The Road to Justice

5. Building Pressure, Enforcing Compliance

The United Nations has escalated its focus on journalist killings, declaring that unpunished attacks against journalists are a major threat not only to press freedom, but also to all major areas of the U.N.’s work. In recent years, it has adopted two resolutions addressing journalists’ safety and impunity and launched a plan of action. These have come on top of existing Security Council Resolution 1738, which condemns attacks against journalists in conflict. “There must be no impunity for those who target journalists for violence,” U.N. Secretary General Ban Ki-moon proclaimed in a statement in the run-up to World Press Freedom Day, May 3, 2014.

These new efforts build on an array of U.N. resolutions, special procedures, and conventions that have targeted violence against journalists over the years. They include the work of special rapporteurs, the Universal Periodic Review process, and international human rights law provisions providing for freedom of expression, right to life, and protection of civilians in armed conflict. But when it comes to stemming impunity, the United Nations’ track record, as CPJ’s data have shown, is minimal. States often fail to follow the recommendations of U.N. mechanisms, and a culture dominated by quiet diplomacy over naming-and-shaming does little to enforce them.

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“While these organizations and the existing international instruments are helpful, they cannot force local governments to prosecute the perpetrators,” said Michèle Montas, a journalist from Haiti and former spokeswoman for Ban Ki-moon. Montas knows directly the frustrations of being denied justice. Her husband, radio station owner Jean Léopold Dominique, was assassinated in 2000, and no one has been convicted of the crime.

The U.N.’s most direct tool for addressing impunity in media killings lies within UNESCO. But if the agency’s record is an indicator of whether member states are prepared to meet, even minimally, their commitments on impunity, there is cause for concern.

Every two years, UNESCO’s director general asks states to submit updates on the status of judicial inquiries conducted in the cases of journalists killed, along with actions taken to hold the perpetrators to account. The responses are compiled for the biannual Report on the Safety of Journalists and the Danger of Impunity. Intermittent updates are published online. The information from governments is provided “on a voluntary basis” as laid out in the decision on the safety of journalists and the issue of impunity adopted by delegates in 2008. States may respond to any, all, or none of the cases about which the director general has issued condemnations, and may opt to have their responses made public or not.

The U.N.’s most direct tool for addressing impunity in media killings lies within UNESCO. (Reuters/Charles Platiau)

UNESCO included an analysis of state responses in its 2014 publication World Trends in Freedom of Expression and Media Development. It found that, for killings between 2007 and 2012, only 42 percent of member states had responded to the director general’s inquiries by mid-2013. For the most recent report, to be published in November 2014, the numbers reflect an even greater lack of participation. According to information available in early September 2014, only 24 of 61 countries, less than 40 percent, responded. Most simply reported that inquiries were ongoing and provided little detail. Only 14 countries published their responses.

This lackluster effort suggests that accounting for impunity in journalist killings is a low priority or too politically challenging, particularly for states where there is little to no follow-up by the authorities. Guy Berger, director of UNESCO’s Division of Freedom of Expression and Media Development, attributes the report’s outcomes to a combination of imperfect information flow within governments, the lack of capacity of some states to monitor killings of journalists, and image concerns. “No government likes to have a reputation of presiding over a failure of the rule of law and justice, especially when this applies to the case of journalists, which is likely to generate particularly negative publicity,” said Berger. He said countries should, instead, see the process as a way to counter criticism by demonstrating that some level of investigation and prosecution is under way, even if incomplete.

CPJ has raised concerns regarding states’ low rate of response to this process and the scant information provided. Of the more than three dozen countries that did not participate, many are mired in anti-press violence and have appeared repeatedly on CPJ’s Impunity Index: Afghanistan, Bangladesh, India, Somalia, Nepal, and Nigeria. If these and other member states fail to comply transparently with this reporting process, it seems unlikely that they will meet more challenging commitments, such as implementing the U.N. Plan of Action on the Safety of Journalists and the Issue of Impunity.

Nevertheless, international officials have high hopes for the Plan of Action. “It’s a potentially game-changing initiative,” Berger said two years ago in introducing the U.N. document to an international audience. The U.N. Plan and its accompanying 31-page implementation strategy are ambitious. They propose that U.N. agencies, states, freedom-of-expression groups, and the media improve coordination, raise awareness, and develop programs to protect journalists and combat impunity in cases of anti-press violence. Together, the resolution and its implementation plan offer a political mandate and a road map, a rare combination for the U.N. community.

CPJ examined how the plan, which is nearing the end of its first two years, is taking root in three of four countries identified for implementation during the first phase. They are Iraq, Pakistan, and Nepal, all places where CPJ has documented high levels of impunity in attacks against journalists. (The fourth country, South Sudan, though rife with other press-freedom violations, does not have high rates of murders of journalists, according to CPJ research. The Americas region is also a focus of early implementation.)

Although the statistics, as explored in an earlier chapter, show little direct impact, the plan in some places has invigorated local actors and given thrust to anti-impunity initiatives. These are at high risk of running out of steam, however, if U.N. agencies don’t increase their level of engagement. In one country, efforts to engage stakeholders have utterly failed.

The plan has made the most inroads in Pakistan. After an international planning meeting in Islamabad in March 2013, civil society and journalism groups united to create the Pakistan Coalition on Media Safety. The coalition has undertaken several projects, including development of a Journalist Safety Index. Its members have agreed on the need to appoint a special public prosecutor and are compiling a draft law. Owais Aslam Ali, a steering committee member and secretary-general at the Pakistan Press Foundation, said the biggest achievement has been to create momentum and gather key players, including major media associations like the Pakistan Federal Union of Journalists, All Pakistan Newspapers Society, and the Council of Pakistan Newspaper Editors.

Senior journalist Iqbal Khattak, on the coalition’s coordinating committee, said having a U.N. plan brought another key player to the table in their discussions: the government. “The U.N. Action Plan has helped legitimize the efforts to end impunity,” said Khattak. Pakistan Information Minister Pervaiz Rasheed now serves as a member of the steering committee.

Despite the U.N. plan’s origins, it is the United Nations agencies in Pakistan that have been slow to take ownership. “UNESCO did not take the lead in the way we expected,” said Khattak. At the same time, fissures in Pakistan’s media community split open this year after the shooting of Geo television’s news anchor Hamid Mir, slowing the coalition’s progress. After Geo aired accusations that Pakistan’s intelligence services were behind the attack on Mir, the station was suspended by the government and heavily criticized by many other media outlets.

In Nepal, the primary focus of efforts around the action plan, launched in June 2013, has been establishing the proper framework to address the issue of journalists’ safety and impunity. Nepal’s National Human Rights Commission has agreed to oversee the evolving entity, and a charter has been drafted in consultation with stakeholders including journalists and international organizations.

The mechanism is expected to convene, among others, representatives of the government, the police, and the Federation of Nepali Journalists, in addition to independent experts and the human rights commission, to monitor cases when journalists or human rights defenders are attacked, and to respond to threats with preventive measures.

As in Pakistan, local advocates would like to see more involvement from the U.N. community. “The cooperation of the U.N. agencies on the plan is not very visible,” said Binod Bhattarai, a media and communications consultant in Nepal who is helping the Danish-based organization International Media Support manage several programs in connection with the action plan. “There has been some financial cooperation, in that the U.N. Peace Fund for Nepal is supporting the UNESCO safety project, but I don’t get the sense that the rest of the U.N. is making enough efforts to configure their programs with this action plan in mind.”

“U.N. agencies work closely together in Pakistan, said Timo Pakkala, U.N. Resident Coordinator in Pakistan, “but they do the most visible work under the purview of their respective mandates.” The resident coordinator heads U.N. country teams and works to promote the coherence and efficiency of operational activities of different U.N. agencies, funds, and programs at the country level. According to Pakkala, the plan is regularly discussed by the heads of the U.N. Agencies, Funds and Programmes in Pakistan. “The public face does not always reflect the process that is behind the implementation,” he said.

In Iraq, which has seen a flare-up in sectarian violence over the last year, low U.N. presence on the ground and divisions among stakeholders have rendered the plan a nonstarter. An early stakeholder meeting to be held in Amman, Jordan, never took place. “The fact that this was canceled at the last minute was indicative of the difficulties in bringing together the stakeholders,” said Axel Plathe, director of UNESCO’s Iraq office, who added that UNESCO and other U.N. agencies are trying to revive the plan’s implementation. Some observers have pointed out that most of UNESCO’s staff focused on Iraq are based in Jordan, due to the recent deterioration in the security environment in Iraq, making it hard to wage the kind of consensus-building needed for the plan to germinate.

Journalist groups have doubts about the plan’s potential given violence and lawlessness in Iraq. “The defect is not in the project but in the institutions for not upholding the laws,” said Rahman Gharib, director of the Iraqi journalists rights group Metro Center to Defend Journalists. His suggestions include a focus on encouraging journalists to report all attacks to the police and training them on legal issues.

Across many regions, press freedom groups, observers, and U.N. experts familiar with the plan said it would take more U.N. intervention, more funding, and greater awareness of the initiative to achieve success. (Despite the involvement of the minister of information in the Pakistani coalition, Prime Minister Nawaz Sharif did not know of it or the action plan when CPJ raised it during a meeting in March 2014.) They also advised that the U.N. take into account journalist safety and impunity issues when establishing and renewing peacekeeping operations for specific countries.

Berger said the U.N. plan will succeed in places where it is understood that attacks on the media affect more than journalism. “Safety and impunity issues are part of a wider ecology, which requires a complex set of interventions to address,” he said. This understanding helped pave the way for the 2013 U.N. General Assembly resolution on safety of journalists and impunity, Berger and others have said.

Regional intergovernmental bodies also maintain structures that can be used to rein in impunity and compel protection for journalists through public condemnation, the use of rapporteurs and avenues for complaint. But these fare little better than their U.N. counterparts when it comes to recalcitrant states’ abidance. “Some participating states do not live up to these commitments, and in these cases the lack of political will to do so is apparent,” said Deniz Yazici, assistant researcher at the freedom-of-media office of the Organization for Security and Cooperation in Europe.

One tool that is gaining small ground in the fight against impunity is the network of regional courts. Bodies such as the Inter-American Commission on Human Rights, the European Court of Human Rights, the Economic Community of West African States, and the African Court on Human and Peoples’ Rights have doled out strong decisions in cases of journalist killings in the Gambia, Burkina Faso, Turkey, Ukraine, Mexico, Colombia, and Brazil. With few teeth behind their jurisprudence, states feebly enact or altogether flout these judgments, which often proscribe reinvestigation or expanded prosecutions. However, the process itself is increasingly proving to be an important means for highlighting systemic impunity and preventing governments from closing the book altogether on cases they would rather not address.

A good example can be found in Africa. There, justice and press freedom advocates have used a little-known mechanism, the Court of Justice of the Economic Community of West African States (ECOWAS), to challenge the staunch impunity of the Gambia in three suits concerning violence against journalists. The first two proceedings, filed by the Media Foundation for West Africa, alleged that the Gambia was responsible for the disappearance of reporter “Chief” Ebrimah Manneh, last seen in state custody in 2006, and that it tortured newspaper editor Musa Saidykhan, jailed for three weeks in 2006. In those cases, no government representatives from the Gambian government even attended. The court gave judgments by default, ordering Manneh’s release and compensation in 2008 and compensation for Saidykhan, who now lives in exile, in 2010. The Gambia has not complied. No information about Manneh’s whereabouts has been released by the government.

In 2014, the ECOWAS court said that Gambia’s National Intelligence Agency did not carry out a proper investigation in the 2004 murder of newspaper editor and AFP correspondent Deyda Hydara, seen here. (AFP/Seyllou Diallo)

By the third suit, which challenges impunity in the 2004 murder of Deyda Hydara, founder of the independent newspaper The Point, the Gambia took notice. “There was a change in the attitude on the part of the Gambia,” said Rupert Skilbeck of the Open Society Institute’s Justice Initiative, which worked with regional lawyers, the International Federation of Journalists and Hydara’s children to mount the case. “The state didn’t respond altogether in the Saidykhan and Manneh cases,” said Skilbeck. “This time they sent written responses, fully engaged in the process, and sent representatives from the attorney general’s office.”

In June 2014, the justices declared that Gambia’s National Intelligence Agency did not carry out a proper investigation into the murder of Hydara, a frequent critic of the repressive policies of Gambia’s President Yahya Jammeh. They also said that the agency was “not an impartial body to conduct the investigation,” though they did not conclude that there was evidence linking the Gambian government to the murder. The court awarded US$50,000 to Hydara’s family as compensation for the government’s failure to effectively investigate the murder, and US$10,000 for legal costs. Still, as of September 2014, the Gambian state had neither given any statement nor taken any actions regarding the damages and costs awarded in the case, according to Dindam Killi, one of the lawyers representing the Hydara family.

The court’s decision took into account the cumulative pattern of all three cases as proof that the Gambian government was fostering a climate of impunity that itself was a violation of freedom of expression. “The court made the explicit finding that freedom of expression has been stifled because of impunity,” said Skilbeck. “It is a regional court, so it sets a precedent for all countries in West Africa. There must be a proper and effective response to attacks against journalists.”

The European Court of Human Rights has been another refuge for families seeking justice for their slain loved ones, and their experience shows that at least partial progress can come, albeit over many years.

When it seemed clear that Ukrainian authorities would not prosecute the killers of Georgy Gongadze on their own initiative, his widow, Myroslava Gongadze, brought a case before the European court. The court’s mandate allows it to review alleged violations of human rights in member states when all domestic avenues have been exhausted. In 2005, the court found that Ukraine had violated several articles of the European Convention on Human Rights—notably in failing to protect the journalist’s life or investigate his death—and ordered that it pay damages of 100,000 euros (about US$118,000 at the time).

Former Police Gen. Aleksei Pukach, seen here in court in 2013, was convicted of involvement in the 2000 murder of Ukrainian journalist Georgy Gongadze. (Reuters/Gleb Garanich)

Despite this favorable verdict, and Ukraine’s subsequent payment, Gongadze would wait another eight years to see the main suspect, Aleksei Pukach, convicted. She is still waiting for the crime’s instigators to be brought to justice, but the court has been a crucial means to keep the wheels of justice moving. “I was struggling for a way to push the government to stay invested,” said Gongadze. “I was able to appeal to the court and for a few years it kept the Ukrainian government alert,” she said. “They had to respond to questions by the court.”

The European court ruled in another high-profile case that Turkish authorities had failed to act on information that could have prevented the 2007 murder of journalist Hrant Dink. Dink, founder and former chief editor of the weekly newspaper Agos, was murdered in front of his Istanbul office in January 2007. An investigation netted only the junior suspects, despite evidence suggesting that police and military officials had advance knowledge of the crime, if not complicity in it. Frustrated, Dink’s family brought its case to the European court. The ruling in Dink vs. Turkey was thorough. In addition to violating the European Convention on Human Rights’ provision on right to life, Turkey was found to have failed in its obligation to protect freedom of speech and the right to an effective remedy. The results in Turkey have been limited, however, with officials implicated in the crime evading justice.

The case underscores the fact that even if regional judgments exposed injustices and demanded remedies, if states do not comply, and there is not enough diplomatic pressure to compel them to do so, the rulings’ impact will be limited.

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