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Cyber Combatants and the Right to Defend

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Cyber Combatants and the Right to Defend UNARMED ATTACKS: CYBER COMBATANTS AND THE RIGHT TO DEFEND trying to get into their systems. They are testing and have gotten in portals. It’s a serious threat.9 Cyber attacks that are reasonably expected to cause injury or death to persons, or damage or destruction to objects, Anna C. Mourlam* are generally illegal under international law. However, such an attack may be permissible if: (1) the attack is undertaken by the armed forces of the state; (2) the attack effectively distinguishes between military and civilian personnel and objects; (3) the attack respects the jus in bello principles of necessity and proportionality; and (4) the attack occurs I. INTRODUCTION during an armed conflict. Part II will examine the question of attribution for cyber attacks, while Part III will emphasize yber-based attacks have distinct advantages over physical the controlling factors for the legality of cyber attacks in the attacks: they can be conducted remotely, anonymously context of an armed conflict. Finally, Part IV argues that cyber and cheaply. They do not require significant investment attacks attributable to the state that are reasonably expected to Cin weapons, explosives or personnel. And yet, their effects cause injury or death to persons or damage or destruction to can be both widespread and profound. As of 2000, Interpol objects are impermissible under international law outside of a estimated that there were as many as 30,000 websites that recognized armed conflict, with perhaps an exception for self- 1 provided automated hacking tools and software downloads. As defense under Article 51 of the Charter of the United Nations. of 2002, 19 million individuals had the knowledge necessary to launch cyber attacks.2 And as of 2008, the Defense Department II. ATTRIBUTION OF CYBER ATTACKS estimated more than three million attacks occur annually.3 Worldwide aggregate damage from these attacks is now A. Definition of a Cyber Attack 4 measured in billions of U.S. dollars annually. The first question to address is what, exactly, constitutes a Little specialized equipment is needed: the basic attack tools cyber attack? The Stanford Draft International Convention consist of a laptop, modem, telephone and software used daily to Enhance Protection from Cyber Crime and Terrorism by countless professionals.5 Recently, the attacks have shifted defines cyber attacks as: “[The] intentional use or threat from espionage to destruction; nations are actively testing how of use, without legally recognized authority, of violence, far they can go before the state will respond.6 For example, disruption or interference against cyber systems, when it is following reports of infiltration by foreign spies, the U.S. likely that such use would result in death or injury of a person government did little more than admit that the nation’s power or persons, substantial damage to physical property, civil 10 grid is vulnerable to cyber attack.7 Alarmingly, the software disorder, or significant economic harm.” A broader definition left behind in these attacks reportedly had the capability of cyber attacks may be found in the U.S. Department of of shutting down the country’s electric grid.8 Former CIA Defense’s Dictionary of Military Terms, which defines a operative, Robert Baer, stated that these types of attacks are “computer network attack” as “[a]ctions taken through the not uncommon: use of computer networks to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or [Other countries’] foreign intelligence service has been the computers and networks themselves.”11 By comparison, probing our computers, our defense computers, our the Tallinn Manual on the International Law Applicable to defense contractors, our power grids, our telephone Cyber Warfare contains a narrow definition: it defines a cyber system … I just came from a speech at the national attack as “a cyber operation, whether offensive or defensive, defense university and they were hit by the Chinese that is reasonably expected to cause injury or death to persons or damage or destruction to objects.”12 19 VOL. 26, NO. 1, WINTER 2018 • www.calawyers.org/International • THE CALIFORNIA INTERNATIONAL LAW JOURNAL The characterization under the Tallinn Manual—limiting the carry out attacks are guilty of committing an act of aggression scope to any resulting “injury or death” and “destruction to themselves.19 In that case, the U.S. intercepted messages objects,” while excluding purely economic harm—is the most between Tripoli and Libyan agents in Europe in which the applicable to customary international law on the use of force.13 Libyan leader, Colonel Gaddafi, allegedly ordered an attack Although all of the incidents described by the Stanford Draft in West Berlin that killed two U.S. servicemen.20 In the trial International Convention and the Dictionary of Military Terms that followed, the Berlin court held that Libya was to a large compromise the security of a computer network, mere cyber- extent responsible for the attack, as the attack had been planned espionage or cyber-exploitation does not constitute a cyber-attack and carried out by members of the Libyan secret service in the for the purposes of this analysis. Libyan Embassy in East Berlin.21 After the act is defined, the next problem is whether the Yet the analysis cannot end by simply determining the point cyber attack is attributable to the state. There are two possible of origin. Unlike Corfu Channel or the Libyan precedent, the scenarios in which a cyber attack is attributable to a state: (1) fact that a cyber operation has been launched or otherwise when a state permissively allows its territory to be used to originates from governmental cyber infrastructure is not carry out the attack (such as when a state offers safe haven to a sufficient evidence in and of itself to attribute the operation to terrorist organization that conducts a cyber attack); or (2) when that state;22 often, attacks are routed through multiple nations a state overtly or implicitly directs the acting party engaging in before the intended target is reached. The transnational realities the particular conduct (such as when a state orders its armed of cyberspace are such that satisfactory territorial attribution forces to undertake a cyber attack). depends largely on the actual knowledge of the state. 23 B. Territorial Attribution of a Cyber Attack A good example is the United States Diplomatic and Consular Staff in Tehran: in that case, fifty-two U.S. diplomats and It is well established in international law that the “effects citizens were held hostage for 444 days after a group of Iranian principle” permits the extraterritorial regulation of activities students belonging to the Muslim Student Followers of the 14 that impact a state’s territory. For example, the Third Imam’s Line, who were supporting the Iranian Revolution, took Restatement of Foreign Relations Law states that international over the U.S. Embassy in Tehran.24 There, the ICJ held that the law recognizes that a nation may provide rules with respect to Islamic Republic of Iran was responsible due to the “inaction” “conduct outside its territory that has or is intended to have of its authorities, which “failed to take appropriate steps” in 15 substantial effect within its territory.” Although this type of circumstances where such steps were evidently called for.25 The territorial integrity is a fundamental principle of international court concluded that the actions of a state’s citizens could be law and relations, it is difficult to apply to “commons” such as attributed to the government if the citizens “acted on behalf on 16 cyberspace. Hence, although a state may establish domestic [sic] the State, having been charged by some competent organ cyber law, imposing it is another matter. of the Iranian State to carry out a specific operation.”26 And although the existence and enforcement of domestic law While the court did not obtain enough evidence to attribute criminalizing cyber attacks is one way to lessen the liability of the actions of the citizens to the government in that specific a state for attacks independently perpetrated by private actors, instance, the ICJ did determine that the Iranian government was based on the effects principle, even those acts not sanctioned by nonetheless responsible on the grounds that it was aware of its the state’s domestic law may still be considered attributable to obligations under the 1961 Vienna Convention on Diplomatic that state. If the state knew or should have known its territories Relations and the 1963 Convention on Consular Relations to were being used for acts against other states, it may be in protect the U.S. embassy and its staff, and failed to comply 17 violation of the law. with its obligations.27 In other words, if there is insufficient The attributable conduct can consist of both actions or evidence to find attribution outright, then governmental 28 omissions: in the Corfu Channel case, for example, the awareness may be sufficient to establish a violation of law. International Court of Justice (ICJ) held that it was a sufficient Thus, in the context of a cyber attack, a state may be held in basis for Albanian responsibility that it knew, or must have violation of international law by permissiveness established by known, of the presence of mines in its territorial waters and its awareness of—and inaction towards—an illegal act or acts did nothing to warn other states of their presence.18 Similarly, originating in its territory. the 1986 Libya precedent demonstrates that states that unwittingly, or permissively, allow their territory to be used to THE CALIFORNIA INTERNATIONAL LAW JOURNAL • www.calawyers.org/International • VOL. 26, NO. 1, WINTER 2018 20 C. Organizational Attribution of a Cyber Attack may be permissible if: (1) the attack is undertaken by the armed forces of the state; (2) the attack effectively distinguishes As to the second scenario, there are situations in which a state between military and civilian personnel and objects; and (3) may have overtly or implicitly directed the party engaging the attack respects the jus in bello principles of necessity and in the disputed conduct.
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