The Strategic Disadvantage Democracies face in Political Cyber-Interference

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A lock in front of a screen with data. Courtesy of blogtrepreneur.com/tech and Flickr.

Over the last decade, the military application of computer and network disrupting tactics has jumped from a hypothetical risk to a common reality. While hacking by cyber-criminals and other nefarious computer-based activity has been on the public radar for far longer, the military application of such tactics in State-to-State interactions seems to have proliferated in recent years. The 2016 U.S. presidential election brought to light a seemingly novel cyber-tactic in the geopolitical digital environment: the ability of foreign actors to interfere in the internal politics of a state through cyber-means. This tactic has exposed a gap in international jus ad bellum law that disproportionately threatens democratic societies. Legacy jus ad bellum international law, designed to cope with the realities of the Cold War era, is ill-equipped to deal with modern cyber-threats, especially political cyber-interference.

When current international law is applied to cases of political cyber-interference, these shortcomings become apparent. Because current international jus ad bellum law places an emphasis on physical destruction, cyber-influence campaigns or even direct cyber-manipulation of an election might not be classified as a “use of force” or an “armed attack” under the United Nations Charter, despite the fact that these tactics strike at the heart of State sovereignty and inhibit legitimate self-determination. Furthermore, the destruction-centered parameters set by current international law create a situation where non-democracies are afforded more protection from such tactics than democracies are. Democracies by their very nature provide avenues for peaceful political transition or change. These safety valves create a situation where political dissent sown by foreign actors is unlikely to cause violence. Instead, that dissent is likely manifest itself in voting or peaceful protest. In comparison to the democratic dynamic, political interference in non-democracies carries a high risk of violence and thus presents serious problems for the attacking State. Cases such as Syria or Egypt during the Arab Spring are clear examples of how authoritarian regimes might respond to political dissent with widespread violence. Because of a lack of legitimate mechanisms for peaceful political action, dissent created by foreign interference in a non-democracy is far more likely to manifest itself as political violence. If cyber-interference in a foreign regime results in violence, the attacked state has a more legitimate legal argument that it has suffered an armed attack or a use of force under the UN Charter.

The current legal environment creates a situation where democracies suffering from a political cyber-attack executed by a non-democracy are both especially vulnerable to such an attack and disproportionately constrained in the legal responses available to them. Because a non-democracy suffering such an attack could have a more cognizable argument that it had suffered an armed attack, it may be more likely to be able to use force in response. On the other hand, democracies suffering from political cyberattacks will almost never have recourse to a legal forcible response under current law.[1] If democracies are to maintain the integrity of their political systems, they must devise a method of deterring political cyber-interference without themselves breaching the requirements of international law. One possible method for attaining such flexible deterrence is through a combined approach leveraging both cyber and non-cyber responses, such as a combination of cyberattacks on limited targets unlikely to produce physical damage in concert with economic sanctions. The only alternative is for the international legal regime around cyberwarfare to develop in such a way that accounts for these new realities.

[1] Absent physical damage caused by a political cyberattack, democracies will be unable to classify such an attack as an “armed attack” under the UN Charter. The “armed attack” classification is the only use of force classification that provides for reciprocal use of force as a remedy under current international law. See generally Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. Rep. 14 (June 27). http://www.icj-cij.org/docket/files/70/6503.pdf; Tallinn Manual on the International Law Applicable to Cyber Warfare (Michael N. Schmitt ed., 2013). https://www.peacepalacelibrary.nl/ebooks/files/356296245.pdf. ; UN Charter Art. 2(4), 51. . http://www.un.org/en/sections/un-charter/chapter-i/index.html. http://www.un.org/en/sections/un-charter/chapter-vii/index.html