Friday, September 23, 2022

Ohlin: #Genocide: Atrocity as Pretext and Disinformation

Jens David Ohlin (Cornell Univ. - Law) has posted #Genocide: Atrocity as Pretext and Disinformation (Virginia Journal of International Law, forthcoming). Here's the abstract:

This Article addresses the problem of false accusations of genocide. In the past, scholars and lawyers have fretted about the pernicious impact of genocide denial, but false accusations represent the opposite side of the disinformation coin. Instead of deny-ing the existence of a real genocide (as in Holocaust denial), the new accusations falsely accuse a state of genocide when no such genocide occurred. For example, Russia accused Ukraine of genocide against Russian-speaking civilians in Eastern Ukraine and then used that false accusation as a pretext for launching a military invasion of Ukraine. This Article investigates whether international law can, or should, address genocidal accusations that are used as false pretext and disinformation. The answer is a qualified yes, because such accusations are implicitly prohibited by the Genocide Convention and possibly by a broader requirement of good faith and honesty that applies in all international relations.

By way of background, Part I examines international law’s approach to disinformation and shows how the major frameworks—sovereignty, self-determination, and human rights—fail to adequately regulate or capture the distinctive harm of false accusations of genocide. Part II then looks at the specific role that the Genocide Convention might play in prohibiting false accusations and how the International Court of Justice might assert jurisdiction over such a dispute. In that analysis, the Article finds the seeds of a larger “axiomatic” principle under general international law that could prohibit false accusations leveled against other states. Part III then addresses the connection between genocidal accusations and the military campaigns that are launched under their banner. Part III concludes that rather than seeing this use of genocide as the natural outgrowth of the late-1990s debates over humanitarian intervention, we should instead see them as a distinct contemporary phenomenon: hybrid warfare and the use of disinformation to support territorial conquest. The reason for this reframing is that prior debates involved the use of real genocides as a justification for intervention, while the current moment involves wholly fictitious inventions of genocide. Finally, Part IV explores how Russia has used its genocidal accusation as a pretext to wage its own genocidal campaign against Ukraine—the ultimate endgame of a perverse form of disinformation that threatens the international legal order in ways that go beyond the prohibition on the use of force.