Summary of ASIL/UNA program: Cyberthreats and the Use of Force

Is the UN Charter and international law actually a deterrent to cyberwarfare or just “legal window-dressing?”

This was the issue put to a packed audience on Wednesday, April 17th at a meeting on CYBERTHREATS AND THE USE OF FORCE, the first of three programs on The UN, International Law and the Use of Force co-sponsored by UNA-NCA and the American Society of International Law (ASIL) at the Tillar House headquarters of ASIL on Sheridan Circle, in Washington, D.C.

The first panelist, Prof. Lotrionte, maintained that two articles in the UN Charter are going to “rule” in determining when the use of force against cyberthreats is justified: Article 2, section 4, which states that “All Members shall refrain…from the threat or use of force…inconsistent with the Purposes of the United Nations,” and Article 51 “that nothing in the present Charter shall impair the inherent right of individual or collective self-defence…”.

The second panelist, Mr. Baker, said that the President will determine “whether an attack hurts enough” to warrant the use of force and that it is a waste of resources to try to extract more certainty from “customary and humanitarian international law” or the UN Charter.

Casting doubt on the value of efforts to negotiate or prescribe limits on how cyberweapons are used, he cited September 1, 1939 (the outbreak of WWII), when President Roosevelt extracted from all parties to the conflict a pledge not to use what was then a new and nightmarish weapon – bombing from the air — against civilians. That pledge held for a while in the midst of all-out war but was discarded by both sides after a German bombing raid on the London docks, a legitimate military target, instead hit the nearby financial center. This prompted Churchill to bomb Berlin in retaliation, which in turn triggered the Blitz.

Col. Brown, the third panelist, defended what he called a “middle road,” stating that international law applies in determining whether force is justified, but, he said, “Until an armed conflict begins there is no way of knowing what international norms apply in reality.” Hence, he said, “It is important to look at the issues before war-fighting breaks out,” and apply norms as are set forth in the recently published “Tallin Manual on the International Law Applicable to Cyber Warfare,” (Cambridge, 2013).

The panelists were asked during the “Q&A” if they thought the so-called Stuxnet attack against Iran’s nuclear facilities, which it is estimated destroyed 1,000 centrifuges, was a justified use of force against a presumed nuclear threat from Iran’s growing nuclear program (the focus of the next program in this series, on “Iran,” April 26th ).

Col. Brown pointed out that Stuxent was only one of many cyber incidents along a spectrum of cyber conflict initiated by both sides, which introduces an element of ambiguity. Prof. Lotrionte said that setting “red-lines,” as this question implies, which define when force is justified, is good policy and helps deter cyberwarfare. Mr. Baker agreed with Col. Brown that ambiguity is a better policy. All agreed that a response under Article 51 of the Charter must be proportional to the threat and must be necessitated by the absence of a non-force alternative.

By Dick Rowson,

Event organizer for UNA-NCA’s International Law Committee

May 22, 2013

Panel

  • Moderator: Frank J.Cilluffo, Director, George Washington University’s Homeland Security Policy Institute
  • Stewart Baker, Partner, Steptoe & Johnson LLP, former Assistant Secretary for Policy, U.S. Department of Homeland Security
  • Col. Garry D. Brown, USAF, Ret., Deputy Legal Advisor, International Red Cross and former staff judge advocate for U.S. Cyber Command
  • Prof. Catherine Lotrionte, Director of Georgetown University’s Institute for Law, Science and Global Security and former Counsel to the President’s Foreign Intelligence Advisory Board

Posted June 5, 2013 in: General News