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Will Election Hacking Split NATO?

 

NATO’s Deputy Supreme Allied Commander Europe, General Sir Adrian Bradshaw, has reportedly suggested that NATO may consider Russian interference in upcoming European elections as an attack triggering collective defense measures. Such a move could put NATO and its member states at odds with the United States, which carefully avoided calling Russian interference in the U.S. election even a violation of international law. It would also leave the United States with a difficult choice of potentially changing its view of the legality of election interference or contradicting the legal views of its NATO allies.

NATO’s founding treaty states in Article 5 that NATO members “agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all” and that “if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence” will assist the victim state. In a 2014 summit declaration, NATO governments made clear that cyberattacks could trigger collective self-defense under Article 5 and explained that a decision to invoke NATO’s collective defense obligations would occur “on a case-by-case basis.” According to The Independent, Bradshaw suggested that election interference may be such a case, explaining that “allegations of interference in American and European elections and an international disinformation campaign could cause the definition of an ‘attack’ to be widened” for purposes of Article 5.

Such a move would go far beyond how the United States has treated Russian election interference. The United States has avoided even calling Russia’s actions a violation of international law, much less an armed attack. In his December statement announcing retaliatory measures against Russia, President Obama said only that the measures were “a necessary and appropriate response to efforts to harm U.S. interests in violation of established international norms of behavior,” not international law. Just days after the November election, then-State Department Legal Adviser Brian Egan suggested the kind of interference that the United States would consider to violate the international law prohibition on intervention. Egan explained “a cyber operation by a State that interferes with another country’s ability to hold an election or that manipulates another country’s election results would be a clear violation of the rule of non-intervention.”

“Armed attack” is a high threshold under international law, and as Ryan Goodman has explained, Russia’s interference in the U.S. election did not reach that level. Maybe a future cyberattack on election infrastructure could. But Bradshaw may have meant not that future election interference was likely to constitute an armed attack, but rather that NATO states should respond collectively to hostile actions below the armed attack threshold.

Differences between the United States and NATO allies about the legality of election interference could undermine their ability to mount such a unified response. The issue of whether the DNC hack and subsequent leaking of information violated the principle of non-intervention splits international law experts, and it may well divide states too. If France, Germany, and the Netherlands suffer interference akin to the DNC hack in their upcoming elections, they may not be as reticent as the United States about declaring a violation of international law. Because a violation of international law justifies the victim state in taking “countermeasures”— self-help actions that would be unlawful (such as violating a binding agreement) but for the prior international law violation—disagreements about whether the attacking state in fact violated international law may trigger serious disagreements about the legality of the victim state’s response and undermine NATO’s ability to react collectively. (The legality of collective countermeasures is yet another disputed point among lawyers and governments (see Draft Articles on State Responsibility, Art. 54, commentary para. 6).)

The continuing fears about Russian interference in upcoming European elections lend urgency to the need for state-to-state discussions about how to characterize election interference as a matter of international law. The United States—or at least the Obama Administration—staked out its position, but other states should weigh in and work toward a consensus among allies. Academics can continue to spar, but it is state practice that will and must settle the debate.

 

Image: Defense Secretary Jim Mattis, front row, center right, and fellow defense ministers pose for a photo at NATO headquarters in Brussels, Feb. 15, 2017. DoD photo by Air Force Tech. Sgt. Brigitte N. Brantley

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About the Author

is an Assistant Professor at UCLA School of Law. She previously served as Special Assistant to the Legal Adviser of the U.S. Department of State. Follow her on Twitter (@K_Eichensehr).