About the Author: The author is a 2020 graduate of National Law University, Delhi. He currently works as an Associate at AZB & Partners, Mumbai.
Editor’s note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law.
- INTRODUCTION
States have always tried to influence opinions and politics of other sovereign states. Sun Tzu advocated spreading false information to take tactical advantage while Genghis Khan and his men planted rumors about their cruelty and their horsemen to spread fear and to weaken the enemy’s resilience.1 However, changes in technology have drastically altered the way in which influence operations are conducted. The continuous evolution of information technology (“IT”) has resulted in progressive transformation in the information environment both in terms of constituent elements and inherent dynamics.
Due to this transformation, the dissemination of information on a large scale is no longer controlled by a few stakeholders within democracies. This transformation is accelerated by the advent of online and social media platforms. Such platforms have upended the financial configuration of the media landscape in a manner in which prioritizes commercial revenues over the reliability and integrity of information which is consumed.
These incentive structures have become fertile ground for influence operations which are increasingly shifting to cyberspace. In fact these online influence operations are being used to interfere in matters of other countries, especially elections. Cyber influence operations are defined as
“… activities that are run in cyberspace, leverage this space’s distributed vulnerabilities, and rely on cyber-related tools and techniques to affect an audience’s choices, ideas, opinions, emotions or motivations, and interfere with its decision making processes”.
The author will look at the status of cyber influence operations under international law and examine whether they violate principles of sovereignty and non-intervention and other obligations of states under international law.
- FIOs AND THE PRINCIPLE OF SOVEREIGNTY
A state’s sovereignty is one of the most important concepts in international law. The ICJ has recognized the centrality of sovereignty by holding that “the whole international law rests” upon the concept of sovereignty. However, scholars highlight two issues as challenges to the argument that cyber influence operations may violate a State’s sovereignty.
First, the conceptual understanding of sovereignty is currently challenged as an international legal obligation, especially in cyberspace. The authors of the Tallinn Manual on the international law applicable to cyber operations have recognized sovereignty as a primary and central principle of international law. The United Kingdom has observed that even though sovereignty is an important concept in international systems, “we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention”. The chief lawyer to the U.S. Cyber Command has also argued that sovereignty is “a principle of international law that guides state interactions, but is not itself a binding rule that dictates results under international law”.
The second argument pertains to the application of sovereignty principle over influence operations. Tallinn Manual 2.0 recognizes that a cyber operation constitutes a violation of sovereignty when they result in cause “physical damage or injury”, or the remote causation of “loss of functionality” of infrastructure in the target state or when they interfere with or usurp inherently governmental functions. However, there was division among the experts on the threshold which would amount to violation. The test is irrelevant for cyber influence operations as they generally do not cause physical damage or loss of functionality. Further, the authors of Tallinn manual were also not able to reach consensus on whether the cyber influence operations violate notions of territorial sovereignty of nations states.
The other touchstone to test cyber influence operations is on the notion of interfering with or usurping inherently governmental functions. Some authors have argued that it is unclear “whether a cyber influence operation on an election falls within the bounds of the terms ‘interference’ or ‘usurpation’.” Authors of Tallinn Manual have argued that the transmission of propaganda alone is generally not a violation of sovereignty. Michael Schmitt argues that the doxing operations disclosing crucial confidential information at crucial moments before the national elections as well disinformation campaigns involving overt acts from fake accounts are serious and classification of these serious influence operations as violations of sovereignty is “somewhat supportable”. Schmitt concludes that influence operations currently fall within “the legal grey zone of the law of sovereignty”.
One of the arguments to consider is that influence operations are generally backed with some additional overt or covert act such as doxing supported by hacks, or information warfare supported by the violation of privacy. UNGA has observed in the context of elections that “any activities that attempt, directly or indirectly, to interfere in the free development of national electoral processes, in particular in the developing countries, or that are intended to sway the results of such processes, violate the spirit and letter of the principles established in the Charter”.
Influence operations do more than merely transmit propaganda. They perform subversive acts aiming at destabilizing State institutions by influencing nationals of another State; and enable militant democracy which allows the attacking state to indulge in political and legal warfare in the medium and long term. Further, influence operations interfere with the duty of the state to conduct free and fair elections.
- FIOs AND THE PRINCIPLE OF NON-INTERVENTION
The other possible argument questioning the legality of influence operations under international law is the settled principle of non-interference. As per the ICJ’s decision in Nicaragua, an intervention by a State is unlawful when first, it has a bearing on matters which by principle the state can decide freely, second, the state uses methods of coercion. Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations provides that “a State may not intervene, including by cyber means, in the internal or external affairs of another State”
Duncan Hollis identifies two key issues with bringing cyber-enabled foreign influence operations within the principle of non-intervention. Firstly, that the content of the categories i.e. internal and external affairs of the state is not well defined. He argues that in earlier times there were subjects clearly cabined off from international attention that a state could address. However, with technological advancements and globalization, such subjects are limited and every subject attracts international attention. Therefore, any idea defining internal affairs of the state is likely to be limited, contested, and dynamic. However, the influence operations do not merely mean ‘international interest’ from a particular state. Influence operations more often than not, are clandestine operations by States – designed to meddle with the internal affairs of the country which shows a hint of militant democracy.
Second, Hollis argues that influence operations do not meet with the criteria of coercion as narrowly defined in International Law. Tallinn Manual defines Coercion as “designed to deprive another State of its freedom of choice, that is, to force that State to act in an involuntary manner or involuntarily refrain from acting in a particular way”. This must be “distinguished from persuasion, criticism, public diplomacy, propaganda, retribution, mere maliciousness…” because “such activities merely involve either influencing (as distinct from factually compelling) the voluntary actions of the target State, or seek no action on the part of the target State at all”. It has been argued that the very nature of influence operation is to have target adopt or change certain behaviors willingly, which implies an absence of coercion. Another argument is that a legal finding that the State acted due to/under the influence of coercion would depend on recognizing and attributing some individual or group as the target of the coercion and identifying threatened consequences.
However, a broader conceptual understanding of coercion can be identified in efforts to bolster the argument that non-intervention includes the conduct of a State which weakens, undermines or compromises the authority of another State. The argument emphasizes on the examination of context and consequences while determining whether a State was compelled to act in a manner it otherwise wouldn’t have.
This broad approach is supported by observations made by the experts in Tallinn Manual 1.0 where they observed that the prohibited forms of interventions include “the manipulation by cyber means of elections or of public opinion on the eve of elections, as when online news services are altered in favor of a particular party, false news is spread, or the online services of one party are shut off”.
- CONCLUSION
Various authors have highlighted that it is very difficult to argue that cyber influence operations questioning the democratic legitimacy of a target State falls within the ‘prohibited forms of intervention’. Similar arguments have been made for questions pertaining to the principle of sovereignty as well. Michael Schmitt has also observed cyber influence operations fall within a significant legal grey zone. However, an important question which is asked is whether these primary principles of international law which have developed on the basis of kinetic conflicts could be applied to cyberspace by analogy. Other scholars have also argued that cyber influence operations can better examined through lens of “self-determination”, “duty of due diligence” and also arguing “information ethics” should inform our legal interpretation of damage and violence in cyberspace. Due to challenges posed by traditional understanding of sovereignty and principle of non-intervention, it is important to reexamine these concepts in context of cyber influence operations and to apply concepts accordingly to address concerns raised by them.
*Views expressed in the blog are personal and should not be attributed to the institution.
References:
- Sunil Narula, “Psychological Operations: A Conceptual Overview,” Strategic Analysis 28, no. 1 (2004): 180.
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