CDR_V3N2_ReconsideringConsequences_LOTRIONTE
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CDR_V3N2_ReconsideringConsequences_LOTRIONTE
Reconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEecretary of Defense Leon Panetta spoke about the rising dangers of a "cyber Pearl Harbor," analogizing the potential devastation from a cyberattack to that of the surprise attack on the U.S. naval base in Hawaii in December of 1941.111 More recently, U.S. Senator John McCain called the Russian meddl CDR_V3N2_ReconsideringConsequences_LOTRIONTEing in the 2016 elections “an act of war.”12 The reality of contemporary international relations and the proliferation of cyber operations as an adjunCDR_V3N2_ReconsideringConsequences_LOTRIONTE
ct to both peacetime and wartime operations of states has raised important questions about what would constitute an act of war in the cyber domain, trReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEt by cyber means would look like, versus acts that would fall below the level of an act of war, and although still unlawful, would call for different responses under the lawJJiState actions short of war have been around for a long time. But the current ambiguities in the law related to cyber operati CDR_V3N2_ReconsideringConsequences_LOTRIONTEons, w here details of the international legal principles and rules are poorly defined and subject to competing interpretation or contested applicatioCDR_V3N2_ReconsideringConsequences_LOTRIONTE
n, have left policymakers uncertain about the applicable legal framework for certain actions, and hesitant to respond to those states exploiting the aReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEr states that could unnecessarily lead to escalation.With this in mind, at the outset of this article it is necessary to differentiate between (a) "war" as a figure of speech used for its rhetorical power for political purposes, to heighten the effect of an argument or a news story in the media and CDR_V3N2_ReconsideringConsequences_LOTRIONTE(b) “war" as a legal term of art that has special meaning for state conduct under international law.£| 2016 Dr Catherine ImriomeSUMMER 2018 I 73CŨR_V3CDR_V3N2_ReconsideringConsequences_LOTRIONTE
H2_SUMMẼR-2Ữ1Ồ intìđ 73ấ22?1ô 1231 PMRECONSIDERING THE CONSEQUENCES FOR STATE-SPONSORED HOSTILE CYBER OPERATIONSDr Catherine Lotrionte is a Brent ScowReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEr Director of the LyberPrqect at Georgetown University where she has taught international law and nationa! security arwDr Lotrionte has served as Counsel to the President’s Foreign Intelligence Advisory Board at the White House and as Assistant General Counsel at the Central Intelligence Agency. She CDR_V3N2_ReconsideringConsequences_LOTRIONTE has a JD from New York University Law School, MA, and Ph D from Georgetown UniversityWhile it is accepted that the need to define war is still relevaCDR_V3N2_ReconsideringConsequences_LOTRIONTE
nt for some branches of domestic law; for example, in the context of "war powers" in constitutional law and that it Is a political question, solely foReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEe, in so far as contemporary international law Is concerned, the definition of war has little bearing on legal analysis. Although there is no one binding definition of war, elements that are common to all proffered definitions under international law, and accepted for purposes of this article, is th CDR_V3N2_ReconsideringConsequences_LOTRIONTEat war Is “a contest between states”141 involving a “comprehensive” use of force.151 In other words, war exists when peace between states has ended, aCDR_V3N2_ReconsideringConsequences_LOTRIONTE
nd a certain quantum of hostilities has commenced. While both states and non-state actors implicate the rules related to conflict covered in this artiReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEid technological advances and the changing character of conflict, where threats are less easily defined, attackers can more easily deny responsibility, and the existing ambiguities in the rules are readily exploited by aggressors, has posed new challenges for states in defending their national inter CDR_V3N2_ReconsideringConsequences_LOTRIONTEests. Today revisionist states actively seek to topple the post-WWII international order, including the rules it Is based on, using coercive measuresCDR_V3N2_ReconsideringConsequences_LOTRIONTE
falling below the legal thresholds that traditionally allow for forcible responses.161 By taking advantage of ambiguities in the law they can sow doubReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEal rules, as they try to rewrite them, in their favor. As74 I THE CYBER DEFENSE REVIEWCOR_V3N2_SUMMER-2018 indd 74ấ22'1ô 1231 PMDR. CATHERINE LOTRIONTEevidenced by stale practice and government officials’ statements,171 these states purposely operate in a gray zone area of conflict, falling between CDR_V3N2_ReconsideringConsequences_LOTRIONTEthe normal peacetime relations between states, and the state of full-blown overt war or armed conflict.|M| For sure, even outside the cyber context, aCDR_V3N2_ReconsideringConsequences_LOTRIONTE
mbiguities and differences about the rules related to use of force have long existed among states. Such gray zone operations, short of armed conflict,Reconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEre even less developed and state practice is still evolving.Pl In this respect, the existence of complicated questions about cyber operations related to the international law concerning the use of force is not in itself a new development, it is just about applying some old questions about the law to CDR_V3N2_ReconsideringConsequences_LOTRIONTE the newest development in technologies used by states.Given the different legal consequences that apply depending on whether a state is involved in aCDR_V3N2_ReconsideringConsequences_LOTRIONTE
war or not, it is important to distinguish between war in the formal legal sense and other kinds of conflicts that fall short of war involving the usReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEof hostile cyber operations carried out by states to date fall into the category of actions short of war and, therefore, this article focuses on the challenges of determining what actions by states in cyberspace short of war are prohibited in international law. Certainly, not every hostile act in cy CDR_V3N2_ReconsideringConsequences_LOTRIONTEberspace creates a state of armed conflict between nations, but the important question that this article addresses is when, and in what manner, a statCDR_V3N2_ReconsideringConsequences_LOTRIONTE
e can take action through cyberspace or otherwise, in response to hostile cyber operations short of war that threaten the security of the state.In theReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTE cyberspace in both peacetime and wartime, recognizing that although there is no global treaty regulating cyber operations, existing treaties, customary rules and general principles of international law1,01 can be extended to cyber operations through the interpretation of existing sources of law."11 CDR_V3N2_ReconsideringConsequences_LOTRIONTE Although existing international laws such as the United Nations Charter (Charter) and the law' of armed conflict cannot claim to be directly applicabCDR_V3N2_ReconsideringConsequences_LOTRIONTE
le to cyber operations, given that cyber operations were not even contemplated by those state officials drafting the laws at the time, states have looReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTErter, is a “living, growing" system of rules that are capable of adapting to the needs of the international community through the process of the evolution of customary practice and opinio juris."21 These principles are fundamental to the rule of law' in cyberspace no less than any other domain.Today CDR_V3N2_ReconsideringConsequences_LOTRIONTE, while there remains little disagreement over whether international law ought to be applied to cyber operations conducted by states, there is much coCDR_V3N2_ReconsideringConsequences_LOTRIONTE
ntention over theSUMMER 2018 I 75CDR_V3N2_SUMMER^0iaindd 7Sấ22?1ô 1231 PMRECONSIDERING THE CONSEQUENCES FOR STATE-SPONSORED HOSTILE CYBER OPERATIONSprReconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International LawDr. Catherine LotrionteINTRODUCTIONIn 2012, then-Se CDR_V3N2_ReconsideringConsequences_LOTRIONTEn ongoing, both inside national governments, in international bodies,1141 and through the work of legal scholars,1151 but the recent failure in 2017 of the 25 members of the 2016-2017 UN-sponsored Group of Governmental Experts (UN GGE) to reach consensus on the precise manner which the rules apply i CDR_V3N2_ReconsideringConsequences_LOTRIONTEs a troubling development, and an indication that legal ambiguity persists.1161As states have yet to clearly define the contours of the law in this spCDR_V3N2_ReconsideringConsequences_LOTRIONTE
ace, legal scholars have played an important role in trying to distill some common understanding of the applicable law. In particular, the work of theGọi ngay
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