The Russian Disinformation Campaign During the Romanian Presidential Elections: The Perfect Example of a Violation of International Law?

[Agata Kleczkowska is an Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences in Warsaw, Poland.]

On 24 November 2024, Călin Georgescu surprisingly won the first round of the Romanian presidential elections. Nevertheless, he did not have the chance to repeat this success in the second round, as on 6 December, just two days before the final voting, the Romanian Constitutional Court annulled ‘the entire electoral process’ and decided that it would be resumed in full ‘with the Government setting a new date’.

The Court decision was a reaction to the declassification on 4 December 2024 of the information presented by the Romanian Intelligence Service, the Foreign Intelligence Service and the Ministry of Internal Affairs. It was revealed that there had been ‘cyber attacks aimed at influencing the fairness of the electoral process’, as well as ‘in violation of electoral legislation, a candidate in the presidential elections benefited from massive exposure due to the preferential treatment that the TikTok platform granted.’ Consequently, ‘the visibility of that candidate increased significantly compared to the other candidates who were recognised by TikTok algorithms as candidates in the presidential elections, and the content promoted by them was massively filtered, exponentially decreasing their visibility among the platform’s users.’ Moreover, according to the documents, ‘almost 800 TikTok accounts created by a “foreign state” in 2016 were suddenly activated last month to full capacity’ backing one of the candidates. Another 25,000 TikTok accounts had become active only two weeks before the first round.’ Georgescu is the ‘candidate’ referred to in the documents, and the ‘foreign state’ is Russia.

The Constitutional Court decided that these developments ‘distorted the free and fair nature of the vote expressed by citizens and the equality of opportunity of electoral competitors, affected the transparency and fairness of the electoral campaign and disregarded the legal regulations regarding its financing’ (par. 5 of the Court’s decision). In justifying its decision, the Court said that Romania as a State has the duty ‘to strengthen voter resilience, including by raising the awareness of the electorate regarding the use of digital technologies in elections, in particular by providing adequate information and support. Therefore, the state must face the challenges and risks generated by organised disinformation campaigns, which are likely to affect the integrity of electoral processes’ (par. 10). According to the Court, 

[t]he freedom of voters to form an opinion includes the right to be correctly informed before taking a decision. More specifically, the freedom of voters to form an opinion implies the right to obtain correct information about candidates and the electoral process from all sources, including online, as well as protection against undue influence, through illegal and disproportionate acts/facts, on voting behaviour. (…). In the present case, the freely expressed nature of the vote was violated by the fact that voters were misinformed through an electoral campaign in which one of the candidates benefited from aggressive promotion, carried out in circumvention of national electoral legislation and through the abusive exploitation of social media platform algorithms. The manipulation of the vote was all the more evident as the electoral promotional materials of a candidate did not bear the specific signs of electoral advertising according to Law no. 370/2004. In addition, the candidate also benefited from preferential treatment on social media platforms, which had the effect of distorting the manifestation of voters’ will (par. 13-14).

Russia has a long tradition of meddling in democratic voting, as in the 2016 presidential elections in the USA, the 2016 Brexit referendum in the UK and elections to the European Parliament, to mention just a few examples. However, the Romanian presidential elections marked the first time that during the ongoing election process (and not only when it was completed) a State was able to identify Russian interference, acknowledge the direct influence of this meddling (including especially the disinformation campaign) on the election results, and introduce measures (even as drastic as the annulment of the elections) to neutralise this interference (e.g. during the 2016 presidential elections in the USA multiple stakeholders, including the FBI and the Obama administration, acknowledged the attempts by Russia to interfere in the elections but these findings had not any direct influence on the course of the elections).

Disinformation campaigns conducted by one State aimed at altering the democratic election process in another State may be one of the most prominent examples of when a State-to-State disinformation campaign may violate international law, and the case of the Romanian presidential elections has just become the best illustration of that.

The Russian disinformation campaign can be analysed from the perspective of three norms of international law: the principles of State sovereignty and non-intervention, as well as the right to self-determination. For the sake of further analysis, disinformation should be understood as false or manipulated information, spread deliberately to influence public opinion and cause harm either to specific actors or to more abstract concepts like democracy.

Of the three norms mentioned above, whether there has been a violation of a State’s sovereignty is the hardest to determine in the case of disinformation campaigns. This is because sovereignty relates to ‘the highest, final, and supreme political and legal authority and power within the territorially defined domain of a system of direct rule’ (Morris, p. 178). Thus, to violate a State’s sovereignty, false or manipulated information spread deliberately by one State would have to infringe on the supreme authority that the other State has over its citizens and territory; or, in the context of the election process, a disinformation campaign would have to be conducted on such a scale and with such intensity that State organs would be unable to hold democratic elections. In the case under review, the aim of disinformation was not to prevent the State apparatus from performing its power to hold elections but to manipulate the voters and achieve specific results from the vote. Moreover, at the end of the day, the State authorities turned out to be resilient to Russian influence, as they managed to prevent it from having an impact on the election of the president of that State. 

Concerning the principle of non-intervention, the International Court of Justice said that ‘[a] prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. (…) Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.’ (Nicaragua judgment, par. 205). Thus, a wrongful intervention must, first of all, affect the so-called domaine réservé of every State, which certainly encompasses holding elections, and, secondly, must have a coercive character. Even though this latter element may be problematic to determine, today a number of scholars postulate taking a broader and more flexible approach to coercion so it would also encompass disinformation campaigns (see e.g. Baade; Wheatley; Rotondo and Salvati). Thus, it seems that coercion should be assessed only after considering several factors, such as what values were affected by the result of the disinformation campaign, how many individuals were affected by it, and how much the freedom to act by making certain choices was constrained due to the lack of accurate information. The Romanian Constitutional Court had little doubt that ‘aggressive promotion, carried out in circumvention of national electoral legislation and through the abusive exploitation of social media platform algorithms’ contributed to the victory of Georgescu. That in turn implies that Russia, via its disinformation campaign, violated the principle of non-intervention.

Last but not least, outside the colonial process, the right to self-determination is related also to ‘peoples organised as States’ (Wheatley, p. 66) and designates that a ‘State’s domestic political institutions must be free from outside interference. It therefore prohibits States from meddling in the affairs of another contracting State, in a manner that seriously infringes upon the right of that State “freely to determine [its] political status and economic, social and cultural development”’ (Cassese, p. 55). The application of the right to self-determination to disinformation campaigns has been recognized in the past, for instance after the campaign conducted by Russia against the 2016 presidential elections in the USA, it was stated that ‘the relevant victim (…) was not the American State but rather the American people, whose expression of political will was interfered with’ (Ohlin, p. 1595). Even though it is sometimes stated that it would be difficult for a target State to prove that the will of the people, as determined in the election process, was altered by the disinformation campaign and that in the absence of the influence operation, results of the voting would be different (Sanders, pp. 44-45), Romania’s case provides enough evidence to counter such claims: before the elections, Călin Georgescu had not been widely known, and gained popularity only after the social media campaign, which the Romanian authorities relate to Russia. It is also confirmed by the election forecasts – while election polls often turn out to be inaccurate, this time they were completely off the target, as they envisaged that Georgescu might gain 4-10% of votes, while eventually he scored nearly 23% (Całus). It clearly stems from this that the right to self-determination is at stake here, as Russia wished (and initially succeeded, even if not for long) to influence the political, social and economic status of Romania by enabling the ascendancy of a specific presidential candidate.

Summing up, despite there being little doubt that the Russian disinformation and interference campaign during the first round of the Romanian presidential elections violated at least the principle of non-intervention and the right to self-determination, the question remains of how Romania can react to these violations. Given the content of the declassified documents from the Romanian intelligence and the Ministry of Internal Affairs, it is hard to say if there is enough evidence to attribute the responsibility for the breaches to Russia under international law (Art. 4-8 ARSIWA), and consequently to determine that Russia committed internationally wrongful act (Art. 2 ARSIWA). That in turn means that, to avoid violating international law itself, the safest option for Romania would be to limit itself to retorsions (as States often do in similar cases). When it comes to the reaction of international organizations, the European Commission has already opened formal proceedings against TikTok on election risks under the Digital Services Act. Romania could also bring the case of Russian meddling in its elections to the UN Security Council, as disinformation has been previously a matter of debate in the Council (see e.g. S/PV.9171), even if the chances to adopt a resolution condemning the Russian actions are close to none. Likewise, the case of the Romanian presidential elections could be also discussed in the UN General Assembly (see e.g. A/RES/76/227). However, so far neither of these two UN organs has been engaged in the matter.

Note: all translations of the Romanian documents via Google Translate