Abstract

In the sprawling labyrinth of modern warfare, where battles are no longer fought solely in trenches and on distant battlefields, a new arena has emerged: the digital world. Social media platforms, once designed to connect individuals across the globe, have evolved into powerful tools for psychological warfare. On 5th of June 2024, the Russian Media outlet, TASS, took to air what they believed to be egregious human rights violation being committed by the Ukrainian army. The bulk of the emphasis was on the use of social media platforms, primarily Twitter and Facebook, to circulate the images of the Russian Prisoners of Wars online (hereinafter referred to as PoWs). This opened up a new Pandora’s box for the IHL commentators. The primary question remained quite simple yet complex at the same time? Did the Third Geneva Convention sufficiently, drafted at a time when the use of social media remained anything but conceivable, adequately redress the growing challenges presented by modern day conflicts? How did Article 13 sufficiently safeguard the PoW’s right to respectful treatment and protection from “public curiosity”, in the age where public curiosity drove the digital corpus? And finally, could there be any individual accountability for those engaging these platforms to disseminate this imagery online, albeit only with “innocent intentions”?

This paper aims to investigate just that. First, it discerns the relationship between social media platforms and IHL, particularly in the context of the growing “digital warfare” where sharing imagery of captured soldiers online has become a tool to demoralize the morale of the “enemy”. It then shifts to the actual implication of the “propaganda machinery”, or in simpler words, the use of platforms such as Facebook and Twitter to advance military rhetoric, hire soldiers, and incite the “insatiable desire to wage war”. Third, it analyses the complicity of the CEOs of these platforms in “aiding and abetting” the warmongering impulses of those who flagrantly violate IHL, and if that mandates any legal action. Finally, it proposes a policy recommendation to the existing scheme of the IHL edifice to ensure that the sarcomatous law evolves adequately with the needs of the hour.

The Treatment of Prisoners of War: To Share or Not to Share?

The humane treatment of Prisoners of War and protection from public curiosity is provided under Article 13 of the Geneva Convention III.[1] This provision captures a fundamental tenet of the IHL that members of armed conflict, irrespective of whether or not they are protected persons, should be treated with dignity and respect alike. According to Droege, these provisions came into being following the horrors of the previous two world wars, which had edged humanity to the very precipice of Armageddon.[2] Accounts of this mistreatment can also be found in the works of the British historian Heather Jones, who documented the reprisals experienced by the British PoWs in German custody during the Great War.[3] At the outset of the “propaganda war,” subjection of PoWs to degradation became a tool for what Jones describes as reciprocal brutalization – a tactic deployed by those higher in command to use PoWs to sway public opinion as well as demoralize the enemy.[4] The mistreatment of the German PoWs at the Allied end ( case in point, use of German prisoner labour in North Africa by the French), simulated the repeat of the same stint at the other side of the camp, leading to the phenomenon of cyclical violence against the PoWs as well as their public humiliation.[5] It was in this context that the 1949 Convention emerged, containing 143 articles – 46 more than its predecessors. [6] The purpose of this was supposed to be plain and simple – protecting PoWs from reprising action and safeguarding their dignity and honour from those with a thirst to demean it.

While Article 13 of the GC III lays down comprehensive framework of protecting PoWs from all sorts of demeaning actions during times of war, including but not limited to insults, public curiosity, degrading treatment, acts of violence or intimidation, and insults, this provision has come under significant challenge in the context of modern-day conflicts.[7]

The war in Ukraine is a primary example of that. Ukrainian social media handles, particularly its army Twitter account, The Defense of Ukraine, has been employed repeatedly by President Zelensky as part of Ukraine’s strategy to mobilise the international community against “Russian aggression”.[8] Videos showcasing Russian PoWs in compromising positions – trying to escape the Ukrainian onslaught, publicly apologizing for “daring to step on Ukrainian territory, advising Kremlin to stop the war – have been posted regularly to the site. [9] In fact, Ukraine’s Western Allies have repeatedly used this imagery to showcase the staunchness of the Ukrainian defence and Russia’s “ill preparation” in having waged the war. [10]

But this raises a very straightforward question: Does the GC III allow the release of this imagery primarily in the context of what Charles Dunlap defines as the effort to “demoralize an immoral enemy”?[11] The simple answer would be no. The ICRC has been opposed to the release of images of POWs even for advocacy, regardless of the contentious discussion about the public interest in placing such content online.[12]

However, the ICRC’s 2020 commentary on Article 13 recognizes that there are exceptional cases when the interest of the public to be informed about the POWs will be of greater concern than the general rule.[13] This includes where such imagery is being shared to “narrate human rights abuses, rebut false information or inform of one’s condition to the family kin”. But this in itself presents a major conundrum for human rights lawyers. As Droege notes, these exceptions do not adequately cover the issue of consent and willingness.[14] Especially, if videos of PoWs are being published online to “rebut false information”, it is most likely in favour of the enemy narrative. In such circumstances, letting their statements go online can create a whole new quagmire for these soldiers when they return home, exposing them to the threat of persecution if the statements that they published during their time in captivity outrightly deny their state’s narrative. It is in this context that even proponents of using PoWs for military advantage, such as Dunlap, advise caution in publishing any political statements coming from a PoW’s mouth.

Another lens of looking at the general breaches of Article 13 occurring in modern conflicts is the general obscurity governing this provision. As Meyer notes, the true meaning of the provision remains shrouded in ambiguity.[15] Unlike its sister provisions, Article 13 was not redrafted in 1977. Thus, the primary law governing the treatment of PoWs emerged before the advent of video cameras, let alone ubiquitous social media platforms. This in itself makes the law ill-suited to govern modern day wars, where online sharing is not just a reality of war but an indispensable part of it.

Social Propaganda or War Supporting Activity?

This brings us to the second facet of our problem – the use of social media to promote war rhetoric. Under even the strictest definitions of IHL, propaganda is not inherently unlawful. Article 37 of the Additional Protocol I (API) acknowledges that deception during hostilities is permissible, provided it does not breach other fundamental IHL principles.[16] In this sense, propaganda can be seen as a legitimate tool of warfare, designed to mislead or confuse the enemy, disrupt morale, or hinder military objectives.

However, the line between acceptable military deception and unlawful propaganda can often become blurred, especially when the objective of the information operation shifts from military advantage to the manipulation of civilian populations. The use of disinformation to deceive or disorient enemy forces may be acceptable in certain contexts, but its application becomes problematic when it undermines the core principles of IHL—specifically, the protection of civilians, the humane treatment of combatants, and the provision of humanitarian aid.

One of the gravest breaches of IHL occurs when propaganda is used to obstruct the delivery of humanitarian aid. The intentional spread of fake news or the disruption of relief efforts can exacerbate suffering and complicate the work of organizations like the International Red Cross, whose mission is to provide aid impartially and without obstruction.[17] Propaganda designed to prevent the movement of humanitarian convoys or demonize neutral actors is not only unethical but also illegal, as it directly impedes the very essence of IHL: the protection of civilian life and dignity.[18]

The appearance of images of deceased enemy fighters on social networks is another egregious violation of IHL. That is why Article 34 of the API explicitly prohibits one from provoking the curiosity of the public regarding the deceased.[19] The rationale behind this provision is clear: any human remains left behind after the conflict must be accorded the deserved dignity and should not be subjected to display or be used in a manner that they were used during war, as weapons of propaganda, or in intimidating people.

But this becomes a slippery slope. In the context of modern warfare, the documentation and publication of dead bodies is not only a tool to intimidate “the enemy” but also an indispensable apparatus in documenting war crimes. For instance, as per Ukrainian law enforcement’s report, over 67005 war crimes have been registered against the Russian Federation due to their publication by private users on platforms like Facebook and Twitter.[20] Similarly,........

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