Swagat Baruah
In recent years, the world has seen a revival of the far-right in power, a revival of populist and racist politics and perhaps even a revival of the enmity between Russia and the United States, two of the most powerful countries in the world. Of course, the world of Cold War is far from reality today. Times have changed and so has the world order. The world is no longer a bi-polar one with two countries playing a zero-sum game and exercising great power against the rest of the world. With nuclear weapons becoming ubiquitous in today’s world, even North Korea has become a threat to the entire world with its recent threats of nuclear attacks.
But amidst all this, what comes as the most absurd revelation of sorts is the alleged Russian intervention in the 2016 U.S. Presidential Elections. The allegation itself is bound to startle any student or professor of international relations or diplomacy. 25 years after the end of the Cold War, Russia, the greatest nemesis of the United States has been accused of intervening in the ‘world’s greatest democracy’s’ elections. If this does turn out to be true, Russia will have the last laugh, not only because it was able to influence the politics of the ‘world’s greatest democracy’ by doctoring the very basic process of democracy i.e. electoral voting but also because the same election gave America one of its most whimsical and inexperienced Presidents, Donald Trump.
Sure, their enmity has departed from what Louis Halle described as ‘a tarantula and a scorpion in one box’.[1] And the revival of their enmity would also not see them fighting in one box, but in a flat circle, as the Cold War was stretched to obscure places during its peak, geo-political and sociological effects of which are felt and dealt with even today. The Cold War might have ended, but the battles never stop sprouting out of it. So, what if these allegations against Russia do turn out to be true? Would it indicate an already declared war against United States and would in force the United States to, in return, wage a war against Russia and its allies? What might the scenario look like post the investigation’s findings?
Understanding Cyber Intervention
Throughout the history of wars, covert actions or broadly, all intelligence activities have been mostly territorial in nature. However, post the cyber revolution, there arises many unaddressed questions in the broad sphere of international law. Does the act of a state of penetrating from a computer in its own territory into a computer or server located in another country violate the latter’s sovereignty? Does this amount to extraterritorial enforcement jurisdiction?
The concept of ‘sovereignty’ is a precept in international law, and includes among other things, the state’s “right to exercise jurisdiction over its territory and over all persons and things therein, subject to the immunities recognized by international law.”[2] although this might again provoke contemporary debates citing the example of the United States’ intelligence branches spying on its own citizens, which led the United Nations General Assembly to confirm its resolution of retaining the right of privacy in the digital age[3], invoking Article 12 of the Global Declaration of Human Rights:
Nobody shall be exposed to the intractable intervention in their private life, family affairs, their correspondence or home, and their honor reputation shall not be attacked. Everyone has the support of law against such interventions and attacks[4].
Cyber intervention is fairly unexplored or rather, still in its infancy when it comes to its legality and illegality with the current Russian intervention into the 2016 US Presidential Elections being one of the most recent major developments concerning the topic. The primary question of the ‘use of force’ by a state within the meaning of jus ad bellum rules have been attempted to be answered before.[5] Just like territorial intervention, which would involve physically carried out clandestine activities, and which will not necessarily involve a physical destruction but may also involve information collection and further analysis, cyber intervention also needs to answer about the circumstance when the intervention falls short of physical destruction but involves the more passive co-option of, for instance, foreign government communications networks to monitor communications or spread corrupted data.[6]
One of the main ingredients of the concept of ‘sovereignty’ is the principle of non-intervention.[7] In the landmark case of Nicaragua v. United States, the ICJ concluded that, at minimum, the principle of non-intervention:
“…forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. 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. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy.”[8]
The case was regarding America’s intervention in the state of Nicaragua and its funding of its anti-government rebels, famously known as the CONTRA rebels.[9] The ICJ was wise to add further that prohibited interventions included “methods of coercion”, even when these fell short of use of force,[10] thereby mandating the use of brute or dictatorial force, in effect depriving the state intervened against of control over the matter in question.[11] Hence, we arrive at an adage: all coercive acts are not intervention, but all forms of interventions are coercive acts. Drawing upon the alleged Russian intervention into the 2016 US Presidential Elections, a contemporary example of intervention (if proven), coercive intervention includes manipulation of “elections or of public opinion on the eve of elections, as when online news services are altered in favour of a particular party, false news is spread, or the online services of one party are shut off.”[12]
The Canadian Federal Court’s decision regarding the Canadian Security Intelligence Service Act (CSIS Act) warrant to investigate Canadians overseas[13] concluded that that intrusive surveillance (presumably involving electronic wiretaps) conducted by the CSIS on the territory of another state without its consent would violate that state’s sovereignty.[14] More significantly, subsequent controversy stemmed from CSIS’s nonobservance of this Canadian territorial expectation. CSIS, in coordination with Canada’s signals-intelligence service, outsourced the intercept function to (unnamed) “Five Eyes” partner intelligence agencies, which include the U.S. National Security Agency.[15] The CSIS had even outsourced the conduct that the Federal Judge had viewed as contrary to international law.
International law doesn’t address espionage per se and thereby on bleak grounds, declares that cyber espionage won’t be engaged as a matter of international law unless the aspects of espionage violates specific international legal prohibitions.[16] A cyber operation by a State directed against cyber infrastructure located in another State may violate the latter’s sovereignty. It certainly does so if it causes damage.[17] But we also must keep in mind that the litmus test discussed above is the concept of coercion, has been permeated over the vast field of ‘intervention’, and hence is restricted to yet undecided by the virtual requirement of the violation of certain virtual barriers, such as invading firewalls or hacking passwords.[18] Then, if the alleged Russian intervention does turn out to be true, and if it is proved that there was even the most minor intrusion, would it deprive the USA of enforcement jurisdiction? The doctrine discussed above clearly points out a cyber intrusion by hacking dose constitute an exercise of extraterritorial state power and hence a violation of sovereignty of another country. The transmission of electrical impulses to attempt to change or to change the status quo in a foreign state would definitely amount to intrusion. The question obviously would be then, what might be the consequences arising from such a case?
Kubrick’s hilarious yet scarily accurate depiction of the peak of Cold War in Dr. Strangelove is far away from how nuclear politics looks like today. However, the kind of madmen depicted in the movie are starkly similar to today’s US Administration.
A Brief History of Foreign Electoral Intervention
In lieu of the ongoing Senate Intelligence Committee investigations into the alleged hacking of the 2016 US Presidential Elections and the recent developments regarding the same, what we must first understand is the very invalidity of foreign electoral intervention in international law and its brief legal history.
The United States of America and the erstwhile Soviet Union, as was common knowledge yesterday as it is today, have seldom enjoyed good ties, the last sign of a good diplomatic relationship dating back to the Roosevelt-Stalin era, which was again, purely based on circumstantial necessities, although that did change mildly during the years that the two countries enjoyed a good relationship.[19]
But the good times didn’t last long, and with the death of Roosevelt and the election of Harry S. Truman in the most vital year of World War II, a President so fundamentally different from his predecessor made things difficult.[20] With the beginning of the Cold War and the eventual introduction of George Keenan’s ‘Containment Theory’ into American foreign policy and diplomacy, the relationship first arrived at a stalemate and then faltered completely, leading to decades of wars around the world and in countries which were even remotely associated with either of the two super-powers.[21]
Foreign electoral intervention is not new. In fact, the current allegations against Russia is a sort of a revival of the Cold War years when both the super-powers engaged fervently in other countries’ elections as and when they deemed fit. A 2016 study found that, among 938 global elections examined, the United States and Russia combined had involved themselves in about one out of nine, with the majority of those (68%) being through covert, rather than overt, actions. The same study found that “on average, an electoral intervention in favor of one side contesting the election will increase its vote share by about 3 percent,” an effect large enough to have potentially changed the results in seven out of 14 US presidential elections occurring after 1960.[22] According to the study, the U.S. intervened in 81 foreign elections between 1946 and 2000, while the Soviet Union or Russia intervened in 36.[23] The Soviet intervention includes the Soviet satellite states of post- World War II, which were directly reporting to the Kremlin government of Stalin.
The constant international turmoil had provoked the 1965 General Assembly resolution ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty’[24] which sought to recognize the principle of self-determination which had been laid down in a previous resolution and also in the Universal Declaration of Human Rights.[25] The United Nations declared the principle of non-intervention as essential to the fulfillment of the purposes and principles of the United Nations, thereby invalidating such practices as per international law, in a forum where both the United States and Russia are permanent members.
Hence, the prohibition of intervention as was contemplated by Oppenheim, is a corollary of every state’s right to sovereignty, territorial integrity and political independence.[26] In the Corfu Channel case, the International Court of Justice regarded “the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given right to the most serious abuses and as such cannot, whatever be the present defects in international organization, find a place in international law.”[27] The Nicaraguan case also needs to be discussed as it had made it clear that the principle of non-intervention prohibits a State “to intervene directly or indirectly, with or without armed force, in support of the internal opposition within a State.“[28] The indirectness provision is what one must stress on for the current case.
In June 2016, after detecting a possible hack and hiring, Crowdstrike, a cyber-security firm, to investigate, informed the Democratic National Committee that two distinct hacks, conducted by APT 29 (Cozybear) and APT 29 (Fancybear) had been executed against their system. The Washington Post broke the story, attributing the hacks to two organizations within the Russian government.[29] Soon thereafter, extracted information was leaked until approximately 18,000 emails between officials of the DNC were published. The hacks have been attributed with some degree of certainty to the government of the Russian Federation, and the backlash against the DNC, resulting from the publication of controversial correspondence between its officials, has yielded questions as to the purpose of these hacks as well as to the appropriate response to such intrusions.[30]
We see that the scenario here is completely different. It is not one of Goliath picking on David but instead a tussle between two arch-rivals. Legally, the question that we must seek to answer is whether by hacking emails and releasing them through a third party, did Russia coerce the United States into doing something it wouldn’t have or not doing something it would have otherwise? A massive hacking had been reported even prior to the elections, in 2015, and the ex-FBI director James Comey admitted to this in his testimonial hearing.[31] However, was the intervention in the 2016 elections, as is alleged, a direct act or an indirect act, so as to complete the litmus test laid down in the Nicaragua case? Almost 25 years after the Cold War ended, Russia is back in the news alongside its arch-rival United States for an alleged act, if it turns out to be true, which will be one unprecedented in history, political although not legal. Does it violate the norms of the international law? Can the United States pursue a valid case against Russia?
James Comey’s firing and subsequent testimonial revelations happen to be one of the most pivotal moments in the alleged Russian cyber intervention.
Why the Alleged Russian Intervention Might Be a Gross Violation of international Law
Of all the parables which are now spiraling out of control and into a complex web of ‘cyber intervention’, the United States seems to be at all but in rest. With the world’s most feared and revered intelligence agency, which has, in history, been responsible for several interventions and coups in foreign lands,[32] confessing that Russia conducted operations to assist Donald Trump in winning the presidency, stating that “individuals with connections to the Russian government”, previously known to the intelligence community, had given WikiLeaks hacked emails from the DNC and John Podesta,[33] the events as they unfold only tell of a bleak future.
For the sake of this article, let us assume that the Russian intervention has been proven to be true, in order to delve into the realm of international law and what effect an espionage on such a scale and through such a medium may hold. And if it does turn out to be true, it’ll be the first proven cyber intervention in a foreign election, that too, in the so called “world’s greatest democracy”.
The first such ‘intervention’ occurred back in 2015, when Russian hackers hacked into the Pentagon system[34], and also into the White House system, going on to access then President Obama’s unclassified emails,[35] which although unclassified, contained sensitive information such as schedules, email exchanges with ambassadors and diplomats, discussions of pending personnel moves and legislation, and, inevitably, some debate about policy.
The Tallinn Manual on International Law Applicable to Cyber Warfare, a private project involving international experts, addressed the question of whether invasive cyber penetration of this sort truly breaches international law. [36] Although non-binding, the Tallinn Manual (hereinafter The Manual) has achieved a status of unmatched authority on cyberspace-international law.[37] Now, what would the Russian intervention and hacking (if true) amount to in international law? The Manual states that “a cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force.” Furthermore, The Manual states that “cyber psychological operations intended solely to undermine confidence in a government […] does not qualify as a use of force.“[38] Hence, mere political coercion technically cannot amount to the “use of force” as laid down in Article 2(4) of the UN Charter:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[39]
However, The Manual also holds, in Rule 66 (Cyber Espionage) that “A State may not intervene, including by cyber means, in the internal or external affairs of another State.”[40] Therefore, the act must involve the affairs of the state, external or internal and the act must be coercive in nature.[41] A democratic election in a democracy can be, by all means, be considered the most vital element in its existence, its very essence, without which democracy must by observed to have failed. Now as per the principle of ‘self-determination’, non-intervention is vital to the United Nation’s goals and aims, and also, as it asserts, for the survival of any country.[42] We must also see to it that there is a meticulous bisection of the actions of Russia, as only coercion breaches the prohibition on intervention, by swaying the foreign land into acting in a certain way as desired by the country intervening (in this case, swaying the voters to vote for a particular candidate). To arrive at the main question: Do the actions of Russia, the alleged cyber espionage amount to an Act of War or a mere violation of the prohibition of intervention in the affairs of another state? A targeted cyber espionage in the form a campaign to compel a certain outcome most certainly amounts to a coercive act, and hence, an Act of War. It is only that critics and reporters are getting cold feet in calling it an Act of War[43], which is also understood given the wide implicating consequences that follow an Act of War. Cyber intervention is new in the espionage world, but despite physical absence or provocation, the Russian hackers have been able to coerce the citizens of the United States into doing something which they might not have chosen to do in circumstances otherwise. Therefore, it is no less of a coercion, although it might not be on a scale of a missile hitting a foreign land, as ‘Act of War’ is commonly understood.
The greatest fear right now is of escalation of the conflict, a retaliatory and justified attack by the United States on Russia, which may or may not only involve the realm of the cyber world. The United States would be, if the allegations are proven true and are declared as an ‘Act of War’, in a position to respond with a proportionate countermeasure.[44] The frightening part being that the retaliatory measure may not be just restricted to the cyber domain, and may involve whatever domain (land, water, air) as the country may deem fit, eventually increasing chances of a total war. Although such a legal reasoning is fairly undeveloped keeping in mind that is a situation or a crisis so fresh in international law, the precedent that will be set by calling it an Act of War may be highly dangerous, giving countries a wild card to retaliate in measures which might be disproportionate.
Cyber espionage and international law yet remains to be seen through the same lenses and the philosophy underlying it also needs to be explored, given that we have a situation so extraordinary at hand.
Conclusion
Espionage, as I have argued is a permissible form in both times of war and peace. However, trying to interfere in a country’s basic structure must be taken seriously and the countries responsible for it must be held accountable, legally and politically. If these allegations of cyber intervention in the 2016 US Presidential Elections against Russia are proved to be true, the United States under Donald Trump (temperament is not is attribute, as of now) might take some severe steps against Russia. It is not only a matter of saving the country’s basic institutions or its basic structures, it is also about its dignity and honour and protecting its image in front of the world. United State for example, is seen as the ‘harbinger of democracy and liberty’, and a doctored election in US even sounds appalling, leave alone the sight of such a reality.
This would mark a serious shift in the spheres of influence. However, unlike the emergence of Cold War in the 1940s when it started in the respective two countries, as in, the concept of containment having its inception in US itself and both the countries respectively pursuing antagonistic policies against each other, this time the war would start itself on a multi-dimensional sphere both countries have already stretched its influence in many countries around the world. A revival of Cold War in the 21st century might see its inception in the revival of battle between Russia and US in Afghanistan (for example), a country which has been a zone of conflict since the first Cold War.
This might even attract several other countries to such zones of conflict as the world today is a multi-polar one, and no great power would want to be left behind in a great war. Hence, due to the multi-polarity of the world, such a war may very easily escalate into a World War. Such thoughts are truly horrifying even if we think of it in our minds, given the stupendous progress humanity has made when it comes to technology. We might even have a war without any survivors, on either side.
References
[1] Louis Halle, Cold War as History (Harper Perennial, University of Michigan 1967), p. 53.
[2] Article 2, Draft Declaration on Rights and Duties of States, 1949 Y.B. INT’L L. COMM’N 287.
[3] General Assembly Resolution 68/167, 69th Session.
[4] Article 12 , Universal Declaration of Human Rights.
[5] Int’l Group. of Experts, NATO Coop. Cyber Defence Centre of Excellence, Tallinn Manual on the International Law Applicable to Cyber Warfare, p. 42 (Michael N. Schmitt edn., 2013).
[6] Craig Forcese, Pragmatism and Principle: Intelligence Agencies and International Law, Virginia Law Review, Vol. 102, p.79.
[7] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 202 (June 27).
[8] Ibid p. 205.
[9] Nicaragua: Growth of Opposition 1981–83, Ciao Atlas, Columbia International Affairs Online
[10] Supra note at 7.
[11] Oppenheim’s International Law: Peace 432 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).
[12] Supra note 4 at 45.
[13] Re: Canadian Security Intelligence Service Act, 2008 F.C. 301 (Can).
[14] Ibid pp. 2, 51, 62, 69, 71 (Can.).
[15] X (Re), 2014 FCA 249, pp. 6–11 (Can.).
[16] Supra note 4 at 30.
[17] Criag Forcese, Spies Without Borders: International Law and Intelligence Collection, 5 JOURNAL OF NATIONAL SECURITY LAW & POLICY, P.179.
[18] Supra note 4 at 16.
[19] Henry Kissinger, Diplomacy (Simon & Schuster, New York 1994) p. 397-399.
[20] Id. at p. 424.
[21] Supra note 19 at p. 447.
[22] Dov H. Levin, When the Great Power Gets a Vote: The Effects of Great Power Electoral Interventions on Election Results, International Studies Quarterly 60(2): 189–202.
[23] Id, p. 195-204.
[24] G.A. Res. 2131, U.N. Doc A/RES/2131(XX) (Dec. 21, 1965).
[25] G.A. Res. 217A, U.N. Doc A/RES/3/217 A (III) (10 December, 1948)
[26] Oppenheim’s International Law: Peace 428 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).
[27] “Corfu Channel case, Judgment, I.C. J. Reports 1949, P. 4.
[28] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168.
[29] Nakashima, Ellen, Russian Government Hackers Penetrated DNC, stole opposition research on Trump, Washington Post, June 14, 2016.
[30] Uria, Isabella, Hacking the Election Conference, The Information Society Project and the Center for Global Legal Challenges, Yale Law School
[32] Stuster, J. Dana, “Mapped: The 7 Governments the U.S. Has Overthrown“, Foreign Policy (Aug. 20, 2013).
[33] Entous, Adam, Nakashima, Ellen & Miller, Greg, “Secret CIA assessment says Russia was trying to help Trump win White House“, The Washington Post (Dec. 9, 2016)
[34] Kube, Courtney & Miklaszewski, Jim, “Russia hacks Pentagon computers“, NBC News (Aug. 6, 2015)
[35] Schmidt, Michael & Sanger, David, “Russian Hackers Read Obama’s Unclassified Emails, Officials Say“, The New York Times (April 25, 2015)
[36] International Group of Experts, NATO Coop. Cyber Defence. Centre of Excellence, Tallinn Manual on the International Law Applicable to Cyber Warfare 45 (Michael N. Schmitt ed., 2013), pp. 1-5.
[37] Goertz, Ian, “NATO in Cyberspace—How Important is the Tallinn Manual 2.0?“, NATO Association of Canada (Oct. 9, 2015)
[38] Supra note 36, at 202.
[39] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI
[40] Supra note 36, at 192.
[41] Id.
[42] G.A. Res. 2131, U.N. Doc A/RES/2131(XX) (Dec. 21, 1965).
[43] Dynkin, Benjamin, Dynkin, Barry and Garrie, Daniel, “Hacking Elections: An Act of War?”, The New York Law Journal (June 5. 2017)
[44] Supra note 36, at 84.
Swagat Baruah is a student of law at Gujarat National Law University and also writer-editor for Catharsis. He can be reached at swagatb13@gmail.com.
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