Rethinking the scope of international law regulating information operations: lessons learned from a crime of online genocide in Myanmar*

Abstract

The use of electronic means to gain access to, modify or destroy a target’s data or information system is known as an information operation (IO). This may or may not be a physically damaging operation. An IO can sometimes be set up in a manner that safeguards the target’s data and attempts to influence, disrupt, deceive or modify the decision-making of an adversary or potential adversary. IO-like activities have evolved to include operations on social media, affecting users of various online platforms. This article identifies three main challenges for criminalising and punishing IO activities under international law: the first relates to the nature and characteristics of the subjects and actors involved in an IO. Currently, an act of a State representative might be considered an act of the State, thereby exposing the State to international responsibility. However, certain entities, particularly platform service providers such as Facebook and Twitter, are still having difficulty defining their legal personalities under international law, which might result in the companies being exempt from international accountability. Second, there are concerns about the contents, techniques and aims of IOs. There are an increasing number of variations of IOs, including certain activities that may not have a large influence or do significant damage. Consequently, it is unclear whether the operations should be classified as IOs and criminalised. Third, there are issues with attributing responsibility for carrying out IOs. Currently, it appears that there is no international law that directly relates to IOs; instead, existing international law must be interpreted. Furthermore, certain entities may not be considered internationally responsible. Consequently, law enforcement is ineffective. This article examines the situation in Myanmar and argues that the operations to devalue and incite hatred towards the Rohingya ethnic community in Myanmar are included within the meaning of an IO because they are carried out by government authorities. Their features are psychological warfare and military deception that, in reality, have led to genocide. The article demonstrates that international law, although potentially applicable to IOs, may not be particularly effective in the Myanmar situation. Due to a number of factors, such as the lack of international character of the act despite the international impact, the fundamental principles of international law including State sovereignty, the prohibition on the use of force, the law of war, non-intervention and international communication law, are hardly applicable to this IO. International human rights law, meanwhile, applies to individual rights. This leads to the difficulty in enforcing international law in the case of IOs such as this.