Report launch: Advice on Promoting More Effective Investigations into Abuses against Journalists

This session at the IBA’s Virtually Together Conference launched the fourth report by the High Level Panel of Legal Experts on Media Freedom to which the IBA’s Human Rights Institute (IBAHRI) acts as Secretariat. Members of the High Level Panel, including report author Nadim Houry, were joined by other legal experts to explore media freedom in crisis and the report’s recommendations.

Baroness Helena Kennedy QC, IBAHRI Director: This is a global project that was created two years ago by the British government with the Canadian government. We've seen over the last two years that over 100 journalists have been killed. But it isn't just the murder of journalists that's horrifying the world – it's the extent to which journalists are put in fear.

Amal Clooney, Deputy Chair of the High Level Panel of Legal Experts on Media Freedom, London: As many of you know, freedom of the press is in crisis around the world today. More journalists today are killed outside war zones than inside them. Not hit by crossfire but targeted for what they write. Only one in ten of these murders results in a successful prosecution. And across the world, we are seeing a backsliding of democratic values and record numbers of journalists imprisoned simply for telling the truth.

Our report today focuses on something new, an international task force created by the 40 plus states that have formed the Media Freedom Coalition, as well as other leading democracies that purport to defend freedom of the press. We argue that these states should put their money where their mouth is by creating a team that can investigate violence against journalists. States that are not able to contribute funds can instead offer personnel who could be seconded to the task force when needed, so that when authorities on the ground are too slow, ill-equipped or politicised to investigate, a roster of pre-vetted, pre-trained experts can be called in instead.

The report also calls for publication of a list revealing the states with the worst records. This would not only name and supposedly shame, but impose specific consequences, such as sanctions, that should attach to inclusion on the list. Specific steps, including credible investigations and prosecutions, would be required to come off the list.

It is clear that if we do nothing, the international response to attacks on press freedom will remain the same: uneven and rarely effective. And impunity will continue to be the norm. States' responses to our recommendations will reveal whether they are interested in making statements, or in actually finding solutions to one of the most urgent threats to democracy we are facing today.

Nadim Houry, member of the High Level Panel and Executive Director of the Arab Reform Initiative, Paris: The premise of this report is in some ways simple and yet deeply troubling. And it really starts with three facts.

Fact number one, almost 90 per cent of killings of journalists go unpunished. And here we are talking about killings, not the other forms of attacks and harassment that journalists are seeing every day. We have to take a moment to reflect on that number, 90 per cent of killings.

The second fact is that this rampant impunity is not limited to countries experiencing armed conflict or just a general collapse of the rule of law.

Fact number three is that this situation is not getting better despite the multiple and important initiatives that we have seen at international, regional and local levels in recent years. This is really the troubling aspect. Since 2013 when the UN General Assembly officially proclaimed an international date to end impunity for crimes against journalists, there has been a proliferation of reports, UN resolutions. And despite the increased attention, we keep seeing the curve of attacks on journalists increasing and we keep seeing the number of successful investigations and prosecutions extremely low.

So, based on these three clear facts, this report really set out to answer two questions: why are so few investigations into attacks on journalists succeeding and leading to prosecution? And perhaps more importantly, what can be done to finally start tackling the issue?

In many, many cases the local authorities do not have the capacity, the know-how or the resources to protect the crime scene, to gather new forms of evidence like digital evidence, to exploit forensic evidence and also to question powerful suspects. But more often than not, what kept coming of all the analysis of these cases was a lack of political will. In many cases, the authorities were simply unwilling to really investigate.

This is why the report recommends that the 40 plus countries that have formed the Media Freedom Coalition – who have pledged and promised to work together to protect media freedom – set up a multilateral investigative task force that would have these international experts and could deploy very, very quickly.

Now, such a task force created by a coalition of the committed would actually have a number of key strengths. One, given that they are all gathered around the same principles, it would be less susceptible to the current blockages we have seen in recent years at the UN and also means that any deployment should be able to happen faster and frankly, with less compromising.

Two, the fact that it would be created by a large group of countries from different parts of the world, including many regional champions of media freedom, means that such a group would have the political credibility and the access to the deep pool of talent that no other unilateral or even bilateral initiative would have.

And the third advantage of this international investigative task force would be that it would come to complement existing mechanisms. The idea here is to build on existing UN regional and national initiatives and investigations.

HK: Christophe, you're going to share the Reporters Without Borders’ (RSF) perspective about the real concern being about impunity, the ways in which it's so hard to nail down those who are the serious offenders here.

Christophe Deloire, Executive Director of Reporters Without Borders, Paris and Secretary General of RSF: It is beyond time to remedy a collective failure embodied in one figure: an impunity rate of more than 80 per cent of crimes for crimes against journalists. The panel's report is based on a thorough analysis of an unacceptable situation. Existing international standards, mechanisms and mobilisation efforts have not succeeded in effectively imposing costs for the murders of journalists.

RSF particularly welcomes the panel's endorsement of our call to establish a UN special representative on the safety of journalists. Given the endemic impunity for the vast majority of killings of journalists globally, totalling nearly 1,000 cases over the past decade, it is time now for actions, not just words, to ensure accountability for these horrific crimes and to help protect journalists.

The special representative mandate would not just be a paper-based exercise that will result in more reporting in Geneva. It would be a means of bringing together all of the existing mechanisms, resolutions and recommendations of human bodies, and ensuring meaningful coordination and implementation to begin to impose actual accountability for crimes committed against journalists everywhere. It would ensure that good intentions do not just remain intentions, or resolutions remain just fictions. It's in the future but will have real-life implications.

Moreover, RSF supports the recommendation that a UN-based annual list be published, building on the experience of the list concerning child soldiers. More importantly, the worst perpetrator list would provide a clear periodic highlight on the issue and an avenue for frank dialogue that has been dramatically missing.

HK: Caoilfhionn, you've had a chance to look at the report and we were anxious to hear your views given your expertise in this field.

Caoilfhionn Gallagher QC, Doughty Street Chambers, London: From my perspective, journalism has never been more important, but, in many ways, it has also never been more dangerous. Journalists are under attack like never before, although the risks are morphing and changing as this report reflects.

I see this in my work every day, representing journalists at risk around the world and bereaved families of journalists killed simply for doing their jobs. And you'll see that two of the bereaved families that I represent have their loved ones featured on the cover [of the report], Daphne Caruana Galizia and Christopher Allen.

The deaths occurred in 2017, and in both cases there is as yet no conviction of the perpetrators, let alone wider accountability for their deaths or the underlying circumstances which allowed their deaths to occur, which in both cases involve a culture of impunity, albeit quite different forms.

Many of the families I represent see accountability for their loved ones in a broader sense, encompassing, for example, the need for investigations into questions of state responsibility where the perpetrators may be non-state actors. But there are questions about whether the laws prevent liability for the attacks and whether state authorities should have known that there was a real and immediate risk to life and should have taken more steps proactively to protect them. Learning lessons from deaths [will] ensure protective steps are taken to ensure other journalists are not placed at such risk, and often ongoing work on the underlying subject matter of the very journalism for which they were killed.

Criminal accountability, as I said, is part of the mechanism that all of the bereaved families seek. It's a very important part. And the vast majority of these cases, they don't have it. I think that this report is a very powerful tool in the armoury and I strongly support it.

HK: Can, what is your view about the importance of having this kind of task force that can run rather more speedily than the processes that are currently available might operate?

Can Yeginsu, 4 New Square Chambers, London and member of the High Level Panel: There's a theme in this report which I want to pick up on and that's the theme of transparency […] the transparency principle is absolutely critical. First, it's critical for the ability of journalists to report in their efforts to hold the powerful or our political masters to account. Second, it's plainly critical that we know when a state uses its powers to target journalists, whether it's by way of criminal investigation, bringing criminal charges or criminal conviction. The public must have access to those prosecutorial and judicial processes, and the media must be able to report them freely.

Criminal proceedings and investigations against journalists must, as a matter of general proposition, be conducted in public and be a matter of public record. Journalists must know the reasons why they are being held pre-charge or pre-trial. Journalists and their lawyers must be given access to the evidence allegedly being used to deprive them of their liberty. And not only must the state investigate crimes committed against journalists, but they must prosecute. And if they choose not to do so, they must tell us why. The states must be held to account if they take measures to target journalists.

HK: Kanbar, perhaps you'd like to comment on the report?

Kanbar Hossein-Bor, Coordinator of the UK’s Global Media Freedom Campaign: Unfortunately, the trajectory of harm to journalists and the threats they face is going in the wrong direction. And as we've already heard by other members of the panel, it's shocking that, as the UN says, nine out of ten times the murder of journalists goes unpunished.

What [the UK is] struck by is the fact that the standards states have actually created are not doing their job. There is a real gap. There is a real problem. This report is really providing [the Media Freedom Coalition of states] with potential solutions. And sometimes it makes for difficult reading because when you look at the evidence, when you look at the conclusions being put forward, it really does pose states, such as ourselves, a serious challenge as to what more we can be doing […] [the UK needs] to really go and discuss this with our allies and think about what steps we can be taking to support it.