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Reply to Recommendation | Doc. 14781 | 13 December 2018
Legal challenges related to hybrid war and human rights obligations
1. The Committee of
Ministers has carefully examined Recommendation 2130 (2018) “Legal challenges related to hybrid war and human rights
obligations”. It has forwarded it to the Steering Committee for
Human Rights (CDDH), the Counter-Terrorism Committee (CDCT), the
Cybercrime Convention (TC-Y), the Committee of Legal Advisers on
Public International Law (CAHDI) and the Steering Committee on Media
and Information Society (CDMSI), for information and any comments.
2. The Committee of Ministers shares the Parliamentary Assembly’s
concern about the phenomenon of “hybrid war” with which more and
more States are confronted. Cyberattacks, mass disinformation campaigns, interference
in electoral processes, disruption of communications and other networks,
combined with military means, constitute a new form of threat that
is particularly dangerous to the stability and security of our States. The
Committee of Ministers agrees with the Assembly that, despite the
difficulty of addressing this phenomenon from a legal point of view,
hybrid opponents do not operate in a legal vacuum. Indeed, the relevant
national and international legal regimes apply to the military and
non-military means of “hybrid war”. Consequently, international
humanitarian law applies if an action constitutes an armed conflict,
international or not. Similarly, international human rights law
applies both to military and non-military actions in the context
of “hybrid war”, including, where relevant, the case law of the
European Court of Human Rights on restrictions to human rights.
3. With regard to the Convention on Cybercrime (paragraphs 2.5
and 2.6 of the Recommendation), the Committee of Ministers stresses
that it remains the only legally binding international instrument
in this field. Fully aware that the fight against cybercrime requires
the widest possible international co-operation, the Committee of
Ministers generally responds favourably to requests for accession
to this Convention submitted to it by non-member States of the Council
of Europe. Of the 61 Parties to the Convention at present, 18 are non-member
States of the Council of Europe. The Committee of Ministers also
considers that appropriate monitoring of compliance with the provisions
of the Convention is carried out on a regular basis by the Convention
Committee (T-CY), which brings together all the Parties to the Convention.
4. With regard to mass disinformation campaigns, the Committee
of Ministers draws the Assembly’s attention to the 2017 report entitled
“Information Disorder: Toward an interdisciplinary framework for
research and policy making”, written at the request of the CDMSI.
This report provides an in-depth analysis and description of the
different forms of information disorder (covering “mis-information”,
“dis-information” and “mal-information”) and their use of social
media platforms. The report evokes their impact on democratic processes and
explores possible multidisciplinary solutions, including the strengthening
of existing media, news literacy education projects and regulation.
In this regard, it is widely acknowledged that the phenomenon of
information disorder requires intervention on the part of States.
5. It also requires vigilance on the part of internet intermediaries
when such intentionally false information is disseminated online.
On 7 March 2018, the Committee of Ministers adopted Recommendation CM/Rec(2018)2 on the roles and responsibilities of internet intermediaries,
which sets out the conditions for restricting access to illegal
content online, as determined by either national laws or judicial
authorities, or by their own content-restriction policies or codes
of ethics.
6. The Committee of Ministers would also like to warn of the
risk of a violation of Article 10 of the European Convention on
Human Rights (freedom of expression) when measures are taken to
tackle intentionally false messages whose content is not illegal.
In these cases, fact-checking methods to identify and neutralise
these messages, coupled with the availability of quality journalism
and an aware and responsive public, can effectively counter the
lies and propaganda spread in cyberspace. The Council of Europe
therefore supports initiatives aimed at developing users’ fact-checking
capabilities so that they can flag possible false information. In
addition, the Organisation promotes digital citizenship education
and media and news literacy programmes for all age groups. Furthermore,
the Committee of Ministers wishes to inform the Assembly that a
standard-setting instrument to promote a favourable environment
for quality journalism is currently being drafted, in accordance
with the terms of reference it has given to the CDMSI for the period
2018-2019.
7. With regard to electoral processes, the Committee of Ministers
refers to its Recommendation CM/Rec(2007)15 on measures concerning media coverage of election campaigns.
This recommendation contains guidelines for media coverage of election
campaigns in full respect of Article 10 of the European Convention on
Human Rights. However, the Committee of Ministers is aware that,
faced with the changing media landscape, and in particular the arrival
of social media, existing electoral campaign regulations must be adapted
to this new environment. A 2017 Council of Europe study on “the
use of internet in election campaigns” concluded that current regulations
cannot ensure a level playing field between all political stakeholders
nor fully ensure the integrity, fairness and legitimacy of the electoral
process. This study identifies a number of areas where problems
have emerged as a result of the digitalisation of electoral campaigning
and recommends that the regulations in this area be updated. The
CDMSI has accordingly informed the Committee of Ministers of its support
for a revision of Recommendation CM/Rec(2007)15 to include social media platforms, as recommended by
the Assembly (paragraph 2.2 of the Recommendation).
8. In conclusion, the Committee of Ministers takes note of the
Assembly’s proposal to give thought to a new convention on the non-military
aspects of “hybrid war” (paragraph 2.1 of the Recommendation) but
considers, in view of the existing legal framework and the work
in progress in the relevant committees, that it would be premature
at this stage to draw up such a text. On the other hand, it agrees
that it would be appropriate to revise its Recommendation CM/Rec(2007)15 to include social media platforms and instructs its
Steering Committee on Media and Information Society to put forward
proposals in this regard.