US Department of Defense must revise the Law of War Manual

Reporters Without Borders has written to US Secretary of Defense Ashton Carter to highlight its concerns regarding certain provisions of the United States Department of Defense Law of War Manual as they relate to journalists and censorship. The organization is asking him to consult press freedom organizations and media outlets in order to revise the sections regarding journalists.

US Secretary of Defense Ashton Carter

Department of Defense

1400 Defense Pentagon

Washington, DC 20301-1400

USA

Washington DC, August 11, 2015

Dear Secretary of Defense Ashton Carter,

Reporters Without Borders, an international organization that defends freedom of information, would like to share with you its concerns regarding certain provisions of the United States Department of Defense Law of War Manual as they relate to journalists and censorship.

The manual gave rise to criticism by using the category “unprivileged belligerents” to potentially include journalists. The term appears to be a synonym for the more commonly used “unlawful combatants” to designate a category of persons that do not benefit from the protections accorded to lawful combatants - members of armed forces that correctly apply the rules of law - and civilians.

Journalists typically benefit from the same protections as civilians under the Geneva Conventions, their Additional Protocols, as well as Customary International Law. This principle has also appeared in previous United States war manuals and handbooks.

The new manual notes that “in general, independent journalists and other media representatives are regarded as civilians; i.e., journalism does not constitute taking a direct part in hostilities such that such a person would be deprived of protection from being made the object of attack.” The manual further states that activities of "mere sympathy or moral support for a party's cause" and "independent journalism or public advocacy" do not give rise to journalists losing their privilege.

Just as any civilian can forfeit their “privileged” status by actively engaging in hostilities, so too can journalists.

It is precisely on this point that the new manual takes a dangerous stance, stating that “in some cases, the relaying of information (such as providing information of immediate use in combat operations) could constitute taking a direct part in hostilities." This terminology leaves too much room for interpretation, putting journalists in a dangerous position.

Reporters Without Borders is equally concerned by the following provisions equating journalism with spying: “reporting on military operations can be very similar to collecting intelligence or even spying.” Likening journalistic activity to spying is just the kind of ammunition certain repressive countries like Iran, Syria, and China would seek out to support their practices of censorship and criminalization of journalists.

Such a statement on the part of the DOD is extremely alarming, especially considering the Department’s influence both within the United States and abroad on US military practice. What will happen when foreign governments who routinely violate the Law of War and seek to challenge its applicability look to this manual for validation?

The fact that the DOD justifies censorship of journalists’ work is furthermore outrageous: “states may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy.”

States actually have a duty to protect journalists covering armed conflicts, as the latest United Nations Security Council resolution on this issue has stated. We are therefore disappointed that this manual takes a step in the wrong direction.

It is becoming more and more difficult and dangerous to work as a journalist around the world. 2014 has been marked by extreme violence towards journalists all across the globe, including carefully staged beheadings. According to the Reporters Without Borders Annual Roundup, 66 journalists were killed in 2014, and two-thirds of them were killed in war zones.

The document states that it is “not a substitute for the careful practice of law. As specific legal issues arise, legal advisers should consider relevant legal and policy materials (e.g., treaty provisions, judicial decisions, past U.S. practice, regulations, and doctrine), and should apply the law to the specific factual circumstances.” Even if the authors of the manual have themselves disclaimed its legal value, the nearly 2,000-page document still has the potential to influence the interpretation and application of the law of war to US military forces.

We urge you to consult press freedom organizations and media outlets in order to revise the sections regarding journalists.

I thank you in advance, Secretary Carter, for the attention you give to this letter.

Sincerely,

Christophe Deloire

Secretary-General

Reporters Without Borders (RSF) has become the largest press freedom organization around the world and is celebrating 30 years of accomplishments. Thanks to its unique global network of 150 local correspondents investigating in 130 countries, 11 national offices and a consultative status at the UN and UNESCO, RSF is able to have a global impact, gather on-the-ground information, conduct major advocacy campaigns, and assist and defend news providers all across the world.