Of all the parables which are now spiralling out of control and into a complex web of “cyber intervention”, the United States is found standing over troubled water. With the world’s most feared and revered intelligence agency, which has, in history, been responsible for several interventions and coups in foreign lands,1 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,2 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. An assumption 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 will 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 system3, and also into the White House system, going on to access then President Obama’s unclassified emails,4 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, addresses the question of whether invasive cyber penetration of this sort truly breaches international law. 5 Although non-binding, the Tallinn Manual (hereinafter referred to as “The Manual”) has achieved a status of unmatched authority on cyberspace-international law.6
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.”7 Hence, as per this, 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.”8
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.”9 Therefore, the act must involve the affairs of the state, external or internal and the act must be coercive in nature.10 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 be 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.11
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 War12, which means a declared war or an armed conflict, or a mere violation of the prohibition of intervention in the affairs of another state? A targeted cyber espionage in the form of a campaign to compel a certain outcome in a democratic election most certainly amounts to a coercive act. It is only that critics and reporters are getting cold feet in calling it a coercive act by Russia13, which can be understood given the vast implicating consequences that follow such a conclusion.
Cyber intervention is new in the espionage world, but despite neither physical absence nor 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 an act of coercion, although it might not be on a scale of a toppling of a government and electing a satellite government, as “coercion” and “intervention” 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 be limited to the realm of the cyber world. The United States would be, if the allegations are proven true and are declared as an “coercive act”, in a position to respond with a proportionate countermeasure.14
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. Since there has been no declared war by Russia or any armed conflict between the two countries as the definition of “Act of War”15 demands, we cannot conclude that this is an “Act of War”. However, it is a coercive act still. Also, such a legal reasoning is fairly undeveloped keeping in mind this 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 lense and the philosophy underlying such a perception needs to be explored further, given that we have a situation so extraordinary at hand.
By Swagat Baruah, Gujarat National Law University