Hybrid Threats and Grey Zone Conflict Symposium – Rethinking Coercion in Cyberspace

Editors note: The following post highlights a chapter that appears in Mitt Regan and Aurel Sari’s recently published book Hybrid Threats and Grey Zone Conflict: The Challenge to Liberal Democracies. For a general introduction to the series, see Prof Mitt Regan and Prof Aurel Sari’s introductory post.

Non-intervention is a bedrock principle of international law which prohibits States from interfering in the domestic or foreign affairs of other States. Non-intervention is based on two constitutive elements: domaine réservé and coercion. The former protects the core areas of sovereignty under the exclusive jurisdiction of a State, while the latter creates a threshold of wrongfulness, which typically involves using force or pressure to compel a State to pursue an action that it otherwise would not pursue.

While the contours of non-intervention are well-understood outside the cyber context, the emergence of cyber operations as a tool of interference has complicated application of the non-intervention principle. Primarily, coercion as a pillar of unlawful intervention is increasingly becoming outdated and insufficient to address cyber operations that seek to destabilize election processes, spread disinformation online, or cause disruption to critical infrastructure systems.

This short post, based on my chapter entitled “Rethinking Coercion in Cyberspace” (which appeared in Mitt Regan and Aurel Sari’s Hybrid Threats and Grey Zone Conflict), explores how the traditional standard of coercion is losing its relevance in cyberspace, where State and non-State actors can engage in harmful interference without meeting the traditional threshold of coercion.

The Traditional Role of Coercion in Non-Intervention

One of coercion’s roles is to distinguish acts of interference (not per se illegal under international law) from acts of intervention (prohibited under the non-intervention principle). For a State-sponsored act to be considered an unlawful intervention, it must not only target matters that are within the State’s exclusive jurisdiction, it must also be coercive in nature.

The International Court of Justice in the Paramilitary Activities case emphasized that coercion is “the very essence” of unlawful intervention, where an external State imposes its will on another, depriving it of its free choice of economic, political, social, and foreign matters. In its extremity, coercion is typically understood as involving threats of significant sanctions or military force: direct, forceful methods that explicitly limit a State’s ability to act independently.

Coercion in Cyberspace: A Dead Letter?

Recent cases of cyber interference do not fit the traditional concept of coercion. Disinformation operations enabled by cyberspace can significantly undermine a State’s prerogative in matters within its sovereignty without the act ever reaching the threshold of coercion. The Russian interference in the 2016 U.S. presidential election involved methods such as spreading disinformation on social media platforms, compromising and leaking political party databases, and using bots to sway public opinion by amplifying misleading voices. While these operations were undoubtedly disruptive, they do not meet the traditional standard of coercion because the victim State was not directly being forced to make an undesirable decision. Coercion was absent because there was no ultimatum, no immediate or existential threat, and no direct pressure forcing the U.S. government to act in a certain way. Yet, the effects were significant and highlight the inadequacy of the coercion standard in capturing the full spectrum of harmful interference in the digital age.

Coercion as a prerequisite for unlawful intervention creates significant grey zones in international law. In today’s world, cyber operations aim to influence, disrupt, or manipulate rather than coerce. One prominent method that will further influence, disrupt, and manipulate is the use of deepfakes, which are highly realistic but fabricated videos, audio recordings, and pictures. This can undermine public trust in democratic institutions and disrupt political processes without directly compelling a government to take any specific action. Similarly, microtargeting voters based on personality traits and political inclinations could allow foreign actors to manipulate electoral outcomes.

The difficulty in applying the coercion standard in these contexts is rooted in the nature of cyber operations, which often operate below the threshold of force or overt pressure. Unlike traditional interventions that require visible force or dictatorial actions, cyber interventions can be discreet, indirect, and anonymized, making it challenging to attribute specific actions to State actors or to prove intent. As a result, many harmful activities evade the traditional legal frameworks designed to regulate intervention, leaving States vulnerable to increasingly sophisticated methods of interference.

Towards a New Standard: Disruption and Manipulation

The ambiguities surrounding coercion as an element of non-intervention call for a new standard. The main question is: what should this standard be? Previously, I have argued that we are entering an era of disruption in cyberspace. Coercion is still an important threshold for the wrongfulness of intervention, but disruption is becoming far more commonplace. If an act of interference significantly disrupts a political process in another State, it should constitute an act of unlawful intervention. The severity and magnitude thresholds of such disruption may need to be determined before disruption becomes an alternative to coercion.

Manipulation may also constitute an alternative standard to coercion. Emerging technologies allow States to engage in interference that is not coercive by nature, but that manipulates political, economic, and social processes to a degree that deprives the victim State of its sovereign will and freedom of choice.

Manipulation is not a new phenomenon, but recent technological advancements, such as AI-generated videos, pictures, and audio recordings, paired with the availability of data, and the global nature of the Internet give manipulation a far more menacing form than ever before. As Roberto Gonzales notes, “[s]ince we are never totally free of outside influence, what gives us (part) authorship over our own actions is that we regard our own reasons for acting as authoritative. Manipulation thwarts that.”

Manipulation can undermine sovereign will directly, but also indirectly where it reaches a critical mass of the population, which may then force the State to make a certain decision that it otherwise would not pursue. As with disruption, there are similar threshold questions that may arise. At what point does manipulation become illegitimate? And what sorts of tools are more susceptible to being considered illegal?

Manipulation allows the interfering State to influence the subconscious of the victim State or misinform its citizens to a degree that they demand policy change from their own State. Is this much different from coercing the victim State into making a policy change? Or is this coercion with an extra step? I argue that the outcome is no different in the case of manipulation, though the difference may be in the means: coercion is forceful, manipulation is subtle, but wrongfulness should attach to both.

Today’s cyber threat landscape presents a need for a more nuanced conception of coercion in cyberspace. As States continue to exploit the grey zones created by technological advancements and novel methods of interference, States are under increasing pressure to reevaluate the fundamentals of non-intervention. Coercion is no longer a satisfactory intervention standard. Moving forward, international law must adapt to these new realities by developing an alternative to coercion as a standard for wrongful intervention which accounts for the novel methods of interference enabled by sociotechnological changes of the recent years.

Conclusion

Coercion is becoming increasingly irrelevant in the face of novel methods of interference. Cyber operations that manipulate, spread disinformation, disrupt political processes, and affect critical infrastructure are predominately non-coercive. To give meaning to non-intervention in a new sociotechnological landscape, the international community must move beyond the concept of coercion and develop an alternative standard—such as disruption and manipulation—to differentiate between interference and wrongful intervention.

***

Ido Kilovaty is an Associate Professor of Law at the University of Arkansas School of Law.

Photo credit: Unsplash