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Ambiguities in U.S. Law of War Manual pose potential threat to press freedom

This article was originally published on freemedia.at on 11 August 2015.

The recently published U.S. Department of Defense (DoD) Law of War Manual, a comprehensive document outlining proper modes of conduct for all military branches, contains vague and contradictory provisions that curtail the ability of reporters in the field to do their jobs.

While not legally binding, the manual poses a risk to global press freedom: Its abstruse instructions may be misunderstood by U.S. commanders as carte blanche to stop journalists from disseminating information and the document as a whole sets a dangerous precedent for other countries.

Several sections in the Law of War Manual, including descriptions of journalists as possible spies or “unprivileged belligerents” and stipulations seeming to permit prior restraint, may enable commanders to threaten journalists or defend maltreatment of reporters.

Released on June 12, the manual's stated purpose is to serve as the first department-wide “resource for military commanders, legal practitioners, and other military and civilian personnel on the international law principles governing armed conflict”, according to a DoD press release. In introductory remarks, the Law of War Manual claims it is only a description of preexisting law. The manual is not legally binding; it has only been approved by the DoD General Counsel, not by the military legal chain of command.

However, external military and legal experts have questioned the document's utility as a descriptive reference guide. Although the manual would most likely not be a practical source for field commanders — at 1,176 pages and swarmed with footnotes, it's a hefty tome — its vague and sometimes contradictory wording could lead to confusion. (For comparison, the Army's field guide “The Law of Land Warfare” is only 236 pages.)

In an interview with the International Press Institute (IPI), Brigadier General Michael McDaniel, a former military judge and current professor of law at Western Michigan University, criticised the manual's vagueness. “If this is supposed to be guidance, there are too many 'howevers',” he said. Discomfitingly, McDaniel described the section that outlines the appropriate treatment of “unprivileged belligerents” — a category the manual claims may include journalists — as “too confusing for law experts”.

Most current U.S. military field guides, including the U.S. Army's The Law of Land Warfare and the U.S. Air Force's International Law – The Conduct of Armed Conflict and Air Operations, were published before the U.S. heightened anti-terrorism measures following the September 11 attacks. The new Law of War Manual had to invent ways to describe combatants, such as terrorists, who are not state-sanctioned. One of the definitions introduced into the Law of War Manual is “unprivileged belligerent”. The manual advises that people who fall into that category should not be afforded the status and privileges of POWs.

This is the first of the manual's tripwires for journalists. Opening the section on journalists, the manual states: “In general, journalists are civilians. However, journalists may be members of the armed forces, persons authorized to accompany the armed forces, or unprivileged belligerents.” While the Law of War Manual goes on to enumerate specific protections for journalists who are embedded with troops, this statement could too easily be taken out of its context, especially given the unwieldy nature of the 1,176-page document.

A commander could too easily misuse the sentence, perhaps by employing it to intimidate journalists whose reports or photographs the commander does not wish the public to see. The manual is overly optimistic in placing an enormous burden of reading and interpreting legalese on busy military officials and journalists. The likely outcome that commanders will rely on legal interpretations of the document raises another unnerving possibility: A commander could potentially defend maltreatment of a journalist by claiming good faith reliance on legal counsel.

“The wording is concerning, and it undermines the advances we've fought for to assure greater protections for journalists in the field,” Martha Steffens, chair of IPI's North America Committee and a member of IPI's global executive board, said. “Journalists are harmless and defenseless; they don't carry weapons. They shouldn't be fair game as targets.”

Anna-Claire Bevan, assistant director of the International News Safety Institute (INSI), suggested that the DoD's decision to describe journalists as possible “unprivileged belligerents” may reflect the ease with which anyone can claim to be a reporter. “Nowadays, anyone with a smartphone can call themselves a journalist, and so the level of neutrality once associated with the profession has been diluted,” Bevan told IPI. Furthermore, some terrorists groups have created “fully fledged global media outlets … with instant worldwide distribution delivering their extremist messages via YouTube and raising their profile in the process, all in full HD,” INSI's Under Threat report found.

While not untrue that terrorists can pose as journalists, the manual's examples for how someone might lose civilian status are poorly delineated. One section warns that “[r]eporting on military operations can be very similar to collecting intelligence or even spying”, but offers scant advice for reporters who are not spies. According to the manual, in order to avoid confusion, journalists should “act openly and with the permission of relevant authorities” and present “identification documents, such as the identification issued to authorized war correspondents or other appropriate identification”. Yet the manual offers no assistance in determining who “appropriate authorities” might be, or what “appropriate identification” means.

Frank Smyth, founder of hostile environments training firm Global Journalist Security and senior advisor for journalist security at the New York-based Committee to Protect Journalists, wrote recently, “As any conflict reporter knows, the idea of finding relevant authorities and seeking permission to report on a battlefield would be as unlikely as it would be unwise. Who constitutes relevant authorities is often impossible to determine in shifting battle lines.”

Another worrying section appears to condone prior restraint. According to the manual, “States may need to censor journalists' work or take other security measures so that journalists do not reveal sensitive information to the enemy”.

Jane Kirtley, Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communication, told IPI she was concerned by this “cavalier” statement. The absence of definitions, Kirtley said, makes the section overbroad, placing no clear parameters on the use of prior restraint. Notably, in 1971, the U.S. Supreme Court, in New York Times Co. v. United States, did not accept national security concerns as a legitimate reason to halt publication of the Pentagon Papers – a decision, however, taken in a different era with different security risks.

The manual is all the more concerning given the U.S. military's history of neglecting press freedom when addressing terrorism. During the wars in Iraq and Afghanistan, U.S. forces illegally imprisoned journalists: Reuters cameraman Ibrahim Jassam, arrested in 2008 and held without charge for more than a year; Associated Press photojournalist Bilal Hussein, arrested in 2006 and held without charge for two years; and CTV Television Network journalist Jawed Ahmad, arrested in 2007 and held for 11 months. In perhaps the most notorious case, Al-Jazeera cameraman Sami al-Haj, a member of IPI's global executive board, was illegally detained for more than six years in Guantanamo Bay, where he was tortured and questioned repeatedly about his work for Al-Jazeera.

Furthermore, the U.S. is not the only country that must be trusted to apply the manual in good faith. The Law of War Manual sets a precedent for other states, including those with little interest in upholding freedom of expression. Steffens noted that other countries are likely to follow the lead of the Department of Defense, and McDaniel suggested that other nations wishing to label journalists as spies could point to this document.

If the role of the Department of Defense is to protect democratic freedoms, suppression of the press should be antithetical to its operations. To remedy the problems created by this document, Judge Advocate General Corps members — legal advisers to the Air Force, Army, Coast Guard and Navy — should provide a concise interpretation for journalists and field commanders alike. As the manual stands now, it is of little use to military commanders making decisions, and it weakens the already vulnerable position of journalists.

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