Cyber Influence and IHL

by Madhura Sapkal, Student at Maharashtra National Law University, Mumbai

Abstract

Cyber Warfare has emerged as the fifth military domain following land, air, sea and space. A cyber domain that includes social media can be extremely crucial in times of war. The power social media holds of impacting the population can be seen from the Cambridge Analytica. Also, the disinformation shared can have devastating effects if not taken care of. The aim of this blog is to explore the issue of disinformation from the perspective of armed conflict. The blog will also discuss lacunas in the law and future challenges that this issue is likely to face.

Introduction

Cyber Warfare has emerged as the fifth military domain following land, air, sea and space. Cyber domain which includes social media can be extremely crucial in times of war. The speed with which the news spread on social media is astonishing. But if the news is ‘fake’ or aimed at attacking the enemy in an indirect way, will that be regulated under IHL? To be precise, currently any framework covering cyber warfare does not exist under IHL. As it is a relatively new area, the development of customary international law in the form of state practice and opinio juris has not progressed. But ICRC is of the view that “means and methods of warfare which resort to cyber technology are subject to IHL just as any new weapon or delivery system has been so far when used in an armed conflict by or on behalf of a party to such conflict,”.[i]

The power of social media in influencing population and bringing drastic results can be seen from the Cambridge analytical data scam. Also, disinformation about Covid-19 vaccine through social media led to people protesting against vaccination and increasing the death rate. If something similar to Cambridge Analytica[ii] happens in the armed conflict situation, it can have severe impacts on the civilians as well as the respective parties. Military manipulated/agitated through fake news on social media can have adverse effect during peacetime. This issue has not received much attention due to popular belief of it being un-harming.

The aim of this blog is to understand the issue of disinformation from the perspective of armed conflict. The blog will explore the lacunas in the law while understanding the challenges it will face.

Disinformation and IHL

The issue of propaganda is not novel to warfare but in current times due to far-reaching grasp of technology, it becomes dangerous. Precautionary measures have been taken for states to adhere to their responsibility in times of conflict. These measures include, the Singapore Norms (Global Commission on the Stability of Cyberspace, 2018), Tallinn Manual 2.0, and the Geneva Dialogue on Responsible Behaviors in Cyberspace.

Majorly discussed is the Tallinn Manual 2.0[iii] wherein rule 93, para 5 states that, “psychological operations such as dropping leaflets or making propaganda broadcases are not prohibited even if civilians are the intended audiance”.  This specifically says even if the news (propaganda) is transmitted into other countries aimed at causing unrest, it is not prohibited.  If it is not explicitly prohibited then it is allowed. Participating in psychological operations which are not prohibited such as asking civilians to participate in opposing military action is not prohibited and such participation does not fall under direct participation in hostilities.

Article 37(2) of the Additional Protocol I states that acts intended to mislead an adversary or to induce them to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under the law are not prohibited. One of the examples given is disinformation. The customary law is developing in such a way that such activities are not prohibited under IHL.[iv] If fake news is circulated on social media which is of a leader of an enemy state stating information which can cause turmoil in the current state and eventually threaten the life of civilians. Such ruses of war should not be permitted. The distribution of disinformation that leads an opponent to perceive a false appearance of what is actually happening, as well as “bogus orders appearing to have been issued by the enemy commander,” are also instances of acceptable ruses, according to Rule 123 Tallinn Manual 2.0.There can be myriad possibilities of impacts of disinformation which should be regulated by the IHL.

Article 51(2) of the Additional Protocol states the civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. This article is aimed towards the protection of civilians. Disinformation which is not prohibited under IHL can cause unrest among the civilian population leading to massive consequences to stability in the territory which has an existent threat of armed conflict. Rule 92 of Tallinn Manual 2.0 defines violence as ‘must be considered in the sense of violent consequences and is not limited to violent acts’. But can fake news come under the ambit of this definition? Most of the time the effects of disinformation are not forceeable.

The aim of the IHL is to mitigate the impacts of war on population. Cyber influence is one such area which is starting to play a huge role in armed conflict. It causes instability, confusion and eventually can affect the democratic decision making. For example State A can influence the population of State B through social media and elect the party that would create favorable conditions for them. Though the issue of information is largely neglected and undermine in an armed conflict, it has capability to change the dynamics of a conflict.

Can Disinformation be considered as an Attach under IHL

As the provisions discussed above acutely protects disinformation in the times of armed conflict, there are still provisions which can limit the usage of disinformation in armed conflict. The principle of distinction and proportionality under Article 48 of AP-I and Article 51 (5) (b) of AP-I respectively. The principle of distinction is widely applicable in the contemporary areas where the legal framework is not developed. Whereas, the principle of proportionality prohibits indiscriminate attacks which will be excessive in relation to the concrete and direct military advantage anticipated. The lack of jurisprudence in defining ‘attack’ creates ambiguity in the law and eventually creates challenges while implementing it.

The understanding of what constitutes an attack for the purposes of IHL has the practical consequence that the principle of distinction provides minimal protection for civilian data in cyber war. The principle of civilian population protection is inextricably linked to the principle of military and civilian differentiation. It is critical to establish clear definitions of each of these categories in light of the latter premise. To secure the protection of civilians, the civilian population, and civilian objects, precision in the application of the principle of distinction and definitional clarity in the phrases composing the concept are required.

According to the Tallinn Manual, a cyber-operation must be considered an attack in order to be subject to IHL’s targeting criteria.[v] The attack under Article 49(1) API, is defined as ‘acts of violence against the adversary’.  The term ‘acts of violence’ should be interpreted in a broad sense as focusing on the effects caused by the action. The intention behind the operation should also be taken into consideration. As discussed above, violence is considered as violence based on its consequences. A disinformation which is not life threatening but can cause panic among people will be exempted under Article 51(2) of AP-I.

Actions directed towards civilians are only forbidden when they amount to a “attack,” according to Rule 93 Tallinn Manual 2.0 (Distinction); operations directed at military objectives must adhere to the principle of proportionality, which only applies to attacks. According to Rule 105 Tallinn Manual 2.0, cyber weapons that cause a sequence of events beyond the attacker’s control are inherently indiscriminate.

  • FUTURE CHALLENGES

Soon, even states have to look into whether disinformation is considered as an ‘attack’ under IHL. State practice is crucial in order to decide this issue. But the issue of disinformation is not easily determined. While regulating the information, there can be challenges such as curtailing the right to information as well as freedom of speech. Additionally, how to determine whether something is disinformation leading to violence. In majority of the cases, the third party is involved in spreading the fake news, how that can be regulated. Due to various privacy policies on social media, finding the culprit would be a big hurdle. But constantly ignoring this issue would give rise to an ocean of disinformation creating confusion in the minds of the masses. During the pandemic, the rumors about side-effects of Covid-19 vaccines were widely believed to be true and it was spread on WhatsApp with no authorization of the information. This psychology of people might turn into an advantage for other nations.

Conclusion

Cyber-influence operations are becoming a major problem in international relations, as is nations’ responsible use of cyberspace, prompting a push for international legislation or rules to control state behavior and obligations on the Internet. Several recent occurrences have involved the fabrication of confused, diverting, and divisive messages that have influenced nation-state internal politics. The cases examined in this study displayed a variety of argumentative behaviors.

Despite the fact that IHL understands the idea of misinformation in conflict due to long-standing practice, the existing legal framework is unprepared to respond adequately to the dimensions disinformation adds to the equation. Because of technological advancements, it is now important for the law to distinguish between the many forms and contents of so-called “fake news.” The most pressing issues, namely the subsumption of disinformation under the notions of “attack,” “act of violence,” or “threat of violence,” and the requirements of foreseeability and degree of possible harm, both of which are critical for the applicability of relevant IHL norms and the protection of civilians, are in desperate need of clarification.

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.


[i] Sylvain Vite, Typology of armed conflicts in international humanitarian law: legal concepts and actual situations, Volume 91 Number 873, March 2009, https://www.icrc.org/en/doc/assets/files/other/irrc-873-vite.pdf, Accessed on 24th August 2021.

[ii] Nicholas Confessore, Cambridge Analytica and Facebook: The Scandal and the Fallout So Far, The New York Times, April 4 2018, https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html, Accessed on 24th August 2021.

[iii] Schmitt, M. (2017). Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2nd ed.). Cambridge: Cambridge University Press. doi:10.1017/9781316822524.

[iv] Herbert Lin, Cyber conflict and international humanitarian law, International Review of the Red Cross, Volume 94 Number 886, Summer 2012, https://e-brief.icrc.org/wp-content/uploads/2016/09/29.-Cyber-conflict-and-international-humanitarian-law.pdf, Accessed on 24th August 2021.

[v] Supra Note ii

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