Does that make me a legitimate military target in my country’s war?
Use of social media can start as an innocent venture but when someone posts militarily relevant information about an ongoing armed conflict, international humanitarian law (IHL) suddenly becomes interested.
To succinctly answer the question in the title: no, purely posting on social media about an ongoing armed conflict will not make someone a legitimate military target but sharing information might but that depends on several circumstances. This post aims to analyse these conditions in order to provide readers with short set of recommendations to avoid mistakes in the online space that could cost their lives.
A major note must be made before delving into the international humanitarian law side of the question. Using social media is heavily tied to the concept of free speech and the freedom of expression. These human rights are not without limits however. Hate speech for instance has proven to be a valid counterweight to absolute free speech even so in the online sphere. But a derogation is also feasible during armed conflict when it comes to statements undermining the will of the countries’ population to continue the fight against their opponents. Therefore, if someone is posting as a citizen of a country that is engaged in an armed conflict such as Russia, Ukraine, Israel or Palestine and they advocate for let us say immediate and unconditional laying down of weapons, they might be censured or punished by the state in question.
A potentially even more serious question arises when someone posts militarily relevant information on social media that can be used to affect the tides of war. There are some clear-cut instances in which someone can become a valid military target such as when using smart phones and apps as a means of delivering information to the armed forces, intelligence agencies or other authorities with the capacity to turn the information into ‘action’. Ukrainian authorities have developed apps such as E-vorog and ePPOto facilitate quick sharing of such information. Indeed, the rationale is understandable, as one could argue that it is the right and duty of every citizen to help the state against the invading force through any means possible. Akin to the concept of levée en masse, an old concept in IHL which enabled citizens with little to no military training to grab any weapon at their disposal and fight the advancing enemy forces. The modern equivalent can be smartphones and sharing of information through it. Similarly to the levée en masse, this renders those who engage in these deliberate activities combatants, meaning that it is in fact a two-way street: the can engage in the hostilities but they can also become valid military targets. A major difference one can argue is that the levée en masse concept was applicable to individuals using conventional weapons which they displayed openly making them a visible opposing force, whereas – from an onlooking commander or decision maker’s point of view – it is indecipherable whether the individual is using the smartphone to chat with friends and family or whether they are sharing militarily valuable information. Nonetheless, if it can be ascertained that the deliberate, subsequent use of smartphones and apps to share information with authorities and the armed forces can render the individual a valid military target.
Keen-eyed readers may have noticed that in the previous section, smartphones and apps were mentioned as means of delivering information which is quite different from social media as the information conveyed through these apps are not accessible for a wider audience, meaning it is not – strictly speaking – social media. Therefore, we have to look into the situation of what happens when certain social media platforms (Facebook, Instagram, Tiktok, Telegram, Pinterest, etc.) are used for a plethora of purposes. The base norm of IHL in this case is the Common Article 3 of the Geneva Conventions from 1949 and Article 51 Section 3 of Additional Protocol I from 1977 which stipulates that civilians will not become combatants – i.e. cannot become valid military targets – ‘unless and for such time as they take a direct part in hostilities’.
There are two problems with this. Firstly, the Geneva Conventions were adopted after the carnage of the Second World War regulating the conduct observed during the war. This means that it is capable of handling instances where guerrillas, partisans or maquisards were engaging in hit-and-run tactics but is by nature incapable of handling legal uncertainty when it comes to smartphones and social media. Some scholars have argued that the Geneva Conventions should be understood in a tech-neutral manner, meaning that it encompasses principles and norms of customary international law that can be used in all manner of circumstances as technology evolves. Indeed, a widely recognized rule of IHL is the so-called Martens clause, which mandates that just because a technology is new and its effects not entirely known, it cannot be used if it causes unnecessary suffering. I would argue that this is a different case entirely, as in this case, using 21st century technology we do not run the risk of causing unnecessary suffering but rather have the capacity to aid one party of the conflict with better, faster intelligence. The Martens clause cannot be used to create an analogy on how the entirety of IHL works as the enhanced, total protection of civilians – even if they provide militarily relevant information as it would render military targeting too narrow to be realistic in an armed conflict.
So then how do we know what our conduct on social media will mean for us? This leads us to the second problem with the protection regime of the Geneva Conventions, which is that ‘direct participation in the hostilities’ is not explained by a source of law. Thankfully, the International Committee of the Red Cross (ICRC) has attempted to aid states and practitioners in this matter in 2009, when a group of experts compiled an ‘interpretative guidance’ on the matter. The expert material sets out three cumulative requirements that needs to be fulfilled for the individual to be considered a valid military target:
- threshold of harm – able to inflict harm or damage to the opposing military;
- direct causation – it needs to be the individual’s own, concrete action that can cause the adverse effect;
- and belligerent nexus – the act in question needs to be directly designed to cause harm.
As it can be seen by the criteria above, the threshold is quite high. The rationale being to make sure that civilians only become combatants under rare circumstances and per their own, willing and deliberate conduct. Due to the robust protection regime proposed and promoted by the ICRC, it is no wonder therefore, that several states that are or until recently were involved in armed conflicts rejected these strict criteria such as the UK, US and Israel and argued that it does not entirely reflect state practice. In light of lacking legal certainty and divergent state practice it is therefore the best to be ‘defensive’ in how one handles social media activity during an armed conflict.
As promised at the beginning, here is some practical advice on posting when one is in a war zone:
1.) Make sure you double check the background with a critical eye – what can be construed as militarily relevant?
2.) Prioritize closed circuits, meaning do not make the picture or the post available to the general public, just “friends” or closed groups.
3.) Best to avoid posting at all.
Source of image: Google Gemini (image generated by artificial intelligence)
