Regulating the battlefield of the future: the legal limitations on the conduct of psychological operations (PSYOP) under public international law.

• Author: Smyczek, Peter J.

1. INTRODUCTION II. AN OVERVIEW OF PSYOP A. Definitions 1. White, Black and Gray 2. Levels of Operation 3. Tactical Operations B. History of PSYOP C. Current uses of PSYOP 1. Command Structure 2. Afghanistan 3. Iraq III. SOURCES OF PSYOP A. Principles of the Law of War 1. Distinction between Combatants and Non-Combatants 2. Proportionality 3. Necessity 4. Unnecessary Suffering or Humanity 5. Chivalry & Stratagems B. UN Treaty Law 1. The UN Convention on the Law of the Sea (UNCLOS) 2. UN Charter IV. CONCLUSION There are but two powers in the world, the sword and the mind. In the long run the sword is always beaten by the mind.

   --Napoleon Bonaparte

1. INTRODUCTION

   In the new world order, power and control lie not in preserving territorial integrity, but in the ability to control information. (1) Military psychological operations (PSYOP) are a vital component of national security. (2) PSYOP allows the military to more effectively achieve its strategic and tactical goals while minimizing loss of life. For this reason alone, PSYOP will play a larger role in future conflicts and be a more attractive option to leaders and politicians. (3) As the famous Chinese military thinker Sun Tzu once said, "[o]ne need not destroy one's enemy. One need only destroy his willingness to engage." (4)

   During the Persian Gulf War in 1991, PSYOP units dropped over 29 million leaflets to Iraqi soldiers encouraging them to surrender, usually by stressing the inevitability of their defeat. (5) Estimates show that "nearly 98% of all Iraqi prisoners acknowledged having seen a leaflet; 88% said they believed the message; and 70% said the leaflets affected their decision to surrender." (6) Of the estimated 100,000 soldiers who deserted or surrendered, many were found carrying leaflets in their hands or carrying them in their clothes. (7)

   In the war on terror, America's influence on the hearts and minds of its adversaries and the associated civilian populations will be more important than ever. Since the events of September 11,2001, the United States has placed new emphasis on the realm of public diplomacy and has put together the "most coordinated, best-funded, U.S. strategic perception-management program since the 1980s." (8) The United States has now committed more than 750 million dollars to perception management in the Middle East. (9) With the urban concentration in developing nations growing, the use of force in these heavily populated areas poses an even greater risk to civilians, making armed force a less attractive option. (10) Often operating as an occupying force, the United States will need to utilize PSYOP extensively to win over the hearts and minds of the local population. This is essential to the building of democracies around the globe. Even America's enemies that lack extensive wealth and technology, such as Al Qaeda, are learning to utilize the American media as a psychological weapon against the American people. (11) While beheading a single person on television may appear to have no strategic military value, it is intended to sap popular support for the war in Iraq and further scare other nations into withdrawing their forces from the Middle East. The populations of Western nations are particularly susceptible to this type of intimidation-PSYOP because Westerners are particularly appalled by such acts. This was illustrated when Spain and the Philippines withdrew from Iraq. (12) Such uses of PSYOP are likely to continue.

   The Western response to terrorism must include the effective use of PSYOP. (13) The stated goals of the United States in conducting counter-terror PSYOP include: countering the psychological effects of a terrorist act; attacking support for the terrorist cause; publicizing incentives for informing on terrorist groups; deterring terrorists from attacks by convincing them of the futility of their actions; and promoting the legitimacy of the United States. (14)

   Along with this increase in the use and scope of PSYOP, the United States and any other nation relying on PSYOP must act in a way that is consistent with international law. With little law written or discussed on the subject, any precedent set will be crucial to the development of this area of law. Unlike other areas of military tactics, there are competitors on par with or arguably even more sophisticated than the United States in PSYOP. (15) It is clearly in the interest of the United States to work with the international community to establish standards for PSYOP.

   Currently there is precious little international treaty law or customary law restricting the uses of PSYOP. (16) The principles of the laws of war contain two main sets of rules governing PSYOP: rules applicable to offensive uses of PSYOP and rules governing defensive PSYOP measures. The legal principle governing offensive PSYOP is the law of stratagems, or chivalry. The limitations on defensive applications of PSYOP are addressed mainly by restrictions on targeting, such as proportionality and necessity. But these rules are not enough.

   In the future, PSYOP laws must change along with the technology utilized to conduct PSYOP. For example, PSYOP laws must take into consideration such tools as the Internet. As PSYOP becomes a more powerful and influential tool, it is likely to see heavier restrictions. On the other hand, it is possible that the international community may embrace PSYOP as a nonviolent means of achieving certain objectives and shy away from heavy restrictions. (17)

   This article addresses the legal limitations on PSYOP as used on group audiences, both civilian and military. The international community must address conclusively whether a nation may legally target the morale of a civilian population through PSYOP. Traditional notions of sovereignty should be expanded to include the hearts and minds of the people, thus limiting the abilities of states to influence or control the people of another state through PSYOP.

   This article will begin by defining the terms modern commanders use to describe their deployment of PSYOP. A discussion of the history of PSYOP will follow, illustrating the critical role this unique weapon of war has played in armed conflict. The article will then cite examples of modern unclassified PSYOP and will outline the current international legal restrictions on PSYOP. Finally, it will conclude by proposing additional methods to govern the use of PSYOP.

2. AN OVERVIEW OF PSYOP

   1. Definitions

      PSYOP is as old as warfare itself. With the possible exception of its overall PSYOP campaign in Vietnam, (18) the United States has successfully utilized PSYOP in its military operations throughout history. (19) The role of PSYOP in warfare continues to increase and in the operations in Kosovo and Bosnia was credited with much of the success. (20)

      PSYOP is a subclass of Information Operations, or Information Warfare (IW). (21) IW includes "actions taken to achieve information superiority by affecting adversary information, information-based processes, information systems, and computer-based networks while defending one's own information ...." (22) PSYOP is defined by the U.S. military as "operations planned to convey selected information and indicators to influence the emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals." (23) PSYOP can be used on the offensive to confuse, scare and demoralize enemy groups. (24) It can also be used defensively to counter enemy propaganda and misinformation. This is accomplished by correctly portraying events and intentions and denying the enemy the opportunity to influence friendly populations or forces. (25) Just because military actions have a psychological impact or effect is not enough for them to be considered PSYOP. Rather, PSYOP is intended to have the primary purpose of influencing the emotions, motives, reasoning and decision making of the target. (26) PSYOP is used before fighting starts, during the campaign, and after hostilities conclude. (27)

      Propaganda is one of the most common applications of PSYOP and, consequently, a significant focus of this article. The U.S. military defines propaganda as "[a]ny form of communication in support of national objectives designed to influence the opinions, emotions, attitudes, or behavior of any group in order to benefit the sponsor, either directly or indirectly." (28) There are different categories of such propaganda, or PSYOP, which are classified according to the source from which they originate. This classification is important to understanding PSYOP and applying the law.

      1. White, Black and Gray

         PSYOP is classified according to the source of the message: white, black, or gray. (29) First, overt messages are called "White propaganda" or "White PSYOP." (30) White PSYOP are those messages issued from an open and acknowledged source, targeting a specific audience and not hiding the source from the enemy or indeed the world. (31) White messages are truthful in nature and are based on objective fact. (32) An example would be a printed handbill that intimidates Iraqi soldiers into surrendering by bragging of U.S. military capabilities. Second, covert messages, known as "Black propaganda" or "Black PSYOP" are the opposite. (33) Black PSYOP consist of messages from an unknown source, (34) and are often based on lies or fabrications. (35) This is accomplished by purposely misleading the target audience or by simply withholding the identity of the source of the message or both. (36) Finally, "Gray Propaganda" or "Gray PSYOP" activities fall between the two extremes and are neither completely true nor completely false, (37) and do not specifically identify the source. (38) All three types of messages can be effective against a target audience, and all three types of messages are disseminated across a spectrum of operations.

      2. Levels of Operation

         PSYOP employs these different types of messages over three...