Russian Hacking and the U.S. Election: Against International Law?

Andrew Fletcher

Vol. 38 Associate Editor

There has recently been speculation by security experts and the Democratic Party that the Russian Government is using cyber-attacks to influence this year’s presidential election in the United States.[1] If true, the Russian Government could have the ability to shape America’s politics, while destabilizing its internal democratic system. Because of the threat that a cyber-attack potentially poses to a state’s democratic processes it is important to examine whether such an action is in violation of international law or norms and what, if anything, international law can do about it. In July of 2016, the Democratic National Committee’s computer network was hacked and thousands of emails were released. The emails contained many embarrassing revelations, such as a concerted effort to undermine the candidacy of Bernie Sanders in the Democratic primary election, leading to the resignation of the Chair of the Democratic National Committee. Many security experts believe that the Russian Government was behind the hack, and the FBI has reportedly been working on building a case against Russia.[2] There has since been rumors and speculation that the Russian Government could hack the voting systems in the United States to disrupt or determine the election results.[3] International law is clear on the subject of foreign intervention into the domestic affairs of another state. Chapter I, Article 2, paragraph 7 of the United Nations Charter states that nothing in the Charter authorizes the signatories “to intervene in matters which are essentially within the domestic jurisdiction of any state.”[4] The only exception to this non-intervention principle is found in Chapter VII, which authorizes the United Nations to intervene against “the existence of any threat to the peace, breach of the peace, or act of aggression.”[5] In 1965 the United Nations General Assembly reaffirmed, and seemingly expanded, the principle of non-intervention in a resolution. The resolution states: “No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal […] affairs of any other State.”[6] It goes on to state that every “State has an inalienable right to choose its political, economic, social and cultural systems without interference in any form by another State.”[7] The United Nations resolution makes it clear that non-physical intervention into a state’s domestic election is also considered to be a violation, not just the use physical force to sabotage an election within another state. Accordingly, it is reasonable to conclude that a Russian cyber-attack conducted to sabotage the democratic election within the United States would, likewise, violate international law and international norms as established by the United Nations. However, laws and norms against foreign intervention into other states’ domestic affairs, including elections, were severely undermined during the Cold War by the Soviet Union and, ironically, the United States. The Soviet Union used its power to enforce a political system within its satellite states, and the United States used covert tactics to influence or undermine elections in several countries, such as Italy, Iran, and Chile. International law was impotent, and the superpowers regularly interfered with domestic politics within weaker countries.[8] Unfortunately, long before cyber technology existed, the wanton sabotaging of elections during the second half of the twentieth century eroded any teeth that international law and norms may have had in preventing, current, foreign cyber-intrusions. Now countries can possibly disrupt the outcome of other countries’ elections without the need for physical coercion. This reality is most dangerous for democracies because elections are the means by which their governments or representatives are chosen. Barring advancements in cybersecurity that would render the issue moot, democracies must establish robust international laws and norms against using cyber-attacks to influence elections. If a cybersecurity global treaty becomes a reality, democracies, such as the United States, must refrain from undermining the principles of non-intervention, lest such undermining facilitates the future unraveling of their democratic systems. The hacking of the DNC highlights how important it is for all countries to adhere stringently to international laws and norms, whether convenient or not. All countries, rich or poor, large or small, powerful or weak, are vulnerable to cyber-intrusion. An enduring international norm against interference into a country’s domestic affairs could have helped to protect all countries against cyber-intrusion, making a violator an international pariah. By continuously violating international norms against interference into the domestic affairs of other countries the United States played a role in eroding such norms. In the past the United States intruded into the domestic affairs of weaker countries with impunity. Now the very foundation of the American democratic process, free and fair elections, are potentially vulnerable to foreign interference. Likewise, Russia could, in the future, become the victim of cyber-attacks in vulnerable areas within its own political or economic system. To help protect against cyber intrusion countries should establish international law on the matter and work assiduously to maintain the law’s integrity.

[1] Max Fisher, Why Security Experts Think Russia Was Behind the D.N.C. Breach, N.Y. Times (July 26, 2016), http://www.nytimes.com/2016/07/27/world/europe/russia-dnc-hack-emails.html?_r=0. [2] Mark Hosenball & Joseph Menn, FBI Trying to Build Legal Cases Against Russian Hackers: Sources, Reuters (Sept. 15, 2016), http://www.reuters.com/article/us-usa-cyber-russia-idUSKCN11M00H. [3] Bruce Schneler, By November, Russian Hackers Could Target Voting Machines, Wash. Post (July 27, 2016), https://www.washingtonpost.com/posteverything/wp/2016/07/27/by-november-russian-hackers-could-target-voting-machines/?utm_term=.4ea47e4e689a. [4] U.N. Charter art. 2, ¶ 7. [5] U.N. Charter art. 39. [6] G.A. Res. 2131, U.N. Doc A/RES/2131(XX) (Dec. 21, 1965). [7] Id. [8] Cold War, The Eleanor Roosevelt Papers Project, Geo. Wash. U. (Sept. 18, 2016), https://www.gwu.edu/~erpapers/teachinger/glossary/cold-war.cfm; Mark Kramer, Five Myths about the Cold War, Wash. Post (March 13, 2014), https://www.washingtonpost.com/opinions/five-myths-about-the-cold-war/2014/03/13/e8f00f56-a4a5-11e3-84d4-e59b1709222c_story.html?utm_term=.44004a55f7b6.