, made no agreement to abide by it, nor has acted in conformity with it. It is to be a state party that which can make this agreement to abide by the Convention; however, one could, perhaps, make the argument that the insurgents also have this opportunity. The insurgents, however, have not made such an agreement; furthermore, the modus operendi utilized has been to violate the Geneva Conventions at all times, as well as to attempt to lead the Americans into violating the Conventions in order to produce propaganda.

This was not the purpose of the Conventions; they were not written in order to bind one party and allow another party to do that which they pleased, thus rendering the first incapable of stopping an insurgency. Rather, the purpose was for protection; protection of soldiers, as well as those not party to the conflict, including journalists. If the insurgents are not bound by the Conventions, the United States, in direct combat with them also are not bound by the Conventions. If one does not accept that the United States is not bound by the Conventions, they must at least accept the insurgents are not bound. If the insurgents are not bound by the Conventions, they are not, as a matter of law entitled to any protection provided by the Convention, nor are they required to provide any protections associated with the Conventions. Thus, even IF arming journalists would deprive them of Geneva Protections, being that the insurgents are not bound to provide (nor, have agreed to provide) these protections, can it be said that the journalists are losing protections? Can one lose that which one does not have? Of course, as previously stated whether or not the Conventions apply, the United States military is still bound by the UCMJ; thus, the United States is still required to act in accordance with law.

The Conventions are not to be enforced in such a way that the United States ought to be the "bigger man" and do the "right" thing. Morally, absolutly, the United States ought to act in accordance with, or above the Geneva Conventions. That does not, however, dictate the Conventions applicability. Remember, also, whether or not the Geneva Conventions apply, the Uniform Code of Military Justice does. Those attrocities witnessed, for example, in the prisons, whether or not the Conventions apply, are still prohibited by the UCMJ. Thus, failure to comply is still punishable.

As to the Journalists arming themselves, I would argue, first of all that they are not entitled to Geneva Protections as the enemy is not a party to the Conventions, nor has the party made any agreement to abide by the Conventions. Medics, whome are not permitted to attack the enemy, may carry weapons for self defense; so to, it seems should journalists.

Although, this brings the question: why are they there? If journalists are embedded, it is the responsibility of the military unit to provide protection. Therefore, weapons for self defense ought not to be necessary. Journalists in the field, dressed as civilians are, according to the 1st protocol, not ratifed by the United States to be treated as civilians. This would prohibt the capture or killing of a journalist. Therefore, if journalists are to be treated as and categorized as civilians, it would appear they have the right to self defense, as there is a definitive prohibition on the killing or capturing of journalists. This prohibition would apply with or without the additional protocol, as journalists prior the protocol, though not receiving civilian status are to be protected.

My only issue as previously mentioned, the Conventions are only applicable when in dealing with a party to the Convention, or one who agrees to abide by it. Therefore, if in dealing with the insurgents, the journalists are not provided Geneva Protections to begin with, what protection would be lost by their self defense? It seems to me this was a long way of saying you cannot lose protections that which you have not already been granted.
3.1.2006 4:00pm
JohnAnnArbor:
Nonsense, Iraqi insurgents (as opposed to foreign jihadists) are specifically covered by Geneva and entitled to almost as many rights as POWs.

Why? The Conventions are supposed to protect warriors who play by the rules. The whole point was, you LOSE those protections the moment you start doing stuff like firing from hospitals and car-bombing schools.
3.1.2006 4:41pm
Mikeyes (mail):
Not everyone armed in a combat situation is considered a combatant. The Geneva convention specifically allows medical troops to carry defensive weapons (no bayonets, for example) for the protection of their patients. I even have a special ID card somewhere that exempted me from being shot as a combatant. I could be shot as a medic instead.
3.1.2006 4:50pm
cirby (mail):
Nonsense, Iraqi insurgents (as opposed to foreign jihadists) are specifically covered by Geneva and entitled to almost as many rights as POWs.

Well.... not very much.

If the captives (not prisoners of war or protected noncombatants) were people who decided to pick up arms at this stage of the game, they fall well outside the early "militia" protections of the Conventions. Soldiers with uniforms, or militias with well-defined markings? Protected, to a degree. Civilians who pick up arms at the first sign of hostilities? Also protected. People who set roadside bombs or who fire randomly into crowds of civilians? Not much protection at all, there. All the occupying power has to do is convene a "competent tribunal" to decide if the perosn in question was or was not a combatant or other protected person. The moment that decision is made, they're either a prisoner of war, a criminal, or someone outside of the Conventions.

...and someone outside of the Conventions, while having some protections, mostly have to depend on a weak or strong reading of what "international law" means.

Pretty much every country outside of the US and some of our allies read those protections as meaning "shoot him or hang him, but make sure you have paperwork first."
3.1.2006 4:50pm
Freder Frederson (mail):
Why? The Conventions are supposed to protect warriors who play by the rules. The whole point was, you LOSE those protections the moment you start doing stuff like firing from hospitals and car-bombing schools.

Iraqi insurgents, especially those that limit their attacks to military targets, can rightfully claim to be guerilla forces and thus can claim Geneva protections even if they do not wear identifiable uniforms.

There is little doubt that we have clearly violated Geneva in Iraq. Rumsfeld has publically admitted to hiding detainees from the ICRC, clearly a violation. The military has arrested family members of suspects as hostages to get them to surrender, another clear violation. And we won't even get into the well documented torture and inhumane treatment. It seems that while journalists would certainly probably not be at greater risk from the insurgents if they were armed they almost certainly would be at much greater risk from Iraqi government and U.S. forces if they armed themselves regardless of their legal status under Geneva.
3.1.2006 4:58pm
Zed Pobre (mail) (www):
John:

Evidence? Or just propaganda?


As it pertains to journalists specifically, we picked up and tortured journalists several times now, not including that we bombed Al Jazeera in both Afghanistan and Iraq. We're also refusing to punish the officers involved in allowing an innocent taxi driver to be tortured to death -- after we knew he was innocent. We're also involved in widespread torture of people picked up on large sweeps, without any public evidence presented that they were involved in combat in any way, and the military investigations note the crimes then discontinue investigation (see the continuing ACLU investigation reports). Conditions at Guantanamo are so bad that the Red Cross decried them as torture as well, and the US is refusing access to other organizations (while simultaneously decrying that they don't have a right to criticize because they refuse to do a superficial examination of the outside grounds without any access to the prisoners). Then on top of that, there have been the US attacks on doctors and hospitals in Anbar. And I'm sure there are more issues. These are just the ones I happened to remember off the top of my head.

Let's be straight here: if any other country did to US citizens what we're doing out there, would you really endorse it as perfectly okay? You can argue back and forth about whether you feel that this is justified, but the evidence is overwhelming that the U.S. is only respecting the Geneva conventions when they're convenient, and this applies to journalists as well as everyone else.

If you're at risk of being tortured or shot by all parties involved whether or not you carry a gun, the only question is whether or not carrying that gun will allow you to get out of a situation where you might otherwise be "detained", by whichever party happens to be doing it. Considering that generally someone who spends all of his or her time training in journalism and or photography is not going to have the time available to become highly proficient in combat, I'd say that journalists planning to carry weapons are being spectacularly foolish, but that's a "costs-and-benefits question", not a matter of law.
3.1.2006 5:27pm
Daniel Chapman (mail):
None of that has to do with the question at hand, Zed...
3.1.2006 5:45pm
JohnAnnArbor:
Iraqi insurgents, especially those that limit their attacks to military targets, can rightfully claim to be guerilla forces and thus can claim Geneva protections even if they do not wear identifiable uniforms.

Not in any convention the United States ever agreed to. That sounds like something cooked up by leftist NGOs because they saw various "romantic" revolutionaries they sympathized with and wanted to give protections they weren't entitled to.

Otherwise, you end up in a situation where the "insurgents" can do any damned thing they please (like firing from hospitals, knowing return fire is impossible without killing patients), and HRW and others will insist that the little dears be served high tea precisely on time daily if captured, or it's a war crime.

Sounds like when Israel shelled a Lebanese position and killed 100 or so civilians in 1996. Of course, the "international community" neglected to mention why: terrorists (excuse me, "insurgents") had fired mortars from right next to the UN shelter. They had learned from past engagements that Israel could precisely target launch sites quickly by tracking inbound shells. So they fired from right next to the shelter, the Israelis fired artillery right back at the position, and boom! Instant war crime! Come see the bodies! Look what those Jews did!

So pardon me if I'm skeptical of attempts to broaden the category of protected people to include "insurgents." Everyone knows our guys will NEVER receive proper protection from any potential enemy, and no matter how well we follow the laws or regulations, all our transgressions will be broadcast worldwide. And if there aren't enough to paint America and Israel as bad, they'll be made up on the spot.
3.1.2006 6:12pm
davod (mail):
Freder:

I don't know why anyone bothers with you.

The conventions were designed to protect soldiers in the field and civilians. They do this by insisting combatents be identifiable.

Insurgents would only be covered if they were dressed in something that sets them apart from the civilian population. The type of target is irrelevent.

It is a pity that defenders of the rights of other than uniformed combatents forget the danger to civilians of supporting such a view.
3.1.2006 6:37pm
The Drill SGT (mail):
Frankly, I think the protection of the Geneva Convention is meaningless in the context of journalism in Iraq. Let's look at the circumstances.

a. Embedded Journalist. Operating inside a friendly unit, and subject to any attack from external forces. Does anyone think that if Jihadi's overran a US unit and found a journalist, unarmed and cowering with the wounded that the Jihadi's would not shoot the lot? I think the only rational decision of an embedded journalist in a unit in such dire straights would be to pick up a weapon and defend himself. IIRC, a scene from that classic Vietnam book, "We were Soldiers Once and Young". The LZ is about to be overrun, SGM Plummer turns to the doctor, medics, wounded and the journalist and says, "Gentlemen, prepare to defend yourselves".. They did and lived. enough said.

b. Independent Journalist. Out on the streets of Bagdad, with Jihadi's, and kidnappers all around, possession of a weapon in Iraqi civil society does not seem to make one an armed combatant, but rather a reasonable person. Carry a Pistol. Hire a bodyguard.
3.1.2006 7:36pm
Dave Hardy (mail) (www):
As it pertains to journalists specifically, we picked up and tortured journalists several times now, not including that we bombed Al Jazeera in both Afghanistan and Iraq.

Sounds like a plan to me!
3.1.2006 8:26pm
Dave Hardy (mail) (www):
I'm still trying to find where al-Quaeda signed the Geneva Convention.
3.1.2006 8:27pm
Richard Aubrey (mail):
Unlike some of you, I put some of your parents' or grandparents' tax dollars to work learning how to run both sides of the ridge, insurg or organized.

Part of the insurgs' manual, figuratively speaking, is to finesse the organized/government forces into firing up civilians--see the Israel example above--for the express purpose of creating propaganda. The insurg manual does not expect western sympathizers to be unaware of the tactic in general or in a particular incident. They know, and the outrage is bogus.

I happened to be on a mailing list of the converted--everybody makes mistakes--and got an article bewailing the Low Intensity Conflict. One of the problems with LIC is that it works, and another biggy is that it reduces casualties among civilians. This requires, said the article, new thinking among the activists.

It is interesting to consider what category the people who do this stuff fall into. Hell's shitpits would be a good one, IMO.

But I guess we were talking about conventions and stuff. I must confess, I haven't seen any logical reason for putting these people in a protected category. I don't mean the sympathizers, I mean the actual insurgs.
3.1.2006 9:13pm
D. Fox (mail):
If arming journalists doesn't cause them to lose their Geneva Convention protection, then what's the upside to arming them?
3.1.2006 11:58pm
Lev:
Re: 18 USC 1030 3.1.2006 4:00pm


Rather, the purpose was for protection; protection of soldiers, as well as those not party to the conflict, including journalists.


Would that mean there are no consequences for those who saw off journalists' heads?
3.2.2006 12:06am
18 USC 1030 (mail):
I never said there weren't what I am saying is the Conventions do not apply. With or without the Conventions this behavior is not allowed. Also, remember the Conventions are not set up like a Penal Law. There are no proscribed offenses. Rather, there is a list of pledges that which the ratifying parties agree to provide. The Conventions are not "torture is illegal;" the Conventions are "we the contracting parties agree that we will treat people humanely." There is a difference, in the first, one may argue anyone could be held responsible for violating a proscribed illegal behavior. The second, however, is a prosecution for the failure or omission to act correctly. In order to be in violation of this, one must have agreed to provide that which they are alleged to have failed to provide.

For treaties to be applicable, a state has to agree to be bound by it. I find it slightly ironic that those who usually bash the application of foreign and international law in US courts love to speak on the Geneva Conventions as if they are to be treated than other instruments.
3.2.2006 12:36am
Kevin P. (mail):
Zed:
Considering that generally someone who spends all of his or her time training in journalism and or photography is not going to have the time available to become highly proficient in combat, I'd say that journalists planning to carry weapons are being spectacularly foolish


You must be one of those people who knows everything about guns and how to use them.
3.2.2006 4:45am
Freder Frederson (mail):
Insurgents would only be covered if they were dressed in something that sets them apart from the civilian population. The type of target is irrelevent.

The type of target is very relevant, and although the manner of dress does matter, it doesn't have to be a formal uniform. Reread your Conventions.
3.2.2006 7:44am
cirby (mail):
The type of target is very relevant, and although the manner of dress does matter, it doesn't have to be a formal uniform. Reread your Conventions.

...but it does have to be something that shows they're something other than civilians. Carrying a weapon doesn't qualify. It has to be a uniform, or have a distinctive marking or badge or such, and you have to tell people what that marking is.

The moment you act as an insurgent without this minor little thing (aside from the initial "surprise" part of a conflict), you set yourself outside of the Conventions.
3.2.2006 9:40am