Recent unsettling events in the United States have reminded us that protecting journalists and safeguarding enshrined principles like freedom of the press and expression are paramount to the overall welfare of any society. Most recently, mobs that stormed the U.S. Capitol during the January 6 riots sought to target elected and other government officials but also journalists, resulting in direct assaults, threats, and acts of violence against them as they covered events of the day. Prior to January 6, journalists reported harassment while covering events related to the national presidential election. Journalists during the George Floyd protests that swept the country last year reported being subjected to acts of violence, threats, and intimidation as they attempted to cover events in real time. And, in June 2018, in Annapolis, Maryland, a masked gunman fatally ambushed journalists in a mass shooting at the Capital Gazette newspaper killing five journalists and injuring two others.
Impunity for attacks on journalists remains a ubiquitous challenge for many countries and particularly for prosecutors. State attorneys general are an integral part of that conversation. State attorneys general support the principle that aggression is never an appropriate response and that preserving the rule of law is supreme, as noted in their joint statement about the violence at the U.S. Capitol. To address entrenched factors contributing to impunity and to improve capacity for prosecutors, NAAG supported a partnership with the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Association of Prosecutors (IAP) to produce prosecutorial guidelines focused on promoting journalist safety and protecting rule of law and freedom of expression.
Accounting for the varying legal authority and strategies applied to these cases by prosecutors throughout the world, the guidelines emphasize the following five substantive areas:
- The goals of the guidelines are to equip prosecutors to understand the special nature of these cases because they directly target journalists and to reinforce the public benefit and welfare of society generally when freedom of expression is normalized. Moreover, attention must be given to the prevention, protection, and prosecution of attacks on journalists, thus ending impunity where perpetrators are held accountable utilizing procedures and legal tactics consistent with the rule of law and international standards.
- Prosecutors must recognize that these cases often have a contextual nexus between the alleged crime and the media activities a journalist has engaged in, which must be explored and understood in order to comprehensively address these cases. Circumstantial evidence and related considerations must be part of a prosecutor’s analysis.
- Both the public interest and evidentiary sufficiency must be considered and sustained as part of a prosecutor’s evaluation of whether to pursue a case. Prosecutors must be aware that there will be instances where the public interest outweighs taking alternative legal action, and criminal prosecution is the only viable option.
- Confidentiality of journalists’ sources is sacrosanct. This confidentiality and data extend to all phases of the criminal investigation and prosecutorial procedures and court proceedings.
- Often, crimes against journalists involve a transnational element, requiring an awareness and respect for coordinated and cooperative efforts among nation states and use of mutual legal assistance agreements and similar instruments. Relationship-building among nation states is crucial, but it is also mandatory for prosecutors working on these cases to take steps that facilitate simpler international collaboration and management.
“It has been extremely valuable and productive to work with the International Association of Prosecutors, in collaboration with the National Association of Attorneys General, to develop the Guidelines for Prosecutors on Cases of Crimes Against Journalists,” said Mehdi Benchelah, Senior Project Officer, Freedom of Expression and Safety of Journalists Section, UNESCO. “This new collaboration, with the community of prosecutors and attorneys strengthened an essential pillar of the United Nations’ global strategy to promote the safety of journalists and end impunity for crimes committed against them.”
“The Guidelines for Prosecutors on Cases of Crimes Against Journalists reflect both the crucial role of prosecutors in fair and open societies and the immense value of collaboration between IAP, UNESCO, NAAG and the Siracusa International Institute for Criminal Justice and Human Rights” stated Han Moraal, Secretary-General of IAP.