Scenario 01: Election interference

From International cyber law: interactive toolkit
Jump to navigation Jump to search
© mtkang. Licensed from Shutterstock.

In the run-up to a major election in State A, State B conducts a series of cyber incidents aimed at influencing the election outcomes. To a varying degree, these actions impact on the electoral campaign, the administration of the elections, as well as (eventually) the election results. Analysis in this scenario considers whether any of the specific actions, individually or taken together, may constitute violations of several rules of international law, specifically the obligation to respect the sovereignty of other States, the prohibition of intervention in the internal affairs of States, and the right to privacy of individuals.

1 Scenario[edit | edit source]

1.1 Keywords[edit | edit source]

Election interference, hybrid threats, sovereignty, prohibition of intervention, cyber espionage, cyber reconnaissance, critical infrastructure

1.2 Facts[edit | edit source]

[F1] State A has a major election (parliamentary or presidential) coming up.

[F2] In the weeks prior to the election, a series of cyber-enabled incidents takes place, all of which independent researchers later assert to have resulted from cyber operations of the intelligence service of State B. The incidents include:

  • 1) An upsurge in the publication of unverifiable information on specific candidates, particularly in media outlets known for the dissemination of “alternative facts” (as distinguished from facts supported by known, credible, tested sources) and for promoting views close to those held by the regime in State B. Social networks get busy with "trolling", discussions on candidates’ profiles with posts often coming from user accounts that have either been recently established or cannot be verifiably linked to a real person.
  • 2) A large batch of private emails, purportedly exchanged only among members of one candidate’s campaign team, is leaked onto a well-known, publicly-accessible internet site.
  • 3) Advertisements compromising the candidates' credibility are published in print and online media, while the entity who commissioned them is either clearly artificial or known to support these candidates' electoral opponents or the regime in State B.

[F3] During the election itself:

  • 4a) The website of State A's electoral commission is rendered inaccessible by a massive DDoS attack, and the accuracy and trustworthiness of results in the public opinion are thus placed in doubt.
  • 4b) Alternatively, the commission's website is subject to a defacement that falsely claims that a specific candidate is leading the polls. That information is published by foreign media outlets that are not supportive of the other candidates.

[F4] After the election:

  • 5) State A uses an electronic ballot counting system, which is separate from the commission's website. Sometime after the election, indications appear that the system had been tampered with. If true, this would imply that there likely were inaccuracies in counting, and therefore that the reported, official election results were inaccurate.

1.3 Examples[edit | edit source]

2 Legal analysis[edit | edit source]

For a general overview of the structure of analysis in this section, see Note on the structure of articles.

[L1] Since attribution of the cyber incidents described above to State B is assumed as a fact, the legal analysis focusses on whether State B has breached any specific rules of international law including with regard to State A.

[L2] The analysis considers the obligation to respect the sovereignty of other States, the prohibition of intervention, and violation of individuals' privacy rights. It also deals briefly with peacetime cyber espionage or cyber reconnaissance and their bearing on the legality of State B's cyber operations.

2.1 Obligation to respect the sovereignty of other States[edit | edit source]

Sovereignty is a core principle of international law. According to a widely accepted definition of the term in the 1928 Island of Palmas arbitral award,

[s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.[1]

Multiple declarations by the UN,[2] NATO,[3] OSCE,[4] the European Union,[5] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty. However, there is some debate as to whether this principle operates as a standalone rule of international law, the breach of which gives rise to state responsibility.
  • For the proponents of this view, the prohibition on violating the sovereignty of other States is a substantive primary rule of international law, the breach of which is an internationally wrongful act. This view was unanimously accepted by the experts who prepared the Tallinn Manual 2.0.[6] It has also been adopted by several States including Austria,[7] the Czech Republic,[8] France,[9] Germany,[10] Iran,[11] and the Netherlands.[12]
  • By contrast, the opposing view is that sovereignty is a principle of international law that may guide State interactions, but it does not amount to a standalone primary rule.[13] This view has now been adopted by one State, the United Kingdom,[14] and has been advocated by the U.S. Department of Defense General Counsel.[15] By this approach, cyber operations never violate the sovereignty of a State, although they may constitute prohibited intervention, use of force or other internationally wrongful acts.

The remainder of this section proceeds on the basis of the former “sovereignty-as-rule” approach. Those espousing the latter “sovereignty-as-principle” approach should refer to other relevant sections of the legal analysis (such as that on the prohibition of intervention).

It is understood that sovereignty has both an internal and an external component.[16] In the cyber context, the “internal” facet of sovereignty entails that “[a] State enjoys sovereign authority with regard to the cyber infrastructure, persons, and cyber activities located within its territory, subject to its international legal obligations.”[17][18]

As a general rule, each State must respect the sovereignty of other States.[19] It is clear that a cyber operation with severe destructive effects, comparable to a “non-cyber” armed attack or a use of force against a State, constitutes a violation of its sovereignty; however, with more subtle cyber operations, the question is far from settled.[20]

The following modalities, highlighted in the Tallinn Manual 2.0, represent different ways of determining what a “sovereignty violation” might mean in the context of cyber operations:

  1. A State organ conducting cyber operations against a target State or entities or persons located there while physically present in the target State's territory violates the target State's sovereignty.[21] This was agreed by all Experts drafting the Manual; however, “a few” of the Experts thought that the extensive State practice carved out an exception for espionage operations.[22]
  2. Causation of physical damage or injury by remote means;[23] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[24]
  3. Causation of a loss of functionality of cyber infrastructure: although the Tallinn Manual 2.0 experts agreed that a loss of functionality constituted “damage” and thus a breach of sovereignty, no consensus could be achieved as on the precise threshold for a loss of functionality (the necessity of reinstallation of operating system or other software was proposed but not universally accepted);[25] Below this threshold, there was no agreement among the Experts whether operations that do not cause physical consequences or a loss of functionality qualify as a violation of sovereignty.[26]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[27] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[28]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[29]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Germany[30] and the Netherlands.[31] An alternative test has been proposed by France, which argues that a breach of sovereignty occurs already when there is “any unauthorised penetration by a State of [the victim State’s] systems”.[32]

Attributing the relevant cyber operation to a State different from the target State is a necessary prerequisite for qualifying the cyber operation as a violation of the target State's sovereignty.

Whether non-State actors can violate territorial sovereignty on their own is a matter of disagreement.[33]

[L3] The dissemination of 'alternative facts' (incident 1) does not constitute a violation of sovereignty of State A, as these materials are mere propaganda, which does not interfere with inherently governmental functions (see option 4 above),[34] nor does it runs afoul of the other options. Moreover, such propaganda is likely within the scope of the international human right to freedom of opinion and expression.

[L4] The publication of the emails on a readily-accessible website (incident 2), or rather the exfiltration of the emails before their publication, could be a violation of State A's sovereignty, if State B obtained them in a cyber operation conducted by its agents present in State A's territory (see option 1 above). The publication itself does not violate State A's sovereignty.

[L5] The publication of the advertisements (incident 3) is not a violation of State A's sovereignty, according to the above options.

[L6] The DDoS and defacement of the website of the electoral commission (incidents 4a-4b) could be an interference with inherently governmental functions or critical infrastructure that is virtual rather than physical (see option 4 above), if the website was essential to the conduct of the elections (for instance, if State A allows for online voting), it was rendered inoperable and the result of the elections could have been affected (for instance, some voters could not cast their vote). Alternatively, if the loss of functionality is more serious or permanent, option 3 above can also apply.

[L7] The tampering with the electronic ballot system is a clear interference with inherently governmental functions (see option 4 above) and hence a violation of State A's sovereignty.

# Incident Violation of sovereignty?
1 Dissemination of ‘alternative facts’ NO
2 Leaking a candidate’s campaign team emails (or rather obtaining them for that purpose). MAYBE, depending on how exactly the e-mails were obtained
3 Publishing advertisements NO
4a DDoSing the website of the electoral commission MAYBE (interference with ‘inherently governmental functions’), MAYBE NOT (is the website essential to the elections?)
4b Defacing the website of the electoral commission MAYBE (interference with ‘inherently governmental functions’), MAYBE NOT (is the website essential to the elections? Was it rendered inoperable?)
5 Tampering with the electronic ballot system YES (interference with ‘inherently governmental functions’)

2.2 Prohibition of intervention[edit | edit source]

Prohibition of intervention
The obligation of non-intervention, a norm of customary international law prohibits States from intervening coercively in the internal or external affairs of other States. Prohibited intervention was authoritatively defined by the International Court of Justice in the judgment on the merits in the 1986 case Nicaragua v United States:

A prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.[35]

In order for an act, including a cyber operation, to qualify as a prohibited intervention, it must fulfil the following conditions:
  1. The act must bear on those matters in which States may decide freely. The spectrum of such issues is particularly broad and it includes both internal affairs (such as “choice of a political, economic, social, and cultural system”[35] or the conduct of national elections[36]), and external affairs (“formulation of foreign policy”;[35] “recognition of states and membership of international organisations”[36])—the so-called domaine réservé of States.[37] The content of the domaine réservé is determined by the scope and nature of the state's international legal obligations.
  2. The act must be coercive in nature. There is no generally accepted definition of “coercion” in international law. However, in the cyber context, the Tallinn Manual 2.0 suggests that “the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State”.[38] The “key is that the coercive act must have the potential for compelling the target State to engage in an action that it would otherwise not take (or refrain from taking an action it would otherwise take)”.[39] This approach distinguishes coercing or compelling the target State from merely influencing it by persuasion or propaganda and from causing nuisance without any particular goal.[40] The element of coercion also entails the requirement of intent.[41]
  3. Finally, there has to be a causal nexus between the coercive act and the effect on the internal or external affairs of the target State.[42]

[L8] In the present scenario, the conduct that resulted in the manipulation of the election results (incident 5) would likely be considered as coercive. This is because the resulting effect is to deprive State A of the ability to choose its political representatives on the basis of the free expression of the will of the electorate.  By contrast, influence operations targeted against the electorate in State A (incidents 1–3) would likely not reach the level of coercion and, as such, would not amount to prohibited intervention.

[L9] Every breach of the prohibition of non-intervention constitutes a violation of sovereignty and an internationally wrongful act, and can justify a response from the target State according to the law of State responsibility, such as countermeasures, if further conditions are met.

2.3 Espionage[edit | edit source]

Peacetime cyber espionage
Peacetime espionage has been traditionally considered as unregulated by international law. This is also reflected in the Tallinn Manual 2.0, which posits that ‘[a]lthough peacetime cyber espionage by States does not per se violate international law, the method by which it is carried out might do so.’[43]

However, the methods of peacetime cyber espionage are varied and the legal consensus is almost non-existent with regard to cyber operations below the threshold of use of force or armed attack.

It must be noted that although cyber espionage operations are generally not illegal from the perspective of international law, they are usually prohibited according to the domestic law of the target State. Moreover, the acting State’s authorities will also typically be subject to specific domestic law prescriptions pertaining to the conduct of foreign intelligence operations.

Conversely, the mere fact that an operation is a cyber espionage operation does not make it legal in international law, according to a majority of the experts drafting Tallinn Manual 2.0.[44] According to a minority of the experts, espionage creates an exception for certain otherwise illegal cyber operations.[45]

[L10] With regard to incident 2 from the case at hand (obtaining and publishing private emails among individuals on a candidate’s campaign team), there are several options by which the cyber espionage operation can be in breach of international law. For instance, the operation can be interfering with individual human rights according to international law, such as the right to privacy; in that case, the State launching the operation must have a legal ground, legitimate justification, and it must be necessary, otherwise it will be in violation of international law.  Another possible violation of international law would be to obtain the emails pursuant to a ‘close access’ operation, i.e. by physically sending individuals to the territory of the target State without its consent and then directing them in the operation in question by utilizing their proximity, such as by downloading emails from a server onto a portable device.

[L11] With regard to incident 5, a cyber espionage operation probably preceded the actual sabotage of the electronic ballot system; if this is the case, then a more academic than practical question may be raised about the legality of the cyber espionage operation. Most of the Tallinn Manual 2.0 Experts would consider such a cyber espionage operation as an integral part of the operation to sabotage the electronic ballot system as usurpation of inherently governmental functions (and/or harm to critical infrastructure) , and hence illegal in itself as a violation of sovereignty or prohibited intervention; however, a few of the Experts would dissent from such a view.

3 Checklist[edit | edit source]

  • Sovereignty:
    • What is the position of the analyst / interlocutor on whether sovereignty is a standalone primary rule of international law?
    • Were any individuals associated with an outside State physically present in the domestic State’s territory without the latter’s consent?
    • Did the operation occasion a loss of functionality of cyber infrastructure or critical infrastructure?
    • Did the operation interfere with or usurp inherently governmental functions of the domestic State another State?
  • Prohibition of intervention:
    • Did the operation influence any of those matters in which States are allowed to decide freely?
    • Did the operation amount to a coercive act against the victim State?
  • Peacetime cyber espionage:
    • Did the operation clearly constitute espionage, or was it better characterized as cyber reconnaissance or information-gathering?
    • Did the operation involve ‘close access’, i.e. the physical sending of individuals to the territory of the target State without its consent?
  • International human rights law:
    • Did the operation interfere with individual or group rights guaranteed under international human rights law? If so, did it have a legitimate justification under that body of law?

4 Appendixes[edit | edit source]

4.1 See also[edit | edit source]

4.2 Notes and references[edit | edit source]

  1. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  2. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  3. North Atlantic Treaty Organization, 'Wales Summit Declaration' (issued by the Head of State and Government participating in the meeting of the North Atlantic Council in Wales (5 September 2015) para 72.
  4. Organization for Security and Cooperation in Europe, Decision No. 1202, OSCE Confidence-Building Measures to Reduce the Risks of Conflict Stemming from the Use of Information and Communication Technologies (Permanent Council, 10 March 2016) PC.DEC/1202.
  5. Council of the European Union,"Council Conclusions on the Joint Communication to the European Parliament and the Council: Resilience, Deterrence and Defence: Building strong cybersecurity for the EU" (Council conclusions, 20 November 2017).
  6. Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 ChiJIntlL 30,40; Tallinn Manual 2.0, commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’).
  7. Austria, Pre-Draft Report of the OEWG - ICT: Comments by Austria (31 March 2020), stating that ‘a violation of the principle of State sovereignty constitutes an internationally wrongful act – if attributable to a State – for which a target State may seek reparation under the law of State responsibility’.
  8. Czech Republic, Statement by Mr. Richard Kadlčák, Special Envoy for Cyberspace, 2nd substantive session of the Open-ended Working Group on developments in the field of information and telecommunications in the context of international security (11 February 2020), stating that ‘[t]he Czech Republic concurs with those considering the principle of sovereignty as an independent right and the respect to sovereignty as an independent obligation.’
  9. French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’, 9 September 2019, stating that ‘Any unauthorised penetration by a State of French systems or any production of effects on French territory via a digital vector may constitute, at the least, a breach of sovereignty’.
  10. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 3, noting that ‘Germany agrees with the view that cyber operations attributable to States which violate the sovereignty of another State are contrary to international law’.
  11. Iran, ‘Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace’ (July 2020), para 4 (‘Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state.’).
  12. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), stating that ‘countries may not conduct cyber operations that violate the sovereignty of another country’.
  13. Gary P. Corn and Robert Taylor, ‘Sovereignty in the Age of Cyber’ (2017) 111 AJIL Unbound 207, 208 (arguing that sovereignty is ‘a principle of international law that guides state interactions’).
  14. Jeremy Wright, ‘Cyber and International Law in the 21st Century’ (23 May 2018) (stating that he was ‘not persuaded that we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention. The UK Government’s position is therefore that there is no such rule as a matter of current international law’); see also Memorandum from JM O’Connor, General Counsel of the Department of Defense, ‘International Law Framework for Employing Cyber Capabilities in Military Operations’ (19 January 2017) (considering that sovereignty is not ‘a binding legal norm, proscribing cyber actions by one State that result in effects occurring on the infrastructure located in another State, or that are manifest in another State’), as cited by Sean Watts & Theodore Richard, 'Baseline Territorial Sovereignty and Cyberspace' (2018) 22 Lewis & Clark L. Rev. 771, 829.
  15. Paul C. Ney, DOD General Counsel Remarks at U.S. Cyber Command Legal Conference, 2 March 2020, arguing that ‘the Department believes there is not sufficiently widespread and consistent State practice resulting from a sense of legal obligation to conclude that customary international law generally prohibits such non-consensual cyber operations in another State’s territory’.
  16. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  17. Tallinn Manual 2.0, rule 2.
  18. Sovereignty over cyber infrastructure derives from the traditional concept of sovereignty, independent of the use of cyberspace. See Wolff Heintschel von Heinegg, 'Territorial Sovereignty and Neutrality in Cyberspace' (2013) 89 Int’l L. Stud. 123 (noting that '[t]erritorial sovereignty [..] implies that, subject to applicable customary or conventional rules of international law, the State alone is entitled to exercise jurisdiction, especially by subjecting objects and persons within its territory to domestic legislation and to enforce these rules.')
  19. UN GA Res 2625 (XXV) (24 October 1970) (Friendly Relations Declaration), preamble (emphasizing “that the purposes of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with the requirements of this principle in their international relations”); Tallinn Manual 2.0, rule 4.
  20. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  21. See, eg, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment) [2015] ICJ Rep 665, 704–05, paras 97–99 (holding that the presence of Nicaragua’s military personnel in the territory under Costa Rica’s sovereignty amounted to a violation of Costa Rica’s territorial sovereignty); see also Tallinn Manual 2.0, commentary to rule 4, para 6.
  22. Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9.
  23. Tallinn Manual 2.0, commentary to rule 4, para 11.
  24. Tallinn Manual 2.0, commentary to rule 4, para 12.
  25. Tallinn Manual 2.0, commentary to rule 4, para 13.
  26. Tallinn Manual 2.0, commentary to rule 4, para 14.
  27. Tallinn Manual 2.0, commentary to rule 4, para 15.
  28. Tallinn Manual 2.0, commentary to rule 4, para 16.
  29. Tallinn Manual 2.0, commentary to rule 4, para 18.
  30. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  31. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  32. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 6.
  33. In favour: see, eg, Theodore Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’ (2011) 24 LJIL 73, 84; Marcelo Kohen, ‘The Court’s Contribution to Determining the Content of Fundamental Principles of International Law’ in Giorgio Gaja and Jenny Grote Stoutenburg (eds), Enhancing the Rule of Law through the International Court of Justice (Brill 2012) 145. Against: see, eg, Tallinn Manual 2.0, commentary to rule 4, para 3.
  34. Tallinn Manual 2.0, commentary to rule 4, para 29.
  35. 35.0 35.1 35.2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 205.
  36. 36.0 36.1 Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3.
  37. See, for example, Katja Ziegler, “Domaine Réservé”, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated April 2013) (defining the domaine réservé as those “areas where States are free from international obligations and regulation”).
  38. Tallinn Manual 2.0, commentary to rule 66, para 19.
  39. Tallinn Manual 2.0, commentary to rule 66, para 21; see also Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3.
  40. Tallinn Manual 2.0, commentary to rule 66, para 21.
  41. Tallinn Manual 2.0, commentary to rule 66, paras 19, 27.
  42. Tallinn Manual 2.0, commentary to rule 66, para 24 (The exact nature of the causal nexus was not agreed on).
  43. Tallinn Manual 2.0, rule 32.
  44. Tallinn Manual 2.0, rule 32 and commentary to rule 32, para 6.
  45. Id.; Ashley Deeks, 'An International Legal Framework for Surveillance' (2015) 55 VA.J.INT’LL. 291, 302-3.

4.3 Bibliography and further reading[edit | edit source]

4.4 Contributions[edit | edit source]

Next: Scenario 02: Political espionage