3.1.1. Historical Examples

Information operations for the purpose of manipulating public opinion in adversarial states were a frequent occurrence during the Cold War, often with the aim of interfering in electoral processes. Not surprisingly, it was first and foremost the great powers that employed such strategies in order to exert influence over other states. Former officers from US intelligence services readily admit to having engaged in the practice during the decades after the end of the Second World War.Footnote ²³ There is little doubt that the Soviet Union consistently acted in the same manner. In fact, since the early 1960s at least, Moscow has employed subversive methods to increase the chances of the preferred candidate in presidential elections in the United States.Footnote ²⁴ In a widely quoted paper from 2016, the scholar Dov H Levin estimated that between 1946 and 2000 the US attempted to influence no fewer than 81 elections in other countries, while the Soviet Union/Russia did the same in at least 36 cases, both openly and through covert information operations.Footnote ²⁵

As evidenced by the numbers alone, the United States was particularly active in this field. Certainly such conduct was not limited to information operations as defined above. Occasionally, election ‘meddling’ amounted to outright violence or the supporting of coups by authoritarian, anti-communist military leaders; the examples of Iran 1953, Guatemala 1954, Congo 1961, and Chile 1973 are the most notorious. More to the point, however, there have also been numerous instances of more subtle interference. In Italy, in 1948, the Central Intelligence Agency heavily funded the Christian Democrats in order to prevent the communists from coming to power and resorted to propaganda efforts that involved false narratives about the communist leaders. Elections in the Philippines in 1953 and the clandestine backing of Christian parties in Lebanon four years later represent two further proven instances of US interference.Footnote ²⁶ With the end of the Cold War the practice shifted. While attempts to influence decision-making processes in other states did not come to a halt, the efforts gradually became more overt, relying on the touting of economic aid or open campaigns under State Department leadership as opposed to CIA meddling. The uncertain re-election of Boris Yeltsin in Russia was ensured in this wayFootnote ²⁷ and, in 2000, growing opposition to Yugoslavia's president Slobodan Milosevic was straightforwardly supported by the United States and other Western states.Footnote ²⁸ The practice has continued to this day, although not always successfully: when Washington tried to prevent Afghan president Hamid Karzai from being re-elected in 2009, it failed.Footnote ²⁹

These attempts at influencing political processes in other countries often involved the utilisation of media tactics. During the 1980s the CIA managed to have desired information published through foreign news organisations. In some instances, at least, these operations involved the dissemination of disinformation.Footnote ³⁰ One of the longest running influence campaigns orchestrated by the United States was Radio Free Europe, a broadcasting station launched in 1950 aimed at audiences in the countries of the Warsaw Pact. While some maintain that the station, which continues to operate and is today based in Prague, provided ‘very real journalism’ with a ‘transparent’ agenda to promote ‘democracy and human rights’,Footnote ³¹ critics argue that Radio Free Europe's work during the Cold War is more accurately described as the waging of ‘a subversive campaign to weaken Communist governments behind the Iron Curtain’.Footnote ³²

Cue the Soviets. In 1970 the KGB spread disinformation about politicians in Pakistan. Ahead of federal elections in Western Germany in 1980 the Soviet intelligence service falsely insinuated that the conservative candidate had ties to right-wing groups.Footnote ³³ Since 1991 Russia has interfered in 27 elections. While initially focusing on post-Soviet states, the strategy shifted in 2014 when Moscow started attempts to influence electoral processes in Western countries. Observers have suggested that the primary goal of meddling with the internal affairs of states in the former communist sphere was to ensure a preference for candidates with policies that were favourable towards Russia.Footnote ³⁴ Moscow's interferences in Western democracies relied more heavily on disinformation campaigns, although it is difficult to assess the impact that those information operations actually had on the results.Footnote ³⁵

According to Levin, electoral interference has more chance of succeeding if the adversarial state cooperates with a domestic actor in order to tap knowledge about the local political environment.Footnote ³⁶ Information operations require a certain expertise about the specifics of a target country to have the chance to be successful. When these conditions apply, the data shows that the interfering operations can swing the vote by three per cent on average.Footnote ³⁷ Interestingly, however, the numbers furthermore suggest that this effect in favour of the intervening power's preferred outcome is much more likely to manifest as a result of overt interference as opposed to a covert operation.Footnote ³⁸

3.1.2. Development of Legal Practice

Being aware of the contentious and ongoing practice of the great powers and, in particular, the United States, most of the Eastern European and Latin American states, along with the vast majority of post-colonial and newly independent countries in Africa and Asia, became outspoken supporters of international rules against foreign interference.Footnote ³⁹ At the same time, the exact contours of an international prohibition of such conduct remained uncertain. While the famous Friendly Relations Declaration by the United Nations General Assembly from 1970 stated that ‘every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State’,Footnote ⁴⁰ it also made clear that such interference would be considered an unlawful intervention only if conducted by way of coercive means.Footnote ⁴¹ To this day, the precise content of the requirement of coercion has continued to be a point of contention.

Two subsequent UN General Assembly resolutions – the 1976 Declaration on Non-Interference in the Internal Affairs of States and the 1981 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States – attempted to circumscribe prohibited forms of foreign interference more precisely. Strikingly, they explicitly referred to information operations conducted by adversarial states through broadcasting or other media, denouncing ‘campaigns of vilification’ and ‘subversion and defamation’,Footnote ⁴² and ‘any defamatory campaign, vilification or hostile propaganda for the purpose of intervening or interfering in the internal affairs of other States’,Footnote ⁴³ respectively. The 1981 Declaration even stipulated the ‘right and duty of States to combat, within their constitutional prerogatives, the dissemination of false or distorted news which can be interpreted as interference in the internal affairs of other States’.Footnote ⁴⁴

Still, it has been pointed out that neither General Assembly resolution can be considered a reflection of customary international law, as a large majority of Western states objected to their content. The 1981 Declaration was adopted with 102 votes to 22 (and 6 abstentions), only finding support from the states of the Warsaw Pact and the Non-Aligned Movement.Footnote ⁴⁵ Part of the West's discomfort may have had to do with fears that a prohibition of interference by ‘defamation’ or ‘hostile propaganda’ would be interpreted too broadly by non-democratic states that were seeking to further restrict civil rights such as freedom of expression or freedom of information. Indeed, the Soviet Union frequently argued that the prohibition of intervention comprised all kinds of news coverage by Western media about the internal political affairs of socialist states, in effect trying to declare the work of Radio Free Europe as contrary to international law.Footnote ⁴⁶ Fears of undue Western influence were also the principal motivation behind the Soviet Union's short-lived attempts to revive the rather obscure 1936 Convention on the Use of Broadcasting in the Cause of Peace,Footnote ⁴⁷ finally ratifying it in 1982; however, the move had little to no effect.Footnote ⁴⁸

Restricting interference was also front and centre in the Final Act of the Conference on Security and Co-operation in Europe, which was held in Finland's capital Helsinki in 1975 and brought together almost all European states, including the Soviet Union and additionally the United States and Canada. The agreement stated that all participating states will ‘refrain from any intervention … in the internal or external affairs falling within the domestic jurisdiction of another participating State’.Footnote ⁴⁹ Like the Friendly Relations Declaration, it stressed that it understood ‘intervention’ as coercive interference, implying that interference without coercive means, such as media broadcasts, would not be proscribed. At least, that is how the participating Western states interpreted the Final Act. It has been pointed out that the Russian-language version of the text uses a word that denotes both ‘non-intervention’ and ‘non-interference’ [невмешательство], which can arguably be understood as outlawing interstate conduct that does not resort to coercive means.Footnote ⁵⁰ This lack of clarity has marred the effect of the Final Act, which otherwise remains in force today.

In 1986, in its landmark Nicaragua decision, the International Court of Justice weighed in on the question of intervention and confirmed preceding state practice by emphasising that in order to be unlawful under customary international law, foreign interference must include an element of coercion:Footnote ⁵¹

Although ‘coercion’ arguably has never been adequately defined and is still an indistinct concept, the Nicaragua dictum remains the leading case on the issue.

As shown by the brief survey of the history of interference and intervention after the Second World War, the legal-political resistance against attempts at influencing by outside powers, including by means of information operations, was led principally by non-Western states. The West, on the other hand, consistently regarded foreign interference as acceptable as long as it did not reach the blurry coercion threshold. It seems safe to assume that this legal position was informed by a feeling of moral and political superiority in the sense that anti-democratic or anti-liberal interference from non-Western states ultimately could not do much harm. However, the digital transformation that started in the late 1990s has fundamentally shifted this calculus.

3.3.1. Information Operations as Prohibited Intervention

Picking up past scholarshipFootnote ⁷⁴ and critically re-examining state practice during the Cold War period, a couple of scholars focus on a possible reinterpretation of the principle of non-intervention within the context of information operations and interference in internal decision-making processes. In its traditional scope of application, as shown, the rule is not understood as prohibiting every form of foreign interference.Footnote ⁷⁵ Only if the interfering act intends to subordinate the target state's ‘sovereign will’Footnote ⁷⁶ in a coercive manner will the conduct qualify as prohibited intervention. As explained above, to this day it is undetermined what exactly counts as coercion in this sense.Footnote ⁷⁷

From a doctrinal standpoint the question, therefore, is whether information operations can ever qualify as coercive. Coercion within the scope of the prohibition of intervention is commonly understood as implying some form of compulsion,Footnote ⁷⁸ which leads the target state to act in a way in which it would otherwise not have acted, or to take a decision it would otherwise not have taken,Footnote ⁷⁹ such as when it bends to economic pressure or the threat of armed force.

Largely evading the issue, Barela argues that the value at stake – the ‘significance and expanse, both in scale and reach, of the interests targeted’Footnote ⁸⁰ – and not the mode of conduct should be decisive as to whether the act of a state reaches the threshold. As information operations that attempt to distort democratic decision-making processes target ‘the legitimacy of the electoral process itself’ and thus a ‘sine qua non for the state’, this alone should be sufficient to consider the operation a violation of the principle of non-intervention.Footnote ⁸¹ In Barela's view, the Russian disinformation campaign ahead of the 2016 US presidential election – because of its ‘expansive costs, planning and aims’ and the fact that it made use of the ‘vastly improved mechanisms for cross-border precision targeting of voters’ – therefore qualifies.Footnote ⁸² However, while it is certainly expedient to take the value of the target into consideration when making an overall assessment of the conduct,Footnote ⁸³ the argument is ultimately not persuasive. Given the explicit emphasis on the requirement of coercion by leading resolutions such as the Friendly Relations Declaration and the landmark Nicaragua judgment, the mode of conduct itself cannot simply be ignored entirely.

Acknowledging this, other scholars make an argument for interpreting the coercion criterion as encompassing deceptive state conduct. As the International Court of Justice has held that choices concerning a state's own internal affairs ‘must remain free ones’ and coercion exists when another state's conduct constrains this freedom,Footnote ⁸⁴ a number of authors assert that manipulating state decisions by way of deception does fit within this description of coercion. According to Baade, information operations that utilise disinformation manipulate the ‘capacity to reason’Footnote ⁸⁵ and have to be considered coercive, as ‘the projection of a different set of facts constrains one's freedom to act by making certain options and conclusions no longer seem viable or making others seem mandatory’.Footnote ⁸⁶ Similarly, Nye argues that ‘if the degree of manipulation is so deceptive that it destroys voluntarism, the act becomes coercive’.Footnote ⁸⁷ This is the difference between an open propaganda operation (for example, by a state broadcasting organisation such as Russia's RT or China's Xinhua) and an information operation that deceives the target audience (for example, by concealing the identity of the source of a piece of information).Footnote ⁸⁸ If the true identity of the person communicating the information remains hidden, the addressees are stripped of their ability to evaluate the trustworthiness of the information;Footnote ⁸⁹ in this sense, deceit is merely the employed method that renders the effect – that is, the ultimate outcome of the election – coercive.Footnote ⁹⁰ Proponents of this view assert that the threshold of coercion is reached if an information operation is covert, manipulating a democratic decision-making process by deceptively depriving the electorate of the opportunity to make genuinely informed choicesFootnote ⁹¹ and thus of control over the choice of government.Footnote ⁹²

Other authors disagree with this wide understanding of ‘coercion’. As the term implies compulsion with some degree of forcible conduct in the broader sense, deceptive manipulation by way of a disinformation campaign cannot be conceived as coercion.Footnote ⁹³ Because the will of the target state is not subordinated, information operations do not amount to a violation of the principle of non-intervention.Footnote ⁹⁴

3.3.2. Information Operations and Sovereignty

In view of the difficulty in qualifying information operations as coercive conduct, Schmitt has suggested that they could instead be considered violations of the sovereignty of the target state. As a foundational concept of public international law, the principle of sovereignty safeguards each state's independence, which ‘in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State’, in the famous words of the Permanent Court of Arbitration in 1928.Footnote ⁹⁵ The answer to the question of whether information operations against an adversarial state may violate that state's sovereignty depends principally on the more general question of whether ‘respect for sovereignty’ is a primary rule of international law alongside the prohibition of intervention.Footnote ⁹⁶ If not, then naturally information operations cannot be in violation of that rule.

Legal opinions of scholarship and states seem undecided up to this point.Footnote ⁹⁷ While the experts who drafted the widely quoted Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations Footnote ⁹⁸ and the UN Group of Governmental Experts on Developments in the Field of Information and TelecommunicationsFootnote ⁹⁹ have both come out in favour of assuming the existence of respect for sovereignty as a primary rule of international law, opinion among leading scholars remains divided.Footnote ¹⁰⁰ More significantly, even likeminded states have not found common ground. In 2018 the UK Attorney General, Jeremy Wright, famously held that it is the ‘UK Government's position that there is no such rule as a matter of current international law’,Footnote ¹⁰¹ whereas France recently asserted that it assumes its existence.Footnote ¹⁰²

If sovereignty in itself can be violated by interfering with state conduct without regard to the threshold of coercion, then it might be put forward that information operations are in breach of the rule when they target and distort electoral processes, which belong to the ‘inherently governmental functions’.Footnote ¹⁰³ As a qualifying requirement, Schmitt refers to covert and thus deceptive methods: while overt propaganda by an adversarial state, though manipulative, is to be tolerated, the line towards a prohibited violation of sovereignty is crossed when activities conceal the source of the information or the identity of the communicator.Footnote ¹⁰⁴

3.3.3. Information Operations and the Right to Self-Determination

Finally, two scholars more recently have suggested focusing not on the state-centred principles of sovereignty and non-intervention when it comes to legally qualifying information operations, but on the principle of self-determination of peoples.Footnote ¹⁰⁵ Conceived as ‘government for and by the people’Footnote ¹⁰⁶ and considered a conditio sine qua non for the existence and validity of human rights,Footnote ¹⁰⁷ the principle finds its origins in enlightenment philosophy and was first spelled out in the Declaration of Independence of the United States of America of 4 July 1776, which asserted that it is the ‘consent of the governed’ that gives a government its legitimacy.Footnote ¹⁰⁸ Today, it finds its positive embodiment in international law in Article 1 of the International Covenant on Civil and Political Rights (ICCPR):Footnote ¹⁰⁹ ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.

Applied to the context of foreign interference by means of information operations, Tsagourias and Ohlin both hold that it is this right that is actually at stake. The premise of the argument is a somewhat idealised construction of the democratically constituted body politic that takes its cues from Habermas’ Theory of Communicative Action:Footnote ¹¹⁰ if the principle of self-determination protects the right of a people to freely choose their political status without interference – in other words, the right to democratic decision-making – and this participatory and deliberative process requires the provision of factually accurate information about relevant political issues in order to be meaningful,Footnote ¹¹¹ then information operations violate this fundamental, collective right of a state's citizens.

Taking this interpretation of the principle as their starting point, the two scholars attempt to separate legitimate information operations by foreign states from those of an illegitimate nature. Although their approaches differ, they arrive at similar conclusions. Tsagourias links the principle of self-determination to the prohibition of intervention, essentially arguing that because there is an inextricable connection between a state's sovereign authority and its people's right to self-government, the principle of non-intervention necessarily not only protects sovereignty as such against outside interference but also self-determination as its foundational element.Footnote ¹¹² It follows that it must again be determined at what point such interference crosses the line into coercion and thus prohibited intervention. Similar to Baade and Nye, the decisive factor is supposedly the manipulative effect of the information operation: according to Tsagourias, the threshold of coercion is reached when the operation aims to curtail the free formation of the political will of the people by resorting to ‘subterfuge’, such as the spreading of ‘false, fabricated, misleading, or generally manipulated information’ with ‘a certain degree of severity’.Footnote ¹¹³

By contrast, Ohlin does not contend that the principle of self-determination mainly informs the prohibition of intervention in the context of information operations. Instead, he claims that such conduct may violate a people's right to self-determination in itself.Footnote ¹¹⁴ Crucially, in his opinion, what distinguishes legitimate from illegitimate communicative acts within the context of democratic decision-making processes is not so much the content of a piece of information but the identity of the speaker or author. Because the electorate's self-determination is at stake, only the political views and pieces of information disseminated by members of the collective count as significant. Discursive participation by outsiders – in other words, foreigners – is, from this perspective, inherently irrelevant. As soon as an outsider gains access to the political debate by pretending to be an insider, thus assuming relevance by deceiving the recipients of the information, the principle of self-determination is violated.Footnote ¹¹⁵ In other words, according to Ohlin, overt foreign attempts at influencing the outcome of an electoral process – for example, through broadcasting organisations such as RT – are supposedly illegitimate Footnote ¹¹⁶ yet ultimately harmless, as no member of the targeted body politic cares about the opinions of outsiders. On the other hand, this attitude changes once the same piece of information purportedly stems from an inside source: ‘the work of the Russian troll farms only worked because the operators impersonated Americans’.Footnote ¹¹⁷ Covert participation in a foreign democratic decision-making process by means of an information operation is thus unlawful, while overt participation does not induce any considerable damage and is therefore to be tolerated.

Arguably, Ohlin's point is premised on an overly idealised representation of opinion formation within today's liberal-democratic societies. Faced with an ever-increasing information deluge that causes a continuously deepening fragmentation and polarisation of audiencesFootnote ¹¹⁸ and decreasing trust in so-called ‘mainstream media’ and other traditional sources of information,Footnote ¹¹⁹ it overstretches confidence in the rationality of citizens concerning political decisions to assume that a propaganda outlet like RT, despite operating out in the open, does not hold any influence over the shaping of public opinion at all.Footnote ¹²⁰ Furthermore, it is unclear how his construction can account for scenarios in which a foreign actor enlists domestic agents to execute the information operation within their own community, either by way of funding or by providing the tools necessary for a concerted disinformation campaign. Still, in line with the other scholars, Ohlin, of course, has a point when claiming that the danger of contemporary information operations that attempt to meddle with electoral processes lies in their covertness.

Schmitt counters that the principle of self-determination is not applicable to a people that has already successfully constituted its own state, as the right supposedly concerns itself only with situations in which a group is denied the right to self-governance – that is, with cases of colonialism, apartheid, alien subjugation, or occupation.Footnote ¹²¹ However, this limited understanding of self-determination arguably does not properly take into account the origins of the concept in enlightenment thought. Other contemporary scholars therefore argue more persuasively that the formation of an independent polity does not at all exhaust the constituent people's right to self-determination; the ‘right subsists and continues to be vested in the people’,Footnote ¹²² safeguarding the freedom to determine its political destiny without interference, if need be even against its own government in the event that it turns away from democratic principles.Footnote ¹²³ In this sense, after forming a state the constituent people transfers its inherent right to self-determination to a government which then exercises this right in relation to outside actors at the behest of the people.Footnote ¹²⁴ Therefore, the state's sovereignty acts as a mediator of the people's self-determination and must be interpreted accordingly.Footnote ¹²⁵ It functions as a shield against certain forms of outside interference – deceptive, manipulative conduct – and thus safeguards both the state itself and its people's right to free decision making. Although this position might not be considered a majority opinion within scholarship for the moment, the argument is able to explain convincingly why democratic processes within states should enjoy the protection of international law.

3.3.4. Conclusion

The digital transformation and the subsequent rise of information operations have prompted a growing number of international legal scholars to reappraise the legal qualification of foreign interference. While some authors seek to establish a new interpretation of ‘coercion’ that encompasses manipulative and deceptive conduct, others argue for a novel understanding of the concept of sovereignty. Instead of simply formulating a foundational principle of public international law, they submit that it should be read as creating a right that offers states legal protection beyond the more restrictive principle of non-intervention. This view draws on recent trends in legal works dealing with state conduct in cyberspace more generally. The theoretically most intriguing strand of scholarship applies a liberal understanding of the principle of self-determination of peoples and utilises it to reinterpret either the notion of ‘coercion’ or the sovereignty of states. Although the approaches differ in terms of their legal argumentation, it is noteworthy that all try to capture the scale and quality of deceptive and manipulative conduct as the crucial development of information operations since the dawn of the digital society.

3.4.1. Formation of Customary International Law and Determination of the Content of Existing Rules

While the exercise of assessing scholarly approaches is worthwhile, given the long history of attempts to interfere in the domestic political affairs of other countries, it will ultimately be up to states to react – both legally and factually – to the new reality after the digital transformation. It therefore must be examined what kind of information operations are considered legitimate today, and what conduct, although antagonistic, is still tolerated within the international community. Despite past conduct to the contrary, have states’ legal attitudes started to shift towards a more restrictive approach to adversarial political influence operations over the past few years? Of course, a potential change of legal opinion would be likely to signal not simply a necessary adaptation to the technological developments of the digital revolution. Since the end of the Cold War a greater emphasis on values such as democratic principles or human rights has emerged among a considerable number of states.Footnote ¹²⁶ Nevertheless, the revelations concerning the impact of Facebook and other social media platforms on the formation of public opinion, and their susceptibility to manipulation by foreign actors, arguably count as the most important factors.

International rules emerge either through treaties or other formal agreements between states, or as customary international law. A rule of customary law is identified with the method of induction,Footnote ¹²⁷ by inferring ‘a general rule from a pattern of empirically observable individual instances of State practice and opinio juris’.Footnote ¹²⁸ The latter, subjective element pertains to the question of whether a certain state accepts its behaviour in question ‘as law’ – that is, whether it considers acting in this way to be an obligation or a right.Footnote ¹²⁹ Both elements must be present for a rule of customary international law to exist, and their presence in a given case must each be assessed separately, even though evidence for each might at times be derived from the same fact; opinio juris can itself not simply be inferred from certain state practice.Footnote ¹³⁰ For this reason, when it comes to the legality of contemporary information operations under international law the starting point should be an examination of both the legal attitudes and actions of states towards conduct to that effect, and the relationship of the two factors in each case. However, the scholars cited above would claim, though not always explicitly, that the pertinent rules already exist – prohibition of intervention, respect for sovereignty, and the principle of self-determination – and that the appropriate method for determining the current state of law is to interpret the content of these standing rules and to apply them to the novel factual circumstances surrounding information operations after the digital transformation.Footnote ¹³¹

The assertion that once a general rule of customary international law is established as law, it is subsequently capable of being applied to various unforeseen situations by way of deductive reasoning finds some support in both literature and the practice of international jurisprudence. For one, it makes methodological sense to open up customary rules for interpretation, as the alternative would effectively amount to a need to inductively re-identify the customary rule in each single instance of application, which would hardly make sense.Footnote ¹³² In line with this argument, it has been observed that none other than the International Court of Justice itself has in the past engaged in interpreting the content of rules of customary international law without inductively invoking state practice.Footnote ¹³³ This would indeed imply that the content of a customary rule can be modified after its inception by way of reinterpretation.Footnote ¹³⁴

At the same time, however, state practice can hardly be disregarded when it comes to the operation of deductive reasoning itself. If interpretation of customary international law indeed bears a family resemblance to the corresponding method of interpreting the content of treaty law so that the ‘method of logical and teleological interpretation can be applied in the case of customary law as in the case of written law’,Footnote ¹³⁵ then it should equally follow that, for the sake of consistency, the interpretative tool of ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ (Article 31(3)(b) of the Vienna Convention on the Law of Treaties)Footnote ¹³⁶ must find a counterpart in the appropriate interpretation of a customary rule as well.

If state practice is undisputedly relevant both for the formation of a rule of customary international law and for the interpretation of a treaty provision,Footnote ¹³⁷ then it cannot be irrelevant for the interpretation of a customary rule. Despite the apparent practice of the International Court of Justice to the contrary, declarations of state representatives substantiate this argument. A case in point is France's recent official position paper on the applicability of international law to cyber operations, in which it explicitly acknowledges the significant contribution on the matter provided by the international group of experts who drafted the Tallinn Manual 2.0, while at the same time implying that such scholarly work is ultimately outweighed by the opinions of the states themselves.Footnote ¹³⁸ Accordingly, France deviates from the experts’ legal interpretation on a number of issues. The former Legal Adviser to the US State Department echoed this sentiment. In his view, when it comes to customary international law, it is the states themselves that have the ‘primary responsibility for identifying how existing legal frameworks apply’ and to ‘publicly articulate applicable standards’. ‘Interpretations or applications of international law proposed by non-governmental groups’, on the other hand, ‘may not reflect the practice or legal views of many or most States’.Footnote ¹³⁹ Thus, while the content of existing rules of customary international law to a certain extent may be determined by way of deductive reasoning ‘as an aid, to be employed with caution’,Footnote ¹⁴⁰ the primary pieces of evidence for interpretation must remain the practice and public opinions of states in relation to the content of the rule in question.Footnote ¹⁴¹

3.4.2. Evidence of State Practice and Opinio Juris in relation to Information Operations

On this basis, the following section examines current attitudes and behaviour towards information operations. In doing so, the present study will attempt to derive general conclusions concerning the lawfulness and legitimacy of information operations according to the legal opinions and practice of states. While this survey can hardly be exhaustive, a specific focus on official statements and domestic measures – such as national legislation – may allow for inferences concerning a possible nascent rule against information operations.

Strikingly, if perhaps not at all surprisingly, the clearest qualification of foreign influence as generally being in conflict with international law has come from some of the countries that are most frequently accused of engaging in adversarial information operations themselves. In January 2015 the six member states of the Shanghai Cooperation Organization (SCO) – China, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan – submitted the second version of their ‘International Code of Conduct of Information Security’ to the Secretary-General of the United Nations.Footnote ¹⁴² Originally drafted in 2011, the non-binding Code of Conduct is explicitly ‘open to all States’ and has the ‘purpose … to identify the rights and responsibilities of States in the information space’.Footnote ¹⁴³ Of the acts that are deemed to be in contradiction to these rights and responsibilities the document includes the ‘use of information and communications technologies and information and communications networks’ in order ‘to interfere in the internal affairs of other States or with the aim of undermining their political, economic and social stability’.Footnote ¹⁴⁴ Constituting an application of the principle of strict ‘digital sovereignty’ as promoted by these states,Footnote ¹⁴⁵ this legal standpoint is, of course, in line with their more general anxiety towards a purportedly overbearing and intrusive influence of ‘Western universal values’. As shown earlier, such vocal rejection of foreign influence by way of modern communication technologies was already directed against the activities of Radio Free Europe during the Cold WarFootnote ¹⁴⁶ and continues to this day, the latest evidence being Russia's assertion that YouTube's hosting of protest announcement videos amounted to ‘interference in its sovereign affairs’ and ‘hostile influence (over) and obstruction of democratic elections in Russia’ in August 2019.Footnote ¹⁴⁷ China, too, has repeatedly connected vocal support for the democratic movement in Hong Kong over the summer of 2019 to prohibited outside interference by Western actors.Footnote ¹⁴⁸

In comparison, official statements and measures by liberal-democratic states have been much more restrained. Despite general acknowledgement that Russia did indeed run an expansive and intrusive adversarial information operation ahead of the 2016 presidential election in order to manipulate its outcome, to date there has been no government-level assertion that the United States considers such conduct to be a violation of its sovereigntyFootnote ¹⁴⁹ or otherwise a violation of a standing rule of international law.Footnote ¹⁵⁰ After Russia's conduct had first come to light, President Barack Obama merely stated that Moscow had attempted to ‘undermine established norms of behaviour’ and to ‘interfere with democratic governance’.Footnote ¹⁵¹ Given its reluctance to assert itself more emphatically, there have even been doubts as to whether the United States currently views such operations as a proper national security concern.Footnote ¹⁵² Indeed, in the words of a former CIA operative: ‘If you ask an intelligence officer, did the Russians break the rules or do something bizarre, the answer is no, not at all’.Footnote ¹⁵³ According to a former Legal Adviser to the US State Department, this assessment would shift only if another state's conduct interfered with the ability to even hold an election or directly manipulated the results of an election, which would amount to a violation of the principle of non-intervention.Footnote ¹⁵⁴

Other states have shown similar restraint. While Japan has implied that it would be interested in developing international rules on the matter, it has not taken the initiative, and the scope of its own legal standpoint is unclear.Footnote ¹⁵⁵ With two much-noted legal briefs, both France and the Netherlands have recently clarified their opinions on the application of rules of international law to cyber operations.Footnote ¹⁵⁶ Although they affirmed the emergent legal view that respect for sovereignty is indeed a standalone rule under international law, in opposition to the UK,Footnote ¹⁵⁷ neither spelled out what that would mean in practice, especially with regard to an information operation aimed at influencing a democratic decision-making process. For their part, European Union officials, worried that foreign disinformation campaigns might interfere in the May 2019 European parliamentary elections, implemented a number of countervailing measuresFootnote ¹⁵⁸ but otherwise remained equally ambiguous as to their legal views on the matter. While stating that the ‘risk of … targeted disinformation campaigns by foreign actors to influence public support or to undermine our democracies is growing’,Footnote ¹⁵⁹ a clear framing in legal language has been missing. In his State of the Union address in 2018, President of the European Commission Jean-Claude Juncker went as far as declaring illegal the ‘use of personal data in order to deliberately influence the outcome of the European elections’,Footnote ¹⁶⁰ yet the appropriate framework for that would arguably be the Union's General Data Protection RegulationFootnote ¹⁶¹ rather than international law. When outlining her forthcoming political agenda, his successor, Ursula von der Leyen, flagged ‘the threats of external intervention in our European elections’ as one of the most pressing concerns for the coming years,Footnote ¹⁶² but the use of the word ‘intervention’ in itself can hardly count as an assertion of a legal standpoint.

The G7, on the other hand, arguably has been a little more forthright. The 2018 summit in Canada was concluded with the adoption of the ‘Charlevoix Commitment on Defending Democracy from Threats’, in which the member states declaredFootnote ¹⁶³ that:

Two preparatory documents, agreed by the foreign and security ministers of the G7 states, explicitly address ‘disinformation’ and speak of ‘acts or measures by foreign actors with the malicious intent to undermine the confidence in, and the legitimacy of, democratic institutions and processes’Footnote ¹⁶⁴ that constitute ‘interference’.Footnote ¹⁶⁵ The accompanying commitment was re-emphasised at the most recent G7 foreign ministers meeting in St Malo in France.Footnote ¹⁶⁶ Although the use of the term ‘interference’ could signal the gradual shift towards a legal condemnation of information operations, thus constituting an expression of opinio juris, it bears noting that the avoidance of ‘intervention’ is arguably significant.

Ahead of the elections in Israel in April 2019, the head of the Israeli Security Agency alluded vaguely to a foreign state's intention to ‘intervene in Israel's election via hackers and cyber technology’.Footnote ¹⁶⁷ A former senior intelligence official considers the distortion of information ‘the greatest threat of recent years’ that ‘threatens the basic values that we share – democracy and the world order created since World War Two’.Footnote ¹⁶⁸ The remarks can, however, hardly count as expressions of legal opinion and it is unclear how members of the Israeli government have positioned themselves towards the problem. Probably the most straightforward legal language to date, as far as liberal-democratic countries are concerned, has come from Australia. After former prime minister Turnbull asserted that ‘foreign powers are making unprecedented and increasingly sophisticated attempts to influence the political process, both here and abroad’,Footnote ¹⁶⁹ the Attorney General at the time elaborated that ‘covert foreign influence can cause immense harm to our national sovereignty, to the safety of our people, to our economic prosperity, and to the very integrity of Australian democracy’.Footnote ¹⁷⁰

Given that official statements as expressions of opinio juris have been ambiguous or non-committal at best, a deeper look at domestic measures against foreign influence operations as instances of state practice might be pertinent in order to assess states’ attitudes towards the issue. In this regard it has been suggested that national legislation or other countervailing means ‘do not resolve the independent question of whether the activity violates international law’.Footnote ¹⁷¹ A frequently cited case in point is that of peacetime espionage. Although intelligence gathering by foreign agents is criminalised in virtually all domestic legal systems, it is commonly not perceived as a violation of a rule of international law in and of itself.Footnote ¹⁷² By implication, the fact that espionage is prohibited domestically has no bearing on its legal status under international law, not least because of the observation that all states engage in some sort of intelligence collection on other countries. On the other hand, it has long been recognised that domestic acts, including legislation, may under certain circumstances indeed count as state practice that informs the formation of international law.Footnote ¹⁷³ This must at least hold true if an internal act communicates a legally significant value judgment on an issue that concerns the transnational realm, as in the case of human rights matters.Footnote ¹⁷⁴ That is the principal difference from the question of the legality of espionage. Whereas the latter practice at most concerns another state's territorial integrity,Footnote ¹⁷⁵ domestic measures with the aim of safeguarding a human right as an internationally protected value should be considered expressions of legal views towards the existence of a rule of customary international law. As there are good reasons in favour of arguing that information operations that intend to influence the political will of another country's population infringe the latter's (collective) right to self-determination, as shown above, countervailing measures at the domestic level should, under certain circumstances, be considered state practice.

However, an important distinction should be made between such internal measures against information operations that explicitly address outside threats, on the one hand, and such measures that constitute blanket prohibitions or restrictions of ‘fake news’ or the dissemination of ‘misleading’ information, on the other. Aside from the observation that the latter are in fact often enacted by authoritarian regimes that exploit the language surrounding the problem of disinformation for the sole purpose of targeting opposition groups and to generally stifle freedom of speech,Footnote ¹⁷⁶ such acts also do not convey a legal standpoint specifically about the conduct of foreign actors. For instance, an abuse of legal frameworks ostensibly directed against disinformation in order to persecute political dissidents has already been observed in Iran, Malaysia, Russia, Saudi Arabia and Tanzania.Footnote ¹⁷⁷ In early 2018 Vietnam announced the establishment of a military cyber unit tasked to act against ‘wrong views’.Footnote ¹⁷⁸ Other countries – such as Egypt, Indonesia and Kuwait – also focus on criminalising the dissemination of disinformation online without distinguishing between external and internal threats.Footnote ¹⁷⁹ Although Singapore's senior minister of state for law invoked language that alluded to international relations when he spoke of ‘asymmetric information warfare’ that no country is immune from,Footnote ¹⁸⁰ the city state went on to enact one of ‘the most comprehensive anti-misinformation laws in the world’ in May 2019,Footnote ¹⁸¹ with terms of imprisonment of up to ten years for spreading false information.Footnote ¹⁸² The law has been criticised as severely suppressing free speech.Footnote ¹⁸³ At the same time some liberal-democratic countries are among those whose response to the emerging problem of the distortion of the digital information ecosystem has focused on the threats in more non-specific terms as well. Ahead of the recent presidential election, Argentina launched the Commission for the Verification of Fake News (Comisíon de Verificación de Noticias Falsas) as part of the Cámara Nacional Electoral (CNE) with a mandate to carry out neutral fact-checking of news publications, to report false information to the CNE, and to appeal to service providers to curb the spreading of disinformation.Footnote ¹⁸⁴ In neighbouring Brazil the police announced that it would ‘identify and punish the authors of “fake news”’ in the run-up to the 2018 presidential election.Footnote ¹⁸⁵

To date, only a relatively small number of states have set up domestic measures with the explicit aim of countervailing information operations carried out by foreign actors. As argued, these examples may count as legally significant in the search for an emergent customary international norm against such conduct. Within this context it is remarkable that despite the reluctance of its leaders to unambiguously call out Russia's interfering campaigns as unlawful, the United States has implemented various steps to counteract foreign interference. It explicitly declares foreign influence operations ‘illegal’ and promises to ‘investigate, disrupt, and prosecute perpetrators’.Footnote ¹⁸⁶ In late 2017 the US Federal Bureau of Investigations established the Foreign Influence Task Force (FITF) to counter foreign information operations.Footnote ¹⁸⁷ The National Defense Autorization Act (NDAA) of 2019 included provisions that emphasise that acting against information operations is a national security concern.Footnote ¹⁸⁸ In the aftermath of the 2016 election the US Department of the Treasury imposed sanctions on Russian entities and actors connected with the extensive efforts to interfere on behalf of Donald Trump.Footnote ¹⁸⁹

Although the existing legislation has been criticised as too broad and vague, Canada explicitly considers foreign interference in its elections unlawful.Footnote ¹⁹⁰ So does Australia, with laws that provide for the punishment of anyone accountable for communicating false or distorted content directed against the ‘national interest’, and an Election Integrity Task Force was established to thwart malicious information operations from abroad.Footnote ¹⁹¹ Adhering to its commitment made during the 2018 G7 summit, Canada has also set up a dedicated Rapid Response Mechanism with the task of analysing ongoing disinformation campaigns.Footnote ¹⁹² The British government has created the National Security Communications Unit, ‘tasked with combating disinformation by state actors and others’ in order to ‘systematically deter our adversaries and help us deliver on national security priorities’.Footnote ¹⁹³ A similar task force has been installed in Denmark, responsible for countering systematic information operations, in particular, but not limited to coming from foreign entities.Footnote ¹⁹⁴ Sweden's response has been even more unambiguously aimed at external actors. The country's new ‘psychological defence’ authority is supposed to identify, analyse and confront foreign influence operations.Footnote ¹⁹⁵ Sweden clearly considers adversarial information operations by foreign powers a threat to public safety potentially on a par with acts of armed force, counting them as ‘attacks directed against our country’ that the populace must be prepared to ‘resist’.Footnote ¹⁹⁶ Finally, the European Union has established the EastStratCom unit, which is based in Brussels with the explicit mandate to identify and expose antagonistic Russian behaviour against the European information space. Ahead of the 2019 European Parliament elections, a new Rapid Alert System was established, tasked with exposing ongoing disinformation campaigns. It is linked to governmental agencies of all member states and is intended to exchange real-time information with authorities of NATO and G7 states.Footnote ¹⁹⁷

As the survey shows, it is not that the growing problem of false and misleading information has not been acknowledged globally by now. However, the differences between the measures imposed by states to confront the issue are striking. Other than the degree of domestic adherence to human rights standards, the main distinction may come down to threat perception. The more that societies feel at risk of being targeted by outside actors, the more domestic means such as legislation or task forces are outward-looking. To be sure, perception in itself does not necessarily reflect reality. Some states that have imposed strong rules to hamper foreign interference in fact might not be on the radar of any antagonistic actor. On the other hand, there now appear to be states that are targeted without being fully aware of the circumstances: The New York Times reported in October 2019 that a number of African countries had recently been affected by Russian information operations.Footnote ¹⁹⁸ Still, countervailing measures on the continent have focused largely on domestic issues or the problem of online disinformation more generally. Sudan, which was allegedly among the targeted countries, enacted a bill against ‘fake news’ in 2018, which was criticised for stifling freedom of expression.Footnote ¹⁹⁹ Nevertheless, those – mostly Western – countries that have implemented means explicitly aimed at outside threats at least implicitly express a viewpoint against the lawfulness of foreign information operations targeting their body politic.