International Humanitarian Law In a Post-Truth World

During the Russian annexation of Crimea, Ukrainian soldiers began to receive leaflets and text messages stating that their commander and comrades had stepped down, which was later discovered to be false propaganda supplied by Russia. In the war-torn lands of Syria, pictures of a supposed Israeli airstrike on Damascus went viral, only to be verified as pictures from a 2014 operation in Gaza a few months down the line. These instances clearly indicate the disruptive potential of an information war. This article discusses the impact of fake news on international humanitarian law [“IHL”] and the enforcement of its norms.

 Nature of Fake News

Across the world, the dissemination of false propaganda and disinformation has exacerbated violence and chaos – as in Rwanda, where majoritarian propaganda broadcasted over the radio contributed to fuelling hatred against the minority Tutsis. However, fake news is distinct from other disinformation forms. It is defined by its capacity to distort reality through the spread of rumours, hoaxes and conspiracy theories, such that the very existence of facts themselves becomes questionable. In the post-truth era, urban or “hybrid” warfare is characterised by the tactical use of mass disinformation campaigns over social media and fake news.

There are standards in IHL for ascertaining which acts of deception are permitted.A ruse is a deceptive practice adopted for the sake of military operations in order to deceive the enemy, which is permitted under the Law of Armed Conflict [“LOAC”]. A perfidy is a deceptive practice intended to gain the opposition’s confidence by assuring protection, and subsequently carrying out an attack as a breach of trust. Instances of perfidies include incorrect usages of white flags, symbols, uniforms and feigning cease-fires, amongst other things, and they are prohibited under LOAC. As per the Tallinn Manual, fake news is categorised as a permissible ruse and not prohibited as a method of warfare under codified IHL conventions and protocols. Yet, it can arguably undermine the objectives of IHL.

Impact of Fake News on IHL Norms

There are 3 cornerstones of IHL that are relevant in determining the implications of fake news. First, the principle of distinction, which requires States to distinguish between civilians and combatants, and to direct their attacks towards military objects and personnel. In the absence of boots on ground, asymmetric warfare makes distinguishing between civilians and combatants difficult, as States cannot obtain intelligence in conflict zones easily. In dynamic conflict zones like Syria, where military objects and dual use facilities are often located in civilian areas, false information circulated through fake news hinders accurate military responses, jeopardising civilian lives.

Second, there is the principle of proportionality, which prohibits attacks that cause loss, injury or damage to civilian life and objects if they are excessive in comparison to the military advantage obtained. To ensure this balance, the military advantage likely to arise from the attack must be “concrete and direct” and arise from a bona fide expectation of the State to procure that advantage. Hence, the subjective knowledge or awareness of the perpetrator is relevant in assessing proportionality. For instance, as per the Rendulic Rule, the determination of a commander’s liability depends on the knowledge reasonably possessed at the time of the decision. Determining “reasonably possessed knowledge” in an era of fake news poses a challenge. Further, fake news provides an excuse forStates to claim lack of awareness or reject evidence.

For instance, in the recent case before the European Court of Human Rights [“ECtHR”] concerning an artillery attack by Russia on Georgia in2008, Russia denied all claims and liability on the grounds that they are a “fake narrative”. This complicates the ability of courts to appreciate evidence and enforce decisions, but also makes the assessment of proportionality difficult.

Lastly, States must take feasible precautions in addition to constant care so as to spare civilian population and objects. There is a parallel obligation to take feasible actions to verify targets as military targets. With respect to both obligations, the understanding of “feasibility” is important. According to several states, feasibility refers to taking practical precautions while accounting for all humanitarian and military considerations surrounding the circumstances of that case. When States can choose to contort facts by means of fake news, the scope of “feasibility” becomes susceptible to abuse.

Fake news has an immediate impact on conflict zones themselves. For instance, Russia has continually weaponised fake news to target civilians and troops of the opposing country, thereby spreading terror and confusion in those areas. The purpose of IHL is to mitigate the effects of armed conflicts on people and property, and the further destabilisation of volatile zones due to fake news under cuts that objective.

Possible Mitigation Measures

Article 57(2)(a) of Additional Protocol-I to the Geneva Conventions [“Additional Protocol-I”] provides for a mechanism to counter the effects of fake news by requiring States to verify any military targets before acting. Given the extensive usage of fake news by both States and unregulated Non-State Actors such as the Islamic State of Iraq and the Levant, the practice of verification may mitigate the disruptive impact of fake news in individual instances of armed conflict.

When courts are confronted with the dilemma of fake news, a possible solution could be the International Humanitarian Fact-Finding Commission [“IHFFC”], conceptualised under Additional Protocol-I. As an independent permanent body that functions on the principles of confidentiality and impartiality, it is best placed to investigate and report its findings to tribunals and States. Admittedly, the IHFFC has been dormant, and only took up its first investigation in 2017, following the explosion of an OSCE vehicle in Ukraine. Besides this continued dormancy, several issues require consideration. First, the IHFFC’s mandate extends to international armed conflicts [“IACs”], a mandate that significantly impacts its relevance. A large number of contemporary conflicts are non-international armed conflicts [“NIACs”], where the IHFFC’s ability to investigate would depend on the consent of the parties. Second, owing to a lack of awareness about the IHFFC’s functioning, it is unclear how its mandate differs from the Commissions of Inquiry set up by the UNHRC.

If the IHFFC is to counter informational warfare, its mandate should be expanded and clearly laid down. The body could be particularly useful in providing independent assistance to international courts in determination of facts, thereby preventing dilemmas in situations where States attempt to deny liability.

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