Georgetown Law
Technology Review

“All warfare is based on deception.” Although it has been thousands of years since Sun Tzu wrote this line in The Art of War, deception still plays a role in modern warfare. In the digital age today, deception largely involves information warfare. Yet the law of war, also known as international humanitarian law (IHL), has little to say about information operations, and the Lotus principle establishes that what is not prohibited in international law is permitted. As a result, information operations have benefited belligerents while simultaneously endangering civilians. Accordingly, this legal impression advocates for their acceptance while offering a solution to mitigate their harm.

The IHL–Information Operations Gray Zone
IHL provides the rules of war, setting out what can and cannot be done. Its primary purpose is to limit the suffering caused by war, especially concerning civilians. One way IHL does this is by requiring that attacks are against combatants and not civilians. For an operation conducted in cyberspace to qualify as an attack, it must be reasonably expected to cause injury or death to persons or damage or destruction to objects. The focus here is on the effect of the operation and whether it would have violent consequences. Per the Lotus principle, operations failing to meet the attack threshold are limited only if some specific IHL provision regulates those particular circumstances.

Information operations involve using or manipulating information to influence or mislead individuals’ and groups’ perceptions, motives, attitudes, and behavior. Common forms include using social media and mainstream media to influence public perception, morale, and behavior, often through propaganda and disinformation. Because such operations can occur without meeting the attack threshold, they occur within a legal gray zone. The leading soft law on cyber warfare, the Tallinn Manual, permits operations directed against a civilian population so long as they are not an attack or a threat of one. The commentary for Rules 93 and 98 of the Tallinn Manual contemplates that because things like propaganda broadcasts and posting lies on Twitter are not attacks, they are allowed—even if civilians are the intended audience.

Contemporary Consequences of the Gray Zone
Information operations create contemporary problems for IHL to achieve its purpose of protecting civilians. For example, Russia has impacted the ability of Ukrainian civilians to make effective decisions by spreading disinformation about evacuation times and routes and the availability of medical resources and humanitarian aid, thereby increasing the number of casualties. Similarly, disinformation in the Israel–Hamas war has led to civilians remaining in conflict zones, leading to more civilian deaths.

At the same time, information operations have strategically benefited the belligerents invoking them. For instance, since invading Ukraine, Russia has relied on creating AI deepfake videos and impersonating news outlets to fabricate and spread narratives about how Ukraine has engaged in a variety of harmful activities. These information operations continue to play a crucial role in Russia’s broader strategy of weakening Ukraine’s internal cohesion and ability to garner international support. In the Gaza conflict, Hamas’s utilization of propaganda has led to a decrease in global support for Israel. Similarly, Israel has also managed to limit the support Hamas receives by using propaganda to demonize Palestinians.

Remedying the Information Operations Gray Zone
On one hand, information operations can allow a weaker opponent to influence public support and resist a larger, more powerful nation, as evidenced by both the Israel–Hamas and the Russia–Ukraine conflicts. On the other hand, information operations directed towards civilians create fear, uncertainty, and doubt, subjecting them to unnecessary harm. Thus, for information operations to coexist with IHL’s purpose of protecting civilians, States should agree on a policy that sufficiently protects civilians from harm. I offer the following for consideration: Information operations that are directed towards civilians and threaten their survival are prohibited if they are excessive in relation to the anticipated concrete benefit for the war.

First, it must be emphasized that the policy applies to all information operations, not just those that are classified as attacks. Additionally, by only applying to information operations directed towards civilians, the policy requires belligerents to exercise caution in their rhetoric to avoid sweeping in civilians. Although “threaten their survival” is ambiguous to account for a wider set of potential harm, it would not extend to operations causing inconvenience, irritation, or stress.

Also important is that the proposal aims to reinforce international human rights law. The United Nations Human Rights Council recently stated that accessing information during war is a “survival right.” Accordingly, disinformation impacting civilians’ ability to make informed decisions regarding their survival would be prohibited. And per Article 20(2) of the International Covenant on Civil and Political Rights, this proposal would prohibit information operations that involve propaganda used to vilify and demonize the civilians of a particular ethnic or religious group that is a party to the conflict.

Finally, the “excessive” clause, rooted in the principle of proportionality, aims to limit the policy from being too broad in its application. Whereas the principle of proportionality weighs incidental civilian harm against a concrete and direct military advantage, this policy differs by allowing the operation to be justified for political and strategic benefits, such as impacting an adversary’s international support. Although “excessive” here does not connotate a strict balancing test, the benefit cannot be purely speculative and must still be related to the war.

Information operations are a fundamental element of modern warfare and are essential for a belligerent’s playbook. However, they also present serious risks for the civilian population. This policy proposal aims to appeal to both sides of the equation by furthering IHL’s purpose of protecting civilians without severely limiting a belligerent’s means and methods of waging war.