The Pentagon's new Law of War manual has prompted concern from media outlets about what the guidelines could mean for journalists covering wars.
While preparing our report on the new guidelines this week, we approached the US Department of Defense to ask for their response to the criticisms levelled against them - they were keen to put their case forward. Here is their response:
US Department of Defense: We want to provide a written response to your questions, as we think there has been some misunderstanding in the press regarding the DoD Law of War manual, and we want to engage with journalists to seek to clarify any misconceptions. To that end, we have been responding to press queries regarding the manual and are hoping to conduct further exchanges with journalists and representatives from journalism organisations.
At the outset, we would like to emphasise that the Department strongly supports press freedoms and the vital work that journalists perform. Their work in gathering and reporting news is essential to a free society and the rule of law. For example, DoD policy recognises that "[o]pen and independent reporting shall be the principal means of coverage of US military operations." DoD Directive 5122.05, Assistant Secretary of Defense for Public Affairs (ASD(PA)), Enclosure 3, p. 9 (Sept. 5, 2008). The DoD Law of War manual does not in any way change our existing policies and procedures with respect to interacting with the press.
Rather, the purpose of the Law of War manual is to help the Department disseminate information on international law, such as the 1949 Geneva Conventions, and to be a resource for legal advisers providing advice on the law of war to commanders during military operations. We hope that the readers of the manual and viewers of your programme understand that adhering to international law is of fundamental importance to the Department of Defense.
The Listening Post: The Law of War manual defines rules of conduct on the battlefield for US military personnel and their commanders. How does the manual affect journalists?
US Department of Defense: As noted above, the manual is an informational publication on the law of war for DoD personnel. The manual does not have any legal effect on journalists, and does not affect DoD policies and procedures for engaging with the press.
The manual has a short discussion of the position of journalists under the law of war. This section seeks to describe how law of war rules that are discussed in more detail in other sections of the manual could apply to journalists and emphasises that "[i]n general, journalists are civilians."
The Listening Post: The manual uses the term "unprivileged belligerents" to refer to some journalists and that they should be treated as "spies". What does this term mean? When has a journalist abandoned his/her work and become a so-called "unprivileged belligerent"?
US Department of Defense: The manual does not say that journalists should be treated as spies or unprivileged belligerents. Rather, the manual notes the possibility that in some cases, journalists might abandon their civilian role to become spies or unprivileged belligerents.
The terms "spies" and "unprivileged belligerents" are terms of art under the law of war. Section 4.17 of the manual explains the legal concept of "spies" under the law of war and draws heavily from the rules under the Hague Conventions. Section 4.3 of the manual explains the concept of "unprivileged belligerents," drawing from the US Supreme Court's interpretation of the law of war.
If a journalist or another civilian joins a terrorist group and participates in the fighting, that person could be an unprivileged belligerent.
The Listening Post: The Pentagon's manual is premised on the idea that journalists could threaten national security in a war zone - but has there ever been an instance in which a military operation was actually jeopardised by a journalist on the ground?"
US Department of Defense: We do not think that that is a correct description of the premise of the manual.
National security, of course, sometimes depends on keeping secrets, and in a war zone, keeping certain militarily sensitive information secret may be crucial to save lives. In DoD, public affairs professionals work with journalists to establish ground rules and to provide them access so that they can conduct their open and independent reporting without jeopardising the security of ongoing military operations.
The Listening Post: What are the legal implications of these guidelines for those deemed to have crossed the line? When a journalist no longer has civilian protection, what kinds of punishments could they face?
US Department of Defense: If a journalist, or any other person, becomes an unprivileged belligerent, there may be legal consequences, which would depend significantly on the specific context and facts. For example, if a journalist (or any other person) were shooting at US forces, then US forces would be able to return fire in self-defense.
International humanitarian law (which is the subject of the manual) permits states to punish enemy unprivileged belligerents subject to applicable requirements, such as a fair trial (see Section 4.19.4 of the manual). However, what specific punishments would be applicable would depend on domestic law (which is not a focus of the manual) and, in particular on the legal forum in which charges were brought.
The Listening Post: What is your response to criticism that this issuance will stunt the ability to report the facts accurately on the ground - and ultimately harm free speech?
US Department of Defense: We strongly disagree with this criticism. This manual emphasises that journalists are civilians and must not be attacked for engaging in journalism. Moreover, as noted above, this manual does not in any way affect existing DoDpolicies with respect to the media, which is to support open and independent reporting on US military operations.
The Listening Post: What is your response to the criticism that the manual could be used as a document of impunity in situations of military misfeasance?
US Department of Defense: We strongly disagree with this criticism. The very purpose of the manual is to address the concern raised by your question and to help DoD personnel comply with the law of war. We urge viewers of your program to survey the whole manual, beginning with the foreword, which emphasises that "[t]he law of war is of fundamental importance to the Armed Forces of the United States." We think that a fair reading of the manual including all of its sections and subsections shows the Department's serious commitment to ensuring that its operations adhere to the law.
The Listening Post: The New York Times states that the standards set in the guidelines are "reminiscent of the most authoritarian regimes". What do you make of this accusation?
US Department of Defense: We are concerned that they appear to be misinterpreting the text of the manual, and misunderstanding the manual's purpose and scope.
The Listening Post: Is this ultimately just a scare tactic to control media narratives and to rein in journalists who are out of step with the US government foreign policies?
US Department of Defense: We absolutely disagree with this criticism. We would be very surprised if anyone could interpret the manual in this way, and we have not heard this criticism to date.
For example, the manual explicitly notes that "independent journalism or public advocacy (e.g., opinion journalists who write columns supporting or criticising a state's war effort)" is protected as a civilian activity under the law of war.
In addition, the suggestion in your question is surprising because the manual is principally an internal document and a resource for the Department's legal advisors - with the primary purpose to help ensure our military's adherence to international law. We have posted it publicly in the interests of transparency and because we believe it will be of interest to many, even though it is not directed to external audiences.
We're engaging with media personnel to try to understand the different concerns that have been expressed, and to see how we can clarify any misunderstandings.
Source: Al Jazeera