WORKING PAPERS Protecting the global information space in times of armed conflict ROBIN GEISS AND HENNING LAHMANN* FEBRUARY 2021 *The authors wish to thank Dr Kubo Mačák for his helpful comments on an earlier draft of the paper. TABLE OF CONTENTS Introduction ................................................................................................................................................ 1 Mapping the Threat Landscape: Risks to the Information Space in Contemporary Armed Conflict ......................................................................................................................................................... 3 Scenario A – Social Media-Enabled Foreign Electoral Interference ....................................................... 3 Scenario B – Large-scale Distortion of the Media Ecosystem ................................................................... 4 Scenario C – Manipulation of Civilian Behaviour to Gain Military Advantage ................................ 4 Scenario D – Compromising and Extorting of Civilian Individuals Through Information Warfare .....................................................................................................................................................................5 Scenario E – Disinformation as Incitement to Violence ........................................................................... 5 Variants of Distorting the Information Ecosystem in War and Peace............................................ 5 Protecting Information Spaces under Existing Legal Frameworks ................................................. 8 International Humanitarian Law .....................................................................................................................8 International Criminal Law ............................................................................................................................ 16 International Human Rights Law ................................................................................................................. 16 Conclusion: The Limits of Existing Law and Options for Advancing the Debate ...................... 17 working paper aims at filling this gap by INTRODUCTION exposing some of the legal issues arising in relation to mis- and disinformation tactics The growing number of allegations of during armed conflict in order to serve as a adversarial foreign influence operations over starting point for further debate in this respect: the past couple of years, carried out by a variety What, if any, limits exist concerning (digital) of international actors directed against information operations in armed conflict? Does democratic decision-making processes in other the humanitarian legal framework adequately states have put the problem of information capture the humanitarian protection needs that warfare high on the international agenda.1 The arise from these types of (military) conduct? interference in the 2016 U.S. and the 2017 Where and how to draw the line between effects French presidential elections as well as the 2016 and side-effects of digitalised information Brexit referendum in the UK are only the most warfare that should remain either within or prominent examples. The phenomenon is without the protective ambit of international certainly neither abating nor geographically humanitarian law (IHL)? What are, or what limited: In late 2020, for instance, Somalia should be, the limits of disinformation expelled Kenya’s diplomatic staff after campaigns, ‘fake news’, deep fakes and the accusations of electoral meddling.2 Since the systematic manipulation of a given information beginning of 2020, an unprecedented surge of space in times of armed conflict? Does IHL, misinformation and disinformation which is traditionally and primarily focused on surrounding the COVID-19 pandemic has added preventing physical harms, sufficiently account a new sense of urgency while at the same time for and is capable of mitigating potentially far- expanding the scope of the legal questions. reaching consequences that such types of However, so far the ensuing debate among operations can have on societies? If not, should scholars and policy-makers has been focused on it? international human rights law and other While the laws of armed conflict have questions of peacetime international law, such proven to be flexible enough to anticipate as whether and under which circumstances an technological innovation in general and are (online) disinformation campaign targeting applicable also to new means and methods of audiences abroad may amount to a violation of warfare, as thoroughly discussed in relation to the target state’s sovereignty, the principle of the application of IHL to cyber warfare,4 it is less non-intervention, or even – in extreme cases – obvious whether the protection they provide the prohibition of the use of force.3 The legal remains adequate in all instances in which implications of digital information warfare in novel forms of warfare are employed. And while the context of armed conflict, on the other hand, it is certainly true that disinformation have so far received scarce attention. This brief campaigns, ruses and other methods of deception and propaganda have always been 1 This paper focuses on manipulation of the content of part and parcel of warfare, recent technological information. It does not or only peripherally deal with developments, especially in the fields of cyber other issues in relation to the contemporary information and artificial intelligence, are to be seen as a ecosystem, such as hate speech or incitement to violence. veritable gamechanger of (dis-)information 2 See Latif Dahir, Abdi, “Somalia Severs Diplomatic Ties with Kenya”, New York Times, 15 December 2020, 4 See only Laurent Gisel, Tilman Rodenhäuser and Knut https://www.nytimes.com/2020/12/15/world/africa/somali Dörmann, ‘Twenty Years On: International Humanitarian a-kenya.html. Law and the Protection of Civilians Against the Effects of 3 See only Milanovic, Marko, and Michael N. Schmitt, Cyber Operations During Armed Conflict’, International ‘Cyber Attacks and Cyber (Mis)Information Operations Review of the Red Cross (2020), 11-16; Michael N. Schmitt During a Pandemic’, Journal of National Security Law & (ed.), Tallinn Manual 2.0 on the International Law Policy (2020). Applicable to Cyber Operations (2017), 373 et seq. 2 I Working Papers: Protecting Societies - Anchoring A New Protection Dimension In International Law In Times Of Increased Cyber Threats warfare. Considering the scale, scope, and far- damaging some of these operations have reaching effects of peacetime disinformation become in the wake of global digitalization, is operations, and taking into account the still to be seen as a ‘common feature of war’ with constantly increasing level of military cyber basically only the prohibition of perfidy as a capabilities, the traditional assumption that constraint. generally speaking all types of disinformation After presenting a few brief scenarios of operations short of perfidy are permissible possible (military) information operations in during armed conflict should be revisited. Thus, situations of armed conflict to illustrate what is while the simulation of surrender with the potentially at stake, the subsequent section intent to injure an enemy soldier undoubtedly defines some of the key concepts concerning the amounts to prohibited perfidy, under IHL – issue at hand. The main part examines whether leaving IHRL aside for a moment – it is far less and to what degree existing rules of IHL put clear that the widespread and deep limitations on the conduct of information manipulation of a target country’s entire online warfare. A short look at international criminal information ecosystem – including news and law and international human rights law follows social media, but even scholarship, expert before the paper concludes with an outlook on opinions, or studies by policy analysts and potential paths to advance the debate. pundits – is prohibited or limited by IHL. Propaganda as well as psychological and influence operations, including even operations directed at the civilian population5, have been a MAPPING THE THREAT common and widely accepted feature of warfare throughout the ages. What is more, Article 37(2) LANDSCAPE: RISKS TO THE API entails an explicit – and for an IHL rule unusually – permissive provision confirming INFORMATION SPACE IN the permissibility of ruses of war, whereas only a specific and narrowly defined set of acts of CONTEMPORARY ARMED deception, i.e., those amounting to perfidy, are explicitly prohibited as such. Last but not least, CONFLICT the Tallinn Manual lists ‘psychological warfare 6 activities’ as an example of permissible ruses. Information operations in the context of All of this taken together opens up a wide armed conflicts can occur in vastly different spectrum of permissible disinformation contexts and can have a variety of different campaigns in times of armed conflict, and in effects on the targeted societies and civilian combination with a long-standing practice of populations, depending on the mode of conduct, such operations, from the outset renders any namely the technologies employed, the scope, attempt at discussing legal limits and scale and sophistication of the operation or prohibitive thresholds for such operations campaign, the target audience, and the aims inherently difficult. This said, it is precisely for pursued. In order to illustrate the matter, a set of