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Icrc, Nato and the U.S. – Direct Participation in Hacktivities – Targeting Private Contractors and Civilians in Cyberspace Under International Humanitarian Law

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Icrc, Nato and the U.S. – Direct Participation in Hacktivities – Targeting Private Contractors and Civilians in Cyberspace Under International Humanitarian Law ICRC, NATO AND THE U.S. – DIRECT PARTICIPATION IN HACKTIVITIES – TARGETING PRIVATE CONTRACTORS AND CIVILIANS IN CYBERSPACE UNDER INTERNATIONAL HUMANITARIAN LAW IDO KILOVATY† ABSTRACT Cyber-attacks have become increasingly common and are an integral part of contemporary armed conflicts. With that premise in mind, the question arises of whether or not a civilian carrying out cyber-attacks during an armed conflict becomes a legitimate target under international humanitarian law. This paper aims to explore this question using three different analytical and conceptual frameworks while looking at a variety of cyber-attacks along with their subsequent effects. One of the core principles of the law of armed conflict is distinction, which states that civilians in an armed conflict are granted a set of protections, mainly the protection from direct attacks by the adversary, whereas combatants (or members of armed groups) and military objectives may become legitimate targets of direct attacks. Although civilians are generally protected from direct attacks, they can still become victims of an attack because they lose this protection “for such time as they take direct part in hostilities.”1 In other words, † Cyber Fellow at the Center for Global Legal Challenges, Yale Law School; Resident Fellow Information Society Project, Yale Law School; S.J.D. Candidate, Georgetown University Law Center. I would like to gratefully acknowledge the generous support of the Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa, Israel and of the Israeli Ministry of Science, Technology and Space, who made this project possible. I am thankful for the comments and support of Prof. Amnon Reichman, Prof. Rosa Brooks, Prof. Alexa Freeman, Prof. Mary DeRosa, Adv. Ido Rosenzweig, and all the attendees of the cyber sessions at the University of Haifa, who were incredibly helpful in the process of writing this paper. 1 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 51(3), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I]. In the non-international armed conflict context, see Article 13(3) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- No. 1] DUKE LAW & TECHNOLOGY REVIEW 2 under certain circumstances, if a civilian decides to engage in hostile cyber activities (or “hacktivities”), they may well become a target of a direct lethal attack. I will argue that although the answer is highly nuanced and context dependent, the most salutary doctrinal revision that can be made in this area is that the threshold of harm must adapt to the particular intricacies of cyberspace. INTRODUCTION TO TARGETING IN MODERN CONFLICT In August 2015, a U.S. drone strike in Syria killed Junaid Hussain, a British hacker who was carrying out hostile cyber activities on behalf of ISIS.2 Hussain was believed to have a leading position in ISIS’ Cyber Caliphate, a hacking group that allegedly took control of US Central Command’s social media accounts. This group published U.S. soldiers’ and officers’ identifying information, such as their full names, addresses, and photos.3 Unlike other members of ISIS, Hussain only engaged in cyber activities which, although they were hostile, did not pose the same threat of imminent danger as the actual use of conventional military force. Hussain’s death represents the first time a hacker was lethally targeted. This article predicts that the practice of targeting hackers in the context of an armed conflict will only increase because cyber-attacks will become a more frequent and substantial phenomenon in armed conflicts. The crucial question in this regard is whether individuals like Hussain are legitimate targets under international humanitarian law (IHL) in armed conflict. The emergence of cyberspace as an instrument of warfare exacerbates the gaps and ambiguities that already exist within IHL. A particularly aggravating factor is the increased involvement of civilians in cyber-attacks. Civilians in modern armed conflicts can play an active role when it comes to cyber-attacks, as they serve as private contractors carrying out both offensive and defensive cyber operations.4 In addition to International Armed Conflicts (Protocol II), June 8 1977, 1125 U.N.T.S. 609 [hereinafter AP II]. 2 Spencer Ackerman, Ewan MacAskill & Alice Ross, Junaid Hussain: British Hacker for ISIS Believed Killed in US Air Strike, THE GUARDIAN (Aug. 27, 2015, 12:28 EDT), http://www.theguardian.com/world/2015/aug/27/junaid-hussain- british-hacker-for-isis-believed-killed-in-us-airstrike. 3 Julia Glum, ISIS Hacker Junaid Hussain Confirmed Dead After US Airstrike on Islamic State in Syria: Pentagon, INTERNATIONAL BUSINESS TIMES (Aug. 28, 2015, 2:52 PM), http://www.ibtimes.com/isis-hacker-junaid-hussain-confirmed- dead-after-us-airstrike-islamic-state-syria-2073451. 4 See Heather Harrison Dinniss, Cyber Warriors, Patriotic Hackers and the Laws of War, in INTERNATIONAL HUMANITARIAN LAW & THE CHANGING TECHNOLOGY 3 ICRC, NATO AND THE U.S. [Vol. 15 these private contractors, there are patriotic hackers who make similar contributions.5 While the traditional notion of an armed conflict includes members of regular armed forces (“combatants”), this paradigm is no longer the case on the modern battlefield due to the growing involvement of civilians in cyber hostilities. As Susan Brenner, a leading expert on cyber conflict, stated, the “integration of civilians into military efforts can create uncertainty as to whether someone is acting as a ‘civilian’ (noncombatant) or as a military actor (combatant).”6 After all, it is far easier to possess a computer with an active internet connection than a conventional weapon.7 This is because computer technology is readily accessible and carries a low cost of entry and use.8 In fact, in the aftermath of the cyber-attacks on Estonia in 2007, the Estonian government decided to recruit civilian volunteers to serve as “cyber warriors” should another major cyber-attack on Estonia occur.9 Sean Watts, Professor of Law at Creighton University, explained this phenomenon of the privatization of cyber operations by describing how today, many companies provide the expertise required for the development and employment of computer network attacks.10 The versatility of computers and cyberspace has caused difficulties for countries that wish to utilize computers militarily, while retaining their civilian properties. This is sometimes referred to as the OF WAR 269 (Dan Saxon ed., 2013) (noting that civilian contractors are increasingly involved in cyber hostilities). 5 Id. 6 SUSAN BRENNER, CYBERTHREATS, THE EMERGING FAULT LINES OF THE NATION STATE 197 (2009). 7 See Roger Barnett, A Different Kettle of Fish: Computer Network Attack, 76 J. INT’L. L. STUD. 1, 22 (2002) (stating that the “entry costs to conduct a strategic information attack are insignificant” and requite only “an inexpensive computer, some easily obtainable software, and a simple connection to the Internet.”). 8 See MARCO ROSCINI, CYBER OPERATIONS AND THE USE OF FORCE 202 (2014) (noting that the “low cost and ease of access to technology” allows civilians to easily conduct cyber operations). 9 David Blair, Estonia Recruits Volunteer Army of ‘Cyber Warriors’, THE TELEGRAPH (Apr. 26, 2015, 6:58 PM BST), http://www.telegraph.co.uk/news/ worldnews/europe/estonia/11564163/Estonia-recruits-volunteer-army-of-cyber- warriors.html. 10 See Sean Watts, Combatant Status and Computer Network Attack, 50 VA. J. INT’L L. 391, 402–03 (2010) (“Reports indicate that few information operations experts currently serve as active duty soldiers. Many private companies have employed the skills of those with expertise in the various weapons commonly used in [Computer Network Attacks].”). No. 1] DUKE LAW & TECHNOLOGY REVIEW 4 “dual-use” characteristic of cyberspace.11 Dual-use means that computer systems and networks may be used for legitimate, benign, civilian purposes, but at the same time, these systems and networks may be used by the military, or by civilians, for hostile purposes.12 While this characteristic is clear to countries, their civilians are often unaware of the potential consequences of their involvement in cyber operations in armed conflict, the importance of which may be life or death. Such was the case with Evgeny Morozov, who participated in the cyber operations against Georgia in 2008 – “Not knowing exactly how to sign up for a cyberwar, I started with an extensive survey of the Russian blogosphere… As I learned from this blog post, all I needed to do was to save a copy of a certain Web page to my hard drive and then open it in my browser. In less than an hour, I had become an Internet soldier. I didn’t receive any calls from Kremlin operatives; nor did I have to buy a Web server or modify my computer in any significant way.”13 The problem of civilians who directly participate in hostilities (DPH) is not particularly new. Yet even today, many find themselves unable to define the precise boundaries of the notion of DPH. Only in 2009 did the International Committee of the Red Cross (ICRC) publish the Interpretive Guidance on the Notion of Direct Participation of Hostilities (“Interpretive Guidance”), which attempted to deal with the phenomenon of civilians who decide to directly participate in hostilities and the legal 11 See Mary O’Connell, Cyber Security Without Cyber War, 17 J. CONFLICT & SECURITY L. 187, 205 (2012) (comparing cyberspace to other existing treaty regimes of arms control, noting that “[t]he international community has adopted treaties in other ‘dual-use’ areas that are analogous to cyber space, such as the Chemical Weapons Convention and the Nuclear Non-Proliferation Treaty. Both of these treaties seek to end any use or even possession of chemical or nuclear weapons while at the same time promoting legitimate non-military uses of chemicals and nuclear power”).
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