Propaganda in Armed Conflict: Addressing Impact Through Upholding Legal Limits
Editors’ note: The following post draws upon the article “Propaganda and Armed Conflict – Analysing the Legal Framework Through the Ongoing Conflict Between Ukraine and Russia” published by the author in Juridisk Publikation No. 1, 2023, 52-74.
International humanitarian law (IHL) is said to be in deep crisis, the likes of which has not been seen since the signing of the Geneva Conventions (GCs) of 1949. Violations take place abundantly and flagrantly by nearly all parties to armed conflicts, be they non-international armed conflicts, international armed conflicts, or occupations. Violations are obviously extremely serious in themselves, but the parties’ responses to accusations of violations in an armed conflict shed further light on the deepening crisis of respect for IHL.
A common feature of armed conflicts today is accusations of violations met with denial, misrepresentation of facts or applicable legal requirements, or even the promotion of the violation. Such propaganda is not a new feature of armed conflict, but technological developments (including artificial intelligence) now mean the impacts spread further, faster, and with greater bearing than ever before. Propaganda that deny violations also increase the risks that more violations will be committed, as accountability goes unaddressed, leading to more unlawful violence and more denials.
Addressing propaganda in armed conflict requires a fine balance to ensure all applicable obligations are upheld, but upholding this balance can help address some of the damage to the broader legal framework, ensuring greater respect for IHL. Using examples from the armed conflict between Ukraine and Russia, this blog post will discuss the legal framework applicable to propaganda. It will highlight how false denials and false accusations of IHL implicate the obligations to respect and ensure respect, contributing to the crisis of IHL today, and how facilitating the right to freedom of expression in armed conflict is one means of addressing harmful propaganda.
Setting the Framework
Propaganda can be defined as the sharing or dissemination of information, ideas and opinions with the intent of influencing or manipulating the opinions and behaviour of others. Broadly speaking, propaganda in armed conflict is governed by international human rights law (IHRL) and IHL. Certain conduct can reach the severity of involving individual criminal responsibility under international criminal law (ICL) as well. Other fields may be relevant depending on different factors, such as the facts, context, and means. For example, the spreading of disinformation that Ukraine and the United States were establishing biological weapons laboratories in Ukraine implicates obligations under the Biological Weapons Convention of 1972.
Nothing under international law prohibits propaganda per se. However, IHRL, IHL, and ICL include limitations on the contents of propaganda, the means by which it is delivered or received, and who may be subjected to propaganda. For example, propaganda in armed conflict must respect and ensure respect for IHL (GCs, common art 1). Propaganda that undermines the protections afforded under IHL is prohibited, and propaganda content can breach specific rules of IHL. In the armed conflict between Ukraine and Russia, the spreading of images and recorded interviews with prisoners of war (POWs) captured by both States has been highlighted as breaching the obligation to protect POWs against insults and public curiosity under GC III, Article 13 (see further here, paras. 48 and 51 and here). In contrast, propaganda promoting adherence to the requirements of IHL can be part of upholding the obligation to ensure respect by ensuring those within the jurisdiction of a State are aware of the requirements of IHL. In addition to this kind of propaganda, there are specific obligations to disseminate information to both the civilian population and military personnel.
Several IHRL and IHL provisions include prohibitions on certain propaganda, including Article 20 of the International Covenant on Civil and Political Rights (ICCPR), Article 4 of the Convention on the Elimination of Racial Discrimination (CERD), and GC IV, Article 51. Under Article 20(1) ICCPR, States should not engage in propaganda for war and must introduce legislation prohibiting individuals within their jurisdiction from doing so. Propaganda for war is the dissemination of information, ideas, or opinions aimed at creating or reinforcing the willingness to conduct a war of aggression. Examples include the allegations made in Russia of genocide within Ukraine and false claims relating to Ukrainian territory and sovereignty as a pretext for carrying out the full-scale invasion in February 2022 by the Russian State, and by members of the Russian media that form the focus of the International Court of Justice case between Ukraine and Russia.
Certain conduct related to propaganda can also invoke individual criminal responsibility under ICL, such as the direct and public incitement to genocide, as well as propaganda that forms part of persecution as crimes against humanity (see further Genocide Convention 1948, art. III(c), 8 and Rome Statute of the International Criminal Court, arts. 6, 7(1)(h), and 25(3)(e)). Incitement to war crimes and incitement to crimes against humanity are both incitements to violence and States are therefore obliged under Article 20(2) of the ICCPR to prohibit such acts. Propaganda has also been used as evidence of war crimes in the armed conflict between Ukraine and Russia. For example, government statements and information campaigns were used in securing the arrest warrant against the President of the Russian Federation and the Commissioner for Children’s Rights relating to war crime of transferring part of the population of occupied territory outside this territory.
Propaganda Falsely Denying or Falsely Accusing of Violations of IHL
Parties to armed conflicts that falsely deny or use other methods, such as miscommunication and disinformation, to cover up or confuse facts related to violations they commit call into question the obligation to respect and ensure respect IHL under common Article 1 of the GCs as an obligation to act in good faith. In addition to being a restatement of the principle set out in Article 26 of the Vienna Convention on the Law of Treaties (VCLT), the obligation to respect IHL establishes an autonomous primary legal obligation according to an International Committee of the Red Cross (ICRC) commentary to GC III (para. 182).
As such, acts can violate the obligation to respect and ensure in themselves. The obligation to respect is a negative obligation not to violate those requirements and can be described as an obligation of conduct. The obligation to ensure respect is a positive obligation requiring the State to implement measures to prevent violations committed by State actors and non-State actors, including all private actors over which the State exercises authority. As an obligation of good faith, parties to the conflict must demonstrate their respect for the requirements under IHL. As such, allegations of violations must be investigated to determine whether the obligation to respect and/or ensure respect has been violated, and information on the findings provided.
Propaganda falsely accusing the opposing party of violating IHL similarly goes against the obligation to act in good faith. Disingenuously accusing the opposing party of violations goes against the principle by dishonestly calling into question the other party’s good faith implementation of the requirements, undermining confidence that these requirements will be adhered to at all and thereby going against the purpose of the treaty. False accusations require time (a precious commodity) and resources to be spent on demystifying the falsities in the propaganda, delaying responses to actual violations of the applicable international norms, and identifying perpetrators. Ukraine strongly denied the allegations, and the UN Security Council ultimately did not pass a resolution submitted by Russia to investigate.
In calling into question the fundamental principle of good faith, such accusations can have broader repercussions. The denial of violations or glorification of actions that breach standards of IHL contributes to further violations taking place, as it signals that those who commit such actions are immune from accountability. This has been a significant concern in the armed conflict between Ukraine and Russia. By way of example, Russia justified its use of force in February 2022 as “de-nazifying” the country. The term “nazi” has a dehumanizing effect and has been used by officials and in Russian media reporting as synonymous with the term “Ukrainian.”
Despite the brutality of the conflict and significant impact on civilians investigated and verifying by numerous international mechanisms (such as the UN Commission of Inquiry, the Organization for Security and Co-operation in Europe, Moscow Mechanism, the European Court of Human Rights here and here), there have been very few investigations into conduct breaching IHL by the Russian authorities. The failure to hold perpetrators accountable contributes to a climate of impunity and could amount to indirect approval for such actions. The obligation to ensure respect includes the obligation that parties to conflict must not encourage, aid or, assist in violations of the Convention (ICRC, Commentary to GCII (2017) para. 180). Encouragement can take the form of commending, praising, or excusing actions that amount to violations of IHL. These issues are at the core of the legal dispute between Ukraine and Russia before the ICJ under the Genocide Convention 1948, where Russia falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine. These obligations are relevant not only for the relations between Ukraine and Russia, but all parties to the respective Conventions.
Facilitating Freedom of Expression as a Means of Addressing Harmful Propaganda
As the sharing or dissemination of information, ideas, and opinions, propaganda engages the right to freedom of expression, which includes the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers. In addition to violating the obligation to ensure respect for IHL, propaganda activities that make false denials or false allegations of IHL violations affect the societal dimension of freedom of expression in accessing information and knowing about matters of public interest. The UN’s Special Rapporteur on freedom of opinion and expression has described information as a “survival right,” and, indeed, access to information is essential for the protection of the civilian population in armed conflict, as required under IHL. The obligations of IHRL can thereby be a key tool in limiting and addressing the effects of propaganda in armed conflict.
The obligation to facilitate a favorable environment for the exercise of freedom of expression by all in armed conflict is a critical means of addressing false denials or false accusations of IHL. The exercise of freedom of expression during armed conflict further facilitates the ability of the general public, other States, and international organizations to assess whether the parties to the armed conflict are upholding their obligations to respect and ensure respect for IHL. Ensuring an enabling environment for the exercise of freedom of expression has been identified as a key protection against the effects of disinformation spread within a society. Efforts should therefore be made to facilitate freedom of expression in armed conflict.
Conclusion
Denials of violations of IHL must be viewed in the broader context of the crisis of compliance with IHL. As parties to the armed conflict deny that violations of IHL have taken place, there is also a reported increase in the number of journalists killed in armed conflict since 2023 (see here, here and here). By exercising their right to freedom of expression, journalists carry out an essential role in armed conflict in providing information to the general public, parties to the conflict, other States and international organizations to assess whether the parties to the armed conflict are upholding their obligations to respect and ensure respect for IHL These statistics are indicative of a lack of respect for the core protection obligations under IHL that underpin the whole body of law. The role of propaganda should not be underestimated in this situation.
There is a delicate balance of legal interests at play in addressing harmful propaganda such as disinformation. Measures aimed at addressing the spread of disinformation can themselves go too far in violating international legal norms, that themselves are key protections against the effects of disinformation spread within a conflict . This can, in turn, perpetuate the problems arising from the spread of harmful propaganda, which, as noted, often aim to falsely or inaccurately ascribe responsibility for violations of international legal norms. This in turn risks further escalation of the situation, as seen in the propaganda related to the development or use of weapons of mass destruction. Understanding the legal framework is therefore imperative in addressing the harmful effects.
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Dr Sally Longworth is a post-doctoral researcher in international law at the Stockholm Center for Global Governance, Stockholm University.
The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Jürg Vollmer
