Act’s description and legal basis
The Commander-in-Chief’s order is based on the Laws of Ukraine “On the Legal Regime of Martial Law”, “On Information”, “On Media”, and the Decree of the President of Ukraine enforcing martial law in Ukraine. The President’s Decree provides the framework restrictions of the freedom of expression during martial law, while the Law of Ukraine “On the Legal Regime of Martial Law” prescribes the right of military command to regulate the media domain for national security needs.
The Order establishes a comprehensive framework that sets the procedures for journalists’ safe, predictable, and organised work covering the ongoing war and interacting with the Armed Forces of Ukraine (AFU) and other defence stakeholders. It was adopted rapidly after the start of the full-scale invasion of the Russian Federation, being amended several times to incorporate the practical experience of the work on the ground. It consists of seven elements:
- Algorithm of work with accredited media representatives during martial law;
- List of information, the disclosure of which may lead to the awareness of the enemy about the actions of the AFU, other units of the Defense Forces, negatively affect the course of warfare during martial law;
- Procedure for accreditation of media representatives during the martial law;
- Rules of work of the media representatives in the combat areas;
- Accreditation form;
- Press card form;
- Procedure for processing requests and admission of media representatives to the AFU objects during martial law.
The rationale behind the Order is to ensure the war coverage is objective and does not endanger the actions of AFU and other military units, to keep the national and international public informed on atrocities committed by the Russian Federation, and to prevent the leakage of restricted information. All the commanders and military units should take note of the list of prohibited information while this Order is in force.
Initially, the media, representatives of any military unit in Ukraine, journalists working in the hostilities zone were prohibited from publishing 17 categories of data, later amended to add novel provisions of the Criminal Code of Ukraine, including its Article 114-2, adopted in March 2022. February 2024 amendments updated the list, which currently includes, among other types of content:
- names of the AFU military units and defence forces, personal data of military personnel performing combat tasks, coordinates of their locations and concentration;
- combat and numerical composition of the AFU military units, available quantity, type of combat equipment and its technical composition;
- current and future plans of commanders, combat tasks and the course of their implementation by the AFU military units;
- deployment locations of the air defence units and the results of their combat missions;
- results of the military units’ operations or combat tasks, information on losses of military equipment or personnel and results of the enemy’s missile and air strikes, unless they were previously published by other state or military authorities;
- movement of military equipment, their types and quantity;
- information on planned or conducted informational and psychological operations;
- photo and video materials depicting signs, license plates on combat vehicles, means of targeting, as well as content from inside the military vehicles;
- information on awareness about the enemy, their location, and the location of critical military objects.
While the PR department of the AFU adopts the decision on accreditation, the Security Service of Ukraine (the SSU) may recommend not providing accreditation or withdrawing it without any additional reasoning. Press officers of any military unit may request to check recorded information and delete it if it falls within the abovementioned prohibitions. Publishing such information may result in accreditation withdrawal.
The 2023 amendments to the order also brought one more innovation – the zoning policy. This policy was based on a traffic lights approach and distinguishes three types of zones for journalists’ work, with the “green zone” being free of any restrictions. The policy was updated in February 2024 and provided more detailed guidance on establishing the zones.
The updated Order refers to the “red zone” as the control points of all the troops, including the battalion ones and above, as well as the areas of concentration of military units, bases of naval personnel, intelligence, weapon depots etc. Unlike last year’s amendments, which prohibited media access to the “red zone”, the current provisions allow the work of accredited media representatives in the hotspots only when accompanied by official personnel. In this regard, a prior notice requesting the presence of media in the “red zone” should be sent either to the Department of Public Relations of the AFU or the Department of Press and Information of the Ministry of Defense. In turn, the latter contacts the relevant commanding units to secure the media presence in the specific area. Noticeably, the media representatives working in the “red zones” must provide collected photos and videos for approval regarding compliance with non-disclosure rules to the designated security official before distributing or publishing them.
The “yellow zone”, as per the updated Order, includes the points of permanent deployment, areas of combat tasks performance, artillery units (especially those with the latest models of weapons provided by partner states), training centres of troops preparation, etc. Here, the Order slightly lifted the limitations regarding media access, allowing the presence of journalists without the accompanying party but only in those public places of the “yellow zone”, which can be freely accessed by the civilian population. The respective request of the accredited journalist should be reviewed within three calendar days after its submission.
Lastly, the initial Order’s design hinted that the Ukrainian military command preferred interacting more with traditional media than online media, independent journalists, and bloggers. However, the February 2024 amendments finally extended the possibility of obtaining accreditation to bloggers. The AFU press card entitles the media representatives to work in the areas of hostilities and during the curfew.
Consequences
The practical implementation of the Order led to tensions between the military command of Ukraine, the SSU, and journalists. For instance, in the aftermath of Kherson’s liberation in November 2022, the Ministry of Defense withdrew the accreditation of several journalists for the alleged violation of the Order. The Ministry claimed they actively worked in the city despite the lack of permissions and clear calls against that. After thorough communication with the Ministry of Defense and other stakeholders, certain media representatives have got their accreditation restored.
Another case involving the Danish journalist, who headed to certain occupied territories in the South of Ukraine without permission, is somewhat troubling. There, her pre-full-scale-invasion activity was analysed in detail and assessed as an aggressor state propaganda threatening national security. Lack of contextual analysis of the journalist’s activity that did not amount to propaganda and glorification of the aggressor state may lead to the abuse of the mechanisms provided by the Order and undermine the basic idea of assisting journalists.
One of the main accomplishments of the February 2024 rendition of the Order constitutes the clarification of the zoning policy as well as easier media access. Additionally, after the 2023 amendments entered into force, there has been a noticeable decline in Western media interest in the Ukrainian war and assistance that the state may need. One of the reasons for this is the absence of fresh information in the area of hotspots – something that can be achieved only with media access to the military front lines. In this regard, more lenient provisions of the Order regarding media access to the zones of hostilities will positively influence effective journalists’ work in reporting the current situation.
However, the tensions between the military and media remain even considering the new rules and the different interpretations of the provisions from both sides. For example, it was decided to permanently accompany journalists in the Sumy region’s “yellow zone”, although access to the territories where civilians live should be free for accredited media persons.
At the same time, the reviewed Order still contains the issues which were raised during the previous years, including the tensions between the military command and journalists, the rules regarding filming and publishing certain information as well as ensuring the proper balance between the criminalisation of certain war-related information and gathering of evidence.