Scenario 11: Sale of surveillance tools in defiance of international sanctions

In spite of an international embargo, a State procures and uses exploits developed by a private entity in order to pursue its political objectives. Analysis in this scenario considers whether the use of the exploits violates the human rights obligations of the acting State or the sovereignty of other States. It also looks at which States are responsible for breaking the embargo and whether the Convention on Cybercrime has any bearing on the matter.
== Scenario ==
=== Keywords ===
International sanctions, malware, attribution, cybercrime, international human rights law, sovereignty, surveillance, cyber espionage
=== Facts ===
[F1] A private company, incorporated in State A, searches for, purchases, and sells software vulnerabilities, and produces ready-made tools for clandestine access to, and surveillance of, computer systems and networks (“surveillance tools”). 
[F2] There are allegations that the company has sold a package of surveillance tools to State B (incident 1). State B's security police has allegedly used these tools against human rights activists, journalists, and other dissidents both in its territory and abroad (incident 2). State B has been subject to an embargo under a UN Security Council resolution, which, inter alia, requires all UN member states to “prevent the direct or indirect supply, sale or transfer” Note: the wording of the resolution is based on UN SC, Resolution 2321 (2016) Adopted by the Security Council at its 7821st meeting, on 30 November 2016 (which, among other measures, expands the arms embargo against the DPRK to the items listed in a new conventional arms dual-use list). Compare also Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items consolidated version as of 16 December 2017, Annex IIe, Part 3, section 1(1)(d) (disallowing, under specific conditions, the export of items which use “interception technologies and digital data transfer devices for monitoring mobile phones and text messages and targeted surveillance of Internet use”). For an analysis of export controls of cyber surveillance technologies, see Bromley M, ‘Export Controls, Human Security and Cyber-Surveillance Technology: Examining the Proposed Changes to the EU Dual-use Regulation’ (2017) SIPRI. through their territories or by their nationals of dual-use technologies, some of which may be used in surveillance tools, to State B, citing widespread persecution of the dissidents in that State.
[F3] The company gets hacked by an unknown group of hackers and information about its deals with State B is subsequently leaked to the public, along with the surveillance tools (incident 3). State A declares that it will not prosecute the company or any of its executives and employees because their activities do not constitute a criminal offence under its domestic law (incident 4).
 
[F4] States A and B are both parties to the International Covenant on Civil and Political Rights (ICCPR).International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). State A is Party to the Convention on Cybercrime.Council of Europe, Convention on Cybercrime (adopted 23 November 2001, entered into force 1 July 2004), ETS 185; even though the Convention is a Council of Europe treaty, it has a reach beyond the region; among the 61 Parties (as of 3 October 2018) there are, for instance, United States, Canada, Japan, Philippines, Australia, Israel, and Argentina.
=== Examples ===
* The Hacking Team Hack (2015)
* Ethiopian surveillance of journalists abroad (2017)
== Legal analysis ==
For a general overview of the structure of analysis in this section, see Note on the structure of articles.
[L1] The legal analysis of the present scenario first deals with the attribution of the described incidents, and then examines possible breaches of the UN SC Resolution imposing the embargo, obligations arising from international human rights law, the obligation to respect the sovereignty of other States, and the obligation to harmonize domestic law in accordance with the Convention on Cybercrime.
=== Attribution ===
[L2] Incident 1 (Sale of the tools): State organs of State A are not directly involved in the sale of the surveillance tools. However, the conduct of a State leading to an internationally wrongful act can consist of an action or an omission.ILC Articles on State Responsibility, Art 2. In this case, since the company which sold the surveillance tools was subject to State A's jurisdiction, the latter's organs' failure to prevent the sale is attributable to State A.ILC Articles on State Responsibility, commentary to Art 2, para 9 (“Whether a particular obligation is breached forthwith upon a failure to act on the part of the responsible State, or whether some further event must occur, depends on the content and interpretation of the primary obligation and cannot be determined in the abstract.”); ILC Articles on State Responsibility, commentary to Art 4, para 5 (“The principle of the unity of the State entails that the acts or omissions of all its organs should be regarded as acts or omissions of the State for the purposes of international responsibility.”).
[L3] The violation of the UN SC Resolution can also be attributed to State B. In particular, if State B now possesses the tools in fact (as revealed by the leak in incident 3), it follows that its State organs must have been involved in the supply, sale, or transfer of the tools.
[L4] Incident 2 (Use of the tools against the dissidents): State B’s security police used the surveillance tools against human rights activists, journalists, and other dissidents both in its territory and abroad. Any human rights violations caused by the security police operations can be attributed to State B because it is a State organ of State B.
[L5] Incident 3 (Hack of the company): The company was hacked by an unknown group. Since there is no information about its affiliation or location, this incident is impossible to attribute to a State on the basis of the facts provided.
[L6] Incident 4 (Not prosecuting the company): The fact that State A did not prosecute the company or any of its executives and employees means that the activities of the company may lead to further violations of the UN SC Resolution embargo (similar to incident 1). However, this in itself does not mean that State A assumes the attribution for the company’s activities, unless there is a further affirmative act on part of State A as would be the case, for example, if it acknowledged and adopted the conduct in question as its own.ILC Articles on State Responsibility, Art 11.
[L7] Nevertheless, State A’s omission of not having its domestic law harmonized with the obligations from the Convention on Cybercrime is certainly attributable to that State. The failure of State A’s organs more generally to prevent any sale will remain attributable to State A.Cf. ILC Articles on State Responsibility, Art 2, para 9 (“the obligation under a treaty to enact a uniform law is breached by the failure to enact the law”).
=== Breach of an international obligation ===
==== Obligations pursuant to the UN Security Council Resolution ====
[L8] Considering that the sanctions were issued pursuant to a UN Security Council Resolution, the failure of State A to prevent the sale of the surveillance tools to State B would amount to a violation of State A’s obligations under the resolution.Cf. Art 25 UN Charter (requiring all member States of the UN “to accept and carry out the decisions of the Security Council”); see also Anne Peters, ‘Article 25’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) vol I, 799–800 (“members are under an international legal obligation of good faith to ensure the implementation of decisions, if need be by adjusting their domestic legal order”). Given the purpose of UN sanctions regimes and the practice, it is questionable, however, whether such obligations are absolute; due diligence standard may be invoked as sufficient. Nevertheless, State A having openly refrained from prosecution of the company, it can hardly be considered to have acted with due diligence.
[L9] State B, too, is in non-compliance with the UN Security Council Resolution by acquiring the surveillance tools.
[L10] The obligation breached being based on Article 25 of UN Charter, it is owed to the international community as a whole (or can be likened to an obligation erga omnes partes)See E. Papastavridis, Interpretation of Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi Crisis 56 International and Comparative Law Quarterly (2007) 83, at 87-88, so the responsibility of States A and B can be invoked by any State.ILC Articles on State Responsibility, Art 48(1)(b).
==== State B’s obligation to respect human rights ====
[L11] State B’s security police used the surveillance tools against individuals both in its territory and abroad. The ICCPR obligations apply to State B’s use of the tools in its territory and to all individuals subject to its jurisdiction.Article 2(1) ICCPR. With regard to the use of the tools abroad, the interpretation of the ICCPR applicability is less certain. 
[L12] According to one interpretation, if the organs of State B can interfere with the rights of individuals in other States without the knowledge of those States, then it is State B which has to make sure that this interference is conducted in compliance with the requirements, and respect the rights enshrined in the ICCPR.Marco Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ 81, 118-119. However, a more conservative interpretation would be that there is a lack of consensus whether the interference with cyber infrastructure outside State B’s territory can amount to exercising effective control over the individuals concerned.Tallinn Manual 2.0, commentary to rule 34, para 9 (noting the majority view that ‘physical control over territory or the individual is required before human rights law obligations are triggered’). According to this interpretation, State B could not be held responsible for its interference with human rights abroad.
[L13] Assuming that the ICCPR is applicable, by intercepting the data traffic of individuals including human rights activists, journalists, and other dissidents, State B’s security police interfered with their right to privacy as well as their right to freedom of opinion and expression, including by potentially identifying confidential sources from their communications.
[L14] While the cyber operations of State B’s security police might in theory still pass the justification test if they fulfilled all the conditions, in practice this would not be very likely, particularly since State B is subject to a UN Security Council embargo due to its widespread persecution of dissidents. Moreover, it is difficult to ascertain how State B’s actions would satisfy the necessity and proportionality requirements on the facts provided.
==== State B’s obligation not to violate the sovereignty of another State ====
[L15] The surveillance tools were used by the security police of State B against individuals in other States’ territory and, presumably, against their data stored in other States’ cyber infrastructure. On the facts provided, there is no indication that the use of the surveillance tools was conducted by a State agent physically present in the territory of another State (option 1). Moreover, there is no indication that State B’s use of the surveillance tools led to physical damage or injury (option 2), or the loss of functionality of computer systems in other States (option 3).
[L16] However, it is possible that State B has violated the sovereignty of other States by exercising their enforcement jurisdiction (option 5 above – “usurpation of inherently governmental functions”)Law enforcement undoubtedly qualifies as a "function of a State" within the meaning of the Island of Palmas case. Absent definition in public international law, we can also draw inspiration for "inherently governmental functions" in Article 2(i) of the Draft Convention on Private Military and Security Contractors as submitted to the Human Rights Council: "functions which are consistent with the principle of the State monopoly on the legitimate use of force and that a State cannot outsource or delegate to PMSCs under any circumstances. Among such functions are direct participation in hostilities, waging war and/or combat operations, taking prisoners, law-making, espionage, intelligence, knowledge transfer with military, security and policing application, use of and other activities related to weapons of mass destruction and police powers, especially the powers of arrest or detention including the interrogation of detainees and other functions that a State Party considers to be inherently State functions" (see Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, 2 July 2010, A/HRC/15/25). if the findings of the security police are used for, for example, within the criminal investigation of these individuals and if State B did not obtain the consent of the States where the individuals or data were located.
[L17] If State B’s security police merely engaged in collecting information regarding the individuals for national security purposes, then it may be argued that the activities of the security police constitute permitted – or, rather, non-regulated by public international law – cyber espionage. In such circumstances, however, although arguably not a violation of the sovereignty of other States, State B would still need to ensure that its surveillance activities complied with international human rights law (discussed above).
==== State A’s obligation to criminalize the sale of surveillance tools under the Convention on Cybercrime ====
[L18] State A has ratified the Convention on Cybercrime, which means that it is bound by the obligations contained therein. Article 6(1)(a)(i) states that: “Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right: the production, sale, procurement for use, import, distribution or otherwise making available of a device, including a computer program, designed or adapted primarily for the purpose of committing any of the offences established in accordance with Articles 2 through 5 […] with intent that it be used for the purpose of committing any of the offences established in Articles 2 through 5.” The offences in Articles 2 through 5 are illegal access, illegal interception, data interference, and system interference, and the surveillance tools would serve for committing acts qualifying as illegal access and illegal interception.
[L19] The company located in State A is alleged to have produced and sold tools to State B capable of accessing computer systems and intercepting traffic; the key question is whether the tools were intended to be used for committing crimes. Judging by State B’s human rights history, this intention should be relatively easy to establish. However, according to the Explanatory Report to the Convention on Cybercrime, the provisions of the Convention which harmonize substantive criminal law do not apply to “conduct undertaken pursuant to lawful government authority”.Explanatory Report to the Convention on Cybercrime, para 38: “The Convention, therefore, leaves unaffected conduct undertaken pursuant to lawful government authority (for example, where the Party’s government acts to maintain public order, protect national security or investigate criminal offences).” Therefore, State activities are not covered by the Convention, and they might not constitute offences under the domestic law of State A as harmonized by Articles 2 through 5 of the Convention, and therefore the company was not necessarily prohibited from selling the surveillance tools by the domestic law of State A based on Article 6 of the Convention.
[L20] This may seem somewhat paradoxical, as States usually prosecute the perpetrators of cyber operations when they have jurisdiction to do so, even if the perpetrators are employed by other States.APT1 – Chinese PLA Unit 61398 indictments (2014) However, the Convention on Cybercrime does not require States to do so in every single case, and consequently, State A is not in violation of its obligations with regard to the Convention on Cybercrime for failing to criminalize the sale of surveillance tools to other States under its domestic law.
== Checklist ==
* Attribution:
** What kind of omissions can be attributed to States?
** Is the “security police” a State organ?
* Violation of the UN SC Resolution:
** Is there a strict responsibility of State A for not preventing the sale of the surveillance tools by the company?
* Human rights:
** Is State B interfering with the right to privacy and the right to freedom of opinion and expression of individuals in its territory and abroad?
** Is the interference in compliance with the ICCPR?
* Violation of sovereignty:
** Was State B exercising its jurisdiction in other States’ territories without their consent?
* Violation of the Convention on Cybercrime:
** Does State A have an obligation to criminalize the sale of the surveillance tools to foreign governments which may use the tools for purposes incompatible with the ICCPR?
== Appendixes ==
=== See also ===
* Attribution
* International human rights law
* Sovereignty
=== Notes and references ===
=== Bibliography and further reading ===
* Mark Bromley, ‘Export Controls, Human Security and Cyber-Surveillance Technology: Examining the Proposed Changes to the EU Dual-use Regulation’ (2017) SIPRI.
*James Crawford, Brownlie's Principles of Public International Law (OUP 2012).
*Gary P. Corn and Robert Taylor, ‘Sovereignty in the Age of Cyber’ (2017) 111 AJIL Unbound 207.
*Wolff Heintschel von Heinegg, 'Territorial Sovereignty and Neutrality in Cyberspace' (2013) 89 Int’l L. Stud. 123.
*Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405.
*Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ.
*Michael N Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017).
*Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 Chicago JIL 30.
*Michael N Schmitt and Liis Vihul, ‘Respect for Sovereignty in Cyberspace’ (2017) 95 Tex L Rev. 1639.
*Anne Peters, ‘Article 25’ in Bruno Simma and others (eds), The Charter of the United Nations: A Commentary (3rd edn, OUP 2012).
*Sean Watts & Theodore Richard, 'Baseline Territorial Sovereignty and Cyberspace' (2018) 22 Lewis & Clark L. Rev. 771.
=== Contributions ===
* Scenario by: Taťána Jančárková & Tomáš Minárik
* Analysis by: Tomáš Minárik
* Reviewed by: Václav Borovička; Barrie Sander
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Category:International sanctions
Category:Malware
Category:Surveillance
Category:Attribution
Category:Cybercrime
Category:International human rights law
Category:Sovereignty
Category:Scenario