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Mann Note Final Draft Review J. INT’L L. & POL. ONLINE FORUM LEGAL CHALLENGES IN THE REALM OF CYBER WARFARE SHARONA MANN* Cyberspace is a new dominion that has emerged over the years with the advent of information technology to join the ranks of land, sea, air, and outer space as the fifth domain of warfare. War in this realm poses a threat to all nations of the world, as the remarkable increase in the number of Internet users has opened avenues for malicious entities to launch unprecedented forms of attacks with effects that reverberate around the globe. Cyber warfare has posed many legal challenges that range from the application of the existing international law of armed conflict to regulating the use of advanced cyber weapons in order to prevent incidental loss of life during cyberattacks. This note seeks to analyze five major legal obstacles in the realm of cyber warfare, which highlight the urgency for providing a binding legal framework to cover such attacks and provide mechanisms to counter them. International cooperation also plays a pivotal role in facilitating collective efforts that can prevent the risk of collateral damage during cyber warfare. I. INTRODUCTION The world has embraced cyberspace as the new battlefield of war in the twenty-first century, wherein countries use sophisticated software technologies against their foes rather than conventional weapons such as missiles or tanks. The term “cyberspace” was originally coined for a novel written by William Gibson in 1982,1 but its meaning has since expanded, such that cyberspace is now defined as “[a] global domain within the information environment consisting of the interdependent network of information technology infrastructures and resident data, including the Internet, telecommunication networks, computer systems, and embedded processors and controllers.”2 In turn, cyber warfare has emerged as a formidable threat to international peace and security because of the increasing dependence of * Sharona Mann is a law student at Amity Law School, Guru Gobind Singh Indraprastha University. Ms. Mann fosters a zeal for the intricacies of international humanitarian law. Her essay entitled Trafficking of Falsified Medicines secured second place in the 2018 Surana & Surana International Essay Competition, and her article entitled Burgeoning Realities of Corporate Social Responsibility in Achieving Global Sustainability is currently in the process of publication. She would like to extend her gratitude to her parents and Ms. Genivika Mann for their support. She would also like to appreciate Ms. Heather McAdams, Mr. Cole Rabinowitz, Mr. Jackson R. Gandour, and the entire Editorial Board of the N.Y.U. Journal of International Law & Politics for their insights and meticulous review of this note. 1 Thomas Jones, William Gibson: Beyond Cyberspace, GUARDIAN (Sept. 22, 2011), https://www.theguardian.com/books/2011/sep/22/william-gibson-beyond-cyberspace. 2 U.S. JOINT CHIEFS OF STAFF, JOINT PUBL’N 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 58 (amended ed. 2016). 9 J. INT’L L. & POL. ONLINE FORUM states on computer networks that support critical infrastructure such as power grids, telecommunication networks, hospital systems, and banking systems. Such dependence increases the likelihood of attacks by “advanced persistent threats” (APTs), i.e., targeted threats undertaken to achieve a specific objective.3 These APTs can attack the infrastructure of a state, which can cause widespread devastation and give rise to a definite threat to the national security of the targeted state. Moreover, various humanitarian concerns arise when the effects of cyber operations are felt by the public at large. For instance, a cyberattack on the nuclear facility of a country could result in irrevocable damage, ranging from “widespread loss of power” to “uncontrolled release of ionizing radiation.”4 While cyber warfare has far-reaching ramifications, at the same time, many countries regard it as their preferred mode of warfare. The availability of software to conduct cyber operations and the cost of hiring proxies to carry out attacks against the enemy country demonstrate the cost-effectiveness of employing cyber warfare to accomplish substantial wartime objectives.5 Countries would certainly prefer this approach due to the involvement of fewer casualties and the reduced financial burden compared to the cost of developing or maintaining conventional weapons for kinetic operations. Furthermore, cyber warfare provides an advantage to weak and underdeveloped states that lack military primacy or are militarily weak, as they can conduct cyber warfare operations against more technologically advanced states that are increasingly dependent on Internet networks.6 In the past, small and underdeveloped countries would refrain from launching kinetic operations against their superior adversary due to a lack of sophisticated military equipment. With the advent of cyber warfare, this is no longer the case. An “inverse proportionality” has emerged “between the level of technological advancement of a state and the degree of vulnerability it has.”7 The critical issue of cyber warfare has also raised a number of legal questions. Chief among these concerns is how law applies to a country’s operations in cyberspace. Cyberspace is often considered akin to the American “Wild West,” an emanating domain in international relations wherein there are no precise rules to “govern the behavior of states”; 3 SYMANTEC, USING SYMANTEC ENDPOINT PROTECTION 12.1 TO PROTECT AGAINST ADVANCED PERSISTENT THREATS (APTS) 4 (2014), https://community.broadcom.com/HigherLogic/System/DownloadDocumentFile.ashx?D ocumentFileKey=f32e6896-b398-4241-89bc-e6be22d53a6a&forceDialog=0. 4 CAROLINE BAYLON ET AL., CHATHAM HOUSE, CYBER SECURITY AT CIVIL NUCLEAR FACILITIES 6 (2015), https://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/20151005 CyberSecurityNuclearBaylonBruntLivingstone.pdf. 5 Id. at 5, 9. 6 KENNETH GEERS, STRATEGIC CYBER SECURITY 10, 98 (2011), https://www.law.upenn.edu/institutes/cerl/conferences/cyberwar/papers/reading/Geers.pd f. 7 Afroditi Papanastasiou, Application of International Law in Cyber Warfare Operations 10 (Sept. 8 2010) (unpublished manuscript) https://ssrn.com/abstract=1673785. 10 J. INT’L L. & POL. ONLINE FORUM further, “[S]uch perceptions of anarchism have bred uncertainty over what is or is not acceptable activity among governments.” 8 International humanitarian law (IHL), which consists of rules that seek to limit the effects of armed conflict for humanitarian concerns, has been applied to cyber warfare in an attempt to fill this gap, but legal gray areas have emerged, as cyber operations often do not rise to the level of armed conflict.9 The first attempt to crystallize laws concerning cyber warfare was when Professor Michael N. Schmitt, at the invitation of NATO Cooperative Cyber Defense Centre of Excellence, led a group of international law experts in writing the Tallinn Manual on International Law Applicable to Cyber Warfare (Tallinn Manual); the Tallinn Manual, published in 2013, consisted of black letter laws to be applied to cyber warfare.10 This was followed by the publication of the second edition of the manual in 2017, the Tallinn Manual 2.0 on International Law Applicable to Cyber Operations (Tallinn Manual 2.0), which was greater in scope and application compared to its first edition, expanding the amount of black letter laws to be applied to cyber warfare to 154 rules.11 Nevertheless, problems still remained. Unlike the abundant legal literature available on cyber warfare, this note will not attempt to apply existing IHL to cyber warfare, nor question its relevance to cyber warfare. Rather, it will provide a critical analysis of five pertinent legal challenges in the realm of cyber warfare. First, this note will aim to provide a distinction between cyber warfare and cybercrime, as the lack of appropriate usages can impact the legal response of states and their ability to launch countermeasures. This part will also draw a parallel between cyber warfare and information warfare, another frequently used term in cyberspace. Second, this note will focus on the difficulties encountered when applying principles of international law to cyber operations. Third, this note will return focus to the five main pertinent legal issues that have surfaced in the realm of cyber warfare. II. CYBER WARFARE AND ALLIED CONCEPTS It is undisputed that technology has become intertwined with everyday life. Almost all individuals regularly engage in a multitude of cyber activities, ranging from online banking to cyber espionage. When studying such activities, the misapplication of related terms can have untoward consequences in the rhetorical debate surrounding cyber operations. For instance, a cyberattack is not the same as cyber warfare, and can only be 8 Levi Maxey, Tallinn Manual 2.0: Stepping Out of the Fog in Cyberspace, INDIAN STRATEGIC STUD. (Mar. 9, 2017), http://strategicstudyindia.blogspot.com/2017/03/tallinn- manual-20-stepping-out-of-fog.html. 9 INT’L COMM. OF THE RED CROSS, CYBERWARFARE AND INTERNATIONAL HUMANITARIAN LAW 1 (2013), https://www.icrc.org/en/doc/assets/files/2013/130621- cyberwarfare-q-and-a-eng.pdf 10 Maxey, supra note 8. 11 Id. 11 J. INT’L L. & POL. ONLINE FORUM called so when it rises to the level of armed attack.12 Therefore, it is imperative to differentiate analogous terms in cyberspace in order to overcome the challenge of ambiguous terms in cyber warfare, and to ensure an appropriate
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