Jamal Khashoggi’s Death: Murder of Freedom of Expression?

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More than one year has passed since the death of prominent Saudi journalist Jamal Khashoggi who has been confirmed to have been killed by the Saudi Assassins in Saudi Consulate on October 2nd 2018 in Turkey. Along the lines of complex diplomatic circumstances, justice is still inconspicuous for Jamal Khashogii who criticized the policies of Crown Prince Mohammed bin Salman.

Journalists have a vital role in rendering voice to the voiceless, henceforth it is the responsibility of the local government to ensure safety of the journalist who voice their discontent against the wrongdoings.

According to the Director-General Report on Safety of Journalists and Danger of Impunity, UNESCO has received details on 657 cases out of 1010 cases which were condemned by the director-general between 2006 and 2017. The information collected is depressing as it shows that only 115 cases have been judicially resolved, signifying an overall resolution rate of 11%.

The Arab States have registered the highest rate of impunity along with the top number of journalists being killed with only 5% of the cases declared as resolved. The States should make a conscientious effort to investigate threats and prevent killing by subsequently penalizing the persecutors and rendering justice to the victims.

Violence inflicted against the press, in any form ranging from threats, illegal detainment, harassment, kidnappings, physical attacks, or murder, is an assault not only on the civilians, but also on fundamental principles of democracy, namely “transparency, accountability, as well as the right to hold opinions and to participate in public debates.”

The act of aggression subjected against journalists effectively stunts the freedom of expression and press. The Universal Declaration on Human Rights (UDHR) in 1948 has acknowledged in Article 19- “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The global legal system to a large extent has failed to ensure the safety and liberty of the journalists. According to International Freedom of Expression Exchange, in 9 out of 10 cases, the attackers were never prosecuted and this inconsiderate and glaring exemption from prosecution is perpetuating the cycle of violence against journalists and needs to be notably addressed.

In an address made explicitly by the Human Rights Committee, it emphasized on the safety of the journalists by stating-States parties should put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression. Paragraph 3 may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights. Nor, under any circumstance, can an attack on a person, because of the exercise of his or her freedom of opinion or expression, including such forms of attack as arbitrary arrest, torture, threats to life and killing, be compatible with article 19. Journalists are frequently subjected to such threats, intimidation and attacks because of their activities. So too are persons who engage in the gathering and analysis of information on the human rights situation and who publish human rights-related reports, including judges and lawyers. All such attacks should be vigorously investigated in a timely fashion, and the perpetrators prosecuted, and the victims, or, in the case of killings, their representatives, be in receipt of appropriate forms of redress.”

International Federation of Journalists in Article 1 lays down its purpose as –The purpose of the present Convention is to promote, safeguard and ensure the safety of journalists and other media professionals in times of peace and during armed conflict, and to safeguard their ability to exercise their profession freely and independently in an enabling environment, without facing harassment, intimidation or attacks against their physical integrity.”

Article 6 of the statute provides for effective investigation by conducting thorough and effective investigations into all the attacks and threats against journalists and media professionals. The States shall endeavour to implement efficacious methods to combat impunity for those who commit crimes and inflict physical attacks on the journalists and media professionals.

Special investigations must be carried out in special cases by exercising national mechanism instituted by law of the particular government where the incident has taken place. One of the main provisions put forth by this article is that, if it is found that the impugned attack on the journalist had any nexus with his profession then this shall be treated as an aggravating circumstance or factor in that criminal proceeding.

Also, the United Nations has composed a UN Plan of Action on the Safety of Journalists and the Issue of Impunity which will formulate a “comprehensive, coherent, and action-oriented UN-wide approach to the safety of journalists and the issue of impunity”, with an aim to create a secure and free environment for journalists and media workers, both in non-conflict and conflict conditions. As most of the journalist killings are non-judicial in nature therefore, the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions may be exercised to provide “thorough, prompt and impartial” investigations.

Journalists can resort to remedy under Article 2 of Optional protocol to the ICCPR if any of their rights conferred on them by the Covenant has been violated. Hereunder is the pertinent provision-Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.”

In the landmark case of Afuson Njaru v. Cameroon where a journalist was beaten, given repetitive threats against his life by the police, suffered psychological pain and was arrested without a warrant because he published articles criticising violence and corruption of the security forces. All the actions taken against him is an outright violation of Article 7 and Article 9 of ICCPR.

The Human Rights Committee concluded that the journalist is entitled to remedy under Article 2(3) (a) which provides remedy against any violation committed by a personnel acting under official capacity. Article 2(3) (a) reads as follows- “To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”

In cases of serious crimes, the jurisdictional arbitrage can be dispensed with and instead the doctrine of universal jurisdiction must be invoked. It can be invoked by any state or international organizations claiming criminal jurisdiction to try an accused person irrespective of the place of commission of the crime and without taking into account the nationality or any other connection of the accused with the prosecuting body.

Any war crime or intentional attack on the civilians or journalists will amount to a grave violation of the Rome Statute and the Geneva Conventions respectively. Further, Rule 34 of the Customary International Law provides for prohibition of attacks on civilian journalists exercising their professional activities in situations of armed conflicts.

Similarly, Article 79 of the Additional Protocol I of the Geneva Convention has laid down that the protections and rights imparted on the citizens in international armed conflict zones must be made available to the journalists. Essentially, it is the duty of the state to investigate and indict the accused when the crime lies within their jurisdiction. However, in case they are unwilling or unable to do so, the jurisdiction to hear the case will be shifted to the International Criminal court.

Despite Finland reserving the top spot when it comes to freedom of press ranking, the Finnish journalists have been facing extensive online threats and harassments. However, the Finnish courts set an evolutionary precedent by convicting the instigators of an online harassment campaign against Jessikka Aro. Such actions will act as a deterrent. A legal framework of stringent and comprehensive safeguards ought to be formulated apart from just condemning the act of violence.

An effective coordination among the federal and local prosecutors, legislators and police can help in combating impunity in killings of journalists. Also, a special prosecutorial office can be appointed solely with the objective of carrying out investigations in cases of violence against journalist. Henceforth, it can be said that such acts of violence against the torch bearers of society is alarming for any nation and such degree of violence, ought to be done away with in order to secure the ends of justice.

-This article is brought to you in collaboration with Shreya Sahoo from National Law University, Odisha.

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