Groningen Journal of International Law

International Law Under Construction

The Truth under Siege: Does International Humanitarian Law Respond Adequately to Information Warfare?

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Vishakha Choudhary | vishakhac995@gmail.com

The significant threat posed by disinformation campaigns in armed conflicts is not a novel concern. Its first prominent manifestation can be traced back to a fabricated telegram alleging the sabotage of the cruiser USS Maine, which led to the outbreak of the Spanish-American War. Arquilla and Ronfeldt, leading academicians on Cyber warfare, describe this phenomenon as ‘Netwar’, the process of “trying to disrupt, damage, or modify what a target population ‘knows’ or thinks it knows”.

As traditional methods of warfare invite increased scrutiny, resort to Netwar has become commonplace, fueled by the proliferation of media platforms. Fake news disseminated through Facebook was instrumental in inciting persecution of Rohingyas in Myanmar and information broadcasted over the radio fuelled hate crimes against Tutsis in Rwanda. Moreover, Russian cyber operations have reportedly led to a diplomatic crisis in the Gulf since 2017 and spurred an internal conflict in Ukraine. Pertinently, non-state actors have also turned to disinformation campaigns to advance their cause, as evinced by ISIS’s twitter operations. This post discusses the enforceability and fortitude of International Humanitarian Law (‘IHL’) norms against this form of information warfare.

Do IHL principles apply to Netwars?

Customary International Humanitarian Law (IHL) principles do not directly address Netwars. Notably, Article 36 of Additional Protocol I to the Geneva Convention allows for contemporaneous interpretation of the laws of armed conflict, by compelling compliance of ‘new’ methods of warfare with established IHL principles. In this light, the Tallinn Manual (‘the Manual’) extends the application of IHL principles to cyber attacks in international armed conflicts as well as, in limited circumstances, non-international armed conflicts. This is contingent on the aspect of attribution of such operations to state or non-state actors. In the context of ‘fake news’, the anonymity afforded by the internet makes it difficult to determine the source of misinformation during conflicts, especially when private parties act as proxies. Moreover, there can be no presumption of ‘attribution’ even if the conduct originates from the territory of a state – under existing international rules, a finding of attribution for an internationally wrongful act demands verifiable facts.

To be governed by jus in bello principles, a cyber operation must be tantamount to a ‘resort to armed force’. The Manual contemplates when a cyber-attack can be equated to ‘use of force’: Identifying its severity, invasiveness, measurability of its effects, and military character as relevant criteria. While cyber operations that directly target tangible or intangible military infrastructure (‘legitimate military targets’) of a conflicting party may fit these criteria and be characterised as ‘armed force’, the classification of fake news as such is far more contentious. Measuring the impact and invasiveness of a ‘mere’ informational war on civilian or military targets is difficult, since this is contingent on how the falsification of facts is subjectively perceived. Its “scale and effects” might be difficult to assess.

IHL’s material scope of application is subject to geographical limitations since it regulates and restricts military operations to conflicting territories. According to the Manual, this is also true for cyber operations. Cyber operations are not confined to traditional notions of ‘territory’ since they transcend geographical boundaries. Thus, restricting the application of IHL through geographical limitations might render emerging principles on cyber warfare inutile. A better means of regulating cyber warfare would be to limit the personal scope of application of IHL principles – that is to condition their application on the status of the ‘actor’ in question.

The application of rules governing cyber warfare to information warfare within a state is dubious: A non-international armed conflict is characterised by armed violence between organised armed groups and a state, which itself must meet a de minimis threshold of intensity. Propagation of fake news does not occur at the hands of conventionally ‘organised groups’: Members of such virtual organisations usually remain anonymous even to each other and act independently towards a shared objective, thus lacking any structure or command. As discussed above, the intensity of disinformation warfare cannot be easily gauged. These uncertainties make it difficult to discern non-international ‘armed conflicts’ from criminal behaviour beyond the scope of application of IHL. All in all, the application of IHL rules to Netwars is uncertain but not impossible.

Do IHL principles effectively address the complexities of Netwars?

According to the Manual, disinformation campaigns used to spread terror among the civilian population are prohibited. In contrast, they may be considered permissible ruses of war should their use be limited to misleading adversaries through misinformation and false intelligence. However, as seen in Rwanda and Myanmar, these are “capable of resulting in deaths and injury of individuals”, whether military or civilian. Akin to land or sea-based armed conflicts, they must respect the distinction, precaution, and proportionality triad.

The principle of distinction compels conflicting parties to distinguish between civilian and military targets at all times. It is based on the assumption that civilians and combatants are largely distinguishable. However, civilians may knowingly or unknowingly participate in dissemination of false information over the interconnected web. This raises questions over their ‘direct participation in hostilities’ and triggers the mammoth task of ascertaining their ‘belligerent nexus’ to the conflicting parties. In fact, the duration of loss of civilian protection owing to such ‘direct participation’ remains uncertain: These persons may be engaged in repeated information sharing or the information shared by them may have delayed effects at some future point. Similarly, it is unclear whether private “hacktivists” can be classified as ‘mercenaries’ and consequently considered unprivileged belligerents since the extent of their ‘direct participation in hostilities’ and recruitment by belligerent parties may not be obvious.

An additional question may arise as to whether the media used by one party for propagating information warfare could be deemed a ‘military objective’ by its adversary. The Manual suggests that only those components of media used for military purposes may be lawfully attacked. This does not seem to account for the impossibility of discerning ‘individual components’ of social media or broadcasting media used for military purposes such as disseminating fake news.

Alternatively, given that it is difficult to control the spread of disinformation over the internet, Netwars may be considered ‘indiscriminate attacks’ that fail to distinguish between civilian and military targets. This classification is fraught with its own problems: It poses the risk of automatically elevating legitimate ruses of war to ‘indiscriminate attacks’ owing to the interconnectedness of cyberspace.

It is possible to assert that each belligerent party bears the duty to employ only those methods of warfare whose effects can be contained, according to the precautionary principle. Any form of information warfare could be considered an attack in disregard of the attacker’s precautionary duty. However, this duty extends to taking ‘feasible precautions’ alone: If perceptions of reality are altered through fake news, the contours of ‘feasible’ and ‘necessary’ measures may be similarly redefined by an attacking party.

Proportionality is another significant IHL tenet and prohibits incidental loss or damage to civilian life in excess of concrete or direct military advantage anticipated. Although incidental damage is predictable in information warfare, its ‘excessive’ nature may be impossible to discern owing to cyberspace’s nature. On the flipside, in the current era of misinformation, it is possible for states and non-actors to claim non-responsibility for their crimes by alleging that they acted in furtherance of available (false) information, thereby ‘anticipating’ a military advantage. This posture has been adopted by Russia before the European Court of Human Rights, in response to Georgia’s claims concerning the 2008 South Ossetia War.

Conclusion

Construing IHL principles according to their traditional meanings gives rise to dual concerns vis-à-vis regulation of Netwars: First, pertaining to the applicability of these principles to Netwars, and second, pertaining to how effective these principles are in the novel, complex factual context of Netwars. These concerns call for a dual response. It is essential to expand the scope of IHL principles vide contemporaneous interpretation while simultaneously moving towards special rules that address new methods of online warfare.

The Tallinn Manual, despite being considered soft law, sets the stage for regulating warfare in cyberspace. Netwars threaten to bring these nascent rules into uncharted, dangerous waters. Thus, the development and diversification of the Manual to prevent this threat is essential.

Historically, the International Military Tribunal at Nuremberg has explored the possibility of criminalising dissemination of false news in conflicts. Given the International Criminal Court’s willingness to prosecute such broadcasting practices in Ruto and Sang, the time is ripe to spur institutional and policy change.

IMG_0752Vishakha Choudhary is an LL.M. Candidate at the Europa-Institut, Universität des Saarlandes where she is pursuing  a specialisation in European and International Law as an Angela Merkel – DAAD Scholar. She has a keen interest in international humanitarian law and has previously worked on related themes as a research assistant in the International Law Commission’s 69th Session in Geneva.  

 

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