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This chapter examines the application of the law of armed conflict to cyberwar. It provides definitions related to cyberwar, analyses the actors in this unique battle space, and evaluates examples of relevant activities. The chapter suggests that though there are certain problems with the application of the law of armed conflict to cyberwar, it appears to cover the effects of a cyber attack, and that this is a testament to the strength and flexibility of the law.

This concluding chapter provides a brief summary of the book, but focuses on three policy issues facing international humanitarian lawmakers today. First, drawing on evidence provided in Chapter 2, this chapter asks whether military personnel have been participating in ongoing debates over the laws of war regarding cyber warfare and lethal autonomous weapons systems. Second, the chapter draws out “the secessionists’ dilemma,” wherein secessionists are told by the international community to behave a certain way, but are rarely rewarded for good behaviour. And third, the chapter delves into the book’s contrasting findings regarding the declining use of peace treaties in interstate war and their increasing use in civil war. The chapter concludes by arguing that the development of international humanitarian law, while generating some perverse incentives, is likely a net good, but that future caution is warranted.

This chapter examines the implications of China's rise for international security. From the standpoint of governments disgruntled with American preeminence, a stronger China might enhance global security. In practice, China's commitment to a “principled” foreign policy might prove highly conditional. More specifically, the rise of China is expected to have a positive effect on global security issues only where the international community's interests overlap with the Chinese's narrowly defined national interests. Furthermore, China's undeclared cyberwar against the United States and other countries illustrates how the PRC approach to international affairs can sometimes be cynical as well as ruthless. Some countries also believe that China's antiterrorism record has been in some instances too permissive and in other cases excessive. Another issue is that China's relatively laissez-faire approach to foreign economic aid undercuts efforts to improve human security worldwide.

This chapter addresses a non-linear signal archaeology that connects Cold War architectures to current politics of global surveillance. In the wake of the NSA/PRISM/Snowden revelations in June 2013, it was discovered that Britain still has a “secret listening post” in the heart of Berlin. The story about Britain’s involvement in Berlin is indicative of some continuities in the Cold War narratives that persist, and some media technological practices that never disappeared: from the Teufelsberg listening post in Berlin to the current NSA culture, we are forced to admit the significance of what Thomas Elsaesser referred to as the S/M perversion of cinematic media: the centrality of technical media in Surveillance and Military. Indeed, excavating “signal architecture archaeologies” means looking at those non-human spaces built for signals – a preparation for the war conducted over signals, or what nowadays is referred to as “cyberwar”. This theme haunts the abandoned buildings and remnants of the Cold War like Teufelsberg, which is approached poetically as a haunted signal space: the ghosts that characterise military architectures are not dead souls of humans, but the non-human pings of massive infrastructures of signal processing.

This chapter explores how violence unfolds in the context of cyberwar. It does so through a theoretical analysis of understanding the body that transcends corporeality. It reflects on the implications this entails for the production of knowledge on this phenomenon. This chapter suggests rethinking cyberwar in view of violence as an experience that discloses through the interplay between embodied proximity and distance, rather than corporeality. Drawing on the author’s research experience on Palestinian cyberwar, an understanding of violence is reconciled with its implications for the study of war in cyberspace, at often times considered as a disembodied, and thus non-violent, warscape.

This chapter critiques the popular concept of cyberwar arguing that both the threat it represents to major powers, as well as its efficacy as a weapon against others has been dramatically over exaggerated. Drawing parallel with the debate over the effect of air power that dominated the period between the First and Second World Wars it suggests that the appropriate conceptualisation of “cyberpower” is as part of a combined arms system.

Cyberwar is a new form of conflict. Contemporary nation-states and, for that matter, nonstate actors such as corporations, now suffer and inflict ongoing cyberattacks on a large scale. Whether these attacks constitute war rather than conflict short of war or mere breaches of security (criminal or otherwise) is not always entirely clear. This chapter distinguishes between cyberwar, cyberterrorism, cybercrime, cyberespionage, and what the chapter refers to as “covert political cyberaction”—a species of covert political action. The chapter argues that many, if not most, cyberattacks perpetrated by nation-states on other nation-states for political reasons are best understood neither as acts of war nor as crimes but rather as a new form of covert political action—that of covert political cyberaction. The chapter argues that much covert political cyberaction is best understood as a species of dirty hands action; harmful and unlawful action undertaken to achieve an (alleged) greater good.

When The Anarchical Society was published in 1977, the world was on the doorstep of seismic technological change. Forty years later, the information age has placed cyber security at the centre of many global political concerns including armed conflict and international law. The ongoing difficulties associated with accurately attributing cyber attacks introduce a new dimension of anarchy in international relations. This essay draws on Bull’s ideas about social interplay to explore the problem of attribution in cyberspace. It finds that the difficulties of identifying (even) state actors undermine some of the processes and institutions upon which Bull based his ideas. However, it also finds that Bull’s work is useful in unpicking exactly why attribution is so problematic for international relations. Ultimately, Bull’s expectation that actors will look for social solutions to maintain order appears to be holding up in the information age much as it did in the industrial age.

One of the core insights of Musil’s The Man Without Qualities is that there must be ‘a sense of possibility’. This chapter analyzes debates on the law applicable to cyberwar, as debates emanating from a sense of possibility, which translates into imageries of the way cyberwar might, could, or ought to happen, i.e. how possible future realities are construed. The analysis is limited to the Tallinn Manual on the International Law Applicable to Cyber Warfare. The basic point of much legal analysis is to make sense of new phenomena in terms of pre-existing legal rules, or, to make the unfamiliar, familiar. The creation of these legal imageries is contrasted with non-legal imageries of cyberwar, as found in military and security studies. The purpose of this exercise is to carve out more clearly what is particular about the way in which international lawyers have imagined the future in this domain.

This chapter addresses the philosophical question of whether the just-war tradition (JWT) can accommodate cyberwar. It argues that while the received JWT can accommodate the intentions and effects of cyberwar with no foundational modification, cyberwar also holds a unique ethical status at least for the historical moment. Three factors contribute to making cyberwar morally special—a growing sense of cyber’s ubiquity, uncontrollability, and neoreality. These three factors make it easier for our culture to view cyberwar as a constant and near-universal threat to good people and the ways they go about their daily lives. The ethics of threat spurred originally by the threat of nuclear war has lost momentum over the last decade. This chapter argues that the prospect of cyberwar may and should revive that ethics and take it in a new direction.

This chapter argues that the increasing threat and deployment of cyberweapons will force the law of war to develop a sophisticated and nuanced account of causation. It first explains why causation is largely irrelevant to the basic structure of traditional international humanitarian law (IHL). It then introduces various scenarios of cyber attacks that will trigger immense pressure on IHL to develop an account of causation. It supports the proposition that cyber attacks implicate the concept of causation in previously unseen ways and places immense pressure on the adjudication of causation. It explains why some traditional theories of causation cannot be reflexively and uncritically grafted into IHL. It concludes that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.

This chapter examines the UK’s criminal justice-based response to the threat of cyberterrorism. In recent years the UK has introduced a range of terrorism-related legislation, which has significantly extended the reach of the criminal law, indirectly diminished the procedural rights of suspected terrorists and provides for the imposition of severe sanctions which are rooted in a precautionary approach based on potential future harms. These are all marked departures from the normal standards of the criminal law and may be understood as the convergence of the criminal justice and exceptional measures approaches: in other words, as a form of enemy criminal law. The chapter argues that it is contradictory—and, ultimately, self-defeating—to insist on a criminal justice-based framework without adhering to the features which give the criminal law its moral authority in the first place.

The interplay between law and rhetoric forms an important backdrop for analyzing international legal norms governing state response to cyber threats. First, the term “cyberwar” or “cyberwarfare” is used to connote a wide range of actual and potential cyber activities or threats across a broad spectrum of activity. This chapter highlights the consequences of “war” rhetoric in the cyber realm, with specific reference to lessons from the past decade of counterterrorism. It then analyzes the consequences of the term “cyber attack,” focusing on both the jus ad bellum concept of “armed attack” and the law of armed conflict definition of “attack,” particularly with regard to blurring the notion of “attack” into one unspecified and extensive term conflating two or more legal concepts. Each of these results has significant ramifications for the application of international law, the preservation of the international system, and the protection of persons during times of conflict.

This chapter proposes re-thinking legal boundaries in cyberspace generally and for state cyber operations in particular. It asks if the current emphasis on drawing law from boundaries and boundaries from law is a sufficient or effective way to regulate cyberspace and its conflicts. Section I examines invocations of borders to generate legal authority in cyberspace. Section II undertakes a similar effort with respect to borders drawn between and within legal regimes in international law such as those for the use of force. Section III offers a case study of international humanitarian law’s (IHL) boundaries for the means and methods of warfare. It suggests that IHL adopt a Duty to Hack, reviewing both the benefits and costs of doing so given existing efforts to apply IHL by analogy.

This chapter examines what the law says about deception operations in warfare and the implications for the lawful exploitation of cyber deception methods. It first considers whether deception operations in the cyber sphere seem likely and, if so, what form they are liable to take. It looks at the history of the use of deception in warfare. It traces the development of the relevant law, explaining what the modern law permits and, respectively, prohibits. It applies those legal rules to different kinds of cyber deception and asks whether the law challenges, or is challenged by, the foreseeable use of such technologies.

Existing works on inter-state cyber operations have focused so far on whether such operations are consistent with primary norms of international law and on the remedies available to the victim state under the jus ad bellum and the law of state responsibility. They have almost entirely neglected a discussion of the evidence the victim state needs to produce to demonstrate that an unlawful cyber operation has been conducted against it and that it is attributable to another state. Taking the International Court of Justice’s case-law into account, the chapter discusses who has the burden of proof in relation to claims seeking remedies for damage caused by cyber operations, the standard of proof required in the cyber context, and, finally, the possible methods of proof, distinguishing between those which are admissible and those which are inadmissible.

What civil-military challenges will arise from the virtual world of cyber warfare? Congress and the president have grown increasingly comfortable with permissive grants of authorities and decentralized delegations—including via classified documents with legal force (secret law)—, allowing military commanders to operationalize cyber tools in both defensive and offensive modes with greater ease and frequency. These cyber tools are unusually complex in their variety, design, and potential uses, at least relative to more traditional and conventional weapons. Their technical attributes render them difficult to monitor and regulate because those responsible for decisions to use such weapons—civilian officials—are often least likely to have experience or familiarity with them. The relatively low-cost, rapid-effect nature of cyberwar also encourages not just use in armed conflict, but also below the standard threshold of war. Cyber operations initiated without careful inter-agency planning, decision process, and presidential review drive up operational risk and undermine civil-military norms. To foster more effective civilian oversight and control of the nation’s military’s cyber sword, and to encourage more deliberative application of ever-evolving technologies, Congress should use its constitutional authorities over “the [cyber] land and naval Forces” to craft better decision processes and better civil-military and legal transparency balances.