‘Justified’ Cyber Warfare: Rethinking the Doctrine of Jus ad Bellum

For any war, there must be a just cause to justify the death and destruction caused. However, the criterion by which one defines ‘just’ is subjected to change from time to time. Theorists and philosophers nowadays agree on only a handful of reasons, e.g., humanitarian grounds, national security, etc. Similarly, the aftermath of the war needs to be considered. War is futile if it leads to a situation that further increases misery, rather than just peace. Furthermore, it should be the last resort. War must only be fought only when it is absolutely necessary and other alternatives such as handling disputes through diplomacy, etc. are exhausted.

Source: https://www.raytheonintelligenceandspace.com/what-we-do/cybersecurity/cyber-warfare

Introduction

War is considered to be one of the most violent methods to resolve a dispute. A state of war often disrupts financial trade, diplomatic treaties, commercial relations, etc. between the two countries and often result in several hostilities on both fronts. It is not difficult to imagine that for people living in war-torn countries, this will result in constant fear. Even more so for the institutional actors and the armed forces on ground – for they don’t have to answer just to the civilians but also to the international community. Institutional actors, as leaders in this case, have to take the responsibility of the actions committed during the war, whereas the soldiers who actually fought the war have to be held accountable for their actions. It is considered important that this accountability is ensured so that no party in conflict may resort to whims and fancies of any arbitrary entity. Therefore, before resorting to an armed conflict, there are checks placed to reduce the hostilities and to ensure that peaceful and cordial relations are maintained to maximum extent. But what if a party could remain completely anonymous throughout this while wreaking havoc on the other? What are the new challenges that emerge through this fusion of technology and warfare and does Jus ad Bellum need a fresh thinking? In this era of digital warfare, this is exactly the question that needs to be focused upon.

The Doctrine

One such doctrine pertaining to international law, that is used now to ensure legitimacy, accountability (which is often argued to be disputed in digital warfare) and justification for resorting to war, is the doctrine of Jus ad Bellum. Jus ad Bellum defines the prerequisites for any country to justify use of armed force. Let us start with a brief insight into this vast arena.

For any war, there must be a just cause to justify the death and destruction caused. However, the criterion by which one defines ‘just’ is subjected to change from time to time. Theorists and philosophers nowadays agree on only a handful of reasons, e.g., humanitarian grounds, national security, etc. Similarly, the aftermath of the war needs to be considered. War is futile if it leads to a situation that further increases misery, rather than just peace. Furthermore, it should be the last resort. War must only be fought only when it is absolutely necessary and other alternatives such as handling disputes through diplomacy, etc. are exhausted.

After both the ends of the line and other alternatives are considered, one resorts to how one needs to conduct a war. The declaration of war must come from a legitimate authority – for this is the one that will change the whole state of affairs. The legitimacy is often bestowed upon the state actors, for it is assumed that they have a definite standing on the moral compass. The condition, by imposing the power to authorize the actions during the war to only those who can prove their standing on the ground of legitimacy, enhances accountability in case they deter. Also, it minimizes the (third party) groups that may want to prolong the war to benefit their goals. Continuing towards the appropriate conduct in the war, the doctrine has one more principle – proportionality. The condition is connected to just peace and legitimate authority. A state of war may ignite hatred against each other and so, a party may resort to brutal forms of deaths and destruction. The effects that are a result of these methods of violence, such as such as biological warfare, nuclear weapons, dismemberment, mutilation, etc., must be proportional to the way in which these are deployed. The goal is to ensure that civilians get the least possible affected, so as to ensure that peace prevails and not infliction of ‘evil’.

Cyber Warfare

The inclusion of technology in a war has never been a new thing. But there is a dramatic change with warfare throughout the last century, that witnessed increased reliance on technological advancements. The technological fusion with the military has been faster than ever before. From controlling weapons of mass destruction remotely to spreading misinformation in order to weaken the military, such tactics are becoming increasingly easier to deploy. The goal is still the one in traditional warfare, to disrupt the flow of information and cause delay in decision making. An effective attack to damage and deceive would increase vulnerability and once the confidence is lost, invading territory and gaining control becomes much easier. The only difference is that these tactics are deployed faster and, most importantly, stealthily. Even strategy planning over long distances is possible with stealth means such as the dark web, without leaving possible traces.

War is not just limited to battlegrounds. The financial capability and civilian confidence in the state can be attacked. Financial capabilities could include not only diminishing reserves to create a cash crunch within the economy, but also to deploy tactics like money bombs to increase money supply in the hands of the public – thereby increasing demand and causing inflation. Slipping false information and/or conspiracy theories is possible even with the surface net tools such as social media. Thus, the state under attack will have to effectively face the ‘enemy’ as well as the civil unrest. When these are bound with the falling economy, it can bring any nation down to its knees way more easily. Moreover, means such as targeting and destroying critical infrastructure within a state in order to disrupt the flow and slow down the progress can be used easily now owning to increased capabilities of cyber attack techniques.

The Challenges: Applying the age old doctrine to the modern form

How does one ensure that legitimacy and accountability is still maintained even after the emergence of tools that have allowed all the work to be done stealthily? The answer is quite simple one: One can’t. As to the question of why, the answer lies in the cloak of invisibility the technology has provided. The moment one does not have to be accountable for one’s deeds, the moral justification is not a factor that one will consider; since all the prerequisites are centered around either on humanitarian grounds and diminishing the possibility of actual warfare, but it is still limited to either diplomatic means or atrocities committed on the ground. The doctrine still hasn’t adapted itself yet to the new form.

Cyber Warfare has opened even more possibilities that could be used. Other methods that may lead to (civil) warfare, such as attack on economy or political polarization are increasingly gaining reputation. The problem here is that these tactics are often slow, spread over a considerable period of time and are often treated as interference within the state by an alien.

Thankfully, the technologies such as these are not way advanced and traceability is still possible, however the attribution is getting harder as attackers learn from past mistakes. There are several tools and checks in place by intelligence and threat analysts that detect if any such programs to destroy an institution from within are being used against their state. The debate on privacy has even gained a rapid turn with the rise of non-institutional actors that are trying to engage in war with states. The underlying problems such as spreading propaganda and increasing polarization are gaining global attention steadily and soon technology to identify and curb the use of such means are expected. Although the realization of the need of such tools is slow and so Jus ad Bellum to fully establish its feet in the digital arena can be imagined but only in the remote future.

The Conclusion

In a digitized world, the legitimacy has always remained a question. Anonymity has been a boon as well as bane. The release of technologies, such as the dark web, has not only fueled the other enemy states to use them but has given rise to several non-state actors to engage in this form of warfare as well. The problems created by the technology are slowly but steadily coming to the limelight. Technological experts along with intelligence analysts are working steadily in this regard and legitimacy needs to be established soon. Warfare between two nation states as well between a nation state and a non-institutional actor are both problematic, but the methods envisaged are still similar to a large extent. But only countering existing technologies is not going to work, as ones promoting anonymity are rapidly exploding. The rate of increasing security in digital navigation must catch up with the progress. The underlying motivation and intention behind the doctrine of Jus ad Bellum isn’t the one that needs a fresh thinking, but we need to ensure that anonymity is countered through every possible way. The argument doesn’t extend up to breaching the privacy of the individuals, but still traceability through digital footprints and cybersecurity checks should be ensured so that the ones committing such heinous acts be brought to justice. This is the only way that accountability can be established and thus, peace could be maintained.

Author: Aman Gugnani is a third year law student at O.P. Jindal Global University. His areas of interest include criminal law, constitutional law and geopolitics. He aspires to be a dispute resolution lawyer in the future.