Hacking Elections: An Act of War?
Benjamin Dynkin, Barry Dynkin and Daniel Garrie write: Whether an action amounts to an Act of War under the international law of cyber warfare is a complex, intricate, legal question with serious political and military implications. It is not a vague, abstruse general term that can be filled with any meaning that might be politically expedient.
June 05, 2017 at 02:01 PM
9 minute read
On March 20, the House Intelligence Committee commenced with hearings on Russia's potential interference in the 2016 U.S. presidential elections. On the first day of the hearings, former FBI Director James Comey and NSA Director Admiral Michael Rogers were called to testify. In the wake of these hearings, many prominent members of both political parties have alleged that Russia's actions amount to an Act of War. Rep. Bonnie Watson Coleman (D-N.J.) claimed, in a House Homeland Security Committee meeting, that Russia's actions constituted “a form of war on our fundamental democratic principles.”1 Some took it even further: Sen. Ben Cardin (D-Md.) claimed that Russia's actions were akin to a “political Pearl Harbor.”2 Former Vice President Dick Cheney has also argued that “in some quarters, [Russia's actions] would be considered an act of war.”3 Senator John McCain (D-Ariz.), one of the original proponents of this viewpoint, was also one its most vocal advocates.4 Unfortunately, the term Act of War has a particular meaning under international law and is not appropriate as a metaphorical, rhetorical tool.
A bit of background on Russia's alleged actions is important to properly contextualize and conceptualize these actions in the broader spectrum of the law of cyber warfare. There are two key allegations against Russia: (1) That Russian actors gained unauthorized access to Democratic National Committee (and related individuals') email accounts, which allowed them to leak countless confidential and private emails, and (2) That Russian actors sponsored a misinformation campaign spreading “fake news” through social media and other sources.5
Allegations Fall Short
Even assuming that the underlying allegations, in their broadest and most expansive form, are correct, Russia's actions unambiguously fall substantially short of an Act of War under the international law of cyber warfare. Whether an action amounts to an Act of War is a complex, intricate, legal question with serious political and military implications. It is not a vague, abstruse general term that can be filled with any meaning that might be politically expedient. The fact that Russia's actions do not constitute an Act of War does not exculpate them from liability for their actions, if true. International law has developed to recognize many other forms of nation-state interference, and Russia's actions, if true, very likely amount to a violation of the international law prohibition on the interference of one nation-state on the internal affairs of another. While this might be a far less juicy headline, it is a far more legally and politically sound one. This difference is not merely aesthetic or intellectual.
To understand why Russia's alleged actions fall into this latter category, we must first understand what an Act of War actually is and why Russia's conduct falls short of that demanding standard. An analysis of whether any action is considered an Act of War must begin with UN Charter Article 2(4), which provides that “[a]ll 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.”
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