Self-Defense Doctrine & Cyber Terrorism

Cyber attacks are not what make the cool war 'cool.' As a strategic matter, they do not differ fundamentally from older tools of espionage and sabotage.

-Noah Feldman

Witnessing the series of attacks, debates and laws on cyber terrorisms or attacks viz-a-viz application of self-defense doctrine has become a hot button issue in global arena. Self defense per se an magnetic subjects which fascinates lawmaker and international bodies to play their active role. But as the emanation of a new threat of Cyber attacks and bit of new technologies, the issue of security has reached to its zenith. International laws, domestic laws, regulations, treaties etc. turn out to be vague and handicap to tackle this concept of cyber terrorism.   

Introduction

Since over a decade, terrorism has evolved so extensively that almost every existing nation is affected by it. In the recent years, especially after the 9/11 Twin tower, abundance of disclosure has taken place about terrorism and counter terrorism. Many countries, international bodies working relentlessly to safeguard humanity and their national assets to fight against critical problems of terrorism. Several nations have inclined towards an approach of using force of self-defense against such terrorist acts as a precautionary measure to tackle this issue. In the today’s scenario, this concept utilization of force in self-defense is a hot button issue in the field of Jus contra bellum which has allowing countries to use military force against any country in suspension of sending irregular groups (e.g. US & UKs attack on Afghanistan after 9/11 and then again on Iraq and Syria etc.). On world summit in 2005, UN General assembly affirmed the resolution of self-defense in UN Charter, which mandates the states to use this power against any threat to internal & external security of the state, maintain international piece. Mr. Eli E Hertz states in its research states that use of self-defense from a state against another under article 51 per se evades the essence of international law[1]. This blanket rule and its loose constructions & interpretations enable (enabled too) the states their legitimate force in an illegitimate manner.

Self-defense & Cyber Terrorism

What is Self-defense? According to Black’s dictionary[2], the term self defense is defined as the protection of one’s person or property against some injury attempted by another or an excuse for the use of force in resisting an attack on the persons. Article 51 of the UN Charter (defines the right to self defense) or the resort to self-defense comes as a legal consequence to the prohibition on the use of force (Article 2(4) of the UN Charter). The language of the provision the given provision is quite vague viz-a-viz aggressor or aggressors and recognizes the inherent right of self-defense by anyone, which consequently fails to delimit its exercise. It is quite interesting to notice that from pre-emptive theory[3] of George W. Bush on self-defense which envisaged him to enter in Iraq & Afghanistan to tussle in Syria by US allied forces, every action is fabricated on the name of self defense.

It is to be noted that provision of self-defense under article 51 of United Nations Charter fails to include threat connection with economics and politics as we assume that cyber threat is much weaker and lesser danger notion in comparison to article armed attacks. The armed attacks seem more attracting to us and we forget to focus on the use of force behind the incident (Schmitt, 1999). Today everything is online and controlled and monitored by the help of Computers.

Thus many anti-social elements are targeting the cyber space instead of opting for bloodshed in traditional system of war. We all are aware what will happen if there occurs a cyber-attack on the stock market of any country, the whole economy will be down and the nation would become bankrupt. Cyber terrorism is increasing and “the potential threat posed by cyber terrorism has provoked considerable alarm. Numerous security experts, politicians, and others have publicized the danger of cyber terrorists hacking into government and private computer systems and crippling the military, financial, and service sectors of advanced economies”[4] Although to many fear of cyber terrorism may seem exaggerated but no one can deny or ignore it. It is also argued that success in the “traditional war on terror” will make terrorists turn to unconventional weapons like this. Then it may lead to an era of cyber-warfare. For instance “in June 2007 The US Secretary of Defense’s unclassified email account was hacked by unknown foreign intruders as part of a larger series of attacks to access and exploit the Pentagon's networks (this could had devastating effect on the security and defense of US), in August 2008 Computer networks in Georgia were hacked by unknown foreign intruders around the time that the country was in conflict with Russia (this could have raised a war between the two countries), and in January 2011 Canadian government reported a major cyber-attack against its agencies, including Defence Research and Development Canada, a research agency for Canada's Department of National Defence. The attack forced the Finance Department and Treasury Board, Canada’s main economic agencies, to disconnect from the Internet.”[5]

Article 51 of UN charter exclusively deals with the concept of “arm attack”[6] with a narrow approach for the favor of community’s interest. But in case of cyber attacks unlike armed attacks, state is empowered to take action against only those attacks that has caused a physical injury. A cyber attack & armed attacks can’t be considered on same parameters as mentioned in article 51 of UN charter due its physical impact and nexus with armed forces. In other words, anything which falls out of the ambit of physical impact or indulgence of armed forces unlike cyber attacks, article 52 doesn’t not covers it. Instead, article 41 some how deals with activities in connection with telegraph, radio, wireless, and other means of communications unlike article 51.

Another loop in article 51 which was clarified by ICJ that UN charter on said provisions (4, 41 & 51) do not provide any information regarding weapon like nuclear weapons, chemical weapons or biological weapons. On the other hand , the use of force has been interpreted more extensively. A strong remark with respect to the weapons used in cyber warfare—

”It is neither the designation of a device, nor its normal use, which make it a weapon but the intent with which it is used and its effect. The use of any device or number of devices, which results in a considerable loss of life and/or extensive destruction of property must therefore be deemed to fulfill the conditions of an ‘armed attack’[7].

Graphical layout of the legal responses at disposal against cyber attacks:

It is quintessential to ponder that consequences of cyber attacks are not caused by conventional and old school weapons rather, it should be understood with the possible impact caused by it. The effects of this intangible weapon could leads to (not directly) deaths, injury, riots, destruction and damage of life and properties like those suffered by the Estonian government in 2007[8]. Therefore it is evident to understand that cyber crime or attacks are equally threatening like conventional armed attacks as they serve same purpose to cause injuries or destruction in the society/state.

Conclusion

The issue of self-defense has gained a controversial platform. The emanation of cyber attacks has given rise to more ferocious picture of the terrorism and triggered a debate on the locus of international laws subjected to international securities and self defense. Cyber terrorism has become a new battle ground and defined as new era which could be harmful for complete mankind like nuclear wars, armed attacks etc. in regard for the same, the approach of prudent interpretation of existing laws is very much required to tackle this epidemic so that no groups/state could use it against the internal/external or international piece and security. Taking article 51 of UN charter in to consideration as an exception to general use of force by states in international relations. Stretching the self-defense framework even a little bit may give rise to the superfluous use of force, leading to disturbances in world peace. If we won’t take cyber terrorism seriously soon the time may arise where states/ countries would be invading each other’s cyber space and will try to find loop holes in their IT, which might give them key to their various Cyber properties, trade secrets, official/ national secrets, information censored by the information bureau/ agencies responsible for safety of the nation. Hence one can say that not only use of force causes serious implications but cyber-attacks are equally disastrous.

References

[1] the International Court of Justice (ICJ) & the Goldstone Report [1] Eli E. Hertz ; https://www.mythsandfacts.org/media/user/documents/article-51-document.pdf

[2] Black’s law dictionary; https://thelawdictionary.org/force/

[3] The strike, carried out under the administration's National Security Strategy, asserts the right of the USA to take unilateral military action against rogue states and terrorist organizations so as to prevent or mitigate a presumed attack by such nations or organizations against the United States. However, the administration's action has been widely criticized as not being in conformity with international law, customary law, and UN Security Council resolutions.

[4] Gabriel Weimann, “Cyberterrorism- How Real Is The Threat?”, Special Report 119, 2004.

[5] Taken from the data available on NATO’s website, at:

“https://www.nato.int/docu/review/2013/cyber/timeline/EN/index.htm”, last visited on: 22nd September, 2016.

[6] Action that gives States the right to a response rising to the level of a “use of force,” as that term is understood in the jus ad bellum.

[7] Zemanek 2010: para. 21

[8] Estonian DDoS Attacks – A summary to date; By Jose Nazario on 05/17/2007; https://www.arbornetworks.com/blog/asert/estonian-ddos-attacks-a-summary-to-date/