The Washington Post’s Ellen Nakashima examines the question of what constitutes war if the trigger point originates in cyberspace:
Deciding what amounts to an act of war is more a political judgment than a military or legal one. International law avoids the phrase in favor of “armed attack” and “use of force.” [...]]]>
The Washington Post’s Ellen Nakashima examines the question of what constitutes war if the trigger point originates in cyberspace:
Deciding what amounts to an act of war is more a political judgment than a military or legal one. International law avoids the phrase in favor of “armed attack” and “use of force.” Retired Gen. James Cartwright, former vice chairman of the Joint Chiefs of Staff, has often said that an act of war “is in the eye of the beholder.”
As Cartwright has pointed out, the United States didn’t go to war with North Korea after it sank a South Korean warship in 2010, nor with Iran after the U.S. Embassy in Tehran was seized in 1979. Would we want to start a war over a virus that causes a power blackout? And if not, what other actions might the government contemplate?
The government has defined an armed attack in cyberspace as one that results in death, injury or significant destruction, as Harold Koh, the State Department’s chief legal adviser, recently put it. Here’s the rule of thumb, as Koh stated it: “If the physical consequences of a cyberattack work the kind of physical damage that dropping a bomb or firing a missile would, that cyberattack should equally be considered a use of force.” If an attack reaches those levels, then a nation has a right to act in self-defense.
Columbia Law School professor Matthew Waxman elaborates on the legal and policy dimensions at the Lawfare blog. Demonstrating attribution and the need for self-defence will be a multi-dimensional, complicated process, he writes:
As to the last questions, whatever certainty about the perpetrator is necessary to satisfy internally the legal self-defense question, a state will also need to explain and justify its military response externally, to domestic and international audiences – and those exercises may look very different. A state may not be willing to disclose publicly some of the intelligence information and analysis used to satisfy its internal legal analysis (I’m assuming that the attribution of a major cyber-attack could involve a combination of sophisticated digital forensics, human intelligence, reliance on circumstantial evidence and reasoning, and other means). Even if it chooses to disclose intelligence, that information might be unintelligible or unpersuasive to skeptical outside audiences. And the threshold of certainty necessary to win support from allies and partners may be higher (or perhaps in some cases lower) than that needed to satisfy legal requirements.
In terms of evolving international law in this area, the challenges of demonstrating attribution – besides just assessing it internally – will make it especially difficult to develop consensus legal appraisal of self-defensive actions against cyber-attacks, because so many of the key facts about the attack will be contested, secret, or difficult to observe.
]]>
Writes Eckholm:
Crail ends by noting that:
In doing so he is also alluding to the fact that the majority of U.S. intelligence and military analysts are opposed to invading Iran, which raises the question of why certain members of congress and presidential candidates keep bringing the “military solution” up. Who are they being influenced by and who are they trying to please by adopting this kind of aggressive posturing?
Read Crail’s entire post below.
The Military Option on Iran: Be Careful What You Wish For
By Peter Crail
TIME Magazine has recently highlighted an analysis entitled “Invading Iran: Lessons from Iraq” by Air Force Lieutenant Colonel Leif Eckholm, who works in the Strategic Plans and Policy Directorate for the chairman of the Joint Chiefs of Staff (the analysis was published by Stanford’s Hoover Institution, where Eckholm served as a defense fellow).
As the title suggests, the analysis examines many of the challenges in securing a post-invasion Iraq, and how they would be similar, different, or magnified in the context of Iran.
One of the key takeaways, however, is a brief cost/benefit assessment of the decision to attack Iran and a recognition that the only sure-fire way that military force could stop Iran’s nuclear program is through an Iraq-style invasion and occupation:
This assessment echoes the acknowledgement by former Joint Chiefs Vice Chairman General James Cartwright during an April 2010 Senate hearing that the only way military action would end Iran’s nuclear program would be through invasion and occupation. Cartwright went on to say during the hearing that, while the United States military could carry out such an operation, “there would be consequences to our readiness and the challenges that we already face in this nation economically to pay for war.”
It is important to note that an air campaign against select nuclear facilities wouldn’t be a walk in the park either, as former DIA analyst and Washington Institute Defense Fellow Jeffrey White said during an ACA event in June:
Discussing Israel’s own military option, Former Mossad Chief Meir Dagan was even more straightforward, saying it was “the stupidest thing I have ever heard.”
Lt. Col. Eckholm’s analysis provides an important contribution to answering questions that were not adequately addressed prior to the Iraq invasion, including what are the likely consequences and is it worth it? Military leaders naturally need to prepare for the possibility that they would be asked to undertake such operations. At the same time, those who are or aspire to be in a position to order those operations need to be aware of the extent of the military and economic commitments they, and ultimately the American people, would be making.
So when members of Congress say we should consider military force, or presidential candidates talk about a “military solution” to Iran’s nuclear weapons ambitions, it is important to ask just what kind of military action they propose, and whether they have also addressed the types of consequences that military leaders and defense analysts describe.
]]>