Photograph by Getty Images
“Your comrades nearby already left their positions, so you should leave yours as well,” read an anonymous message received by the Ukrainian frontline soldiers fighting the Russian troops in February 2015. As the Ukrainians would later come to know, these messages were nothing but a psychological warfare tactic employed by the Russians to demoralize the enemy troops. This encounter did not fare well for Ukraine. Yet again, tactics of fake news and deception were used as a weapon of war.
However, it makes one wonder whether such an act would be punishable under International Humanitarian Law (IHL). IHL gives us standards for ascertaining which acts of deception in war are permitted. Perfidy and ruses are modes of deception contemplated under IHL which could be used to mislead the enemy.
The use of camouflage, decoys, mock operations and misinformation (like in the case above) are examples of ruses. Ruses are intended to mislead or confuse the adversary. A classic example of a ruse of war is found in the Third Battle of Gaza (1917), fought between the Ottoman Turks and the British. The British planned a grand deception operation against the Turkish army, in accordance with which a British soldier intentionally allowed himself to be ambushed. While attempting a false escape, he left behind a haversack with deceptive information about the place of attack, knowing well that it would fall in the hands of the Turks. While the Turks geared up their preparation to defend that land and marched towards the area, the British shocked the army by launching a heavy offensive on a completely different, unguarded location.
Such ruses of war do not infringe any rule of international law applicable in armed conflict. Hence, they are not prohibited under IHL according to Article 37(2) of the Additional Protocol I. Rule 57 of Customary IHL also holds that ruses of war are not prohibited as long as they do not infringe a rule of IHL. The Tallinn Manual categorises fake news and rumours as a permissible ruse. Hence, clearly and surprisingly, both the above cases would not call for any liability under IHL.
Perfidy, however, involves inviting the confidence of an adversary that he is ‘completely protected’ from a particular attack, and then betraying that confidence. Perfidy includes feigning an intent to negotiate truce, feigning surrender or civilian status, etc. For instance, in 1995, some Serbian infiltrators, deceptively dressed in French uniforms and flak jackets, took over a UN-controlled bridge in Sarajevo, and took around 400 people as hostages. Article 37(1) of Additional Protocol I prohibits perfidious acts leading to death, injury or capture of an adversary. This position is also solidified in the Customary law of IHL under Rule 65.
In addition to the codified provisions, there also exist certain grey areas which shall be construed by conscious interpretation of real-life situations in light of principles of International law. Let us consider an example. A soldier from country X feigns surrender, which causes the soldier of country Y to let his guard down and put down his weapons. As and when he does so, that enemy soldier who feigned surrender picks up his gun and shoots him dead. This is a clear case of perfidy under IHL. Now, let us rework the climax and suppose that while the soldier from Y was putting his weapons down, a different combatant from country X shoots him dead from behind. In this case, while the perfidious act was committed by one, the death blow came from another. This act would not be an act prohibited under IHL because IHL requires that to consider an act a violation of IHL’s perfidy prohibitions, the perfidy and the aggressive act must be caused by the same entity.
With the emergence of new technologies, organised armed groups have got access to easy and effective means of mass communication. While this enables them to disseminate essential information in a short span of time, it also brings with it the threat of easy spread of and access to false and distorted information. Consequently, pulling off a deceptive act intended to mislead the enemy has become easier than ever.
The Rise of Influence Operations
Today, information and communication have become two major factors that significantly complement the efficiency of armed and non-armed attacks. Social media is being weaponised by military and non-military groups to draw outcomes and opinions in their favour.
With the dawn of the Information Revolution, the use of propaganda, false information and deception including ruses and perfidious acts as a tactic to sabotage the enemy has become commonplace. We often call these techniques ‘influence operations’ as they compel groups or individuals to behave or think in ways that are conducive to the motives of the actor.
Arquilla and Ronfeldt, leading academicians on cyber warfare, introduced the concept of ‘Netwar’ to highlight this phenomenon. According to them, Netwar is a “sort of non-military information-related multidimensional conflict, that could be waged by state and non-state actors” with tools like public diplomacy, propaganda, interference with local media, the control of computer networks and databases, etc. The purpose of netwars is to disrupt, damage, or modify what a target population knows or thinks it knows about itself and the world around it.
One does not need to travel far back in history to witness the damage done using fake information, false news and propaganda campaigns. Fake news on Facebook was instrumental in inciting anti-Rohingya propaganda in Myanmar. The propaganda undertaken by a radio channel in Rwanda resulted in one of the most horrifying genocides in the world. The channel indulged in systematically dehumanizing the minority Tutsi community in Rwanda, usually by resorting to metaphors and indirect implications for the purpose. ISIS has heavily relied on its Twitter operations and social media campaigning to spread disinformation and recruit sympathisers.
Mitigation Measures under International Law
Presently, the protections provided under IHL against fake news and deception are inadequate. Most complex and complicated legal questions pertaining to influence operations that come up in real-life situations remain insufficiently addressed. The general rule to ascertain the permissibility and legality of any such act is to test it on the threshold of the basic principles of IHL. Every act and technique of attack or combat, either physical or cognitive, must respect the triad of distinction, precaution proportionality.
Additionally, Article 57(2) of the Additional Protocol I provides for verification of targets before an attack is launched. Such a mechanism could avoid or alleviate the impact of an attack which could have been propelled in response to some fake information or alarm.
Article 90 of the Additional Protocol I conceptualised the International Humanitarian Fact-Finding Commission (IHFFC). It is a permanent body, composed of 15 members, tasked with fact finding in matters of IHL. However, despite having great potential to independently enquire and investigate into instances involving breaches and violations of IHL, the Centre has remained largely dormant since its inception. The reason for this could possibly be attributed to the lack of political will and lack of awareness of its presence among states. Moreover, the scope of investigation of IHFFC extends only to international armed conflicts. This mandate excludes from its ambit several contemporary conflicts which are non-international in nature. False propaganda, disinformation campaigns and fake news used to spread terror among the civilian population is also prohibited under the Tallinn Manual.
In a significant step, the European Council created an ‘East StratCom Task Force’ under the aegis of the European Union External Action Service in 2015. Formed in response to Russia’s increasing disinformation campaigns, it was mandated to debunk fake news and disinformation and catalogue these incidents into a database of disinformation cases. Since then, this database has served as an important source of generating awareness and checking the spread of disinformation.
Conclusion
History has been a witness to the petrifying outcomes of conflicts which had begun with something as abstract and harmless as ‘information’. Moreover, the anonymity afforded by the internet today has made the task of tracking the source of misinformation and attributing liability extremely difficult during conflicts, especially when private parties act as proxies. In this backdrop, it seems pertinent that the international legal community continue to engage actively in identifying the shortfalls of IHL in dealing with fake news that could potentially result in conflicts and crises. The time is ripe to realize that in this information era, it is only with determined and innovative efforts that these ‘information wars’ could be fought.
This article has been authored by Kopal Tewary, a fourth year B.A. LL.B (Hons.) student at Rajiv Gandhi National University of Law, Punjab.
Comments