In continuation of the thoughts laid down and the points made in my previous blog “Understanding Cyber Intervention”, and 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.1
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.2 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.3
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 1960.4 According to the study, the U.S. intervened in 81 foreign elections between 1946 and 2000, while the Soviet Union or Russia intervened in 36.5 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’6 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.7
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.8
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.”9 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.”10 The indirectness provision is what one must stress on for the current case.
In June 2016, after detecting a possible hack and hiring, Crowd strike, a cyber-security firm, to investigate, informed the Democratic National Committee that two distinct hacks, conducted by APT 29 (Cozy bear) and APT 29 (Fancy bear) had been executed against their system. The Washington Post broke the story, attributing the hacks to two organizations within the Russian government.11 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.12
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.13
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?
By Swagat Baruah, Gujarat National Law University