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U.S. revised Law of War Manual recognizes role of independent journalists

This statement was originally published on cpj.org on 22 July 2016.

The Pentagon no longer considers journalists operating independently of U.S. military forces as potential spies, terrorists, or saboteurs, according to U.S. military officials who have rewritten the military's Law of War Manual.

The manual's revisions--which follow Pentagon meetings with news and press freedom groups including the Committee to Protect Journalists--recognizes the role of journalists to independently report armed conflicts, and, in doing so, to arrange meetings or have contacts with different sides, including "enemy personnel."

The Pentagon released its first Department-of-Defense-wide Law of War Manual in June 2015. It included language that allowed journalists to be categorized as "unprivileged belligerents," which could have allowed military commanders to detain journalists indefinitely outside the rules of war without ever charging them.

"The new language is a seismic shift for the U.S. military," said CPJ Senior Adviser for Journalist Security Frank Smyth. "This affirmation of journalists' right to report armed conflicts freely and from all sides is especially welcome at a time when governments, militias, and insurgent forces around the world are routinely flouting the laws of war."

During the Iraq war, the U.S. detained many journalists precisely for their alleged contacts for journalistic purposes with enemy forces, according to CPJ research. Others were held in Afghanistan and Guantanamo Bay, including at least one imprisoned for six years.

"The manual was restructured to make it be more clear," said Pentagon Deputy General Counsel Chuck Allen in a conference call yesterday prior to the revised manual's release. "Journalists are civilians and are to be protected as such."

The revised Law of War Manual includes these key passages:

  • "In general, journalists are civilians and are protected as such under the law of war."
  • "Journalists play a vital role in free societies and the rule of law and in providing information about armed conflict."
  • "Moreover, the proactive release of accurate information to domestic and international audiences has been viewed as consistent with the objectives of U.S. military operations."
  • "DoD [Department of Defense] operates under the policy that open and independent reporting is the principal means of coverage of U.S. military operations."
  • "[E]ngaging in journalism does not constitute taking a direct part in hostilities such that a person would be deprived of protection from being made the object of attack."
  • "Where possible, efforts should be made to distinguish between the activities of journalists and the activities of enemy forces, so that journalists' activities (e.g., meetings or other contacts with enemy personnel for journalistic purposes) do not result in a mistaken conclusion that a journalist is part of enemy forces."

Smyth, CPJ's security adviser, said: "The Law of War Manual's original language would have risked more journalist imprisonments by putting most of the burden on the journalist to avoid behavior that could be construed as a hostile act. The revised language seems to put more of the burden on military commanders to distinguish between the journalistic and enemy activities."

The manual states that journalists or people claiming to be journalists could lose their civilian status if they were to engage in hostile acts. "First, making the point that engaging in journalism does not constitute taking a direct part in hostilities such that a person would be deprived of protection from being made the object of attack clarifies that journalism as such is not a belligerent activity," said Associate General Counsel Karl Chang.

The revised Law of War Manual also discusses the practice of journalists being embedded with U.S. military forces, and notes that journalists who are embedded with combatants are part of a unit that may be legitimately targeted by enemy forces and, if captured, may be afforded the privilege of being treated as a prisoner of war (POW). Under the Geneva Conventions and international humanitarian law, the rights of POWs include humane treatment, having their status as prisoners reported to a neutral body such as the International Committee of the Red Cross, and the expectation of release once hostilities end.

The Pentagon distinguishes the rights of POWs from those of "unprivileged belligerents," including spies, saboteurs, and guerrillas, who may be detained as criminal suspects, held indefinitely, and even legally executed, depending upon the laws of the country holding them.

CPJ's Journalist Security Guide includes a section on covering armed conflict and is published in nine languages.

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