International law and Israel's nonexistent "ban" on journalism

Journalists complained this week about restrictions on entering Gaza - but the restrictions are actually required by international law.

Some 130 news outlets and advocacy groups objected this week to Israel’s (non-existent) “ban” on journalism in Gaza. When pressed, journalists tend to admit that they actually do have access but then claim it is subject to too many limits (limits which are actually required by international law).  Further complaints include: that journalists are being killed in Gaza in record numbers (even though a combatant with a press card is not a journalist under international law) and that Israel cannot reliably investigate itself (even though almost every modern Western democracy does so). It’s high time for a reality check.

Photo: AI image for illustration only. Not a real depiction.

The first claim, which is as common as it is absurd, is that the world cannot possibly know what’s happening in Gaza because Israel won’t allow the press to enter.  Just a few of the press outlets that have repeatedly entered Gaza over the past 19 months of conflict include: CNN, ABC, NBC, FOX News, The BBC, The New York Times, France24 and many, many more. 

When confronted with this inconvenient truth, journalists (or activists) typically pivot to arguing that this massive access simply “doesn’t count” because it requires an IDF escort. This second claim is equally absurd: not only because the journalist is bizarrely contradicting their earlier claim that the access doesn’t exist at all, but also because, just like every conflict in the modern era, allowing the press unrestricted access to a combat zone violates international law.

Article 79 of the First Additional Protocol to the Geneva Conventions requires that military forces must protect journalists in combat zones.  Western countries that follow international law almost universally understand this to mean that journalists must be either embedded with military forces, or must follow specific security restrictions, in order that they may be protected in the manner that international law requires.   

In contrast to disingenuous claims by the Foreign Press Association that Israel’s restrictions are “unprecedented,” similar restrictions were implemented by: the United States in Iraq and Afghanistan (2001–2021), the United Kingdom during its Iraq mission (2003-2009), Canada during its Afghanistan mission (2006–2014), France during Operation Serval in Mali (2013–2014), Germany under its Bundeswehr guidelines in Afghanistan (2002–2014), Italy during its Afghanistan and Iraq missions (2003–2014), Australia’s ADF rules in Afghanistan (2009–2013), Norway during its Afghanistan mission (2002–2014) and Ukraine during its current conflict with Russia.

Just a few of the countries with similar war zone press policies. Photo by Antoine Schibler via Unsplash.com

In conflicts around the world, the press often complain that restricting access results in a sanitized view of the war zone: what amounts to no more than government controlled propaganda. Yet legal scholars have long pointed out that the present system of embedding is freer, better and safer than any alternative that could be realistically possible in the real world.

Israel serves as a case-in-point:  international coverage of Israel is not always favorable - in fact quite the contrary.  Yet even journalists who harshly, unfairly and sometimes even untruthfully criticize Israel, continue to not only find negative stories to report, but also continue to enjoy full access without retribution.  If this is “propaganda,” then Israel is clearly not very good at it.

Another common criticism is that a “record number” of journalists have been killed in Gaza. Put aside that the figures provided by the Hamas terror organization out of Gaza are not entirely reliable, as well as the unfair assumption that everyone who dies in Gaza is killed by Israel (and never by Hamas). Never mind that the math doesn’t work - even the exaggerated and unreliable claims against Israel are not actually “record breaking.” Finally, ignore the irony of a journalist complaining about the dangers in Gaza, while simultaneously objecting to IDF protection. Even if none of that were the case, there is another, even more fundamental issue at play - many local “journalists” in Gaza are also members of Hamas or other militarily active terror organizations that habitually engage in war crimes. In some cases, these “journalists” have held Israelis hostage in private homes, subjecting them to starvation, torture and rape. 

Under the same Article 79 (subsection 2), a journalist who engages in combat, either directly or by aiding enemy combatants, loses their “civilian” status and becomes a legitimate military target pursuant to Articles 43 and 44 of the Protocol. This exception to Article 79 is essential: because if a country could never attack actual enemy combatants simply because they happen to carry a press ID, then international law would have effectively outlawed self defense.

Finally, some journalists object that Israeli information regarding events in Gaza cannot be trusted because Israel “investigates itself” over potential war crimes.  Again, the premise is absurd: almost all modern Western democracies investigate their own militaries, including: the U.S. Army’s Criminal Investigation Division (CID), the United Kingdom’s Service Prosecuting Authority (SPA) Canada’s Canadian Forces National Investigation Service (CFNIS) France’s Gendarmerie prévôtale (Prévôté) Norway’s Military Police (Militærpolitiet) and Germany’s Militärische Abschirmdienst (MAD). 

Israel’s Military Advocate General (MAG) office has even more investigative independence than its international peers, because it exists outside of the military chain of command, reporting instead directly to the Attorney General: a level of independence almost unheard of in the modern world. Israel’s Attorney General, in turn, is a civilian position, and enjoys significant judicial protection against outside influences, even by the elected government itself. 

Photo: Israel’s Military Advocate General, Yifat Yerushalmi Tomer by IDF via Wikimedia Commons.

Israel has a notoriously independent judicial system, a truth that came into the spotlight during the judicial reform protests of 2022-3.  At the time, some Israelis argued that the judiciary’s enormous independence is excessive while others asserted that it is the correct amount, but there was no question that the level of judicial independence is quite a lot - even compared to other countries. 

Israel’s highly independent judiciary, which is often antagonistic toward its own government, has consistently ruled that the IDF’s policies (including those regarding journalist access to Gaza) comply with local and international law.  In the rare cases where individual soldiers violate the IDF’s rules of conduct, Israel’s MAG and the wider judicial system have never been shy about bringing prosecutions, and where appropriate, criminal penalties as well. 

In short, the major journalistic complaints against Israel appear to be: 1. that the IDF follows international law (even though some journalists seem to feel that international law shouldn’t apply to them); and 2. that Israel acts similarly to other modern, Western democracies when conducting and investigating military activities.  In the world after October 7, 2023, which was the largest massacre of Jews since the Holocaust, there are much greater criticisms to be made against much worse parties than a modern, Western democracy that follows international law.