Navigating Gray Zone Challenges in and through Cyberspace

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1 Navigating Gray Zone Challenges in and through Cyberspace COL Gary Corn Overall Classification: Unclassified 1

2 Agenda Navigating Gray Zone Challenges Domestic Law Considerations Fundamental rights and security The International Legal Framework Jus in bello Jus ad bellum Jus Cyber bellum

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6 The Cyber Environment People Cyber Identity Information Layer Physical Infrastructure Geographic Layer

7 Navigating Gray Zone Challenges Gray zone conflict is best understood as activity that is coercive and aggressive in nature, but that is deliberately designed to remain below the threshold of conventional military conflict and open interstate war. Province of revisionist powers; Reap gains, whether territorial or otherwise, that are normally associated with victory in war; Without escalating to overt warfare The employment of nontraditional tools of statecraft to achieve gradual but decisive results in the no-man's-land between peace and war.

8 (U) A Disturbing Trend The Threat is Evolving 6/20/2013 4:37 PM 8

9 International Law Implications of Emerging Cyber Operations Law of State Responsibility Lotus Non-Intervention Jus Ad Bellum Unregulated International Relations (Lotus) Principle of Non- Intervention Jus Ad Bellum PEACE WAR

10 Jus in Bello

11 Law of Armed Conflict Jus in bello: Laws that regulate conduct during war Base Principles Military Necessity Distinction Proportionality Precautions Against the Effects of Attacks Military Objective Target Identification (Attribution) Direct Participation in Hostilities Targeting Rules Weapons Reviews

12 Jus ad Bellum

13 Use of Force/Armed Attack in Cyberspace Article 2(4)/Article 51, UN Charter Cyber operations that cause effects that, if caused by traditional physical means, would likely be viewed as a use of force. Multifactor assessment. Cyber activities that proximately result in death, injury or significant destruction. Scale and effects. No injury, death or damage, but extensive negative effects?

14 Use of Force/Armed Attack in Cyberspace Breach of International Obligation, unless: Security Council Resolution Consent Self-Defense

15 Jus Cyber Bellum

16 Principle of Non-Intervention Prohibits forcible, dictatorial or otherwise coercive action action that forces a State against its will to take a particular course, or prevents it from taking a particular course of action, and involves a serious level of interference in relation to an important sovereign right. Against domaine réservé: must bear on matters in which each State is permitted, by the principle of State sovereignty, to decide freely such as the choice of political, economic, social and cultural system, and the formulation of foreign policy.

17 Countermeasures An action that violates international law (but does not amount to a use of force) that is rendered lawful, or justified, because it is taken in response to another state s unlawful act. Must determine that the activity is, in fact, a wrongful act Must attribute conduct to the sending State

18 Countermeasures Conditions for Using Countermeasures May only be taken against the State that committed wrongful act May only be taken against a wrongful act that is ongoing Countermeasure must be temporary and reversible Prior to taking countermeasure, State must: Call upon State to comply with international obligations Provide notice of intent to take countermeasures and offer to negotiate unless urgent countermeasures needed to preserve rights? Proportionality

19 Plea of Necessity Like Countermeasures, is a justification for an otherwise wrongful act under international law Available when a State s essential interests face grave and imminent peril Controversial because: No consensus on what constitutes essential interest No definition of grave peril

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21 Sovereignty Sovereignty applies in cyberspace Cyberspace is not a Global Commons The concept of sovereignty in international law General principle or binding norm Internal vs. external sovereignty Internal States exercise sovereignty over all cyber infrastructure within national boundaries External Principle of Sovereign Equality Lotus Principle

22 Retorsion Measures that are LAWFUL, but unfriendly to another State Taken in response to behavior of another State Must not violate a treaty obligation or customary international law norm Examples Use of a white list or black list on IT infrastructure under sovereign control of a State Economic sanctions Expelling diplomats Trade embargoes

23 Questions When Paul Says It s Time