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Guardian of the Galaxy: EU Cyber Sanctions and Norms in Cyberspace

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Guardian of the Galaxy: EU Cyber Sanctions and Norms in Cyberspace CHAILLOT PAPER / PAPER CHAILLOT 155 GUARDIAN OF GUARDIAN OF THE GALAXY THE GALAXY GUARDIAN OF THE GALAXY EU cyber sanctions and | EU CYBER SANCTIONS AND NORMS IN CYBERSPACE SANCTIONS EU CYBER norms in cyberspace Edited by Patryk Pawlak and Thomas Biersteker With contributions from Karine Bannelier, Nikolay Bozhkov, François Delerue, Francesco Giumelli, Erica Moret, Maarten Van Horenbeeck CHAILLOT PAPER / 155 October 2019 European Union Institute for Security Studies (EUISS) 100, avenue de Suffren 75015 Paris http://www.iss.europa.eu Director: Gustav Lindstrom © EU Institute for Security Studies, 2019. Reproduction is authorised, provided the source is acknowledged, save where otherwise stated. The views expressed in this publication are solely those of the authors and do not necessarily reflect the views of the EUISS or of the European Union. print ISBN 978-92-9198-849-5 online ISBN 978-92-9198-850-1 CATALOGUE NUMBER QN-AA-19-005-EN-C CATALOGUE NUMBER QN-AA-19-005-EN-N ISSN 1017-7566 ISSN 1683-4917 DOI 10.2815/04457 DOI 10.2815/672270 Published by the EU Institute for Security Studies and printed in Belgium by Bietlot. Luxembourg: Publications Office of the European Union, 2019. Cover image credit: NASA/JPL-Caltech GUARDIAN OF THE GALAXY EU cyber sanctions and norms in cyberspace Edited by Patryk Pawlak and Thomas Biersteker With contributions from Karine Bannelier, Nikolay Bozhkov, François Delerue, Francesco Giumelli, Erica Moret, Maarten Van Horenbeeck CHAILLOT PAPER / 155 October 2019 Acknowledgements This Chaillot Paper is the outcome of several months of reflection and discussions conduct- ed in the framework of the EUISS Task Force on Restrictive Measures Related to Malicious Activities in Cyberspace (hereafter ‘EUISS Task Force on Cyber Sanctions’). The Task Force met on numerous occasions between October 2018 and July 2019 and organised several focus group The editors meetings with representatives of the EU insti- tutions and member states. The content of this Patryk Pawlak heads the Brussels office volume reflects only some of the discussions of the EUISS, where he is responsible for that took place during those meetings. inter-institutional relations and coordination of cyber-related projects. The editors would like to thank the following members of the Task Force for their contri- Thomas Biersteker is Gasteyger Professor of bution to several sections of this publication: International Security and Director of Policy Karine Bannelier (chapter 6), Nikolay Bozhkov Research at the Graduate Institute, Geneva. (chapters 1, 2, 3), François Delerue (chapters 4 and 5), Francesco Giumelli (chapters 1, 3 and 8), Erica Moret (chapters 1, 3 and 8), and Maarten Van Horenbeeck (chapters 1, 5 and 8). The EUISS Chaillot Paper series In addition, we would like to express our grat- The Chaillot Paper series, launched in 1991, itude to all EU and member state officials for takes its name from the Chaillot hill in the their inputs and comments. Finally, this vol- Trocadéro area of Paris, where the Institute’s ume has benefited from the work and input first premises were located in the building oc- of EUISS colleagues: Florence Gaub and Clara cupied by the Western European Union (WEU). Portela provided insightful comments on the The hill is particularly famous for the Palais de text, Gearóid Cronin took care of the language Chaillot which was the site of the signing of the editing, and Christian Dietrich created the info- UN Universal Declaration of Human Rights in graphics. As always, any mistakes or omissions 1948, and housed NATO’s provisional head- are those of the authors alone. quarters from 1952 until 1959. 1 CONTENTS Executive Summary 2 INTRODUCTION CHAPTER 5 The heroine awakens 3 Cosmic dust 52 The EU as a sanctioning power Attribution and evidentiary standards CHAPTER 1 CHAPTER 6 Navigating the stars 13 Laws of gravitation 62 Ten questions to make cyber sanctions more effective Due diligence obligations in cyberspace CHAPTER 2 CHAPTER 7 Cyberspace debris 21 Multiple moons 70 Sanctions and responsible state behaviour Cyber sanctions and the role of the private sector CHAPTER 3 CHAPTER 8 Space exploration 33 Galactic collision 79 Mapping the EU’s cyber sanctions regime Cyber sanctions and real-world consequences CHAPTER 4 CONCLUSIONS Mission controls 43 Escaping the black hole 87 Sanctions under international law Implementation of the EU’s cyber sanctions Abbreviations 100 Notes on the contributors 102 2 Guardian of the Galaxy | EU cyber sanctions and norms in cyberspace EXECUTIVE SUMMARY Cyberspace is not an ungoverned space. Exist- political foundations, suggest that it is not yet ing international law and accepted norms of the time for self-congratulation. responsible behaviour provide clear guidance on what is and what is not permissible in cy- Taking account of the lessons derived from berspace. And yet, states increasingly rely on other sanctions regimes adopted by the EU in cyber operations to achieve their political ob- the past, this Chaillot Paper addresses a number jectives and strategic goals: whether through of key issues relevant for ensuring the max- industrial cyber-espionage to give competitive imum effectiveness of the EU’s cyber sanc- advantage to domestic companies, sophisticat- tions regime: ed operations to steal military secrets, or bla- tant attacks targeting the critical infrastructure 1. Clarity about the logic behind the use of cy- of other states. ber sanctions; 2. Potential impact of the sanctions on the This widespread sense of impunity has driv- EU’s overall bilateral relations, and their in- en the European Union and its member states terplay with other foreign and security poli- to support regional and global efforts to en- cy instruments; sure that the perpetrators of the attacks face 3. Objectives that specific listings aim the consequences and that their victims are to achieve; adequately protected and compensated. The 4. Adequate timing and longevity of the listings; so-called Cyber Diplomacy Toolbox adopted by 5. Understanding of the target; the EU in 2017 provided a significant boost to the 6. Sufficient capabilities and resources; Union’s goal of becoming a ‘forward-looking 7. Mechanisms for coordination and informa- cyber player’. In addition to a number of dip- tion sharing; lomatic and operational measures, the toolbox 8. Cooperation and coordination with interna- proposed the use of sanctions as one of the in- tional partners; struments at the Union’s disposal. 9. Engagement with the private sector; 10. Clear strategic communication. This Chaillot Paper – which uses space ex- ploration as a metaphor to demystify some In tackling these questions, the contributors to of the concepts and challenges linked to this publication provide insights into a num- cyber-related policymaking – focuses on the ber of complicated issues of a political and EU’s cyber sanctions regime as established by legal nature, including the challenges of attri- Council Decision 2019/797 and Council Regu- bution, state responsibility in cyberspace, the lation 2019/796. The EU’s autonomous cyber principle of due diligence or the potential im- sanctions regime – encompassing measures pact of cyber sanctions on the physical world. such as travel bans and asset freezes – repre- The analysis concludes with a set of proposals sents a significant achievement on the EU’s aimed at stimulating the discussion about the path to promote a free, open and secure cyber- implementation of the EU cyber sanctions re- space and defend the rules-based international gime – and which will hopefully lead to con- order. However, the growing complexity of cy- crete actions. ber threats and the proliferation of malicious actors intent on undermining the EU’s global standing, as well as its economic power and 3 INTRODUCTION THE HEROINE AWAKENS The EU as a sanctioning power The Guardians of the Galaxy is an American mov- and the EU do their best to provide security and ie production about the adventures of interga- justice for all by bringing those accountable for lactic superheroes who together fight to protect misdemeanours to justice. the galaxy from planetary threats. They suc- ceed in vanquishing Ronan – a fanatical geno- cidal warlord seeking to undermine the peace Monsters in cyberspace treaty between the Kree Empire and the Nove Empire. They also slay the Abilisk – a Cyberspace is full of malicious computer worms multi-dimensional tentacled monster con- and viruses whose sophisticated names re- suming the power resources of the Sovereign semble those of the villains in sci-fi movies. planet. Despite their different backgrounds, Stuxnet, a multidimensional giant worm first they form a unique alliance to save the galaxy. uncovered in 2010, was respon- sible for causing substantial So what is the link between a n this new era damage to Iran’s nuclear pro- group of intergalactic heroes gramme. In May 2017, a shape- and the European Union? First, a I of interstate shifting villain, WannaCry, strong desire to save their home. competition, the affected more than 200,000 Like the fictional Guardians, the cyber domain is computers in over 150 countries EU understands that ultimate- used by states causing extensive damage esti- ly there is no sanctuary from mated at hundreds of millions of cyber threats. For this reason, as an equaliser euro.1 Several months later, the strengthening your own capaci- for levelling Danish shipping company A.P. ties and those of your partners is the geopolitical Moller-Maersk, among oth- often the best way forward. Like playing field. ers, suffered from an attack by the Guardians, the EU’s strength NotPetya – a mutant version of comes from the qualities and WannaCry – that cost their busi- powers of its individual members – despite dif- ness an estimated €200-300 million. ferent personalities and distinctive individual character traits. Finally, the threats they face Beyond monsters and villains, there are often are constantly evolving – whether travelling powerful puppet masters who are not averse through the galaxy or different jurisdictions of to resorting to cyber tactics to pursue their the sovereign states.
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