Coronavirus Disinformation and the Need for States to Shore Up International Law

As the coronavirus pandemic spreads, the Kremlin seems to be observing the old adage that one should never let a good crisis go to waste. According to several news outlets, the European External Action Service (EEAS), an arm of the European Union, has documented a significant Russian disinformation campaign regarding the novel coronavirus, which causes the respiratory disease COVID-19. The EEAS report asserts that “[t]he overarching aim of Kremlin disinformation is to aggravate the public health crisis in Western countries, specifically by undermining public trust in national healthcare systems—thus preventing an effective response to the outbreak[.]” And now, the New York Times writes that—in classic copy-cat fashion—China and Iran are following suit.

Of course Russia denies the claims. But the reports are consistent with Russia’s broader and well-documented efforts to sow division in the West and undermine democratic institutions—with one major difference. This time, the Kremlin’s irresponsible actions are directly putting lives in danger. This new and potentially deadly twist on the disinformation problem highlights a lacuna in the international legal order and the need for states to take more affirmative steps to better regulate and counter covert deception campaigns, especially those that put lives at risk.

Information operations are a key component of Russia’s strategy for confronting Western democracies, and covert deception and disinformation form the core of its active campaigns. Russia’s targets—Ukraine, the United States, the United Kingdom and France, to name just a few—have struggled over the past several years to effectively counter its influence campaigns. A number of factors contribute to this difficulty. Countering disinformation raises complicated free speech issues that have proved increasingly difficult to manage in the digital age—a fact that Russia is exploiting to grave effect.

In addition, there is lingering ambiguity as to whether—and, if so, how—Russia’s actions violate international law. These uncertainties matter. They have impeded states, individually and collectively, from effectively condemning and responding to Russia’s actions. They also have led to decision delay and at times outright paralysis in crafting responses to information operations. Greater clarity on the international legal implications—and wrongfulness—of Russia’s actions can facilitate joint action, open up a more robust toolkit of response options for targeted states, and facilitate more timely and effective decision-making and action.

To be clear, international law is not a panacea for curbing inimical state behavior. But as a cornerstone of the rules-based international order, it has played an important role in regulating interstate relations and achieving some semblance of stability and security in the post-World War II era. As this order has come under intense pressure over the past few decades, however, some of its weaknesses have been exposed. Revisionist states like Russia, which seek to remake the international order to their perceived advantage, are not only leveraging these weaknesses but also exploiting and aggravating them to that end.

The baseline for the rules-based international order is the obligation of states to respect the sovereignty of all other states, as reflected in the U.N. Charter. This organizing principle underlies the most important rules of international law, such as the prohibition— contained in Article 2(4) of the U.N. Charter—on states using force against the territorial integrity or political independence of other states. The digital revolution and the concomitant era of cyber operations have raised serious questions about the scope of this prohibition. But by and large, states have hewed to traditional understandings that the prohibition on the use of force is breached if there is some element of armed force involved, or at least actions resulting in physical injury or damage. Russia and other states exploiting the gray zone have generally sought to steer clear of causing this type of physical harm, at least in the cyber and information space, and thereby from tripping over the use-of-force threshold.

In contrast, propaganda and influence operations are long-standing forms of statecraft not prohibited by international law, and states have often included covert deception as part of their influence toolkits. And while a small number of states have recently signaled a willingness—under the right circumstances—to consider cyber operations involving serious financial or economic harm as amounting to a use of force, they have thus far not indicated the same openness with regard to influence operations. Consequently, states are unlikely to deem Russia’s spread of COVID-19-related disinformation as a breach of the use-of-force prohibition.

That said, customary international law separately contains a well-recognized rule against states intervening in the internal affairs of other states—a prohibition that a growing number of states recognize as applying with equal force in the cyber realm, and perhaps the information context by extension. States have adopted this nonintervention rule as a means of safeguarding their sovereignty and independence. Indeed, the International Court of Justice (ICJ) has described the rule as “a corollary of every state’s right to sovereignty, territorial integrity and political independence,” and of the right, as a matter of sovereign equality, of every state to conduct its affairs without outside interference.

Like the use-of-force prohibition, the nonintervention rule is considered to be of limited scope. It has never been meant to cover all forms of interference. In essence, it prohibits states from using coercive measures to overcome the free will of a targeted state with respect to matters that fall within that state’s core, independent sovereign prerogatives. Unfortunately, the concepts of coercion and “domaine réservé”—the bundle of sovereign rights protected by the rule—are ill defined.

The ICJ has described as a particularly obvious case of prohibited action “an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.” But between the extremes of forcible intervention and unregulated propaganda, there is a distinct lack of clarity as to what types and levels of interference constitute breaches of international law. The resolution of such ambiguities depends on states proffering their official views on the status of the law. Unfortunately, only a handful of states have offered official positions on the application of the nonintervention rule in the cyber context. Beyond general acknowledgments that the parameters of the rule have “not yet fully crystallised in international law,” states have been reluctant to proffer examples of a prohibited intervention other than the manipulation of electoral processes. Only the United Kingdom has gone further, stating that intervention in the fundamental operation of Parliament or in the stability of the financial system would “surely be a breach of the prohibition on intervention[.]” These general statements provide little insight into whether and how the rule against nonintervention regulates covert deception and disinformation.

Prior to the pandemic, Russia’s documented election interference had come the closest of any state action to violating the nonintervention rule. In fact, it arguably did. Election processes are a paradigmatic example of the type of sovereign prerogatives protected by the nonintervention rule, leading some legal experts to assert that Russia’s election interference crossed the line. Yet beyond the general statements alluded to above, no state has publicly asserted that Russia’s election interference violates international law—let alone taken action based on such a claim.

This failure of condemnation is due no doubt to the ambiguity surrounding the element of coercion, which is crucial to the nonintervention rule. The rule is triggered only when a state seeks to overcome the free will of another state by use of coercive measures aimed at depriving or substantially impairing the targeted state’s freedom of choice over a protected sovereign matter in a way that forces the targeted state to take or refrain from taking an action against its will. Efforts to sow societal division and distrust do not readily lead to a finding of coercion; after all, the citizenry is free to accept or disavow the disinformation being disseminated. And as the Defense Department general counsel recently highlighted in his speech to the U.S. Cyber Command Legal Conference, any approach to this problem must account for the countervailing interest in protecting the right of free expression, to include the right to receive information.

But Russia has upped its game with potentially deadly effect, and the international community needs to take a stand. According to multiple sources, including the State Department’s Global Engagement Center, Russia is deploying its full information-operations toolkit of official state media, proxy news sites and a vast infrastructure of false social media personas to disseminate multiple false narratives. By spreading COVID-19 disinformation, Russia is undermining legitimate efforts to contain the spread and impacts of a lethal virus by encouraging people to observe social distancing. The effectiveness of these efforts depends on broad collective action. Every doubter and hold-out spurred on by disinformation puts others at exponentially greater risk by venturing outside and attending gatherings. In effect, Russia is aiding and abetting the spread of the virus, fully knowing its actions pose a direct threat to people’s lives.

If Russia were to unleash a deadly biological weapon against another state, there is no doubt it would be condemned as a use of force. Yet, as much as death and illness are likely and foreseeable consequences of Russia’s spreading of COVID-19 disinformation, it is unlikely that states will go so far as to condemn Russia’s actions as crossing the use-of-force threshold out of concerns for escalation. But the rule of prohibited intervention can be, and should be, a different story.

As an aside, some observers might point to the general principle of sovereignty as already erecting a normative barrier to Russia’s disinformation efforts. Leaving aside ongoing debates as to whether sovereignty itself is an enforceable rule of international law, this principle would offer little relief—the purported rule suffers from at least as much ambiguity with respect to state cyber and information operations as does the prohibited intervention rule. It is for this reason that Chatham House recently recommended that states would be better served approaching the regulation of malicious cyber activities and cyber-enabled covert deception through the prism of the nonintervention rule, a position I endorsed here.

To date, state responses to Russian disinformation operations have been grounded in domestic law, as with Special Counsel Robert Mueller’s indictment related to Russia’s interference in the 2016 elections and Australia’s recently adopted foreign interference law. As Eric Jensen and I argued here, the focus on fraud and deceit as the actus reus of the offenses charged in the special counsel’s indictment should serve as a guidepost for clarifying or evolving the coercion element of the prohibited intervention rule. It demonstrates that covert deception and disinformation can be just as harmful to sovereign prerogative as more overt coercive measures, if not more so. In taking this position, we distinguish between overt propaganda and influence, as well as disinformation aimed at deflecting responsibility and accountability, such as China’s early propaganda efforts to downplay the full scope of the outbreak. Our focus is on covert information campaigns aimed at intervening in and overcoming the free will of the targeted state.

The United States and the members of the European Union should offer a clear declaration that they consider Russia’s COVID-19 disinformation campaign—aimed directly at disrupting public health efforts—an internationally wrongful act in the form of a prohibited intervention. This international condemnation would serve three critical functions. First, it would reinforce the rules-based order, shape normative behavior, and potentially deter Russia and other states from engaging in similar behavior going forward. Second, and relatedly, it would bring greater clarity and weight to the nonintervention rule. Russia and other states would be put on notice that pandemic response and other public health measures fall squarely within the set of sovereign prerogatives protected by the rule. It would also advance the view that covert deception campaigns aimed at overcoming sovereign free will, effectively by means of fraud, can constitute coercion even in the absence of actual force. And third, under the law of countermeasures, it would expand the choice of permitted response measures by affected states.

Meanwhile, states can and should do more to respond to and actively disrupt Russia’s spread of disinformation. As the U.K. attorney general noted presciently in 2018, “[t]he international law prohibition on intervention in the internal affairs of other states is of particular importance in modern times when technology has an increasing role to play in every facet of our lives[.]” Advances in digital technology have created new vulnerabilities and enabled states to engage in an unprecedented level of destabilizing covert influence. It is time for states to draw a line between acceptable and unacceptable, legitimate and illegitimate, influence and interference.