The Law of Cyber Interference in Elections

Abstract

Cyberattacks are increasing in frequency, publicity, and impact, making significant cyber episodes are the hallmark of modern foreign policy. One sub-set of these cyber attacks has been state-supported interference in elections. For this form of election interference, existing international law offers states limited response options. This predicament has led some state officials and international legal experts to champion creative interpretations of international law that would allow forceful retributions--or "forceful countermeasures"--on cyber election interferers to dissuade states from conducting online election interference. This paper explores both the existing international legal framework that applies to cyber interference in elections and the proposals to accept the possibility of forceful countermeasures. It concludes that although countermeasures are available above the use of force threshold, states should resist engaging in forceful countermeasures when addressing cyber election interference. States can employ other mechanisms, including drafting a new treaty regulating interference in the digital age, rather than stretching countermeasures doctrine beyond a prudent scope.

Keywords: law of war, international law, cyber, election interference, human rights