{"id":1533,"date":"2016-07-26T12:07:23","date_gmt":"2016-07-26T16:07:23","guid":{"rendered":"https:\/\/www2.law.temple.edu\/voices\/?p=1533"},"modified":"2016-07-26T12:07:23","modified_gmt":"2016-07-26T16:07:23","slug":"russia-dnc-hack-future-duty-non-intervention","status":"publish","type":"post","link":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/","title":{"rendered":"Russia and the DNC Hack: What Future for a Duty of Non-Intervention?"},"content":{"rendered":"

There are lots of important issues implicated by this morning\u2019s above-the-fold story<\/a> in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike<\/a>) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee\u2019s servers\u00a0and\u00a0<\/em>leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago<\/a>). \u00a0The domestic fall-out is already on evidence with theresignation of Debbie Wasserman Schultz<\/a> and I\u2019m sure we\u2019ll see other impacts here in Philadelphia at this week\u2019s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should).<\/p>\n

But what does international law have to say about a foreign government obtaining and leaking e-mails about another country\u2019s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the \u201cthreat or use of force against the territorial integrity or political independence of any state\u201d and there\u2019s no force at work in the current distribution of data otherwise intended to remain confidential. \u00a0But alongside the Charter\u2019s prohibition on the use of force, customary international law has long recognized a \u2018duty of non-intervention\u2019 that applies to State behavior in cases falling short of the use of force. \u00a0The question then becomes whether the duty applies to this case and if so to what end? \u00a0For my part, I see at least three\u00a0distinct sets of issues: \u00a0(i) attribution; (ii) the duty\u2019s scope; (iii) the relevance of international law more generally to cyber security incidents like this one.<\/p>\n

1. Attribution<\/strong> \u2014 Did Russia do this? \u00a0<\/strong>Attribution has both a factual and a legal element, both of which are at issue in the DNC case. \u00a0Factually, there\u2019s the question of who actually perpetrated these hacks \u2014 the hacker(s) named Guccifer 2.0 claims responsibility but cybersecurity investigators suggest two separate penetrations tied to two different Russian hacker groups, \u201cCozy Bear\u201d and \u201cFancy Bear\u201d<\/a> (international lawyers take note of how much more fun cybersecurity officials have in naming stuff than we do). \u00a0Making the factual case of who did what in hacks such as this is always difficult even as recent technological advancements have improved the ability to trace-back in certain cases. Just as importantly, however, there\u2019s always the possibility of a \u2018false flag\u2019 where the true perpetrator goes to great lengths to make investigators think some other actor was responsible (i.e, planting evidence\/code in a particular language or using coding patterns associated with a particular group of actors). \u00a0Ironically, the potential for a false flag means that a State caught red-handed can always invoke plausible deniability and suggest that they are themselves a victim as some other, unknown super-sophisticated actor is trying to frame them. \u00a0One can safely assume, for example, that Russia will make this argument in the DNC case. \u00a0Indeed, even in cases that appear clear cut like Sony Pictures, there are still\u00a0those who resist FBI\u2019s assertions of North Korean responsibility<\/a>.<\/p>\n

A second aspect of the attribution inquiry is a more\u00a0legal one \u2014 namely, assuming the individual actors who perpetrated the hack can be identified, when can their\u00a0actions be attributed to a State? This is not really at issue if the perpetrators are\u00a0in a\u00a0State\u2019s direct employ (e.g. military officers or intelligence officials). \u00a0But what happens if the perpetrators are\u00a0nonstate actors? \u00a0How much control would a State like Russia need to exercise over the DNC hack and later leak for it to bear responsibility? \u00a0That question is one that different international fora have answered differently in different contexts (the ICJ\u2019s Nicaragua case<\/a> and ICTY\u2019s Tadic case<\/a>\u2018s competing tests of effective versus overall control being the most famous\u00a0examples). \u00a0As such, it\u2019s difficult to say at present what relationship a\u00a0State must have with nonstate hackers or hacktivists to bear responsibility for what they do. \u00a0That may not be a bad thing overall, as one can imagine how a clear line might incentive States to proliferate behavior just short of crossing the line in lieu of being chilled from acting generally if the whole area is cast as a truly grey zone. \u00a0That said, the ability to debate what international law requires in terms of the State-nonstate actor relationship complicates\u00a0any application of the duty of non-intervention in individual cases.<\/p>\n

2. Scope: What behavior violates the duty of non-intervention? \u00a0<\/strong>Assuming that Russia was responsible (which I should be clear at this point is just an assumption), the next question is whether its hacking and leaking of DNC data violated the duty of non-intervention? \u00a0Here again, international lawyers will encounter some uncertainty as the precise scope of the duty has never been fully resolved. \u00a0To be clear, there\u2019s widespread consensus that a\u00a0duty of non-intervention\u00a0is<\/em>customary international law. \u00a0The problems are more the duty\u2019s contents. \u00a0The most famous formulation is undoubtedly that put forth by the ICJ in the\u00a0Nicaragua <\/em>case (para. 205), prohibiting interventions<\/p>\n

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<\/span> is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention<\/span>, is particularly obvious in the case of an\u00a0intervention<\/span> which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.<\/p><\/blockquote>\n

The ICJ\u2019s take suggests that intervention requires methods of coercion, forcing the victim State to make different choices than it might were it free of coercive interference. \u00a0This pairs with key parts of the earlier 1970 UN General Assembly Declaration on Friendly Relations Among States:<\/p>\n

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.<\/p>\n

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.<\/p><\/blockquote>\n

Thus, much of the debate over the duty of non-intervention has focused on identifyingwhich\u00a0<\/em>coercive measures below the use of force threshold are covered by the prohibition. But, looking at the DNC hack, there\u2019s little evidence that Russia is trying to coerce any particular\u00a0result. Indeed, it\u2019s not even clear that the goal of the hack was to support Trump\u2019s candidacy. \u00a0The operation could have other purposes; for example, I\u2019ve seen\u00a0suggestions that it might have been a response to Russian presumptions that the United States bears responsibility for\u00a0the Panama Papers<\/a>, a data breach that\u00a0caused some discomfort to Putin\u2019s administration. \u00a0Given this, might we not simply write this hack-off as a particularly visible form of espionage? \u00a0Is this case equivalent, for example, to the OPM hack? \u00a0That hack, while clearly contrary to U.S. national security interests,\u00a0was\u00a0not terribly\u00a0susceptible to claims of an international law violation given international law\u2019s longstanding, complicated relationship with surveillance (for more see\u00a0Ashley Deek\u2019s recent article<\/a>).<\/p>\n

I\u2019m not so sure, however, that the duty of non-intervention can be dismissed so quickly. \u00a0For starters, the hackers did not just take the data and use it to inform their own policies or behavior. They also leaked it, and did so in a way where the timing clearly sought to maximize attention (and corresponding impacts) on\u00a0the U.S. domestic political campaign process. \u00a0Perhaps we need to separate out this incident into two parts \u2014 the espionage (i.e., the hack itself) and the interference in the U.S. campaign using the fruits of that espionage. \u00a0Doing so suggests the leaking\u00a0might be the problematic act under a less quoted paragraph of the 1970 U.N. General Assembly Declaration\u2019s description of the duty of non-intervention:<\/p>\n

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.<\/p><\/blockquote>\n

Interference in \u2018any form\u2019 is clearly a broader formulation than coercive acts, suggesting that actions designed to impact public support for not just a particular candidate, but an entire \u201cpolitical\u201d party,\u00a0could implicate the duty of non-intervention here. \u00a0That said, there are others who\u2019ve been thinking much more carefully on the question of non-intervention and cyberspace than I have. \u00a0Later this year, for example, we should be able to read the fruits of Tallinn 2.0<\/em>, the much-anticipated follow-up to the Tallinn Manual<\/a>\u00a0and its take on international law applicable to cyberwar. \u00a0Tallinn 2.0 will offer the views of an independent group of experts on how international law regulates cyberspace outside of the use of force and jus in bello <\/em>contexts, including the duty of non-intervention. \u00a0I imagine I\u2019m not alone in wanting to know whether and how its contents will speak to the current DNC crisis.<\/p>\n

3. Remedies: \u00a0Does\u00a0International Law Really Matter Here?\u00a0<\/strong>Talking about this case in the last 24 hours, I\u2019ve had a couple of non-lawyer friends express skepticism over international law\u2019s relevance to\u00a0the DNC hack. \u00a0Given our age, my friends\u00a0hearken back to the Cold War, suggesting that Russia can and will ignore international law with impunity here (one of the\u00a0more sanguine among them, also pointed out that the United States has its own history of interfering in foreign elections, a point Jack Goldsmith\u00a0made earlier today<\/a> at Lawfare). And, to be sure, there\u2019s some merit to this critique. \u00a0After all, Russia\u2019s Security Council veto ensures the inability of that body to respond to these events in any way. And U.S. resistance to the jurisdiction of international courts and tribunals precludes any real chance that a third-party would review the case.<\/p>\n

Still, I think it\u2019s important to raise the international legal issues for at least three reasons. \u00a0First, and perhaps most obviously, international law does provide self-help remedies in cases of state responsibility, including retorsion (otherwise legal acts done in response to unlawful behavior) and counter-measures (behavior that would otherwise be unlawful but for the fact that it is itself in response to unlawful behavior). \u00a0Thus, if Russia was responsible for the DNC hack and that hack did violate the duty of non-intervention, it would free the United States to engage in counter-measures\u00a0vis-a-vis Russia that would otherwise be unlawful. \u00a0Time and space preclude me from surveying all the various counter-measure options that the United States might have, although I\u2019d note there\u2019s an interesting ancillary question of whether international law might limit the U.S. from pursuing certain counter-measures \u2014 such as interfering in Russia\u2019s own domestic political process \u2014 if doing so is analogous to\u00a0humanitarian obligations, which are non-derogable (i.e., you cannot violate the human rights of another State\u2019s nationals just because they violated your nationals\u2019 human rights). \u00a0I\u2019d welcome reader thoughts on such limits as well as a more open discussion of the types of counter-measures that might be legally available in this case or\u00a0any collective measures that could be in play.<\/p>\n

Second, there\u2019s the question of what happens if international law is not invoked or applied to this case? To the extent state practice can involve acts and<\/em> omissions, might\u00a0silence suggest that this sort of behavior (hacking and releasing political parties\u2019 internal communications) is perceived as lawful (or at least not internationally wrongful)? \u00a0In other words, how States react to this case will have follow-on effects on future expectations of responsible State behavior, leading to new norms of behavior in cybersecurity. \u00a0This is a topic on which I\u2019ve been spending A LOT of time lately with a forthcoming article in the American Journal of International Law\u00a0<\/em>that I\u2019ve co-authored with Martha Finnemore (we\u2019ve not posted it yet, but interested readers should e-mail me if they\u2019d like to see a draft).<\/p>\n

Finally, there\u2019s an academic reason to undertake this analysis. \u00a0In recent years, scholars have debated and emphasized ways to shrink the duty of non-intervention, under the banner of things like human rights (unseating the old assumption that international law did not care what a State did vis-a-vis its own citizens in its own territory) or humanitarian intervention (the idea that responding to a State\u2019s failure\u00a0to protect those within its borders is more important than the duty of other States to stay out of domestic jurisdiction matters). \u00a0I wonder if these arguments are relevant\u00a0to the current controversy? \u00a0Have they inadvertently created space for additional exceptions or otherwise shifted the scope and reach of any duty of non-intervention? \u00a0I might be wrong to worry about any such link, but I do think the issue warrants further study.<\/p>\n

Thus, I think this is an important case that bears close attention. \u00a0I\u2019d like to see how the United States responds publicly, if at all, to the allegations, not to mention how other States or actors view the behavior in question. \u00a0For international lawyers, moreover, I\u2019d hope to see further discussions of how to attribute responsibility in cyber security incidents as well as more detailed analyses of how the duty of non-intervention applies in cyberspace\u00a0than we have had to date. \u00a0To that end, I\u2019d welcome reader thoughts and comments. \u00a0What have I got wrong? \u00a0What am I missing?<\/p>\n

\n

This article originally appeared on Opinio Juris<\/a>.\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

There are lots of important issues implicated by this morning\u2019s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee\u2019s servers\u00a0and\u00a0leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago). \u00a0The domestic fall-out is already on evidence with theresignation of Debbie Wasserman Schultz and I\u2019m sure we\u2019ll see other impacts here in Philadelphia at this week\u2019s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should). But what does international law have to say about a foreign government obtaining and leaking e-mails about another country\u2019s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the \u201cthreat or use of force against the territorial integrity or political independence of any state\u201d …<\/p>\n","protected":false},"author":3,"featured_media":1535,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[],"audience":[],"coauthors":[48],"class_list":["post-1533","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-faculty-commentary"],"yoast_head":"\r\nRussia and the DNC Hack: What Future for a Duty of Non-Intervention? - Voices at Temple<\/title>\r\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\r\n<link rel=\"canonical\" href=\"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/\" \/>\r\n<meta property=\"og:locale\" content=\"en_US\" \/>\r\n<meta property=\"og:type\" content=\"article\" \/>\r\n<meta property=\"og:title\" content=\"Russia and the DNC Hack: What Future for a Duty of Non-Intervention? - Voices at Temple\" \/>\r\n<meta property=\"og:description\" content=\"There are lots of important issues implicated by this morning\u2019s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee\u2019s servers\u00a0and\u00a0leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago). \u00a0The domestic fall-out is already on evidence with theresignation of Debbie Wasserman Schultz and I\u2019m sure we\u2019ll see other impacts here in Philadelphia at this week\u2019s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should). But what does international law have to say about a foreign government obtaining and leaking e-mails about another country\u2019s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the \u201cthreat or use of force against the territorial integrity or political independence of any state\u201d …\" \/>\r\n<meta property=\"og:url\" content=\"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/\" \/>\r\n<meta property=\"og:site_name\" content=\"Voices at Temple\" \/>\r\n<meta property=\"article:published_time\" content=\"2016-07-26T16:07:23+00:00\" \/>\r\n<meta property=\"og:image\" content=\"https:\/\/www2.law.temple.edu\/voices\/cms\/wp-content\/uploads\/2016\/07\/nuclear-sign-1395578_1920.jpg\" \/>\r\n\t<meta property=\"og:image:width\" content=\"1920\" \/>\r\n\t<meta property=\"og:image:height\" content=\"1449\" \/>\r\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\r\n<meta name=\"author\" content=\"Duncan B. 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- Voices at Temple","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/","og_locale":"en_US","og_type":"article","og_title":"Russia and the DNC Hack: What Future for a Duty of Non-Intervention? - Voices at Temple","og_description":"There are lots of important issues implicated by this morning\u2019s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee\u2019s servers\u00a0and\u00a0leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago). \u00a0The domestic fall-out is already on evidence with theresignation of Debbie Wasserman Schultz and I\u2019m sure we\u2019ll see other impacts here in Philadelphia at this week\u2019s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should). But what does international law have to say about a foreign government obtaining and leaking e-mails about another country\u2019s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the \u201cthreat or use of force against the territorial integrity or political independence of any state\u201d …","og_url":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/","og_site_name":"Voices at Temple","article_published_time":"2016-07-26T16:07:23+00:00","og_image":[{"width":1920,"height":1449,"url":"https:\/\/www2.law.temple.edu\/voices\/cms\/wp-content\/uploads\/2016\/07\/nuclear-sign-1395578_1920.jpg","type":"image\/jpeg"}],"author":"Duncan B. Hollis","twitter_card":"summary_large_image","twitter_misc":{"Written by":"Duncan B. Hollis","Est. reading time":"12 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/#article","isPartOf":{"@id":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/"},"author":{"name":"Beckie Schatschneider","@id":"https:\/\/www2.law.temple.edu\/voices\/#\/schema\/person\/505b7875ef49205bf81379b92d47f94e"},"headline":"Russia and the DNC Hack: What Future for a Duty of Non-Intervention?","datePublished":"2016-07-26T16:07:23+00:00","mainEntityOfPage":{"@id":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/"},"wordCount":2375,"commentCount":0,"image":{"@id":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/#primaryimage"},"thumbnailUrl":"https:\/\/www2.law.temple.edu\/voices\/cms\/wp-content\/uploads\/2016\/07\/nuclear-sign-1395578_1920.jpg","articleSection":["Faculty Commentary"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/","url":"https:\/\/www2.law.temple.edu\/voices\/russia-dnc-hack-future-duty-non-intervention\/","name":"Russia and the DNC Hack: What Future for a Duty of Non-Intervention? 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