The BBC Trust’s latest publication of editorial appeals findings (March 2015 – published on 30/4/15) includes the result of requests for appeals concerning complaints made about a filmed report by Orla Guerin which was broadcast in August 2014 – available from page 84 here.
The requests for appeals were not granted and the BBC Trust Editorial Standards Committee’s response concerning one aspect of those requests is particularly worthy of note. Summarising the original complaints, the ESC states:
“A second point of complaint concerned the reporter’s assertion that there was no evidence for Israel’s claim that Palestinian militants were using their own civilians as human shields. Complainants said there was abundant evidence.”
Summarising the appeal stage, the ESC notes that complainants stated that:
“…the report inaccurately stated that “there was no evidence of the use of human shields” by Palestinian militants when there was evidence at the time of broadcast; the reporter would have been aware of it and chose to ignore it.”
Orla Guerin’s report was broadcast on BBC One’s ‘News at Ten’ on August 12th and appeared on the BBC News website on August 13th – i.e. well over a month after the commencement of Operation Protective Edge.
The ESC states:
“The [Senior Editorial Complaints] Adviser then considered the second issue raised by the complaint, that the highlighted sentence in the following section of commentary was inaccurate:
REPORTER: While there are growing claims against Israel, it claims that civilians here have been used as human shields – but so far there’s been no evidence of that. During this conflict Palestinian militants have kept a low profile, avoiding the cameras. But we know that at times they have operated from civilian areas. A rocket was fired from this waste ground about ten days ago. There was no ceasefire at the time – but you can see that just across the road, there are people living in these apartments. These images were filmed by Indian TV just up the road. They appear to show militants firing rockets near their hotel (Captions “Hamas team assembles rocket under tent” and “Hamas rocket fired from residential area”).”
In fact, Guerin said:
“While there are growing allegations against Israel, it claims civilians here have been used by militants as human shields but so far there’s been no evidence of that.” [emphasis in bold added]
The ESC continues:
“The Adviser considered first the complainants’ concerns that overwhelming evidence existed at the time that Hamas was using civilians as human shields and that to suggest otherwise was untrue. She noted that one point of dispute was how the term “human shield” was defined – and whether it meant Hamas using the proximity of civilians to deter an Israeli response to their actions or Hamas forcibly moving or keeping civilians in a location, on the basis that it would be likely to reduce the Israeli response. She noted that the ECU [Editorial Complaints Unit] had addressed this point:
“I would accept that there may not be universal agreement over the meaning of ‘human shield’ in this context – and whether this should be understood to mean the deliberate placement of civilians near combat targets (and preventing them from leaving) or simply firing from residential areas. However I am not sure this distinction is significant in this context, given that viewers were told and shown evidence of what they had done to put civilian lives at risk.”
She also noted and agreed with the ECU’s statement in response to the script line that there was “no evidence” to support claims that Hamas had used human shields:
“To refer to the ‘evidence’ put forward by one side would not necessarily endorse their version of events and to that extent I would agree that this might have been better worded.”
The Adviser considered, however, that the issue for her to consider was whether the choice of wording would have misled the audience on a material fact. She noted the broader context in which the sentence appeared. She noted the following extract from the ECU finding to one of the complainants:
“Given the explicit references to rockets fired from civilian areas and the inclusion of this footage I can see no prospect of audiences believing that this was not happening or that the actions of Hamas were not putting civilians at risk – which seems to me to be the central charge against them. I would accept that there may not be universal agreement over the meaning of ‘human shield’ – and whether this should be understood to mean the deliberate placement of civilians near combat targets (and preventing them from leaving) or simply firing from residential areas. However given that viewers were told and shown evidence of what they could be proven to have done to put civilian lives at risk, I am not sure this distinction is significant in this context.” […]
The Adviser concluded that the audience would have been likely to have understood that there was a case for Hamas to answer in relation to the allegation that it was using civilians as human shields and that taking the section as a whole, the reporter had gone as far as she was able, with the facts that she was able to verify.
The Adviser decided neither point of complaint would have a reasonable prospect of success and the complaint should not proceed to appeal.”
In other words, one the one hand the BBC is claiming that despite Orla Guerin’s categorical statement that there was no evidence of Hamas using human shields, audiences were not misled and would have understood that in fact it was doing just that because she went on to show footage of a residential area from which missiles had been fired. On the other hand the BBC is also claiming that it is not sure that the residents of areas from which missiles were fired were actually human shields because it thinks there is a dispute regarding the definition of human shields. Obviously any reasonable viewer would have interpreted Guerin’s sequence of commentary as supporting that interpretation of the definition of human shields as applying only to people who have been actively and forcibly placed in a certain location.
The ESC then notes that:
“Two of the complainants to the consolidated appeal requested that the Trustees review the Adviser’s decision not to proceed.”
The ESC’s decision was as follows:
“The Committee acknowledged the complainants’ reference to international law. However, Trustees considered that it was clear from the report that the correspondent attached a precise meaning to her words when she said there was “no evidence” so far that civilians “had been used as human shields”.
The Committee observed that the complaints, whilst clearly made in good faith, were predicated on testing the content by isolating a single sentence rather than considering the report overall and by a misinterpretation of what the reporter had actually said. It noted, for example, the section of commentary which followed:
“During this conflict Palestinian militants have kept a low profile, avoiding the cameras. But we know that at times they have operated from civilian areas. A rocket was fired from this waste ground about ten days ago. There was no ceasefire at the time. But you can see that just across the road there are people living in these apartments.”
The Committee agreed that the subsequent sequences offered further clarification and would have accurately informed the audience that, even without actual evidence of civilians being coerced, there was substantial circumstantial evidence that Hamas had a case to answer.
The Committee therefore agreed with the Adviser that the complaint would not have a reasonable prospect of success were it to proceed to appeal.”
As we see, assorted BBC bodies state that the definition of human shields is unclear and appear to adopt a stance according to which if civilians have not been coerced, they are not acting as human shields. Those claims, however, do not stand up to scrutiny.
“The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.[…]
It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”
Likewise, as pointed out by Tali Kolesov Har-Oz and Ori Pomson:
“In international humanitarian law (IHL), the term “human shields” concerns “civilians or other protected persons, whose presence or movement is aimed or used to render military targets immune from military operations.” The use of human shields both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs) is considered a violation of customary international law (von Leeb, 15 ILR 395, n.1; ICRC, Rule 97). Treaty law directly prohibits such practice in IACs (GCIV 28; API, art. 51(7)) and indirectly in NIACs (e.g., CA 3 with Category ‘C’ Claims, 109 ILR 441). […]
The specific elements relevant to the definition of the crime of using human shields in the International Criminal Court’s Elements of Crimes document are as follows:
The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict.
The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations.
In order to fulfil the required actus reus in Element 1 of the crime, it is not necessary to force civilians to relocate close to a military objective. The mere placement of military assets in the vicinity of civilians fulfils this requirement. [emphasis added]
Since the actus reus of this crime is rather broad, it seems that great emphasis is placed on the mens rea. Thus, in order to be considered a crime of using human shields, the actus reus must be performed with the intention to “shield a military objective from attack or shield, favor or impede military operations.” Additionally, this crime does not require any result; rather, it focuses solely on the acts and intention of the belligerent fearing an attack.”
Whilst the ESC notes that it “considered that it was clear from the report that the correspondent attached a precise meaning to her words when she said there was “no evidence” so far that civilians “had been used as human shields””, it does not acknowledge that by the time Orla Guerin produced her report, there was in fact ample evidence of that practice [see also related articles below].
“It is widely reported that the acts of Hamas clearly fall within the actus reus of the crime, through the placement of ammunition, rocket launchers and other military assets in civilian homes, mosques, hospitals and schools. While this practice has been the focus of widespread condemnation (see here a statement by the US Secretary of State), Hamas has openly and explicitly endorsed this policy. For example, a Hamas spokesperson called on Palestinians in Gaza to “oppose the Israeli occupation with their bodies alone,” explaining that this was an effective way to thwart Israel’s attacks. This was followed by other, similar statements, such as this one by Hamas’s Interior Minister. These are all examples of the ways in which Hamas “took advantage of the location of one or more civilians.” The particular intent behind these acts is also easily established. In these statements, Hamas officials admit openly and explicitly that their intention is to use the civilian population in Gaza in order to shield their rockets and operatives.”
Neither does the ESC examine the relevant question of why the BBC had not only failed to report adequately on the issue of Hamas’ use of human shields throughout the month of conflict which preceded Guerin’s report, but in some cases had broadcast content which even denied the phenomenon – a practice which one BBC editor also continued outside his organization.
The BBC Trust is charged with the task of ensuring that the BBC delivers its mission to inform, educate and entertain its funding public. Not only does the ESC’s ruling on this subject serve to compound the issue of the BBC’s self-censored reporting on Hamas’ use of human shields throughout last summer’s conflict, but it also does nothing to ensure that in relation to other or future conflicts, audiences will benefit from a higher standard of journalism which will ensure that the BBC meets its public purpose remit of building ” a global understanding of international issues”.
That, of course, does not only apply to conflicts involving Israel and Hamas: unless it intends to apply a different standard in the case of other conflicts, the ESC’s adoption of an unsourced interpretation of the definition of human shields which includes only civilians forcibly relocated close to a military objective is bound to affect the accuracy of the BBC’s reporting in Syria, Iraq, Yemen, Ukraine and elsewhere.