With the deluge of spurious ‘election fraud’ claims following the 2020 US Presidential Election, the genuine issue of foreign election interference has been somewhat overshadowed. However, international lawyers should not lose sight of this emerging threat which, accelerated by new technologies, is capable of forming the basis of genuine ‘election fraud’ in the years to come. Despite much debate in the years following the Russian disinformation campaign in 2016, international lawyers have yet to arrive at a consensus as to if, and how, international law can evolve to deal with the challenges of modern election interference. In his timely new book ‘Election Interference’, Jens Ohlin puts aside rhetoric of ‘acts of war’ frequently invoked by sabre-rattling pundits and politicians, to investigate a number of alternative doctrines of international law that could provide the answers to these questions. This book review will consider Ohlin’s approach to the two key doctrines of international law he discusses with respect to the 2016 Russian interference campaign: non-intervention and self-determination.
Unlike other international law scholars, (see for example Michael Schmitt and Ido Kilovaty) Ohlin is sceptical that cyber-election interference constitutes a violation of the doctrine of non-intervention. To constitute a violation of this principle, interference must first interfere with a state’s sovereign domaine réservé, and second involve an element of coercion . That the conduct of elections is part of a State’s domaine réservé is accepted in a general sense, as well as in the context of cyber-interference (Rule 26 Commentary ). However, Ohlin questions whether cyber-election interference has ‘the essence’ of the principle of non-intervention, that of coercion.
The difficulty with applying the doctrine of coercion to cyber-interference operations like that conducted by Russian individuals in 2016 according to Ohlin, is identifying who exactly who is being coerced. It cannot be said that the state itself is actually being coerced, because the results of the election will ultimately still reflect the views of its citizens, irrespective of whether they are improperly influenced by foreign meddling. Cyber-influence operations are therefore often characterised as ‘distortion rather than coercion’.
Ohlin describes the failure of other international law scholars to properly reckon with this as reflecting a ‘teleological’ approach in the face of an ‘absence of evidence’, writing ‘information operations are not coercive simply because one hopes they are’.