A Non-Attribution- Dilemma and its Impact on Legal Regulation of Cyberwar

Transcription

1 A Non-Attribution- Dilemma and its Impact on Legal Regulation of Cyberwar

2 What does 'nonattribution' mean to the concept and underlying principles of 'war' and 'self-defence'?

3 Our Scope Is the International Law a) formally consistent b) substantially convincing c) applicable in all cases of cyberwar? The optimistic view from a wide range of the legal profession argues that a)-c) holds true, even under conditions of non-attribution We ll show a regulatory gap in our legal system

4 You should not talk about cyberwar (under conditions of attribution) for normative reasons (e.g. Kyrahs talk). In our talk things get even worse: We say that we cannot talk about cyberwar under the conditions of non-attribution for conceptual reasons!

5 How can we precisely understand 'non-attribution'?

6 Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible technical legal leg moral

7 Attribution in cyberspace Ontologically possible Ontologically impossible Epistemologically possible Epistemologically impossible Empirically possible Empirically impossible Other problems may occur No application of the term 'war' and selfdefense

8 Attribution in cyberspace Ontologically possible Ontologically impossible Epistemologically possible Epistemologically impossible Empirically possible Empirically impossible Other problems may occur No application of the term 'war' and selfdefense

9 Attribution in cyberspace Ontologically possible Ontologically impossible Epistemologically possible Epistemologically impossible Empirically possible Empirically impossible Other problems may occur No application of the term 'war' and selfdefense

10 Why is attribution so important in any definition of war?

11 'War' is 'an actual, intentional and widespread armed conflict between political communities' (Orend 2008, see also Oppenheimer 1952, Dinstein 2011) or complementary as an organized conflict, staged under use of weapons and violence/force of at least two competing parties, the aim of most wars is the betterment (recovery, attainment) of one s own strategic situation respectively to prevent the opposite.

12 Three conceptually necessary conditions in any definition of 'war'

13 1. Condition: It is conceptually impossible to be in a state of war without there being someone with whom one is at war. (Binary-Condition/Twoplace-Condition)

14 2. Condition It is conceptually impossible to be in a state of war with oneself. (Non- Reflexivity-Condition)

15 3. Condition It is conceptually necessary that two conflicting parties are epistemically distinct in a stage of war. (Epistemic Distinction-Condition)

16 Why is attribution even more important in any legal definition of a 'just' war?

17 Natural state Bellum omnium contra omnes Collective irrational state of war (absolute right to everything, no duty at all) First order regulatory state Universally accepted prohibition of use of force Formulating exceptions from the general rule (e.g. ius ad bellum (just war), self-defence, emergency relief, etc.) Second order regulatory state Formulating conditions of application for the exceptional rules (e.g. excess of self-defence) = justification strategies Third order regulatory state Formulating conditions of application for a justification strategy (e.g. failure of justification) = reasonable excuse

18 What are the usual constraints of 'self-defence'?

19 Constraints of self-defence 1) No unconditional right of self-defence (Self-Commitment of 'just' self-defence) 2) It is conceptually impossible to be in a state of self-defense without there being someone against whom one is in self-defense. (Binary-Condition/Two-place-Condition) 3) It is conceptually impossible to be in a state of self-defense against oneself. (Non-Reflexivity-Condition) 4) It is conceptually necessary that a self-defending party is epistemically distinct from the offender. (Epistemic Distinction- Condition) 5) Any contractual party has the inherent (moral and legal) right to act in self-defense, before/during/after an (immoral and illegal) attack from an offender. (Weak Principle of Self-Defense)

20 Constraints of self-defence 6) Self-defense has to be directed against the attacker and has to rely on the will to defend. (Strong Principle of Self-Defense) 7) A offender has a legal duty to tolerate the defenders enforcement power, so one cannot deduce a right of self-defense when one is offended by an act of self-defense. (No Self-Defense against Self-Defense) 8) Hypothetical causal connections cannot be incorporated in (international) criminal law. (Exclusion of Hypothetical Causes for Justification) 9) Mistakes of law must not justify self-defense. (Exclusion of Putative-Self-Defense as a reasonable justification) 10) Mistakes of fact must not excuse self-defense. (Exclusion of Putative-Self-Defense as an Ground for Excuse)

21 Impossibility-'Theorem' If attribution is impossible Principles [(1), (2), (3), (4)] and [(8), (9),(10)] cannot hold true at the same time

22 Impossibility-'Theorem' You either have to allow hypothetical or putative reasons for self-defence and cannot preclude the possibility that one act in self-defence for unsuitable reasons or you prohibit putative reasons and cannot act in self-defence under conditions of nonattribution.

23 Non-Attribution-Dilemma The main goal of legal regulation is to avoid a stage of arbitrariness, e.g. anarchy. If legal regulation permits war without epistemically justified reasons, it is indistinguishable from arbitrary anarchy. If Putative-Self-Defense is legal, any (false) allegation becomes a potential justifying reason to declare war. bellum omnium contra omnes

24 Non-Attribution-Dilemma The point of EIA is that we cannot guarantee the exclusion of Putative-Self-Defense. When any EIAcyberattack is a reason for self-defense, any regulation is pointless. Therefore EIA leads to a reductio ad absurdum for a rational concept of (epistemically justified) self-defense, because either it misses its own aim of rational regulation or it is indistinguishable from anarchy bellum omnium contra omnes

25 Conclusion We analysed the terms non /attribution, war and self defense. This gave us a basic overview about the problems with attribution which occur with the term war in cyberspace, either for the right to declare war (ius ad bellum) or the right to defend or attack an enemy in war. We presented a fundamental regulation gap through non attribution which is followed by the consequences for our international law and especially the terms used in it.

26 Consequences Do you think that deterrence through a threath of retaliation is not possible anymore, or is this impossibility of attribution?

27 Thank you for your attention! Any Questions? Michael Niekamp Telefon: / E Mail: mniekamp@uos.de Florian Grunert Telefon: / E Mail: fgrunert@uos.de

28 A Non-Attribution- Dilemma and its Impact on Legal Regulation of Cyberwar

29 What does 'nonattribution' mean to the concept and underlying principles of 'war' and 'self-defence'?

30 Our Scope Is the International Law a) formally consistent b) substantially convincing c) applicable in all cases of cyberwar? The optimistic view from a wide range of the legal profession argues that a)-c) holds true, even under conditions of non-attribution We ll show a regulatory gap in our legal system

31 You should not talk about cyberwar (under conditions of attribution) for normative reasons (e.g. Kyrahs talk). In our talk things get even worse: We say that we cannot talk about cyberwar under the conditions of non-attribution for conceptual reasons!

32 How can we precisely understand 'non-attribution'?

33 Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible technical legal leg moral

34 Attribution in cyberspace Ontologically possible Ontologically impossible Epistemologically possible Epistemologically impossible Empirically possible Empirically impossible Other problems may occur No application of the term 'war' and selfdefense

35 Attribution in cyberspace Ontologically possible Ontologically impossible Epistemologically possible Epistemologically impossible Empirically possible Empirically impossible Other problems may occur No application of the term 'war' and selfdefense

36 Attribution in cyberspace Ontologically possible Ontologically impossible Epistemologically possible Epistemologically impossible Empirically possible Empirically impossible Other problems may occur No application of the term 'war' and selfdefense

37 Why is attribution so important in any definition of war?

38 'War' is 'an actual, intentional and widespread armed conflict between political communities' (Orend 2008, see also Oppenheimer 1952, Dinstein 2011) or complementary as an organized conflict, staged under use of weapons and violence/force of at least two competing parties, the aim of most wars is the betterment (recovery, attainment) of one s own strategic situation respectively to prevent the opposite.

39 Three conceptually necessary conditions in any definition of 'war'

40 1. Condition: It is conceptually impossible to be in a state of war without there being someone with whom one is at war. (Binary-Condition/Twoplace-Condition)

41 2. Condition It is conceptually impossible to be in a state of war with oneself. (Non- Reflexivity-Condition)

42 3. Condition It is conceptually necessary that two conflicting parties are epistemically distinct in a stage of war. (Epistemic Distinction-Condition)

43 Why is attribution even more important in any legal definition of a 'just' war?

44 Natural state Bellum omnium contra omnes Collective irrational state of war (absolute right to everything, no duty at all) First order regulatory state Universally accepted prohibition of use of force Formulating exceptions from the general rule (e.g. ius ad bellum (just war), self-defence, emergency relief, etc.) Second order regulatory state Formulating conditions of application for the exceptional rules (e.g. excess of self-defence) = justification strategies Third order regulatory state Formulating conditions of application for a justification strategy (e.g. failure of justification) = reasonable excuse

45 What are the usual constraints of 'self-defence'?

46 Constraints of self-defence 1) No unconditional right of self-defence (Self-Commitment of 'just' self-defence) 2) It is conceptually impossible to be in a state of self-defense without there being someone against whom one is in self-defense. (Binary-Condition/Two-place-Condition) 3) It is conceptually impossible to be in a state of self-defense against oneself. (Non-Reflexivity-Condition) 4) It is conceptually necessary that a self-defending party is epistemically distinct from the offender. (Epistemic Distinction- Condition) 5) Any contractual party has the inherent (moral and legal) right to act in self-defense, before/during/after an (immoral and illegal) attack from an offender. (Weak Principle of Self-Defense)

47 Constraints of self-defence 6) Self-defense has to be directed against the attacker and has to rely on the will to defend. (Strong Principle of Self-Defense) 7) A offender has a legal duty to tolerate the defenders enforcement power, so one cannot deduce a right of self-defense when one is offended by an act of self-defense. (No Self-Defense against Self-Defense) 8) Hypothetical causal connections cannot be incorporated in (international) criminal law. (Exclusion of Hypothetical Causes for Justification) 9) Mistakes of law must not justify self-defense. (Exclusion of Putative-Self-Defense as a reasonable justification) 10) Mistakes of fact must not excuse self-defense. (Exclusion of Putative-Self-Defense as an Ground for Excuse)

48 Impossibility-'Theorem' If attribution is impossible Principles [(1), (2), (3), (4)] and [(8), (9),(10)] cannot hold true at the same time

49 Impossibility-'Theorem' You either have to allow hypothetical or putative reasons for self-defence and cannot preclude the possibility that one act in self-defence for unsuitable reasons or you prohibit putative reasons and cannot act in self-defence under conditions of nonattribution.

50 Non-Attribution-Dilemma The main goal of legal regulation is to avoid a stage of arbitrariness, e.g. anarchy. If legal regulation permits war without epistemically justified reasons, it is indistinguishable from arbitrary anarchy. If Putative-Self-Defense is legal, any (false) allegation becomes a potential justifying reason to declare war. bellum omnium contra omnes

51 Non-Attribution-Dilemma The point of EIA is that we cannot guarantee the exclusion of Putative-Self-Defense. When any EIAcyberattack is a reason for self-defense, any regulation is pointless. Therefore EIA leads to a reductio ad absurdum for a rational concept of (epistemically justified) self-defense, because either it misses its own aim of rational regulation or it is indistinguishable from anarchy bellum omnium contra omnes

52 Conclusion We analysed the terms non /attribution, war and self defense. This gave us a basic overview about the problems with attribution which occur with the term war in cyberspace, either for the right to declare war (ius ad bellum) or the right to defend or attack an enemy in war. We presented a fundamental regulation gap through non attribution which is followed by the consequences for our international law and especially the terms used in it.

53 Consequences Do you think that deterrence through a threath of retaliation is not possible anymore, or is this impossibility of attribution?

54 Thank you for your attention! Any Questions? Michael Niekamp Telefon: / E Mail: mniekamp@uos.de Florian Grunert Telefon: / E Mail: fgrunert@uos.de