State officials lie all the time. Authoritarian states are almost by definition systematically deceiving their own populations, attempting (and often succeeding) in devaluing the whole idea of truth. They do so using both traditional media (e.g. state-controlled TV and radio stations) and the tools of the digital age. Lies are the foundation of authoritarian control. Indeed, lies are inextricably linked to other, ostensibly more serious types of state misconduct, including violence. To quote Solzhenitsyn:
To prop itself up, to appear decent, [violence] will without fail call forth its ally—Lies. For violence has nothing to cover itself with but lies, and lies can only persist through violence. And it is not every day and not on every shoulder that violence brings down its heavy hand: It demands of us only a submission to lies, a daily participation in deceit—and this suffices as our fealty.
It is not only dictatorships that lie – democracies do so too. Inveterate liars can be elected to high office, despite – or maybe because of – habitually lying to their own people, especially their own supporters. Democratically elected leaders can, for instance, lie to their own people to mobilize them to support an aggressive war – as arguably happened with Bush, Blair and the 2003 invasion of Iraq. They can also harm the health of their own people by lying about infectious diseases, therapeutics or vaccines. And they can lie to cover up human rights violations or other serious misconduct.
States can also lie to the populations of other states. Thus, at the height of the Covid-19 pandemic, the United States military ran a disinformation campaign targeting the Filipino public with the aim of discrediting Sinovac, a Chinese Covid vaccine, and other life-saving aid provided by China to the Philippines. In other countries, including several Muslim ones, the campaign amplified “the disputed contention that, because vaccines sometimes contain pork gelatin, China’s shots could be considered forbidden under Islamic law.” According to a senior military officer involved in the program, its purpose was to discredit China, and the collateral impacts on individuals in the targeted countries were not considered: “We weren’t looking at this from a public health perspective … We were looking at how we could drag China through the mud.” China itself was hardly innocent in this department – it disseminated various kinds of Covid-related disinformation to domestic and international audiences alike, including with respect to Western-made vaccines.
Most of us would agree, I imagine, that it is both immoral and bad policy to disseminate vaccine disinformation during a pandemic. Any hoped-for gains of such a campaign, in terms of discrediting one’s adversary, are not worth the harm caused to individuals or the reputational harm the state would be exposed to if its clandestine operation was uncovered.
But, morality and stupidity aside, is this kind of operation contrary to international law? Can, for example, a lie violate the state’s obligation to respect the human rights of affected individuals?
In an article forthcoming in the Human Rights Quarterly, I examine how lying by state agents can violate human rights, including freedoms of opinion and expression, the right to health, and the right to participate in public affairs. The article argues that a lie – a statement, made by one person to another, that is untruthful and is made with the intention of deceiving the addressee – by a state agent can interfere with the interests of individuals protected by human rights law. Sometimes such lies are part of a package of conduct that interferes with individual rights, but even standalone lies can do so.
Not all lies interfere with human rights, however. Whether they do depends on the harms they cause. The article shows that lies that interfere with human rights can be justified only very exceptionally within the human rights framework, since they are most often motivated by an illegitimate purpose. The article also argues that human rights law will apply equally regardless of whether states lie to their own people or to peoples of other states.
One of the article’s purposes is to conduct a mapping exercise, demonstrating the integral role that lies by state agents play in all kinds of human rights violations (a major exclusion from this mapping exercise is lying in wartime, which raises distinct issues, including the relationship between human rights and the law of armed conflict). The article demonstrates how, in some instances, lies are a necessary condition for human rights violations, which cannot be committed without them – a good example here is that of states fabricating election results, violating the right of individuals to participate in public affairs and cast their vote in elections genuinely reflecting the will of the people. In other cases, lies by state agents are a sufficient condition for a human rights violation. That is, the lie alone violates individual rights – systematic lying by state agents that pollutes the information space and thereby inhibits their people’s right to seek and receive information of all kinds is an example of such practice, as is the dissemination of lies that harm public health.
The article examines how state lies violate the substantive rights of specific victims. But, state lies can also violate other obligations that states may have under human rights law which I do not address in the article, particularly in the context of proceedings before international human rights courts and other institutions.
For example, under many human rights treaties, states assume obligations to cooperate with the relevant treaty body in the performance of its monitoring function. Specifically, states have the duty to provide periodic reports to such bodies. It can easily be argued that states have an implied duty to provide only truthful information in such reports; that is, deliberate lies in such reports violate the commitments that the state itself had freely accepted towards other states parties and the monitoring body that they had collectively established, even if the lies do not violate the rights of any specific individual.
Such a duty of cooperation does not generally exist with regard to fact-finding missions, commissions of inquiry or special procedures established by the UN Human Rights Council or other competent organs of the UN or some other international organization, unless the organ establishing the fact-finding mission had the power to impose this obligation. But, if a state chooses to submit information to such an entity, it is at least plausible to argue that in doing so it creates a legitimate expectation that any such information will be truthful, i.e. that its officials will refrain from lying.
State officials may also lie in the context of judicial or quasi-judicial proceedings before human rights courts and treaty bodies, that is, when these institutions exercise their function of deciding individual or interstate cases. State lies, as well as failures to respond to requests by the human rights body to furnish certain information, may have a number of consequences in this context.
First, the lie may actually violate a dedicated human right which operates in this context – the right to individual petition – which states have a duty not to obstruct. Lies by state officials can certainly be said to be a form of obstruction. Second, state lies may also violate a dedicated duty to cooperate with the human rights institution – such a duty exists, for example, under Article 38 ECHR (see, e.g., Carter v. Russia, App. No. 20914/07 (2021), paras. 89-94; Ukraine and the Netherlands v. Russia [GC] (dec.), paras. 435-439).
Third, lies may be taken account by the human rights body in its evaluation of the evidence in the case, especially in the drawing of any adverse inferences against the state. For example, in a case against Poland before the European Court of Human Rights, which was brought by asylum seekers who were summarily expelled from the country, the respondent state argued that the applicants never even applied for asylum. The Court found that they did, noting that the applicants’ account was corroborated by other witnesses heard by national human rights institutions, and that the reports of these bodies “indicate the existence of a systemic practice of misrepresenting the statements given by asylum-seekers in the official notes drafted by the officers of the Border Guard serving at the border checkpoints between Poland and Belarus” (M.K. and Others v. Poland, App. Nos. 40503/17, 42902/17 and 43643/17 (2020), para. 174.)
Similarly, at the admissibility stage of the interstate Ukraine and the Netherlands v. Russia case, which deals with aspects of the Russo-Ukrainian war, including the downing of the MH17, the Court noted that there was “a distinct lack of frankness and transparency in the written submissions provided by the respondent Government,” that its response to the Court’s requests for further information “were superficial and evasive” and that therefore it would liberally resort to the drawing of inferences. Among these inferences were, for example, the Court’s findings that Russian forces were present in Eastern Ukraine in 2014 and that Russian agents were among the separatist leadership in Eastern Ukraine, points that Russia had expressly denied in the course of the proceedings (paras. 456-9, 588, 594).
In sum, states can lie not only to commit human rights violations, but can also do so before human rights bodies tasked with determining whether such violations occurred. These secondary lies, which again I do not deal with in the article itself, can also produce various important legal consequences. (We will see some of them at work soon in the merits judgment in UNvR, which I assume will be delivered in the next few months, where the cover-up of the destruction of the MH17 and lies told about massacres such as Bucha, may well attract some analysis from the Court).
In both substantive and procedural contexts, international and regional human rights bodies rarely accuse states of deliberately lying, or of otherwise acting in bad faith. This is understandable, for all sorts of practical and prudential reasons. I am not arguing that human rights bodies or activists must change their approach radically. But neglecting the role that lying by states plays in human rights violations has consequences, as it impedes the ability of human rights bodies (or activists) to tell the truth about what the state concerned is really doing. Put differently, if human rights bodies avoid dealing with state lies and their consequences, they risk normalizing them. In a world in which an increasing number of states, including (failing) democracies, are led by rapacious liars, this is not a risk that we can afford to ignore.
State Lies as Violations of Human Rights
Written by Marko MilanovicState officials lie all the time. Authoritarian states are almost by definition systematically deceiving their own populations, attempting (and often succeeding) in devaluing the whole idea of truth. They do so using both traditional media (e.g. state-controlled TV and radio stations) and the tools of the digital age. Lies are the foundation of authoritarian control. Indeed, lies are inextricably linked to other, ostensibly more serious types of state misconduct, including violence. To quote Solzhenitsyn:
It is not only dictatorships that lie – democracies do so too. Inveterate liars can be elected to high office, despite – or maybe because of – habitually lying to their own people, especially their own supporters. Democratically elected leaders can, for instance, lie to their own people to mobilize them to support an aggressive war – as arguably happened with Bush, Blair and the 2003 invasion of Iraq. They can also harm the health of their own people by lying about infectious diseases, therapeutics or vaccines. And they can lie to cover up human rights violations or other serious misconduct.
States can also lie to the populations of other states. Thus, at the height of the Covid-19 pandemic, the United States military ran a disinformation campaign targeting the Filipino public with the aim of discrediting Sinovac, a Chinese Covid vaccine, and other life-saving aid provided by China to the Philippines. In other countries, including several Muslim ones, the campaign amplified “the disputed contention that, because vaccines sometimes contain pork gelatin, China’s shots could be considered forbidden under Islamic law.” According to a senior military officer involved in the program, its purpose was to discredit China, and the collateral impacts on individuals in the targeted countries were not considered: “We weren’t looking at this from a public health perspective … We were looking at how we could drag China through the mud.” China itself was hardly innocent in this department – it disseminated various kinds of Covid-related disinformation to domestic and international audiences alike, including with respect to Western-made vaccines.
Most of us would agree, I imagine, that it is both immoral and bad policy to disseminate vaccine disinformation during a pandemic. Any hoped-for gains of such a campaign, in terms of discrediting one’s adversary, are not worth the harm caused to individuals or the reputational harm the state would be exposed to if its clandestine operation was uncovered.
But, morality and stupidity aside, is this kind of operation contrary to international law? Can, for example, a lie violate the state’s obligation to respect the human rights of affected individuals?
In an article forthcoming in the Human Rights Quarterly, I examine how lying by state agents can violate human rights, including freedoms of opinion and expression, the right to health, and the right to participate in public affairs. The article argues that a lie – a statement, made by one person to another, that is untruthful and is made with the intention of deceiving the addressee – by a state agent can interfere with the interests of individuals protected by human rights law. Sometimes such lies are part of a package of conduct that interferes with individual rights, but even standalone lies can do so.
Not all lies interfere with human rights, however. Whether they do depends on the harms they cause. The article shows that lies that interfere with human rights can be justified only very exceptionally within the human rights framework, since they are most often motivated by an illegitimate purpose. The article also argues that human rights law will apply equally regardless of whether states lie to their own people or to peoples of other states.
One of the article’s purposes is to conduct a mapping exercise, demonstrating the integral role that lies by state agents play in all kinds of human rights violations (a major exclusion from this mapping exercise is lying in wartime, which raises distinct issues, including the relationship between human rights and the law of armed conflict). The article demonstrates how, in some instances, lies are a necessary condition for human rights violations, which cannot be committed without them – a good example here is that of states fabricating election results, violating the right of individuals to participate in public affairs and cast their vote in elections genuinely reflecting the will of the people. In other cases, lies by state agents are a sufficient condition for a human rights violation. That is, the lie alone violates individual rights – systematic lying by state agents that pollutes the information space and thereby inhibits their people’s right to seek and receive information of all kinds is an example of such practice, as is the dissemination of lies that harm public health.
The article examines how state lies violate the substantive rights of specific victims. But, state lies can also violate other obligations that states may have under human rights law which I do not address in the article, particularly in the context of proceedings before international human rights courts and other institutions.
For example, under many human rights treaties, states assume obligations to cooperate with the relevant treaty body in the performance of its monitoring function. Specifically, states have the duty to provide periodic reports to such bodies. It can easily be argued that states have an implied duty to provide only truthful information in such reports; that is, deliberate lies in such reports violate the commitments that the state itself had freely accepted towards other states parties and the monitoring body that they had collectively established, even if the lies do not violate the rights of any specific individual.
Such a duty of cooperation does not generally exist with regard to fact-finding missions, commissions of inquiry or special procedures established by the UN Human Rights Council or other competent organs of the UN or some other international organization, unless the organ establishing the fact-finding mission had the power to impose this obligation. But, if a state chooses to submit information to such an entity, it is at least plausible to argue that in doing so it creates a legitimate expectation that any such information will be truthful, i.e. that its officials will refrain from lying.
State officials may also lie in the context of judicial or quasi-judicial proceedings before human rights courts and treaty bodies, that is, when these institutions exercise their function of deciding individual or interstate cases. State lies, as well as failures to respond to requests by the human rights body to furnish certain information, may have a number of consequences in this context.
First, the lie may actually violate a dedicated human right which operates in this context – the right to individual petition – which states have a duty not to obstruct. Lies by state officials can certainly be said to be a form of obstruction. Second, state lies may also violate a dedicated duty to cooperate with the human rights institution – such a duty exists, for example, under Article 38 ECHR (see, e.g., Carter v. Russia, App. No. 20914/07 (2021), paras. 89-94; Ukraine and the Netherlands v. Russia [GC] (dec.), paras. 435-439).
Third, lies may be taken account by the human rights body in its evaluation of the evidence in the case, especially in the drawing of any adverse inferences against the state. For example, in a case against Poland before the European Court of Human Rights, which was brought by asylum seekers who were summarily expelled from the country, the respondent state argued that the applicants never even applied for asylum. The Court found that they did, noting that the applicants’ account was corroborated by other witnesses heard by national human rights institutions, and that the reports of these bodies “indicate the existence of a systemic practice of misrepresenting the statements given by asylum-seekers in the official notes drafted by the officers of the Border Guard serving at the border checkpoints between Poland and Belarus” (M.K. and Others v. Poland, App. Nos. 40503/17, 42902/17 and 43643/17 (2020), para. 174.)
Similarly, at the admissibility stage of the interstate Ukraine and the Netherlands v. Russia case, which deals with aspects of the Russo-Ukrainian war, including the downing of the MH17, the Court noted that there was “a distinct lack of frankness and transparency in the written submissions provided by the respondent Government,” that its response to the Court’s requests for further information “were superficial and evasive” and that therefore it would liberally resort to the drawing of inferences. Among these inferences were, for example, the Court’s findings that Russian forces were present in Eastern Ukraine in 2014 and that Russian agents were among the separatist leadership in Eastern Ukraine, points that Russia had expressly denied in the course of the proceedings (paras. 456-9, 588, 594).
In sum, states can lie not only to commit human rights violations, but can also do so before human rights bodies tasked with determining whether such violations occurred. These secondary lies, which again I do not deal with in the article itself, can also produce various important legal consequences. (We will see some of them at work soon in the merits judgment in UNvR, which I assume will be delivered in the next few months, where the cover-up of the destruction of the MH17 and lies told about massacres such as Bucha, may well attract some analysis from the Court).
In both substantive and procedural contexts, international and regional human rights bodies rarely accuse states of deliberately lying, or of otherwise acting in bad faith. This is understandable, for all sorts of practical and prudential reasons. I am not arguing that human rights bodies or activists must change their approach radically. But neglecting the role that lying by states plays in human rights violations has consequences, as it impedes the ability of human rights bodies (or activists) to tell the truth about what the state concerned is really doing. Put differently, if human rights bodies avoid dealing with state lies and their consequences, they risk normalizing them. In a world in which an increasing number of states, including (failing) democracies, are led by rapacious liars, this is not a risk that we can afford to ignore.
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