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Resolution 2217 (2018)
Legal challenges related to hybrid war and human rights obligations
1. The Parliamentary Assembly refers
to its Resolution 2133
(2016) on legal remedies to human rights violations on
the Ukrainian territories outside the control of the Ukrainian authorities
and Resolution 2132 (2016) on
the political consequences of the Russian aggression in Ukraine
and its Resolution 2198
(2018) and Recommendation 2119
(2018) on the humanitarian consequences of the war in
Ukraine concerning the military operations in this country. It also
recalls its Resolution 2190
(2017) on prosecuting and punishing the crimes against
humanity or even possible genocide committed by Daesh.
2. The Assembly refers to its previous texts regarding cybercrime,
including Recommendation 2077
(2015) on increasing co-operation against cyberterrorism
and other large-scale attacks on the Internet, Resolution 1986 (2014) on improving
user protection and security in cyberspace and Resolution 1565 (2007) “How to prevent
cybercrime against State institutions in member and observer States?”.
The policy guidelines contained therein are relevant as important
instruments for preventing the consequences of hybrid war.
3. The Assembly notes with concern that, today, States are more
and more often confronted with the phenomenon of “hybrid war”, which
poses a new type of threat consisting of a combination of military
and non-military techniques such as cyberattacks; mass disinformation
campaigns, including fake news, in particular via social media;
interference in election processes; disruption of communications
and other networks; and many others. Cyberattacks are particularly
dangerous as they can hit a country’s strategic infrastructure,
such as its energy supply, the air traffic control system or nuclear
plants. Hybrid war can therefore destabilise and undermine entire
societies and cause numerous casualties. The increasingly widespread
use of these new tactics, especially when combined, raises concerns
about the adequacy of existing legal norms.
4. The Assembly also expresses deep concern regarding numerous
cases of mass disinformation campaigns intended to undermine security,
public order and peaceful democratic processes. There is a vital need
to develop tools to protect democracy from “information weapons”,
while preserving freedom of expression and freedom of the media
in the country under attack.
5. The Assembly notes that there is no universally agreed definition
of “hybrid war” and there is no “law of hybrid war”. However, it
is commonly agreed that the main feature of this phenomenon is “legal
asymmetry”, as hybrid adversaries, as a rule, deny their responsibility
for hybrid operations and try to escape the legal consequences of
their actions. They exploit lacunae in the law and the complexity
of legal systems, operate across legal boundaries and in under-regulated
spaces, exploit legal thresholds, are prepared to commit substantial
violations of the law and generate confusion and ambiguity to mask
their actions.
6. Despite the complexity of hybrid war, the Assembly stresses
that hybrid adversaries do not operate in a legal vacuum and that
relevant domestic and international legal norms, including international
human rights law, apply to their actions, although the question
of attribution, and hence the accountability of those responsible,
may raise difficulties. If, in the context of hybrid war, a State
resorts to the use of force against another State, the latter State
is allowed to invoke the right to self-defence on the basis of Article 51
of the Charter of the United Nations and norms of international
humanitarian law will apply. However, in practice, hybrid adversaries
avoid manifest use of force that would reach the required threshold
for triggering application of the above norms, thereby creating
a legal grey area.
7. The Assembly notes that in cases in which a hybrid adversary
refrains from the use of military means, its actions should be examined
in the light of domestic criminal law and, if necessary and depending
on the situation, relevant international legal instruments covering
specific policy areas (such as the law of the sea or norms on combating
cybercrime, terrorism, hate speech or money laundering).
8. The Assembly recalls that when countering hybrid war, States
are bound to respect human rights law. It is concerned that certain
member States of the Council of Europe have already taken measures
(such as criminal convictions for online statements, surveillance
measures, blocking websites or expulsions of foreigners) which raise
questions concerning the respect for human rights, such as the right
to freedom of expression, including the right to information, the
right to respect for one’s privacy or the right to freedom of movement.
9. The Assembly also recalls that although Article 15 of the
European Convention on Human Rights (ETS No. 5, “the Convention”)
allows States parties to derogate from certain obligations “in time
of war or other public emergency threatening the life of the nation”,
any derogation from the rights enshrined therein shall be made according
to certain substantive and procedural requirements. When countering
hybrid war threats, States Parties to the Convention may also invoke
national security as a legitimate aim to limit certain rights: the right
to respect for private and family life (Article 8), freedom of expression
(Article 10), freedom of assembly and association (Article 11),
freedom of movement (Article 2.3 of Protocol No. 4 to the Convention (ETS No. 46))
and procedural safeguards in case of the expulsion of aliens (Article 1.2
of Protocol No. 7 to the Convention (ETS No. 117)). Any restriction
of the above rights must be “prescribed by law”, “necessary in a democratic
society” and proportionate. States’ experience in counterterrorism
efforts may be a useful source of guidance when identifying the
limitations imposed by international law on measures to counter
hybrid war threats.
10. Therefore, the Assembly calls on member States to:
10.1. refrain from resorting to hybrid
war in international relations and fully respect the provisions
of international law, in particular the principles of sovereignty,
territorial integrity and inviolability of frontiers, in accordance
with their object and purpose, by not abusively exploiting perceived
loopholes or ambiguities;
10.2. step up international co-operation in order to identify
hybrid adversaries and all types of hybrid war threats, and to establish
an applicable legal framework;
10.3. maintain exchanges of information regarding hybrid aggressions
in Europe and share experience and good practice in countering hybrid
threats;
10.4. take measures to increase the public’s awareness of hybrid
war threats and its ability to react speedily to such threats;
10.5. implement the Convention on Cybercrime (ETS No. 185),
sign and ratify it where this is not already the case, and promote
its ratification by non-member States.
11. The Assembly welcomes the measures taken by the European Union
and the North Atlantic Treaty Organization (NATO) to counter hybrid
war threats and to establish co-operation in this field. It also
calls on all Council of Europe member States which are members of
the European Union and NATO to share their best practices on countering
hybrid war with other member States that may be affected by this
phenomenon.
12. As regards measures aimed at countering hybrid war, the Assembly
recalls its Resolution 1840
(2011) on human rights and the fight against terrorism.
It calls on member States to ensure that such measures respect the
requirements stemming from the European Convention on Human Rights,
in line with the case law of the European Court of Human Rights.
In particular, as regards rights that are subject to restrictions
under the Convention, any limitation must be based on law, proportionate
to the legitimate aim pursued (for example national security) and
“necessary in a democratic society”.