Civilians in the Gray Zone: New Rules for New Hybrid Wars?

The active conflicts in Ethiopia, Syria, Ukraine, and Yemen are replete with reminders of the gruesome nature of violence that state entities are capable of perpetrating against state and non-state actors and civilian populations. Contemporaneously, an inordinate reliance on high-tech military technologies and sophisticated munition systems capable of unprecedented destruction challenge customs of warfare accepted by ‘civilized people’ and give rise to pronounced struggles over the ethics and politics of violence.

The displacement of the battlefield from a circumscribed space and time to one of relative geographical and temporal indistinction accompanied and enabled by the use of autonomous weapons and cyber technologies complicates the legal norms and rules of war established centuries past. Wars by proxy and crippling economic sanctions regimes that aim to delay, limit, or punish outright belligerence between state adversaries invariably target protected civilian populations and run the risk of subverting the normative structure of public international law.

Do no harm

The fundamental principle in the Hague Law, or the area of the Law of Armed Conflict that governs the means and methods of warfare, is the distinction between military and civilian objectives. In the throes of combat, Article 22 of the 1907 Hague Regulations stipulates that the belligerent party’s ‘means of injuring the enemy is not unlimited’ and due consideration must be given to whether the target participates actively in the armed conflict. The principle of distinction, as articulated, aimed to repudiate and, to the extent possible, ‘humanize’ the doctrine of ‘total war’ inaugurated by Napoleon and later tragically reenacted in both World Wars.

Under Article 8(b)(i)(ii) of the 1998 Rome Statute of the International Criminal Court, ‘intentionally directing attacks against the civilian populations as such or against individual civilians not taking direct part in hostilities’ or ‘intentionally directing attacks against civilian objects, that is, objects which are not military objectives’ constitutes a war crime in international armed conflicts. Numerous military manuals contain prohibitions on the use of human shields and indiscriminate targeting of civilians, as do the Fourth Geneva Convention and Additional Protocol I.

Whilst war itself is a criminal enterprise and a profound moral failure, the intentional use of civilians to advance a military objective or render a military objective immune from military operations constitutes one of the innumerable other egregious assaults on human life and dignity during an armed conflict.

As Gordon and Perugi write in ‘Human Shields’ (2020), the increasing frequency with which human beings are being used as shields not only in military operations and active warzones in Yemen or in the ongoing skirmishes between Israel and Palestine but also in antinuclear and environmental protests in the United States and virtual computer game scenarios, deeply challenges and unsettles our understanding of the ethics of war and the parameters of the extraordinarily paradoxical notion of ‘humane violence’.

The Gray Zone

The gray zone phenomenon complicates this notion even further.

In recent years, near-peer competitors and rogue regimes have accelerated their reliance on gray zone strategies to gain geopolitical advantage. Yet very little thought has been dedicated to the impacts of gray zone activities on the civilian population.

Inter-state misconduct, which reached its apogee in the current Russian-Ukrainian conflict in tandem with regular warfare methods, increasingly involves a plethora of hybrid threats that states employ to broaden their regional ambitions and test and tire their opponent’s defenses. Gray zone tactics short of full armed aggression (or as a precursor to one) may include government-sanctioned cyberattacks, disinformation operations, insidious psychological warfare, assassinations, provocations, malign influence, subversion of political systems, covert, proxy, and irregular warfare as well as political and economic coercion.

Rival powers, including China, Iran, Russia, and North Korea intend to deliberately pursue hybrid statecraft ploys that fall under the threshold of conventional state-on-state war to exploit legal ambiguities and challenge American and European global commercial and diplomatic reach. The reciprocal use of hostile strategies and reliance on non-kinetic means and asymmetric techniques in the contest over status and influence, however, implicates innocent civilian lives deeply embedded in the interconnected globalized economies, financial systems, and social milieus and thus problematizes the principled distinction between civilian and military objectives outlined above.

In the largely non-military interstate gray zone confrontation, where jus in bello principles need not apply, become blurred or altogether irrelevant, anything and anyone can become a target.

iPhone as a weapon of war

Billions of users around the world tune in to social networks like Facebook, Instagram, Snapchat, and Twitter, to partake in the daily ritual of information sharing. In the contest to monopolize what people are thinking about, specially calibrated and highly sophisticated bots and algorithms populate feeds with targeted messaging of commercial and increasingly political and propagandistic nature. 

The dissemination and absorption of information and coextensively accompanying disinformation is a potent tool in the irregular conflict that is being waged on people’s mobile phone screens. The highly coordinated and unceasing assault on the mind need not involve an AK-47, but a good old-fashioned iPhone to make a significant dent in information warfare.

Psychological operations that accompany information warfare have a destructive impact on the civilian population. Studies show that propaganda or ‘selectively misleading information designed to intentionally convey a certain point’ by tapping into existing fears and underlying emotions targets and suppresses the brain’s ‘executive control network’ resulting in compromised critical thinking abilities, unconscious conformity to an associated or habituated form of thinking, passive acquiescence, anger, stress, burnout, or withdrawal. Not surprisingly, therefore, as far back as the March 1922 issue of The Scientific Monthly, the American Society for the Advancement of Science framed propaganda as a psychological problem.

The governments’ increasing recruitment and use of botnets, AI, and automated algorithms for offensive and defensive use have rewired traditional propaganda for the digital age by reshaping human beings’ cognitive filters. Operationalizing artificial intelligence and weaponizing information in order to outmatch and outmaneuver the adversary is now part and parcel of the new frontier of state-sponsored algorithmic asymmetrical warfare.

In a recently published piece for the Journal of Design and Science, Gregory Asmolov writes of a new phenomenon of “participatory propaganda” which seeks not merely to ‘manage collective attitudes’ through selective manipulation of beliefs or preferences and thus influence the public to change their perceptions and opinions but to actively hack their brains in order to persuade users to interpret the world through a deliberately enhanced and highly suggestive, refereed lens. Asmolov contends that digital participatory propaganda is ‘a pathway to instantaneous participation in political conflicts from the safety and comfort of your living room chair.’ It is also, Asimov continues, ‘ironically, now a tool for instantaneously breaking connections between friends and relatives whose opinions differ.’  By ‘socializing conflicts and make[ing] them part of everyday life’ through domesticated technologies infiltrating private and social spaces such as laptops, mobile phones, or TV sets, the consumer of information or the newly recruited ‘citizen-soldier’ also inevitably ‘internalizes’ conflicts and becomes a digitally mediated yet fully implicated participant-observer in world events.

The use of ‘bot armies’ to achieve a military objective has thus far escaped legal definition and regulation but their potential for a coordinated penetration of systems to launch large-scale attacks, disrupt authorized networks, inundate, control, and infest in order to conduct nefarious activity and thus inflict incalculable damage to the entire internet remains a potent tool in the military’s toolkit.

This hybrid phenomenon raises important questions regarding the legal status and coextensive legal protections that ought to accrues to civilians entangled in information warfare waged between state parties. Given the potential for a disinformation contagion and its adverse effects on the human psyche, peace, and social harmony, should states and their intelligence agencies (alongside private media actors knowingly manufacturing and circulating ‘fake news’) be held accountable for crimes perpetrated against the human mind? Particularly if such deliberate and calculated assaults on the mind upset the status quo, motivate the country into an international conflict or lead to violent internal dissent and civil war? Ought the international community consider expanding the definition of the crime against peace to include a tenacious onslaught of subversive, organized, and insidious methods and techniques of information and disinformation warfare? Should laws of war protect against the maiming of the mind as much as the body?

Hybrid wars, virtual laws

State parties to international human rights conventions are obliged to respect and protect the rights enshrined in them. The United Nations Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), among others, are legally binding international instruments that offer a modicum of reasonable protection indispensable for the preservation of human dignity and well-being, including a person’s right to physical security and mental health.

In the lawless gray zone of information warfare that transcends borders, subverts sovereignty, and fails to discriminate between active combatants and non-combatant observers, the global security risks increase proportionally to its use.

By bits and bots, the human mind is under assault in hitherto unprecedented ways, challenging our legal and moral norms and social customs. The use of a new range of weapons and techniques in hybrid warfare scenarios with or without explicit consideration of its impacts on the civilian population situated in the inscrutable zone of indistinction between stable peace and open conflict ostensibly contributes to the ongoing and ever-advancing displacement of the battlefield and threatens further erosion of basic yet essential international legal protections.

[Photo Designed by Freepik]

The views and opinions expressed in this article are those of the author.

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