Protection of civilians in Information Warfare/Operation – DEWG 5/2/2022 Hawaii #2

Is there good disinformation?  Maybe, Ukrainian “ghost of Kiev.” Apparently, according to Twitter, Ukranians are doing very well already in that regard. All states engage in IW/IO. It has been confirmed that Russia clearly engaged in IW/IO around the U.S. elections.

I usually speak in the spaces where the fundamental question is how to or how not to respond to disinformation as a bad social phenomenon but I noticed that the question here is a little different:  how to engage in IW/IO without hurting civilians or human security.  Hence the title of our session: Legal Challenges of Protecting Civilians in IW/IO. Note that it is NOT challenges “in” protecting civilians but it is challenges “of” protecting civilians. Protection of civilians is the challenge.

In other events, A lot of what I said about disinformation were to point out how the suppressive approaches such as criminalization, intermediary liability, and algorithmic transparency have misfired and that freedom of speech, enhanced freedom of speech should be protected.

Fortunately, these things will help the military because this justifies IW/IO: the unwritten ethical rule is that if people are afforded free speech, an arm of government can of course engage in it also. The freedom of speech provides a minimum platform on which the military can build on. Yes, there are actions that state should not engage in that individuals cannot: there is a requirement of neutrality.  However, once in the military (therefore adversarial) objectives are involved, they trump that requirement of neutrality.

Having said that, I think that one of the most important IW/IO is to inform civilian colleagues of the pitfalls of the suppressive approaches or otherwise strengthen freedom of speech enjoyed by the people by providing more information as needed.

All in all, being aware of international human rights norms will strengthen not only civilian resilience on one hand to reduce collateral damages and on the other hand protect the space of legitimacy within which to engage in IW/IO.

In long-term, we need to go beyond that if you want to meet the challenges of protecting the civilians properly. States need rules of engagement. International Humanitarian law covers physical warfare. But there is no parallel for information warfare.  IHL has elements responding to information needs. One way to respond to disinformation is the ability to engage in Counter-warfare by the government. Also, shall we limit the state’s ability for cyberwarfare? How about Ukraine? For example, if Russia Today and Sputnik are blocked, it can be IO.

One participant said that it is only proportionality between deception operation vs information operation. Another participant said that there is distinction between legitimate information operation and illegitimate information operation, for instance, the rule of no attack on journalists. Raising that voluntary rule to a global norm will be a great project.

One way to respond to disinformation is domestic regulation on false information but legal hurdles are huge because of free expression doctrines on “false news” crimes, intermediary liability safe harbor, finally state immunity doctrine if we want to apply that against foreign government’s information warfare.

In building IHL for cyber warfare, we should rise above the limitation of armed conflicts because often cyber warfare happens completely outside substantive armed conflicts. Another way of saying it is that cyberoperation is also armed conflict if it causes harms.

Having said that, we can think of a few rules such as:

“Cannot use disinformation to encourage violence”;

“Cannot encourage violation of human rights”;

“Cannot use disinformation to benefit from surrender”;

“Cannot render essential facilities useless by disinformation”.

See also K.S. Park’s opening remark http://old.opennetkorea.org/en/wp/3688

See also K.S. Park’s closing remark http://old.opennetkorea.org/en/wp/3693