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The Legal Legacy of Marie Colvin

  • February 24, 2019
  • Clayton Rice, Q.C.

It was their last conversation.

Lindsey Hilsum is the international editor for Channel 4 News in Britain. Marie Colvin was an American journalist and a foreign correspondent for the British newspaper The Sunday Times. They were on Skype from Baba Amr in Homs during the bombardment by the Syrian army. “Lindsey,” Ms Colvin said, “this is the worst we’ve ever seen.” Ms Hilsum asked if she had an exit strategy. “I’m working on it now.”

On the morning of February 22, 2012, the shelling was concentrated in one area and had a pattern known as bracketing – an artillery technique for targeting a specific location. During the onslaught, journalists and activists ran to evacuate the Baba Amr Media Center. Ms Colvin and French photographer, Remi Ochlik, were killed when a rocket hit the front of the building.

1. Introduction

On July 9, 2016, Ms Colvin’s sister initiated a lawsuit in the United States District Court for the District of Columbia styled as Cathleen Colvin et al v Syrian Arab Republic, Case 1:16-cv-01423, asserting that Ms Colvin’s death was an extrajudicial killing in violation of the Foreign Sovereign Immunities Act, 28 USC s 1605A(c). The plaintiffs specifically claimed, in paras 82-5, that Syria’s conduct fell within the “state sponsor of terrorism” exception to immunity and that its agents acted pursuant to a government policy “to spread terror among the civilian population and silence journalists through violence.”

On July 11, 2017, the Clerk of the Court entered default against Syria because it did not respond. President Bashar al-Assad publicly blamed Ms Colvin for her own death saying she had been “working with terrorists”. On March 22, 2018, the plaintiffs filed a motion for default judgment with a supporting memorandum of law. Citing records of the Assad regime and the accounts of defectors and other witnesses, at pp 10-9, the plaintiffs established how the regime escalated a crackdown on traditional forms of journalism; how Ms Colvin’s movements were tracked by informants and wiretapped communications; how the shelling of the Media Centre intensified; and, the convening of military and intelligence officers to celebrate her death. On January 30, 2019, Judge Amy Berman Jackson granted the motion and entered judgment for $302,511,836.00. (See: Anne Barnard. Syria Ordered to Pay $302.5 Million to Family of Marie Colvin. The New York Times. January 31, 2019; and, Lindsey Hilsum. Marie Colvin verdict gives meaning to her death. The Guardian. February 3, 2019)

2. Extrajudicial Killing

An extrajudicial killing is defined in s 3(a) of the Torture Victim Protection Act of 1991, Pub L No 102, 106 Stat 73 (1992) as “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The term does not include a killing that, under international law, is “lawfully carried out under the authority of a foreign nation.” Ms Colvin’s death was an extrajudicial killing by definition. The question, then, was whether the plaintiffs had established it was “deliberated”.

In Flanagan v Islamic Republic of Iran, 190 F Supp 3d 138 (DDC 2016) Judge Rudolph Contreras held, at p 163, that a “deliberated” killing is one that is “arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” Judge Berman described the evidence relating to Syria’s “planning, timing, and intention” in carrying out the attack, that is partly redacted, at p 24: “The individual who provided a declaration under the name Ulysses [a pseudonym] is a defector from the Syrian intelligence services. Throughout 2011 and 2012, he reviewed intelligence memoranda, reports, and surveillance orders as part of his job, and he regularly attended meetings with officers to monitor the opposition in the city of Homs [xx]. [xx] an informant’s tip relaying the location of the Media Center to Syrian military officials, [xx]. [xx] verbal confirmation of Marie Colvin’s death and [xx] the celebration that followed.”

Judge Berman went on, at p 24, to find that the Ulysses declaration, read in conjunction with reports of those present at the attack, showed that high level officials of the Syrian government planned and executed the artillery assault on the Media Center for “the specific purpose of killing the journalists inside.” The timing of the attack was significant. It was launched the morning after the Syrian government received an informant’s tip about the location of the center and after Ms Colvin’s live broadcasts were intercepted. Paul Conroy, Ms Colvin’s photographer, and Wael al-Omar, both former soldiers trained in artillery, described the pattern of shelling as consistent with a technique used “to ensure that shells hit their intended target.”

Judge Berman concluded, at p 25, that Ms Colvin’s death was a “deliberated” killing and “not lawful in any way”. The affidavits, declarations and expert reports filed by the plaintiffs provided “satisfactory evidence” to demonstrate that her death “resulted from an extrajudicial killing committed by the defendant.” As Judge Joyce Hens Green said in Letelier v Republic of Chile, 488 F Supp 665 (DDC 1980), at p 673: “Whatever policy options may exist for a foreign country, it has no ‘discretion’ to perpetuate conduct designed to result in the assassination of an individual or individuals, action that is clearly contrary to the precepts of humanity as recognized in both national and international law.”

Ms Colvin was a journalist – not a belligerent. Her status as a journalist was an important consideration in the award of $300 million in punitive damages. “She was specifically targeted because of her profession for the purpose of silencing those reporting on the growing opposition movement in the country,” Judge Berman wrote, at p 35. “[T]he murder of journalists acting in their professional capacity could have a chilling effect on reporting such events worldwide.”

3. Conclusion

Scott Gilmore of the Center for Justice & Accountability in San Francisco, and lead counsel for the Colvin family, has recognized the “arduous effort” ahead to collect on the judgment. It will take years. There are, however, frozen Syrian assets to be pursued as well as other Syrian state property. But the precedent also has value beyond its monetary terms for Syrian civilians. And a parallel case is pending before the courts in France brought on behalf of Mr Ochlik’s family and Edith Bouvier, a reporter for Le Figaro, who were both injured in the attack. There is, too, the intangible. “This case is a legal rejoinder to the war on truth waged by strongman leaders like Bashar al-Assad,” Mr Gilmore said. “At a time when journalists face unprecedented threats, the court sent a very clear message: evidence speaks louder than disinformation, and censorship through violence is a serious breach of international law.” (See: Owen Bowcott. US court finds Assad regime liable for Marie Colvin’s death in Syria. The Guardian. January 31, 2019)

4. Epilogue

Described by Ms Hilsum as the most admired war correspondent of our generation, Ms Colvin was revered for her courageous reporting of humanitarian crises in conflict zones. She was a three time recipient of the British Press, Foreign Reporter of the Year award. In 2018, the film A Private War with Rosamund Pike was released, based on the 2012 article Marie Colvin’s Private War by Marie Brenner. The article is now available in Ms Brenner’s collection A Private War: Marie Colvin and Other Tales of Heroes, Scoundrels, and Renegades (2018). Ms Hilsum’s biography In Extremis: The Life and Death of the War Correspondent Marie Colvin (2018) is indispensable. A selection of Ms Colvin’s journalism is available in On the Front Line: The Collected Journalism of Marie Colvin (2012). A portion of the sale proceeds goes to the Marie Colvin Memorial Fund.

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