Ukraine’s lessons on information war may guide other countries

Ukraine is at the forefront of pushing the boundaries of international freedom of expression standards, the current paradigm of freedom of expression.

Much of Ukraine’s legislation aimed at combating harmful Russian influence on the media sector was adopted between 2014 and February 2022 and was, at the time, heavily criticised by the international community as non-compliant with free speech standards.

However, after the onset of Russia’s full-scale invasion of Ukraine, many of Ukraine’s neighbours embarked on a similar trajectory, adopting measures such as banning the retransmission of Russian TV channels, blocking Russian social media and imposing sanctions on Russian media personnel.

While such measures can help limit the reach and impact of content aimed at undermining democratic institutions in the Global North, a broader issue has emerged: thenecessityofrespondingto such types of speech in a manner that can help prevent future armed aggression.

To do this, we must solve two problems: fine-tuning the balance between freedom of expression and national security, while creating a framework for holding perpetrators liable for war propaganda and incitements to international crimes. Both require action by Ukraine as a state and by Ukrainian civil society as its ally in stopping Russian manufacture of illegal content – specifically to be understood as war propaganda under Article 20 (1) of the ICCPR and incitements to international crimes, implicitly prohibited by the Rome Statute and other similar international criminal tribunals statutory documents – designing the system of international justice for persons and entities involved and creating an international environment which will reduce the opportunity for anything like the Russian information influence machine to reappear anywhere in the world anytime soon.

The main aspects of the project

Digital Security Lab Ukraine’s (DSLU) mapping report “For Whom the Bell Tolls: Responsibility for Disinformation in Wartime” lays a foundation for future efforts to be made by Ukraine in the international legal domain to pursue justice for hateful speech crimes. Looking from three angles involving international human rights law, public international law and international criminal law, we suggest a number of ways to establish state and individual criminal responsibility for Russia and its agents engaged in grave violations of international law and international crimes respectively. 

I wrote the report with co-author Tetiana Avdieieva, and we propose paying more attention to existing prohibitions, such as the ICCPR Art 20 ban on propaganda for war, and properly implementing them in national legislation.

The interpretation of this norm as prohibiting continuous, repeated, concerted statements, usually incorrect, in favour of a future or an ongoing war contrary to international law will be helpful against actors supporting illegal aggression. We also consider various options for providing more space for the application of international criminal to speech crimes as, nowadays, only incitement to genocide is criminalised. Punishment for other types of illegal incitement requires the commission of the crime to which the incitement was made and proof of the causal link between the speech and the repercussions. 

Our main conclusion is that labelling certain types of harmful content under a common denominator of “disinformation” has, unfortunately, dissuaded stakeholders worldwide from better understanding the nature of Russian influence operations. Framing them through the lens of legal but harmful dis- or misinformation, certain actors missed the opportunity for concerted action that might have prevented the enhancement of Ukrainian people lasting from 2014. There is an extensive practice of applying international criminal law against propaganda actors, a number of cases when international courts confirmed the legitimacy of restricting speech acts by malicious external actors aimed at attacking democratic order, and it should have been used by States after 2014 to curb Russian media influence. The mistake of not applying these norms should not be repeated anywhere in the modern world.

What could change in the media environment beyond Ukraine

The initial intent of producing the report was twofold: “DSLU wanted to map those approaches to countering Russian influence operations that the Ukrainian government has not yet employed in its quest for justice, at the same time desiring to spark some international discussions around the issue.

“We are aware that the topic of balancing national security interests and freedom of expression is a difficult one, and it needs to account for the need to maintain free speech guarantees at all costs to avoid censorship accusations.”

It is especially true for the countries from the Global South/Global Majority, which continuously suffer from authoritarian regimes’ deployment of national security interests in their fight against free speech. 

Our main point here is that there are situations when such additional restrictions clearly fall within the ambit of what is already prohibited by international law, such as war propaganda, incitement to violence and hate speech, and that these prohibitions are crucial to protect democracy. In other words, seeing any and all national security-motivated exceptions to free speech as a threat to democracy is not the right way to go and such exceptions should not be avoided at all cost when external malicious actors intentionally engage in information warfare under the pretext of transmitting alternative truth. Calling such censorship, as the European Federation of Journalists, EFJ, and Human Rights Watch have done, is nothing more than an attempt to escape liability for the gravest types of malicious speech. Post-truth is pre-fascism, as Timothy Snyder, the internationally renowned intellectual and American historian specialising in the history of Eastern and Central Europe, observed.

Maksym Dvorovyi is Head of Digital Rights at DSLU

Digital Security Lab Ukraine (DSLU) was established in 2017 to address digital security concerns of human rights defenders and organisations in Ukraine.

DSLU, together with another IMS partner CEDEM, will be leading efforts in IMS’ upcoming War and Disinformation roundtables and other dialogues between dominant tech companies and civil society from Eastern Europe over the course of 2023-24.