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On the Relationship Between the Ethics and the Law of War: Cyber Operations and Sublethal Harm

Published online by Cambridge University Press:  08 December 2017

Edward Barrett
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Abstract

Why do we need dialogue between ethical and legal perspectives on norms governing the initiation and conduct of interstate conflict? This essay will examine this question by first critiquing the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare, which sought to apply existing legal frameworks that govern international violence to a new form of conflict. While the manual is for the most part ethically commendable, the first half of the essay will highlight several of its ethical shortcomings and will then extract general reasons why international law nevertheless must be informed by ethical analysis. The second part of the essay will affirm the importance of law for ethical analyses of justified responses to the burgeoning phenomenon of sublethal harms. While states have always used sublethal harms to weaken adversaries, technological developments have magnified the regularity and effectiveness of these practices, particularly against free societies. Responses to such attacks may include—in addition to defensive countermeasures—punishments that deter and reform, and may target “indirect participants” such as financial supporters. However, determining which responses are ethically justified will require insights gleaned from criminal and tort law.

Keywords

cyber warfaresublethal harmsTallinn Manualjus ad bellumjus in bellointernational lawjust war theory
Type
Roundtable: The Roles of International Law and Just War Theory
Information
Ethics & International Affairs , Volume 31 , Issue 4 , Winter 2017 , pp. 467 - 477
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2017 

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References

NOTES

1 Schmitt, Michael N., ed., The Tallinn Manual on the International Law Applicable to Cyber Warfare (New York: Cambridge University Press, 2013)CrossRefGoogle Scholar. Hereafter referred to as “the manual.”

2 For an improved version, see Schmitt, Michael N., ed., Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge: Cambridge University Press, 2017)CrossRefGoogle Scholar.

3 Schmitt, Tallinn Manual, p. 48.

4 Ibid., p. 55.

5 While the manual's predominant position is that not every fatal use of force rises to the level of an armed attack (for example, see ibid., Rule 11, para. 9 and especially Rule 13, para. 7), it at one point suggests that “any use of force that injures or kills persons or damages or destroys property” is an armed attack (Rule 13, para. 5–6).

6 Schmitt, Tallinn Manual, p. 47. While the Tallinn Manual authors rejected this contrary view, in their analysis of permissible countermeasures the minority held that “proportionate countermeasures could involve a limited degree of military force in response to circumstances below the Article 51 threshold of ‘armed attack’” (Rule 9, para. 5). See also Rule 9, note 4.

7 Schmitt, Tallinn Manual, p. 57.

8 This position comports with those of David Rodin and James Brady; and contradicts that of Vinit Haksar, whose “rights-based” theory of punishment expands liability by asserting that because everyone has a claim-right not to be harmed, even unintentionally afflicted harm results in forfeiture. See Rodin, David, War and Self-Defense (New York: Oxford University Press, 2003), pp. 779–83Google Scholar; Brady, James B., “A ‘Rights-Based’ Theory of Punishment,” Ethics 97, no. 4 (1987), pp. 792–95CrossRefGoogle Scholar; and Haksar, Vinit, “Excuses and Voluntary Conduct,” Ethics 96, no. 2 (1986), pp. 319–29CrossRefGoogle Scholar.

9 Schmitt, Tallinn Manual, p. 62.

10 Ibid., p. 108.

11 Ibid., pp. 55–56.

12 Ibid., p. 160.

13 Ibid., pp. 108–109.

14 Ibid., pp. 109, 126–27. Two comments on the targetability of data. First, while the manual asserts on p. 127 that the “majority” of experts held that operations targeting data “sometimes” qualify as an attack when functionality is affected, p. 109 asserts that only a “few” experts maintained this position. Second and to their credit, a minority of the manual's experts opined that “data per se should be regarded as an object” and that current law prohibited the “deletion of extremely valuable and important civilian datasets,” and the majority “characterized this position as de lege ferenda” (p. 127).

15 Schmitt, Tallinn Manual, p. 109.

16 Haque, Adil, “Laws for War,” in Ohlin, Jens David, ed., Theoretical Boundaries of Armed Conflict and Human Rights (Cambridge: Cambridge University Press, 2016), p. 27Google Scholar. See also the chapter in this volume by Luban, David, “Human Rights Thinking and the Laws of War.” For a fuller treatment of Haque's argument, see his important book Law and Morality at War (New York: Oxford University Press, 2017)Google Scholar.

17 Haque, “Laws for War,” p. 27.

18 McMahan, Jeff, “The Prevention of Unjust Wars,” in Benbaji, Yitzhak and Sussmann, Naomi, eds., Reading Walzer (Abingdon, U.K.: Routledge, 2014)Google Scholar. For a critique, see Luban, David, “Knowing When Not to Fight,” in Lazar, Seth and Frowe, Helen, eds., Oxford Handbook of Ethics of War (Oxford University Press, 2015)Google Scholar.

19 On threshold stretching, see Connable, Ben, Campbell, Jason H., and Madden, Dan, Stretching and Exploiting Thresholds for High-Order War: How Russian, China, and Iran Are Eroding American Influence Using Time-Tested Measures Short of War (Santa Monica, Calif.: RAND, 2016)CrossRefGoogle Scholar.

20 Liang, Qiao and Xiangsui, Wang, Unrestricted Warfare (Beijing: PLA Literature and Arts Publishing House, 1999)Google Scholar.

21 Responses to relatively low-scale lethal harm have been explored under the rubric of “jus ad vim.” See Brunstetter, Daniel and Braun, Megan, “From Jus ad Bellum to Jus ad Vim: Recalibrating Our Understanding of the Moral Use of Force,” Ethics & International Affairs 27, no. 1 (2013)CrossRefGoogle Scholar. For a critical response, see Frowe, Helen, “On the Redundancy of Jus ad Vim: A Response to Daniel Brunstetter and Megan Braun,” Ethics & International Affairs 30, no. 1 (2016)CrossRefGoogle Scholar. For recent work on the ethics of sublethal harm, see Gross, Michael L. and Meisels, Tamar, eds., Soft War: The Ethics of Unarmed Conflict (Cambridge: Cambridge University Press, 2017)CrossRefGoogle Scholar; and Whetham, David, “Are We Fighting Yet? Can Traditional Just War Concepts Cope with Contemporary Conflict and the Changing Character of War?” Monist 99, no. 1 (2016)CrossRefGoogle Scholar.

22 I realize that the relationship between culpability and liability is contested. See, for example, Rodin, War and Self-Defense and McMahan, Jeff, Killing in War (New York: Oxford University Press, 2009)CrossRefGoogle Scholar.

23 For an excellent analysis of whether effectiveness and necessity are preconditions to (i.e., “internal” to) liability, see Frowe, Helen, Defensive Killing (New York: Oxford University Press, 2014)CrossRefGoogle Scholar, chapter 4.

24 McMahan, Jeff, “The Limits of Self-Defense,” in Coons, Christian and Weber, Michael, eds., The Ethics of Self-Defense (New York: Oxford University Press, 2016), p. 192Google Scholar.

25 In rare cases, such as cyber intrusions that seek to cause low-level harm as part of an existentially threatening campaign, anticipatory lethal responses might be justified.

26 For a seminal treatment of the historical shift away from punitive war, see Luban, David, “War as Punishment,” Philosophy & Public Affairs 39, no. 4 (2011)CrossRefGoogle Scholar.

27 It must be emphasized that tit-for-tat responses may be unethical. Countermeasures and punitive responses must themselves be justified.

28 Having expanded the purpose and recipients of justified harm, it would be wise to add a cautionary note that bedevils “targeted killing” operations. While due process might not require courts or uniforms, extraordinary care must accompany the identification and treatment of liable individuals, and appropriately transparent institutional structures must be created to ensure such care.