Haley calls Russian election interference ‘warfare,’ but is it an armed attack?

Yesterday Reuters reported that U.S. 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, reports Reuters. “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 U.S. 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 U.S. 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 U.S.

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 cyber space.

Many experts restrict an “armed attack” in cyberspace to actions whose effects include immediate death or serious bodily injury. Professor Snyder, the editor of this blog, 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.

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently 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. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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