Journalists and Self-Defense in Iraq

In the wake of the murder of al-Arabiya correspondent Atwar Bahjat and two of her colleagues, a journalist asked President Jalal Talabani to permit journalists working in Iraq to carry weapons in self-defense. “Send me an official request and I will approve it and inform concerned agencies to give you the right to carry arms,” President Talabani replied.

The exchange prompted an immediate response from the International News Safety Institute, which urged journalists in Iraq to resist the urge to arm themselves. INSI believes that armed journalists would be less safe, not more:

“Journalists increasingly are being targeted in conflict largely because they have lost, in the eyes of certain elements, their status as neutral observers, INSI Director Rodney Pinder said. “If they bear arms they reinforce this misguided belief by placing themselves on one side or another. A journalist with a gun says some people in the situation I’m covering are my enemies and I am prepared to kill them if necessary. That is not the position of a neutral civilian.”

Pinder also said that armed journalists would lose even the protection–“flimsy though it is”–afforded civilians in war by the Geneva Conventions. INSI said the 1977 Additional Protocol to the conventions demands that working journalists in conflict areas must be considered civilians, “provided they take no action adversely affecting their status as civilians.”

“INSI and other organizations concerned with the safety of journalists in conflict believe that the bearing of arms would amount to that action,” the group said.

Although it’s easy to understand why in Iraq would want to carry arms in self-defense — after all, 104 journalists and support staff have been killed there since the war began, the greatest media toll in modern times — INSI’s position seems pragmatically sound. Still, I question whether journalists would, in fact, forfeit the protection of the Geneva Conventions by carrying weapons, particularly if they only carried small arms and kept them concealed. Article 79 of Protocol I specifically provides that

[j]ournalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians… and shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians.

The question, then, is whether a civilian who carries a weapon in self-defense would be taking an “action adversely affecting their status as civilians.” The answer appears to be “no.” Under Article 13 of Protocol II, which elaborates and strengthens common Article 3’s basic rules, “[c]ivilians shall enjoy the protection afford by this Part, unless and for such time as they take a direct part in hostilities.” Carrying a weapon in self-defense would not qualify as taking a “direct part” in hostilities. As the Inter-American Commission on Human Rights has pointed out:

It is generally understood in humanitarian law that the phrase “direct participation in hostilities” means acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and material. Such participation also suggests a “direct causal relationship between the activity engaged in and harm done to the enemy at the time and place where the activity takes place.”

This interpretation of common Article 3 and Protocol II is supported by Protocol I’s treatment of individuals engaged in civil defense — humanitarian tasks (medical treatment, firefighting, etc.) designed to protect civilians against the effects of hostilities. Article 65 of Protocol I specifically provides:

It shall also not be considered as an act harmful to the enemy that civilian defence personnel bear light individual weapons for the purpose of maintaining order or for self-defence. However, in areas where land fighting it taking place or is likely to take place, the Parties to the conflict shall undertake the appropriate measures to limit these weapons to handguns, such as pistols or revolvers, in order to assist in distinguishing between civil defence personnel and combatants. Although civil defence personnel bear other light individual weapons in such areas, they shall nevertheless be respected and protected as soon as they have been recognized as such.

Moreover, even if a journalist crossed the line between self-defense and acts harmful to the enemy, they would still not be subject to immediate attack by Iraqi insurgents or the military (Iraqi or US). According to paragraph 1 of Article 65:

The protection to which civilian civil defence organizations, their personnel, buildings, shelters and materiel are entitled shall not cease unless they commit or are used to commit, outside their proper tasks, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.

Again, I am not suggesting that journalists in Iraq arm themselves. I much prefer the approach taken by Reporters Without Borders, which lends bulletproof jackets marked “PRESS” to freelance journalists working in war zones. But I don’t believe that a journalist who carried a concealed handgun would forfeit her Geneva Convention protections — even if she was forced to use it.

Comments by readers with greater expertise in the Conventions would be most appreciated.