By Ryan White
(Re-published from Crossroads: Cybersecurity Law & Policy | Oct. 20, 2017) On Oct. 19, 2017, Reuters reported that US Ambassador to the United Nations Nikki Haley called last year’s Russian meddling in the Presidential election “warfare.” The comments came during a panel discussion alongside two former Secretaries of State, Madeleine Albright and Condoleezza Rice.
Haley explained, “When a country can come interfere in another country’s elections that is warfare. It really is, because you’re making sure that the democracy shifts from what the people want,” she said. “This is their new weapon of choice and we have to get in front of it.”
Haley’s comments touch on one of the most important questions when it comes to cyber space and cyber war. In 2011, the then legal adviser of the US state department Harold Koh clearly stated that International Law applies in cyber space. That much has broad support. The challenge comes when you try to apply it.
What qualifies as an “armed attack” in cyber space? There is no clear answer. While Haley didn’t use those exact words, the term “warfare” seems to be very close in nature to “armed attack.” If the US were to officially adopt this stance, it would have major implications. Why? Because nations that are signatories of the UN Charter have agreed to not use military force in international affairs unless authorized by the Security Council or in self-defense after an armed attack. Thus, activities like Russian interference in an election would open the door to a response from the United States.
But what type of response? Is it limited to a cyber response? Could it take kinetic action in the traditional military sense? Again, these are the ambiguities that exist when trying to apply even the most established principles of international law to cyberspace.
Many experts restrict an “armed attack” in cyberspace to actions whose effects include immediate death or serious bodily injury. Syracuse University College of Law Professor William C. Snyder, the editor of Crossroads, says he prefers to define “armed attack” as something that “tears at the fabric of society.” Perhaps the interference in last year’s election didn’t quite rise to this level. But it’s certainly plausible to see scenarios where, had the Russian attempts been more successful, the United States would have been in chaos. The election results sparked significant divisiveness as it is.
Imagine if the results were contested and we truly didn’t know the result of an election.
In context, Haley’s comments do not amount to an official position and aren’t changing the cyber landscape quite yet. But this type of thinking from our nation’s leaders could alter the way cyber activities occur between international actors.
Ryan White is a third-year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs.