CPJ: “In times of war, Pentagon reserves right to treat journalists like spies”

Arsenal Bolt: Quick updates on the news stories we’re following.

“In times of war, Pentagon reserves right to treat journalists like spies” – Committee to Protect Journalists:

The Pentagon has produced its first Department of Defense-wide Law of War Manual and the results are not encouraging for journalists who, the documents states, may be treated as “unprivileged belligerents.” But the manual’s justification for categorizing journalists this way is not based on any specific case, law or treaty. Instead, the relevant passages have footnotes referring to either other parts of the document or matters not germane to this legal assertion. And the language used to attempt to justify this categorization is weak at best.
At 1,180 pages long and with 6,196 footnotes, the manual includes vague and contradictory language about when and how the category of “unprivileged belligerents” might be applied to journalists. It ignores the most relevant cases where the U.S. military detained war correspondents and accused them of being — using the term coined by Pentagon officials in the 2000s — “unlawful combatants,” without producing evidence or bringing even one accused journalist to trial. The manual mentions international human rights treaties and declarations, but ignores the most important one, the Universal Declaration of Human Rights, which deals most clearly with the right to free expression and the press.
The manual devotes attention to “classes of persons” who “do not fit neatly within the dichotomy” between combatants and civilians, and replaces the term “unlawful combatants,” which U.S. officials used to refer to terrorist suspects held under extra-legal circumstances in the wake of September 11, 2001 attacks, with “unprivileged belligerent.”

“Unprivileged” means the suspect is not entitled to the rights afforded to prisoners of war under international law and can instead be held as a criminal suspect in a category that includes suspected spies, saboteurs, and guerrillas.

Read the full report from the Committee to Protect Journalists.

Is the US-led Syria operation vs ISIS legal under international law?

The BBC published a huge, multi-angle international law analysis by Marc Weller, Professor of International Law at University of Cambridge, on whether and to what extent the US-led operations against ISIS are legal under international law without United Nations approval. It’s a very well-balanced examination, with various arguments raised both ways for each specific element (such as operations inside Syria versus inside Iraq, or the legitimacy/sovereignty questions surrounding the governments of both Syria and Iraq).

Below is an excerpt specifically regarding the legal case for narrow military operations against ISIS, within Syria, without UN approval, on behalf of Iraq — the position that I find most plausible if any case can be made at all:

According to a ruling of the International Court of Justice in the 1986 Nicaragua case, where the US was found guilty of violating international law by supporting armed Contra rebels, self-defence could only be invoked by Iraq against Syria if IS acts as a direct agent of Damascus and under its operational control.

This is not the case. Instead, the Syrian government has lost all control over the parts of Syria held by IS.

Indeed, until very recently, it has made no attempt to dislodge it, leaving this task instead to the armed opposition groups. Damascus is manifestly unable or unwilling to discharge its obligation to prevent IS operations against Iraq from its own soil. Syria cannot impose the costs of its inaction or incapacity in relation to IS on neighbouring Iraq.

Hence, under the doctrine of self-defence, the zone of operations of the campaign to defeat IS in Iraq can be extended to cover portions of Syria beyond the control of the Syrian government.

[…] short of forming an unsavoury alliance with the Assad government, the strongest legal basis for action against IS in Syria is ancillary to the campaign now being conducted in Iraq. This may also extend to other affected states, such as Jordan. The theatre of operations may extend to parts of Syria as may be strictly necessary to conclude that campaign successfully.

If they want to shake off the comparison to George W. Bush’s 2003 invasion of Iraq and want to make this Syrian operation have a veneer of legality, the Obama Administration should say over and over again something along these lines:
We have been requested by the sovereign government of Iraq to halt and destroy a non-state combatant force attacking them from across the Syrian border. The government of Syria has not only failed to prevent the establishment of and cross-border attacks by this non-state actor, but they have actively allowed them to flourish within their own borders. Therefore, we are acting to halt attacks against Iraq from inside Syria, on behalf of the government of Iraq, which lacks the capacity to defend itself from the origin point of these attacks, located within its neighbor’s territory.

I’ve made clear on this blog that I think this operation in Syria is deeply misguided and a big mistake, but I figured I’d at least look into the possible case for why this is legal, since even that has been unclear to me. The above is the best I’ve been able to piece together so far.

File photo of the United Nations Security Council.

File photo of the United Nations Security Council.

Why is the UN not in the Iraq intervention discussions?

In a new op-ed in Al Jazeera, Vartan Oskanian suggests that Iraq is ripe for a multilateral intervention against ISIS under the aegis of the United Nations. Oskanian, who served from 1998 to 2008 as Foreign Minister of Armenia and originally hails from Syria, is a longtime proponent of multilateralism in the Middle East and the world in general. He was one of the key figures in finagling post-Soviet Armenia’s (unusual) diplomatic position to be partially integrated with Europe and NATO but still strategically allied with and supported by Russia, without making everyone mad (a position Ukrainians right about now are probably wishing they could have secured).

In the essay, Oskanian outlines a number of reasons the UN should be involved, condemns the failure of everyone’s unilateralism in the region, and discusses the success of George H.W. Bush’s delimited intervention in Iraq with a multilateral coalition — and Soviet support. He also identifies some points where the Americans and Russians of today could cooperate in Iraq after the new low point reached in relations during the Crimea/Eastern Ukraine crises of this year.

One point that didn’t really come up in the essay is that this is one rare time when Russia and the United States both oppose the same faction, operating in two different countries. And China also isn’t a fan of non-state actors (and specifically jihadists) seizing large territories and oil fields. Usually, in the past 2 decades, vetoes from Russia or China (or both) have been the sticking point on suggested interventions in places.

But despite their discontent over alleged NATO overreach after they agreed to let an intervention resolution on Libya slide through in 2011, neither of them wants to see ISIS taking over parts of the region — which is the same position as the United States. Russia is selling military technology to both the Syrian and Iraqi governments already to help fight ISIS, and the the U.S. which doesn’t really support either government anymore still doesn’t want ISIS to gain strength within either country.

So why wouldn’t the 5 Major Powers (those with veto power) all agree on some kind of intervention — even a very limited one, probably in Iraq only — if it were brought to the UN Security Council? I mean, maybe they actually wouldn’t, but isn’t it worth trying? (That is, worth trying, if an intervention is going to happen at all. I don’t support such an intervention, but if it’s going to happen, it shouldn’t been unilateral.)

That in turn raises a good question. Why isn’t the UN even mentioned (publicly) in the US discussions on intervening in Iraq? Not even by the Obama Administration, which came into office rejecting the war and purporting to embrace international norms and multilateralism. Has everyone just totally given up on getting cooperation with Russia on anything ever again, at the UN or anywhere else? That’s going to get pretty self-fulfilling pretty quickly. Or has the administration just gone full unilateralist on us all?

Credit: NordNordWest, Spesh531 - Wikimedia

ISIS control on June 12, 2014. Credit: NordNordWest, Spesh531 – Wikimedia