Media in Armed Conflicts: Is It Still a Good Idea?
| Autor | Shadi Alshdaifat, Ahmad Hayajneh |
| Cargo | Dr. Shadi A. Alshdaifat earned a Bachelor's degree in law (LLB) from Mu'tah University, Jordan in 2001. He also holds a master's degree in International and Comparative Law (LLM) from Dedman School of Law at Southern Methodist University (SMU), Dallas, Texas in 2009. He also holds Science Juridical Doctorate (S.J.D.) from Golden Gate University... |
| Páginas | 89-120 |
Media in Armed Conflicts: Is It Still a Good Idea? (p. 89-120) 89
ALSHDAIFAT, S. A; HAYAJNEH, A. M.
Media in Armed Conflicts: Is It Still a Good Idea?
The Law, State
and Telecommunications Review
, v. 13, no. 2, p. 89-120, October 2021.
Media in Armed Conflicts: Is It Still a Good Idea?
Submitted
: 10 February 2021
Shadi A. Alshdaifat*
ORCID: https://orcid.org/0000-0001-6136-4295
Ahmad M. Hayajneh**
ORCID: https://orcid.org/0000-0002-9829-6318
DOI: https://doi.org/10.26512/lstr.v13i2.36420
Revised
: 5 April 2021
Accepted
: 9 April 2021
Article submitted to peer blind rev iew
Licensed under a Creative Com mons Attribution 4.0 International
Abstract
[
Purpose
]
Many recent conflicts in different places in the world are considered as a perfect
illustration of the growing risks faced by media working in conflict zones. It is therefore
important to call renewed attention to the fact that direct harms against the media and its
role are illegal based on th e principles of international humanitarian law, which is the la w
that regula tes the conduct of war (jus in bello) and protects civilian persons and objects, as
long as th ey are not mak ing an effective c ontribution to m ilitary action. Th e role of media
and its great value cannot be considered a legitimate target in conflicts. Respectively , the
media also benefit from all measures that must be taken by the conflicting parties measures
–not confined to them alone – such as the principle of proportionality and the obligation to
give a warning. As of late, many books and articles have been addressing the media in the
time of conflicts. They all appear to discuss it either from one perspective, or consider its
role concern ing one single issue, but not daring to dive too deeply into specific related
issues to the media in a tim e of conflicts. The purpose of this paper is to present evidence
on how media plays a role in armed conflicts so that can help to prevent insecurity and
violent conflict, a nd contribute to peace and justice. It aims to help rec ognize the
importance of media and its positive and negative poten tial about conflicts.
[Methodology]
The paper will exam ine the available literatur e on this subject
specifically focusing on the challenges faced by media and underlining the knowledge gaps
around media in armed conflicts.
[Findings]
We have directed ourselves to approach the topic from a different perspective.
We hope to accomplish it, in part, by introducing
the role of media in armed conflicts and
whether it is still a go od idea.
*
Dr. Shadi A. Alshdaifat earned a Bachelor’s degree in law (LLB) from Mu’tah University,
Jordan in 2001. He also holds a master’s degree in International and Comparative Law
(LLM) from Dedman Scho ol of Law at Southern Methodist University (SMU), Dallas,
Texas in 2009. He also holds Science Juridical Doctorate (S.J.D.) from Golden Gate
University School of Law (GGU) San Francisco, California in 2012. Currently, Dr. Shadi
A. Alshdaifat is an Associate Professor of Public International L aw at the University of
Sharjah, College of Law. E -mail: salshdaif at@shar jah.ac.ae .
**
Dr. Ahmad M. Hayajneh earned bachelor’s degree in law (LLB) from The University of
Jordan in 1996. He also holds master’s degree in criminal law fro m the University of
Jordan, and a Ph.D from Warwick University (UK) in 2008. Currently, Dr. Hayajneh is an
associate professor in Crim inal Law at the Univer sity of Jordan . Address: University City
Rd - University City – Sh arjah, P. O. Box 27272 Sharjah, UAE. E -mail:
hayajneh@ju.edu.jo.
90
Media in Armed Conflicts: Is It Still a Good Idea? (p. 89-120)
ALSHDAIFAT, S. A; HAYAJNEH, A. M.
Media in Armed Conflicts: Is It Still a Good Idea?
The Law, State
and Telecommunications Review
, v. 13, no. 2, p. 89-120, October 2021.
Keywords:
Media. International Humanitarian Law. Armed Conflicts. Protection.
INTRODUCTION
Media has played a significant part in the IHL context. IHL
1
aims to limit
the effects of armed conflict for humanitarian reasons.
2
It “aims to protect persons
who are not or are no longer taking part in hostilities,”
3
i.e. the sick, the wounded,
prisoners, and civilians, and it defines the rights and obligations of the parties to
a conflict, be the state or non -state
4
affiliated armed forces, in the condu ct of
hostilities.
5
Hence, one of IHL’s purposes is to protect its beneficiaries ,
6
and
information has an enormous role to play to ensure that protected persons remain
1
Fundamen tal to IH L are the following two princip les: 1- Persons who are not, or are no
longer, parti cipating in hostilities mus t be protecte d; and 2- The right of parties to an armed
conflict to choose methods and means of warf are is not unlimited.
2
Because it is law, IHL impo ses obligations on those engaged in armed conflict. Not only
must they respect the law, they have an obligation to ensure respect as well.
3
The key IHL treaties include the 1907 Hague Regulations, the four Geneva Conventions,
and their Additional Protocols. 1907 Hague Regulations Conven tion (IV) respecting the
Laws and Customs of War on Land and its annex: Regulations concerning the Laws and
Customs of W ar on La nd. The Hague, 1 8 October 1907. Convention (I) for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
Geneva, 12 August 1949. Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August
1949. Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August
1949. Convention (IV) relative to the Protection of Civilian Persons in T ime of W ar.
Geneva, 12 August 1949. Protocol Additional to the Geneva Conventions of 12 Augu st
1949, and relating to the Protection of Victims of I nternational Armed Confli cts (Protocol
I), 8 June 1977. Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8
June 1977. Protocol additional to the Geneva Conventions of 12 August 1949, and relating
to the Ado ption of an Addit ional Distinctive E mblem (Protocol II I), 8 December 2 005.
4
In international relations, violent non-state actors (VNSA), also known as non-state armed
actors or non-state armed groups (N SAGs), are individua ls and groups that are wholly or
partly independent of state governments and which threaten or use violence to achieve their
goals. Hofmann, Claudia, Schneckener, Ulrich, Engaging non-state Armed Actors in State
and Peac e-building: Options and Strategies, International Revie w of the Red Cross, 9 3,
883, 2011.
5
Sumariwalla, Ru ssy, Making a Difference: The Role of In ternational NGOs in the
Evolution of International H uman Rights and Human itarian Law, HRHL, 19, 2011.
6
Kleffner, Jann, Improving Compliance with International Humanitarian Law through the
Establishment of an Individual Complaints Procedure, 15:1 Leiden J of Intl L, 237, 238
(2002).
Media in Armed Conflicts: Is It Still a Good Idea? (p. 89-120) 91
ALSHDAIFAT, S. A; HAYAJNEH, A. M.
Media in Armed Conflicts: Is It Still a Good Idea?
The Law, State
and Telecommunications Review
, v. 13, no. 2, p. 89-120, October 2021.
so throughout armed conflicts. However, information is crucial for military
purposes.
7
Indeed, the amount and quality of inform ation are essential for military
leaders during the orchestration of armed conflicts. Military personnel must make
proper decisions: ones respecting the IHL principles of proportionality,
8
necessity,
9
humanity,
10
and d istinction.
1112
Conflict is one of the defining
features
13
of the modern world. Since the end of the Cold War,
14
there have been
7
In military intelligence see i.e., Finnegan, Terrance, The Origins of Modern Intelligence,
Surveillance, and Reconnaissance: Military Inte lligence at the Front, 1914–18 , Studies in
Intelligence, (2009). Fuller, J. F. C., A Military History of the Western World, vol. 1: From
the Earliest Times to the Battle of Le panto, New York: Da Capo Press, 1987. Gabriel,
Richard A. , S. Metz, Karen, From Sumer to Rome: The Military Capabilities of Ancient
Armies, New York: Gr eenwood Press, 1991.
8
Under the Statute of the International Criminal Court, “intentionally launching an attack
in the k nowledge that such attack wil l cause incidenta l loss of life or injury to c ivilians or
damage to civilian objec ts … which would be clearly excessive in relat ion to the concr ete
and direct overall military advantage anticipated” consti tutes a war crime in international
armed conflicts. ICC Statute, Article 8 (2) (b) (IV). See also UNTAET Regulation 2000/15,
Section 6 (1) (b) (IV).
9
The “princ iple of military necessity” permits measures which are actua lly necessary to
accomplish a legitimate military purpose and are no t otherwise prohibited by internationa l
humanitarian law. In the case of an arm ed conflict the only legitimate military purpose is
to weaken the military capacity of the ot her parties to the conflic t. In Milita ry necessity se e
Gerald, Draper, M ilitary Necessity and Humanitar ian Imperatives, in RD MDG, vol. 12/2,
pp. 129-151, 1973. Dunbar, N.C.H., The Significance of Military Necessity in the Law of
War, in Juridical Review, vol. 67/2, pp. 201-212, 1955. Gardam , Judith, Necessity,
Proportionality an d the Use of Fo rce by States, Cambridge, CUP, p. 259, 2004. Haya shi,
Nobuo, Requirements of Military Necessity in International Humanitarian Law and
International Criminal Law”, in Boston University International Law Journal, vol. 28, Issue
1, pp. 39-140, 2010.
10
The principle of humanity forbids the inflict ion of all suffering, injury or de struction not
necessary for achieving the legitimate purpose of a conflict. Further reading in this specific
principle see Blishchenko, Ig or P., Les Principes du dr oit international humanitaire, in
Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour
of Jean Pictet, Geneva, The Hague, ICRC/M., Nijhoff, pp. 291-300, 1984. Chetail, Vincent,
The Fundamental Principles of Hu manitarian Law through the Case Law of the
International Court of Justice”, in Refugee Survey Quarterly, vol . 21/3, pp. 19 9-211, 2002.
11
Article 13 (2) of Additional Protocol II prohibits making the civilian population as such,
as well as individual civilians, the object of attack. The prohibition on directing attacks
against civilians is also contained in Amended Protocol II to the Convention on Certain
Conventional Weapons. Additional Protocol II, Article 13 (2) (adopted by consensus).
Amended Protocol II to the CCW, Article 3 (7).
12
See Corn, Ge offrey, Schoettler, Jame s A, Targeting and Civilian Risk Mitigation: The
Essential Role of Precautionary Measures, 4 Mil L Rev, 785, 2015.
13
For global confl ict tracker, see https://www.cfr.org/interactive/global-conflict-tracker
(Last seen January 30. 2021).
14
The Cold War came to an end when the last war of Soviet occupation ended in
Afghanistan, the Berlin Wall came down in Germany, and a series of mo stly peaceful
revolutions swept the Soviet Bloc states of Eastern Europe in 1989. Further reading on the
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