Over the last two weeks we have seen a flurry of action and reactions concerning the allegations of Russian interference in the 2016 US election. The most significant is the unclassified report released on January 6 entitled “Assessing Russian Activities and Intentions in Recent US Elections” (Russian Activities Report), and hence it should serve as the foundation for our analysis of the relevant international legal issues.
We international law specialists knew that intervention in the internal affairs of another State is a prohibited act in international law, but public facts for full assessment of what occurred in the Russian case were lacking. What is more, the precise content and scope of the international law principle of “non-intervention” is subject to debate and needs to be explored in applying it to cyberspace. My aim here is to provide a view on the law, and its application to the facts.
Put succinctly, an unlawful intervention occurs when (1) the action is directed at the domaine réservé (the internal affairs having to do with the sovereignty) of another State and (2) the action is coercive in nature. Since there is little doubt that a democratic election is an internal affair, I will argue why a foreign power weakening confidence in the legitimacy of the process should be interpreted as an act of coercion. That is, the disruption of a free and fair election strikes at a sine qua non for the State, and when coupled with the facts, there is a strong argument for classifying this operation as a violation by Russia of international law.
The Principle of Non-Intervention
While nonmilitary incursions into another State are less explicitly prohibited in treaty law, it can indeed be said that customary law forbids the lesser forms of intervention. Understandably, most attention has been on the “use of force” and “armed attacks” since these can be the most destructive to a State and its interests. And of course, these are the explicit terms used in the UN Charter to outlaw armed intrusions from abroad. Yet at issue here is action taken below those thresholds that is implicit in Article 2(1) of the UN Charter based on the sovereign equality of States.
In 1986 the International Court of Justice (ICJ) clarified in the Nicaragua v. United States judgment that even lower-intensity acts violate a State’s rights in customary law. The Court explained, “The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference; though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of customary international law” (paragraph 202).
The ICJ found the US had breached its international obligations (we might add other intrusions in Iran , Guatemala , or Chile ), but this is certainly not a story with just one culprit. One scholar has tallied the US and USSR/Russia to have engaged in partisan electoral meddling 117 times between 1946 and 2000.
Yet as the ICJ clearly specified, perfect compliance is not to be expected nor the determining factor for illegality (paragraph 186). Along with jurisprudence, how States react and speak publicly about such activity matters for determining what the law is.
In that regard, take note that Russia reiterated this principle in a joint declaration with China in June of 2016. It was agreed that both “fully support the principle of non-intervention in the internal or external affairs of States.” On top of this, Russia and China (along with 4 other States) pledged in a 2015 non-binding statement on this precise principle in cyberspace: “Not to use information and communications technologies and information and communications networks to interfere in the internal affairs of other States or with the aim of undermining their political, economic and social stability.”
Application in Cyberspace
Now, when it comes to cyberspace there are a host of difficulties for articulating the precise application of international law. Agreement among States has been slow due to the many new challenges posed by rapidly expanding networks of information and communication technologies (ICTs).
The issue of information security was first put on the UN agenda in 1998 with a draft resolution introduced by Russia. Since then the primary work through the UN has been done by the Group of Governmental Experts (GGE) on Developments in the Field of Information and Telecommunications in the Context of International Security. Although only a baby step was taken in its 2013 report concluding that “international law and in particular the UN Charter, is applicable,” their work has become more substantial.
Specifically, the 2015 report by the GGE clarified that States have jurisdiction over infrastructure located within their territory, must not use proxies to commit internationally wrongful acts, and should seek to ensure non-state actors do not use their territory to do so. The governmental experts were also able to agree that “States must observe, among other principles of international law, State sovereignty, sovereign equality, […] and non-intervention in the internal affairs of other States.” Of course, this last recognition is the most relevant here.
In addition, there are two other entities that can be identified—one group of experts and one State—that have helped shed light on State obligations in cyberspace. The Director of the Tallinn Manual Process, Michael Schmitt, pointed out in Just Security that the 2014 US submission to the GGE expressed an objective that was also the animating principle for the project he has managed in Estonia since 2009: to move beyond whether international law applies, and attempt to provide decision-makers with considerations for how it applies.
What Constitutes Coercion?
To determine if an intervention is illegal, there are two tests laid out in the ICJ Nicaragua judgment.
- The act must crossover into a domaine réservé: “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” (paragraph 205).
- The element of coercion must exist: “Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, […] defines, and indeed forms the very essence of, prohibited intervention” (paragraph 205).
While an election set to decide the next head of state represents a uniquely internal affair, the application of the second test concerning coercion is less obvious.
The practical meaning of this test has been fleshed out by Sean Watts, an expert on this topic. In a recent Just Security post, Watts laid out the essential starting point: “Although the prohibition of intervention is longstanding, States have not done much to clarify precisely where this threshold of coercion lies.”
Additionally, Watts contributed a chapter to an excellent publication on the subject of Cyber War: Law and Ethics for Virtual Conflict that precisely addresses our topic. Watts explores the challenges and various suggestions that have been put forward for interpreting the contours of coercion, and he looks to apply them to cyberspace. Perhaps most useful is the presentation of the pre-cyber work of McDougal and Feliciano which proposes coercion is determined by “consequentiality” (p. 782). To translate this model to ICTs, Watts suggests:
Applied to cyber means and acts, McDougal and Feliciano’s dimensions of coercion might consider the nature of state interests affected by a cyber operation, the scale of effects the operation produces in the target state, and the reach in terms of number of actors involuntarily affected by the cyber operation in question (p. 257).
In this formulation, and for our context, we see coercion can be understood as more than simply forcing an electoral outcome. The significance and expanse, both in scale and reach, of the interests targeted are relevant. Whether the Russian meddling was meant to achieve a particular result in the election (wishing to aid one candidate over another), there were also more important—even if less tangible—matters at stake.
Simply put, direct and substantial electoral intervention targets a sine qua non for the Sate and should be interpreted as an act of coercion. But before building a case with the facts found in the new intelligence report on Russia, I will first lay out the groundwork for the core interest at stake for the State: government legitimacy.
Legitimacy: A Sine Qua Non for the State
For a State to function, a legitimate authority must be established. Those who participate in the government, along with citizens who follow its rules, need to know who has the right to command, and by consequence the duty to obey. What confers legitimacy on the person in the highest position of government? From where does this legitimacy—uncoerced obedience—spawn? Can it be augmented or eroded? These are enormously complex questions that political philosophers have been struggling with for centuries with no dispositive answers available. Nevertheless, there is sufficient clarity for our purposes here.
This basic structure of a functioning society was most notably articulated by Max Weber in his “Politics as a Vocation” speech in 1918:
Like the political institutions historically preceding it, the state is a relation of men dominating men, a relation supported by means of legitimate (i.e. considered to be legitimate) violence. If the state is to exist, the dominated must obey the authority claimed by the powers that be. When and why do men obey? Upon what inner justifications and upon what external means does this domination rest?
This is neither the place to expand on each of the three typologies presented nor to respond to these critical queries. It will suffice to say that Weber points out elsewhere that “[t]oday the most usual basis of legitimacy is the belief in legality, the readiness to conform with rules which are formally correct and have been imposed by accepted procedure” (p. 131). After advancing “legality” as a dominant form of legitimate authority already at the beginning of the 20th century, Weber goes on present it as: “Rational grounds—resting on a belief in the ‘legality’ of patterns of normative rules and the right of those elevated to authority under such rules to issue commands (legal authority)” (p. 328).
In these words (and those I have italicized) we find great emphasis on procedure and rules. It is worth noting that it is not only Weber who put this formal validity forward as one pillar of legitimacy—it is a finding shared by nearly all scholars of the subject.
In a democracy, free and fair elections play the essential role of conferring legitimacy on an authority. That power must also be exercised legitimately once installed, but the starting point is an election that can be understood to reflect the will of those to be governed.
Partly because of its inherently interdisciplinary nature, there is precious little in the literature about how to measure the augmentation, stability or erosion of legitimacy. Developing tools for measuring—or even discussing—the effects of mucking up the initial process for establishing authority would be valuable. Nonetheless, the Russian cyber operations, at least in part, have targeted the legitimacy of the electoral process itself. Regardless of who emerged victorious, damaging the legitimacy of the process results in a weakened authority.
Describing the events in this manner raises worrisome dilemmas for the US going forward; such damage is not easy to repair. Yet for someone who has investigated legitimacy as a target in contemporary conflict, this cross-border cyber operation certainly appears directed at eroding this essential element of the State. As a result, legitimacy must be taken into account when assessing the facts in the new report.
The Russian Activities Report
The Tallinn Manual indicates that our attention is well placed to determine illegality: “As always, the decisive test remains coercion. Thus, it is clear that not every form of political or economic interference violates the non-intervention principle” (p. 45). Even so, some examples of electoral coercion are included in the manual:
Cases in point are the manipulation by cyber means 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. (p. 45)
Using these examples, while keeping in mind the gravity of the interest of legitimacy, assessment of the actions detailed in the Russian Activities Report is constructive.
As many of the conclusions of the intelligence report have been widely discussed, I want to focus here on the specific elements that suggest these actions surpassed the threshold of coercion. For instance, even though the US intelligence community assesses that Russia has long desired to weaken the liberal democratic order led by the US, these cyber activities demonstrated “a significant escalation in directness, level of activity, and scope of effort compared to previous operations” (p. 5). Hence, to begin, a different order of magnitude—branded as “unprecedented”—is under discussion.
Most importantly, this operation moved beyond conventional espionage. Spying operations are often carried out against political parties so officials at home can have an idea of what to expect of an incoming administration. But the Russian actions did not stop there.
The cyber operation to exfiltrate documents from the Democratic National Committee was only a starting point. Russia constructed two online fronts to feed and seed the stolen material to media sources that would best present the material in a damaging fashion for one particular candidate. Russian military intelligence created and used the Guccifer 2.0 persona and DCLeaks.com “to release US victim data obtained in cyber operations publicly and in exclusives to media outlets” (p. 2). Furthermore, it was multifaceted with efforts by state-funded media, Russian government agencies, third-party intermediaries and paid social media “trolls.”
Of course, one might ask if disseminating true material can be considered coercion. Is this “manipulation … of public opinion on the eve of elections?” While manipulation is especially relevant when it is patently unfair, an act of this kind essentially turns on skillfully influencing others to view something (a candidate in this case) in a certain manner. The fact that the material was shopped to different outlets and released piecemeal for maximum effect certainly speaks to the intent to manipulate.
Additionally, the spreading of “false news” was suggested to be coercion in the Tallinn Manual. This might seem as a step too far since it is a chain that includes numerous social media platforms and a mass of individuals, along with the original source. However, there is evidence concerning efforts by “the Kremlin’s principal international propaganda outlet RT (formerly Russia Today)” that is worth consideration:
On 6 August, RT published an English-language video called “Julian Assange Special: Do WikiLeaks Have the E-mail That’ll Put Clinton in Prison?” and an exclusive interview with Assange entitled “Clinton and ISIS Funded by the Same Money.” RT’s most popular video on Secretary Clinton, “How 100% of the Clintons’ ‘Charity’ Went to…Themselves,” had more than 9 million views on social media platforms. RT’s most popular English language video about the President-elect, called “Trump Will Not Be Permitted To Win,” featured Assange and had 2.2 million views. (p. 4)
While it is possible that the stories themselves were more nuanced (and perhaps not fake), the headlines are (mis)leading. By themselves, they might seem innocuous. But when taken in conjunction with the complete operation to influence opinion, these can be added to the case for coercion.
US Official Interpretation of Russian Actions
On December 29th, several actions were authorized in response to Russia’s intervention and thus provide a broader, although incomplete, view of how these actions were taken by the Obama administration. For a discussion of the takeaways, Ryan Goodman posted a sharp and clear piece here.
For our purposes, the most relevant point is that we do not know if the Obama administration has classified the Russian actions as coercion, and thus an international legal violation. The President’s pronouncement was ambiguous, while the public actions were not conclusive (recall the President’s statement that these “are not the sum total of our response to Russia’s aggressive activities”).
Nonetheless, in the Fact Sheet released that day, Russian intentions are enumerated that illuminate our point:
1) Influence the election;
2) Erode faith in U.S. democratic institutions;
3) Sow doubt about the integrity of our electoral process;
4) Undermine confidence in the institutions of the U.S. government.
Notably, three out of four goals attributed to Russia are related to the legitimacy of the electoral process, much as it has been describe here. The significance of the interest at risk is not lost on the Obama administration.
Just days after the election, US State Department Legal Adviser Brian Egan gave a noteworthy speech demonstrating commitment to transparency on the application of international law in cyberspace. His examples of a clear violation of the principle of non-interference through cyber do not appear to fit our context—interference “with another country’s ability to hold an election or that manipulates another country’s election results.” As a result, it brings greater attention to his call to the international community: “States need to do more work to clarify how the international law on non-intervention applies to States’ activities in cyberspace.”
It is humbly hoped that this analysis provides a nudge in that direction. Duly noting that legitimacy is a sine qua non for all States, the stakes are extremely high. Whether it is established through free and fair elections or other means, all State authorities require obedience to their command (when uncoerced, it is arguably all the more stable and sustainable). Thus the Russian cross-border cyber operation presents a strong motivation for the US to position itself firmly behind the principle of non-intervention and such targeting of the electoral process as coercion. Lest we forget one of the most ominous claims in the Russian Activities Report:
“We assess Moscow will apply lessons learned from its campaign aimed at the US presidential election to future influence efforts in the United States and worldwide, including against US allies and their election processes” (p. 5).