Cyber Lawfare: Establishing Norms for Use of Cyber Weapons

1 12 2012

by Max Blumenthal

Cyberwar is upon us. That is the call being issued by top American cyber experts in the wake of increased attacks from Iran and China. The U.S. is also stepping up its offensive cyber capabilities. As Secretary of Defense Leon Panetta stated, “We are facing the threat of a new arena in warfare that could be every bit as destructive as 9/11” (Thompson). These attacks are often directed at private enterprises that are considered critical infrastructure, such as banks and utility companies. In conventional warfare, there is a clear distinction between attacking strategic targets and protecting civilians. In cyberwar, no such distinction currently exists. One way of beginning to protect civilians in a cyber conflict is to create a treaty for international humanitarian law for cyberwarfare (Schneier). This treaty should be modeled after previous international humanitarian law, such as the Geneva Conventions and arms limitations treaties.

Geneva Conventions

The four Geneva Conventions are internationally agreed upon rules for nation-state conduct in warfare created after the tragic loss of life for tens of millions of civilians during World War II. The first Geneva Convention requires states to protect wounded soldiers as well as refrain from targeting medical personnel in a combat zone. The second Convention allows neutral parties to care for the wounded without being attacked by either side of a conflict. The third Convention extends protections for non-State actors, while the fourth Convention prevents collective punishment. Additional protocols prevent perfidy and indiscriminate attacks on civilians targets or total war (Red Cross).

In cyberwarfare, attacks should also respect these established norms. Perhaps the most important, yet most challenging to enforce, of these conventions is the prohibition against perfidy. Neil Rowe, of the Naval Postgraduate School, argues that most cyber-attacks are a form of perfidy in that they masquerade as a legitimate program, but carry a malicious payload. When the payload is discovered, some attacks may try to frame another target to avoid reprisal attacks. Rowe suggests that to prevent wrongful attribution of an attack, digital signatures could be required on cyber weapons to reduce the risk of collateral damage (Rowe).To allow for concealment of an attack while still providing attribution, these “signatures could be hidden steganographically”. The fourth Geneva Convention also offers an important  rule for cyberwarfare, prohibition against collective punishment. Unrestricted cyberwarfare should be eliminated. This means attacks on vital civilian systems, such as water treatment facilities and the financial system, should not occur because they provide little military benefit, but create massive civilian harm.

Arms Limitation or Weapons Ban

The Strategic Arms Limitation Talks Agreements (SALT I and SALT II) sought to halt Soviet and American nuclear ballistic missile launcher production. In cyberwar, an arms limitation treaty has been championed by Russian and China and recently won the consideration of the United States (Gorman).Such a treaty could allow for cyber weapon development and usage for certain military systems, but outright ban weapons that seek to attack civilian infrastructure or military command and control systems. The greatest difficulty with such an agreement is enforcement. Unlike a physical weapon, it fairly easy to conceal a cyber weapon from inspectors (Goldsmith). Also, a treaty does not necessarily prevent countries from giving weapons technology to non-state actors, the main road-block for U.S. adoption of the Russian proposal.

In contrast to an arms limitation treaty, an all out ban on certain weapons has also proven effective for certain weapons. For example, the Biological Weapons Convention prohibits the production and use of biological and toxic arms in warfare. The reason for an all-out ban on biological weapons is that this kind of warfare was deemed indiscriminate and “abhorrent” (Red Cross) even in war. Poorly designed cyber weapons have the potential to have significant unintended consequences. For example, a U.S. cyber attack on Iraq’s financial system in 2003 was prevented, because “Bush administration officials worried that the effects would not be limited to Iraq but would instead create worldwide financial havoc” (Markoff and Shanker). Like an arms limitation treaty, enforcement would be difficult, but inspectors will only need to find evidence of a cyber weapon’s development instead of determining the target of the weapon. Bruce Schneier recognizes that while this may be the ideal policy, a ban on “unaimed or broadly targeted weapons” (Schneier) would also have a significant positive effect and be easier to implement.

Conclusion

Besides a number of enforcement concerns, a treaty’s effectiveness is also hindered by the gray area that separates cyber war and cyber espionage. A treaty would need to govern computer network attacks, but still allow for computer network exploitation. An all out cyber weapons ban is unlikely to happen, but it is possible that certain weapons, such as those that target SCADA units, or targets could be banned. An arms limitation treaty offers a more moderated approach that allows for some production and testing of weapons, but requires an unrestricted inspections, which may be difficult for rival nations to agree to. Finally, a treaty for cyberwarfare provides an opportunity to establish rules of engagement in cyberspace and has the potential to improve protections for civilians and limit the development and deployment of cyber weapons determined to be so destructive that they are immoral, even in warfare.

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  1. Goldsmith, Jack. “Cybersecurity Treaties: A Skeptical View.” 9 March 2011. Hoover Institute Task Force on National Security and Law. 29 October 2012                   <http://media.hoover.org/sites/default/files/documents/FutureChallenges_Goldsmith.pdf&gt;.
  2. Gorman, Siobhan. “U.S. Backs Talks on Cyber Warfare.” 4 June 2010. Wall Street Journal. 29 October 2012                   <http://online.wsj.com/article/SB10001424052748703340904575284964215965730.html&gt;.
  3. Markoff, John and Thom Shanker. “Halted ’03 Iraq Plan Illustrates U.S. Fear of Cyberwar Risk.” 1 August 2009. New York Times. 29 October 2012                   <http://www.nytimes.com/2009/08/02/us/politics/02cyber.html?_r=0&gt;.
  4. Red Cross. “Chemical and biological weapons.” 29 October 2010. International Committee of the Red Cross. 29 October 2012 <http://www.icrc.org/eng/war-and-law/weapons/chemical-biological-weapons/overview-chemical-biological-weapons.htm&gt;.
  5. —. “The Geneva Conventions of 1949 and their Additional Protocols.” International Committee of the Red Cross. 29 October 2012 <http://www.icrc.org/eng/war-and-law/treaties-customary-    law/geneva-conventions/index.jsp>.
  6. Rowe, Neil. “War Crimes from Cyberweapons.” Journal of Information Warfare 6.3 (2007): 15-25.
  7. Schneier, Bruce. “Cyberwar Treaties.” 14 June 2012. Schneier on Security. 29 October 2012<http://www.schneier.com/blog/archives/2012/06/cyberwar_treati.html&gt;.
  8. Thompson, Mark. “Panetta Sounds Alarm on Cyber-War Threat.” 12 October 2012. Time. 29 October   2012 <http://nation.time.com/2012/10/12/panetta-sounds-alarm-on-cyber-war-      threat/#ixzz2A9hs0hIX>.
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