Technology & National Security Reflection Series Paper 10: International Responsibility for Hacker-for-Hire Operations: The BellTrox Problem

Anmol Dhawan^*

About the Author: The author is a 2021 graduate of National Law University, Delhi.

Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. In the present essay, the author’s contribution serves as an adapted reflection to the following proposition:

“From the standpoint of international law, does the Government of India bear any international legal responsibility for the actions of BellTrox InfoTech Services (or any other similar ‘hackers-for-hire’ operations run from Indian territory)? If yes, what are the legal prerequisites that need to be satisfied to affix such responsibility on the Government? If not, explain with reasons.” 

1. INTRODUCTION 

In 2020, The Citizen Lab released a report naming an obscure Delhi-based company, Belltrox Infotech Services, as a major player in commercial espionage operations against high-profile organizations as a hacker-for-hire entity. The targets included nonprofits and advocacy groups working on issues like climate change and net neutrality in the US, such as the Rockefeller Family Fund, Free Press, and Greenpeace.

Such cyber-espionage activities, inter alia, highlight the uncertainty in the application of international law in cyberspace. An analysis of BellTrox’s alleged operations raises questions as to whether there is an internationally wrongful act for which responsibility needs to be affixed, who bears such responsibility, and to what extent. 

As per Article 2 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (‘ARSIWA’), a State is responsible for an internationally wrongful act when it commits an act or omission fulfilling two basic criteria. First, the act or omission is attributable to that State; and second, it constitutes a breach of that State’s international obligation. 

Accordingly, this piece analyses the nature of attribution in the cyber context, the problems therein, and whether current frameworks take account of the unique nature of cyber-attacks vis-à-vis hacker-for-hire situations. Further, the article evaluates whether low-level cyber-attacks such as BellTrox’s constitute a breach of an international obligation, with particular reference to the principles of sovereignty and non-intervention. Finally, the piece attempts to distill shortcomings under the international law regime governing cyberspace and considers avenues to bridge the gaps. 

“Hackers (pt. 1)” by Ifrah Yousuf is licensed under CC BY 4.0. From CyberVisuals.org, a project of the Hewlett Foundation Cyber Initiative.

2. ATTRIBUTION 

Attribution is a normative operation used to demonstrate a nexus between the perpetrators of an act and a State. Although conduct under ARSIWA is limited to acts of State organs, Article 8 states that the wrongful conduct of a non-State entity directed or controlled by that State may be attributable to the State.

Traditionally, such attributability was restricted to activities carried out under a State’s ‘effective control’. As applied by the International Court of Justice (‘ICJ’) in Nicaragua, the effective control test requires a State to have, directed, commanded, or otherwise directly controlled the actor in question. The Tallinn Manual also follows this threshold for attribution in cyberspace. However, BellTrox’s conduct cannot be attributed to India under this test as the company is neither a State organ nor is there any evidence reflecting that it acted under the control of the Indian state. Further, BellTrox’s conduct cannot be attributed to India under the much lower threshold of the ‘overall control’ test of the International Criminal Tribunal for the Former Yugoslavia’s in Tadic (which the ICJ later rejected in the Bosnian Genocide Case) either. Under the overall control test, even supporting, equipping, or financing a non-state actor could suffice for attribution.

In evaluating responsibility for non-state actors’ conduct, we must consider other standards seen in international law. The US response to the 9/11 attacks marked a shift from the traditional responsibility thresholds towards an ‘indirect responsibility’ criterion. This threshold can be inferred from the communication of the US to the UN Security Council, in establishing a right of self-defense. The US focused on an ‘unwillingness’ standard, highlighting the Taliban regime’s refusal to change its policy towards Al Qaeda despite having control over large areas where it operated. However, in invoking this standard, the US emphasized that the Taliban gave some degree of support to Al Qaeda over and above mere sanctuary.

Although this theory of indirect or vicarious responsibility does not have enough support to constitute customary international law, it does find some backing in the Corfu Channel judgment. The ICJ held that States ought not to allow their territory to be used in a way that endangers other States. This idea has developed in relation to terrorist activities, whereby the Friendly Relations Declaration as well as UN Security Council  Resolution 1373 demand that States deny safe haven to terrorist activities.

Jason Healey expands on such a standard of passive responsibility, focussing on a State’s accountability for fostering an environment where attacks could occur instead of “shrinking the sanctuaries from where criminals act with impunity.” ICJ’s Tehran judgment also supports the proposition that a State’s failure to take appropriate steps to prevent violations could render it responsible for the wrongful conduct.

If we were to apply this broad threshold, it is conceivable that BellTrox’s conduct could be attributed to India. However, a State cannot be held responsible for all acts perpetrated within its territory. Thus, a more ideal starting point of assigning State responsibility for non-State actors’ conduct in cyberspace should involve combining the aforementioned standard with the ‘due diligence’ principle. Accordingly, attribution would entail a two-step determination. First, ascertaining a State’s unwillingness to prevent a non-state actor’s illegal conduct despite being in a position to do so. Second, whether the State exercised reasonable due diligence in attempting to prevent the conduct. A failure in either could render the State internationally responsible. 

Scholars have suggested specific guidelines for due diligence, including enacting criminal law against the commission of cyber-attacks, instituting good-faith investigations and prosecution, and cooperation with victim States. The 2015 Report of the Group of Government Experts (GGE) calls upon States to respond to requests for mitigating malicious ICT activity arising out of their territory. The GGE report highlights that knowledge plays a role in determining attributability and States have a due diligence obligation towards post-facto mitigation of identified unlawful cyber activity emanating from their territory. 

As Healey emphasizes– unfortunately, in cyberspace, States do not expect other States to exercise the same degree of control over their subjects; and the international community considers States helpless in mitigating cyber attacks originating from their territory.  However, moving away from a narrow attribution requirement, victim States could push origin States towards taking well-established steps for mitigating attacks and ensuring prosecution to avoid responsibility for wrongful conduct.

3. SOVEREIGNTY AND NON-INTERVENTION 

The second prong of State responsibility is the requirement of the breach of a State’s international obligation. As per the UN GGE’s 2013 and 2015 reports, States are, in principle, at a consensus as to the application of the principles of sovereignty and non-intervention in cyberspace. In essence, the principle of State sovereignty relates to a State’s authority over its territorial integrity, sovereign functions, and political independence to the exclusion of others. The prohibition on unlawful intervention derives from the principle of sovereignty, and as outlined by the ICJ in Nicaragua, points to the coercion of one State by another in matters within the former’s sovereignty.

The first element of intervention, i.e., ‘coercion’, refers to an attempt to influence an outcome in the target state, depriving the target state of control over the ‘functions inherent in sovereignty’. An  example of coercive behavior could be the use of cyberspace to compel another state to adopt a particular legislation. This understanding under the Tallinn Manual is broadened to include all kinds of coercive acts designed to force a state to act, or not act, in a particular manner. 

It is unlikely that international law, as it stands, would find cyber-operations like BellTrox’s to be coercive. Although targeting of eminent private groups and advocacy organizations may point towards an attempt to influence US policy, it cannot be concluded that the operations or the information gathered could have pressurized the US government to legislate in a particular manner. 

The second element of intervention is that the coercive behaviour must be directed towards the ‘matters in which a State is permitted to decide freely’. The Friendly Relations Declaration defines an intervention as interference in the State’s personality or against its political, economic, and cultural elements. The Tallinn Manual 2.0 bases violation of sovereignty on the usurpation of an inherently governmental function through interference in matters within the domaine reserve of the State.

However, to engage the non-intervention principle, the operations must be directed at the State’s practical ability to exercise its sovereign function. Thus, the NotPetya attacks attributed to Russia, which targeted Ukraine’s financial system, transport and energy facilities have been considered violations of international law by the UK and its allies. However, a spear-phishing campaign attacking private Universities and NGOs or the WannaCry ransomware attack attempting to extort hard currency from users were not considered as such. The US called the alleged Russian hacking of the Democratic National Congress an ‘attempt to interfere with its election process’, with Department of State’s Legal Adviser Brian Egan categorizing it “a clear violation of the rule of non-intervention.”

In contrast, Belltrox’s alleged hacker-for-hire scheme appears to target private persons, institutions, and advocacy firms without directly interfering in sovereign functions. Even if BellTrox’s actions are considered as attempts to influence US policy, public interest advocacy and policy research are not exclusively governmental functions. Moreover, espionage against private organizations does not preclude a State from deciding freely on sovereign matters. Resultantly, it is unlikely that BellTrox’s operations would ipso facto constitute an internationally wrongful act of intervention.  

4. CONCLUSION 

The BellTrox problem highlights the need to move away from the traditional attribution fixation to hold States accountable for mitigating cyber-attacks. The conventional understanding of internationally wrongful acts only takes into account the nature of kinetic warfare and interventions in other States, thus failing to account for the ability of non-State actors to cause similar damage when shielded and given a safe haven by States. Therefore, instead of the ‘effective control’ and ‘overall control’ tests, a shift towards the theory of ‘indirect responsibility’, in combination with a due diligence standard for states, would be more effective in the cyber world. 

Applying such a test, if India did provide a safe haven to BellTrox, in that it ignored the threat or was unwilling to mitigate it despite knowledge of malicious cyber-activities, these activities could be attributed to India. Further, on account of the due diligence requirement, a State’s failure to take appropriate action on intimation by a victim State would strengthen the latter’s claim for affixing responsibility. 

In regard to intervention in sovereign matters, the expanded understanding in Nicaragua and the Tallinn Manual reflects that a direct attempt to cause a change in another State’s law or policy would constitute an unlawful intervention. However, the problem in the current scenario lies in showing that BellTrox could use the information gathered to coerce the US to act towards a particular objective. Indirectly influencing the actions of private individuals and advocacy organizations might not restrict the State in its sovereign functions and hence, is unlikely to constitute intervention. 

The BellTrox case outlines multiple gaps in international law with respect to cyberspace. Although existing law might not hold States internationally responsible for non-state actors’ private cyber operations originating from within their territory, victim States must invoke the accountability of origin States for mitigating cyber threats and ensuring prosecution. Further, pressure by the international community on States to conform to their due diligence obligations would be a substantive move in the right direction.

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*Views expressed in the blog are personal and should not be attributed to the institution.

Technology and National Security Law Reflection Series Paper 9: Legality of Foreign Influence Operations (“FIOS”) Under International Law

Neeraj Nainani^*

About the Author: The author is a 2020 graduate of National Law University, Delhi. He currently works as an Associate at AZB & Partners, Mumbai. 

Editor’s note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law.

1. INTRODUCTION

States have always tried to influence opinions and politics of other sovereign states. Sun Tzu advocated spreading false information to take tactical advantage while Genghis Khan and his men planted rumors about their cruelty and their horsemen to spread fear and to weaken the enemy’s resilience.¹ However, changes in technology have drastically altered the way in which influence operations are conducted. The continuous evolution of information technology (“IT”) has resulted in progressive transformation in the information environment both in terms of constituent elements and inherent dynamics. 

Due to this transformation, the dissemination of information on a large scale is no longer controlled by a few stakeholders within democracies. This transformation is accelerated by the advent of online and social media platforms. Such platforms have upended the financial configuration of the media landscape in a manner in which prioritizes commercial revenues over the reliability and integrity of information which is consumed. 

These incentive structures have become fertile ground for influence operations which are increasingly shifting to cyberspace. In fact these online influence operations are being used to interfere in matters of other countries, especially elections. Cyber influence operations are defined as

“… activities that are run in cyberspace, leverage this space’s distributed vulnerabilities, and rely on cyber-related tools and techniques to affect an audience’s choices, ideas, opinions, emotions or motivations, and interfere with its decision making processes”.

The author will look at the status of cyber influence operations under international law and examine whether they violate principles of sovereignty and non-intervention and other obligations of states under international law. 

“Aspects of Cyber Conflict (pt. 4)” by Linda Graf is licensed under CC BY 4.0. From CyberVisuals.org, a project of the Hewlett Foundation Cyber Initiative.

2. FIOs AND THE PRINCIPLE OF SOVEREIGNTY

A state’s sovereignty is one of the most important concepts in international law. The ICJ has recognized the centrality of sovereignty by holding that “the whole international law rests” upon the concept of sovereignty. However, scholars highlight two issues as challenges to the argument that cyber influence operations may violate a State’s sovereignty. 

First, the conceptual understanding of sovereignty is currently challenged as an international legal obligation, especially in cyberspace. The authors of the Tallinn Manual on the international law applicable to cyber operations have recognized sovereignty as a primary and central principle of international law. The United Kingdom has observed that even though sovereignty is an important concept in international systems, “we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention”. The chief lawyer to the U.S. Cyber Command has also argued that sovereignty is “a principle of international law that guides state interactions, but is not itself a binding rule that dictates results under international law”.

The second argument pertains to the application of sovereignty principle over influence operations. Tallinn Manual 2.0 recognizes that a cyber operation constitutes a violation of sovereignty when they result in cause “physical damage or injury”, or the remote causation of “loss of functionality” of infrastructure in the target state or when they interfere with or usurp inherently governmental functions. However, there was division among the experts on the threshold which would amount to violation. The test is irrelevant for cyber influence operations as they generally do not cause physical damage or loss of functionality. Further, the authors of Tallinn manual were also not able to reach consensus on whether the cyber influence operations violate notions of territorial sovereignty of nations states.

The other touchstone to test cyber influence operations is on the notion of interfering with or usurping inherently governmental functions. Some authors have argued that it is unclear “whether a cyber influence operation on an election falls within the bounds of the terms ‘interference’ or ‘usurpation’.” Authors of Tallinn Manual have argued that the transmission of propaganda alone is generally not a violation of sovereignty. Michael Schmitt argues that the doxing operations disclosing crucial confidential information at crucial moments before the national elections as well disinformation campaigns involving overt acts from fake accounts are serious and classification of these serious influence operations as violations of sovereignty is “somewhat supportable”. Schmitt concludes that influence operations currently fall within “the legal grey zone of the law of sovereignty”.

One of the arguments to consider is that influence operations are generally backed with some additional overt or covert act such as doxing supported by hacks, or information warfare supported by the violation of privacy. UNGA has observed in the context of elections that “any activities that attempt, directly or indirectly, to interfere in the free development of national electoral processes, in particular in the developing countries, or that are intended to sway the results of such processes, violate the spirit and letter of the principles established in the Charter”. 

Influence operations do more than merely transmit propaganda. They perform subversive acts aiming at destabilizing State institutions by influencing nationals of another State; and enable militant democracy which allows the attacking state to indulge in political and legal warfare in the medium and long term. Further, influence operations interfere with the duty of the state to conduct free and fair elections.

3. FIOs AND THE PRINCIPLE OF NON-INTERVENTION

The other possible argument questioning the legality of influence operations under international law is the settled principle of non-interference. As per the ICJ’s decision in Nicaragua, an intervention by a State is unlawful when first, it has a bearing on matters which by principle the state can decide freely, second, the state uses methods of coercion. Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations provides that “a State may not intervene, including by cyber means, in the internal or external affairs of another State” 

Duncan Hollis identifies two key issues with bringing cyber-enabled foreign influence operations within the principle of non-intervention. Firstly, that the content of the categories i.e. internal and external affairs of the state is not well defined. He argues that in earlier times there were subjects clearly cabined off from international attention that a state could address. However, with technological advancements and globalization, such subjects are limited and every subject attracts international attention. Therefore, any idea defining internal affairs of the state is likely to be limited, contested, and dynamic. However, the influence operations do not merely mean ‘international interest’ from a particular state. Influence operations more often than not, are clandestine operations by States – designed to meddle with the internal affairs of the country which shows a hint of militant democracy. 

Second, Hollis argues that influence operations do not meet with the criteria of coercion as narrowly defined in International Law. Tallinn Manual defines Coercion as “designed to deprive another State of its freedom of choice, that is, to force that State to act in an involuntary manner or involuntarily refrain from acting in a particular way”. This must be “distinguished from persuasion, criticism, public diplomacy, propaganda, retribution, mere maliciousness…” because “such activities merely involve either influencing (as distinct from factually compelling) the voluntary actions of the target State, or seek no action on the part of the target State at all”. It has been argued that the very nature of influence operation is to have target adopt or change certain behaviors willingly, which implies an absence of coercion. Another argument is that a legal finding that the State acted due to/under the influence of coercion would depend on recognizing and attributing some individual or group as the target of the coercion and identifying threatened consequences.

However, a broader conceptual understanding of coercion can be identified in efforts to bolster the argument that non-intervention includes the conduct of a State which weakens, undermines or compromises the authority of another State. The argument emphasizes on the examination of context and consequences while determining whether a State was compelled to act in a manner it otherwise wouldn’t have.

This broad approach is supported by observations made by the experts in Tallinn Manual 1.0 where they observed that the prohibited forms of interventions include “the manipulation by cyber means of elections or of public opinion on the eve of elections, as when online news services are altered in favor of a particular party, false news is spread, or the online services of one party are shut off”.

4. CONCLUSION

Various authors have highlighted that it is very difficult to argue that cyber influence operations questioning the democratic legitimacy of a target State falls within the ‘prohibited forms of intervention’. Similar arguments have been made for questions pertaining to the principle of sovereignty as well. Michael Schmitt has also observed cyber influence operations fall within a significant legal grey zone. However, an important question which is asked is whether these primary principles of international law which have developed on the basis of kinetic conflicts could be applied to cyberspace by analogy. Other scholars have also argued that cyber influence operations can better examined through lens of “self-determination”, “duty of due diligence” and also arguing  “information ethics” should inform our legal interpretation of damage and violence in cyberspace. Due to challenges posed by traditional understanding of sovereignty and principle of non-intervention, it is important to reexamine these concepts in context of cyber influence operations and to apply concepts accordingly to address concerns raised by them. 

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*Views expressed in the blog are personal and should not be attributed to the institution.

References:

1. Sunil Narula, “Psychological Operations: A Conceptual Overview,” Strategic Analysis 28, no. 1 (2004): 180.

Technology & National Security Reflection Series Paper 8: Tallinn Manuals as Law of the States or for the States– a Sola Fide Exploration?

Karan Vijay*

About the Author: The author is a 2021 graduate of the National Law University, Delhi. He is currently an Associate at Talwar Thakore & Associates, Mumbai. His interests lie in evolving landscapes of technology and their impact on international law and economics.

Editor’s note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law.

INTRODUCTION

In this post, we evaluate the authoritative value of interpretations of international law expressed in the Tallinn manual with reference to Article 38 of the Statute of the International Court of Justice. 

NATO’s Cooperative Cyber Defence Centre of Excellence (“CCDCOE”) was established for NATO members to coordinate their efforts in the field of cyberwarfare in 2008, in light of the 2007 cyberattacks on Estonia’s critical cyber infrastructure. Given the international nature of cyberspace and consequently cyberwarfare, the CCDCOE convened a group of international experts to analyse how international law can be applied to cyberwarfare. Thus, the Tallinn manual came into existence, named after Estonia’s Capital, in 2013. The group of experts released Tallinn 2.0 in 2017 as a follow up which deals with a much broader field of ‘cyber operations’ instead of cyberwarfare. The original manual involved conflict while 2.0 deals with cyber operations both inside and outside conflict.

As far as the authoritative value of the Manual is in question, it is pertinent to point out that the Manual notes that every rule or assertion may not be a representation of principles of international law. Moreover, neither the rules nor the commentaries of the Tallinn manuals reflect the NATO doctrine or has been adopted as the official position of any State. Thus, prima facie, the Tallinn manuals (including Tallinn 2.0) were an end result of an academic study to determine and restate the lex lata i.e. the law as it exists; and probably deduce the direction of the lex ferenda i.e. as future law should be (although the manuals expressly stated that they avoided any statements or lex ferenda or the preferred policy for States). However, this still leaves the question unanswered about the value it holds today amongst other sources of international law.

Photo by Ministerie van Buitenlandse Zaken. Licensed under CC BY 2.0

THE LEGAL CONUNDRUM ENCIRCLING ARTICLE 38 (1) AND TALLINN MANUAL

Article 38(1) of the Statute of the International Court of Justice is considered as the most widely recognized iteration of sources of international law. It is no debate that the Manuals would fall under 38(1)(d) as the teachings of most qualified publicists as the international group of experts who were involved in their drafting are legal luminaries who are recognized for their contributions in cyber law and international law. 

We must note here that Article 38(1)(d) is different from the rest of the iterations or sources as it is subsidiary to others, i.e., these teachings per se are not law in and of themselves but are rather references that can be looked into for finding the law applicable.Thus, the manuals positing the arguments of the experts is not the law itself. However, they are a helpful source of determining the other authoritative sources of international law because the premise on which the publicists argue an assertion is usually based on a combination of the other three sources enshrined in article 38(1).

The question now becomes whether these manuals have been elevated to the level of customary international law (CIL). In addition to treaties, rights and obligations of States can also be recognized under CIL which is basically ‘evidence of a general practice accepted as law.’ In brief, a norm of CIL can form with State practice, that is the behavior of States with regards to the custom in question, and opinio juris, which is the belief that the State practice is in fact an obligation arising out of the law that is claimed as CIL.¹ This implies that towards formation of a custom, the State practice is the objective element or the manifestation of the subjective element, opinio juris. Interestingly, a minority of scholars also argue that it is not a watertight framework of having both of these elements, and a strong existence of the opinio juris may lead to the creation of a norm of CIL.

With respect to Cyber-operations, jurists hold that it is still too recent a field and there is no consistent State practice. However, most States have expressed the need of cyber-regulation and security via domestic law or through their representatives. The States are also publicly equipped to create or respond to military cyber operations. This amounts to a valid State practice, and even if it has not taken place for a long time but has been uniformly exercised, and there is proof of existence of the opinio juris, it can still validly contribute towards forming CIL.

ON THE QUESTION OF REPRESENTATION 

The question that we now face is whether the Tallinn manuals are a reflection of this global opinio juris. We can analyse from the available evidence and conclude that it may not be the case. To be clear, the international group of experts whose opinions led to the creation of the Manuals participated in their individual capacity– were not representing their country. This is important to note because when a scholar represents a country, they voice or manifest the State’s ‘opinion’ on points of disagreement as we see at the International Law Commission. What Tallinn scholars represent in their individuality or have represented are ideologies such as the Chicago School of Economic Thought or the English School of International Relations but never their State, making the manuals a scholarly exercise rather than a reflection of any opinio juris.

When we talk about representation, another issue which comes up with the manual is that it does not have fair representations from all parts of the world. A few of the biggest players of cyberspace are China and Russia. These States have successfully hacked/controlled their way to becoming important State actors within the cyber realm. Their opinions or voices; and even that of Israel (Israeli experts were on board for Tallinn 2.0), which is a dominant player in cyber-security today or that of Iran, were not taken into consideration. This further takes away from any claims whatsoever that the manuals represent opinio juris of States. The Manuals only take this issue of representation further in circumstances wherein only the military manuals of first world countries are referenced without providing any objective criteria for such selection.

At the same time there are some rules, which arguably do reflect opinio juris of States. For example, “Rule 4 – A State must not conduct cyber operations that violate the sovereignty of another State.” However, it is not the Tallinn manuals that made these laws customary in nature. Instead the manuals merely restate a preexisting custom adding the reference to cyberspace. 

From a content point of view, Pukhraj Singh points out that the manual which was touted to bring clarity to complex questions of cyberspace and law has turned a complete volte-face. Singh highlights that experts disagreed with each other at places providing counter-narratives, and that the manuals jump the gun by over- analogizing with conventional operations. The legal imputation of physical laws, such as the law of armed conflict to cyber-attacks may not always make complete technical sense. At the end of day, cyberspace is an intangible concept of connected computers, and not as physically controllable as how the manuals consider it to be. 

Most cyber-attacks will be done in a clandestine fashion with no clear indication as to which State did it or is responsible for it. The manuals (especially Tallinn 1.0) are not of much help as they simply restate the law on attribution and do not completely fulfil their role of creating practical and acceptable attribution standards (even if it meant holding the US responsible for Stuxnet!).

Moreover, it must be looked into whether the Manuals’ rules have been adopted and followed by various States or not and to what extent. This ascertains whether the States consider themselves bound by the rules of the manual (or is regarded as opinio juris). Now, apart from the disagreements that States have on some rules of the manual, a study done on 11 hostile cyber-operations that happened between 2013-2017 revealed that the manual or its rules were not followed.

CONCLUSION

Thus, with this understanding, we can conclude that while some of the rules restate CIL, the manuals as a whole do not seem to represent the global lex lata or the opinio juris of the States. It may seem that they instead represent the lex ferenda or what the law should be. However, that is also not exactly the case with their many loopholes and misplaced allegiances as they themselves state. 

It can instead be said that the manuals represent a hope or even a viable precedent that an exercise such as this can be undertaken by various other clusters of nations, like EU, SCO, SAARC, OAS or ASEAN. As more and more clusters will come up with their own varying opinions on cyber-space and cyber-operations, the chances of them possibly culminating into a mutual understanding between all States regarding international law applicable to cyberspace becomes more plausible. For this long drawn vision, Tallinn manuals seem to be a worthy starting point.  

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*Views expressed in the blog are personal and should not be attributed to the institution.

References:

1. North Sea Continental Shelf (Libya v Malta) (Merits) [1985] ICJ Rep 13[27].; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 1996 ICJ Rep 226 [64].; ILC, ‘Draft conclusions on identification of customary international law, with commentaries’ (2018) UN Doc A/73/10 Conclusion 2.  Antonio Cassese, International Law, (2nd edn. OUP 2005), 156.

Tallinn Manual 1.0 – A Primer

By Shalini S

The Tallinn Manual[1], is an elaborate, academic body of work that examines the applicability of international law to cyber conflicts.  The Manual was prepared by an International Group of Experts (a group of independent international law scholars and practitioners) at the invitation of the NATO Cooperative Cyber Defence Centre of Excellence. The Centre tasked the group of experts with producing a ‘manual on the law governing cyber warfare’.

Object of Creation

Presumably, the basis for curating such a manual is a common understanding amongst scholars that international law as it exists, does undeniably apply to cyberspace.[2]  However, efforts must be directed towards determining precisely how it applies, a view also endorsed by UN Group of Government Experts (UNGGE) in the field of IT.[3] Recognizing cyberspace as a viable battlefield (with states developing cyber offensive capabilities), also presumes that computer network attacks may be governed by International Humanitarian Law in the same manner that traditional weapons are regulated.[4]

The primary objective of the authors of the manual was to identify laws of armed conflict that apply to cyberspace and delineate the limits and modalities of its application. The manual which is designed as a reference tools for policymakers to build on, principally focuses on jus ad bellum^[5] and jus in bello in cyberspace.[6] The book is divided into black-letter rules, products of consensus and unanimity among the authors. It also contains accompanying commentary that indicate the rules’ legal basis, applicability in international and non-international armed conflicts, and normative content. Outlined also, are conflicting or differing positions among the Experts as to the rules’ scope or interpretation.[7]

The manual examines the proper conduct of hostilities in cyberspace to minimize unnecessary harm by assessing below-mentioned critical areas:[8]

“1. What constitutes direct participation in hostilities, thereby delineating what civilians can (and cannot do) with respect to military cyber operations;

2. What types of cyber events can constitute “attacks,” including those affecting computer functionality;
3. How the principle of neutrality applies to cyber operations;
4. Whether and how entities deserving special protections under the LOAC, e.g., the Red Cross, must identify themselves in cyberspace;
5. How to treat non-state actor cyber operations and incidents.”

While the manual itself only offers guidelines to append analogies from established international law principles to cyber conflicts, it has sometimes been understood (in the absence of an overriding caveat to the contrary effect) to encourage hostile or military use of information and communications technology – an invitation to cyber war.[9]

Criticism

The definition of cyber-attack as laid down in the manual has often been criticized for its narrow understanding.[10] While this is attributable to the high threshold to be met by an act to constitute ‘armed conflict’ in international law,[11] the manual fails to clarify the implications of attacks that cause consequential harm, impair functionality without causing physical damage and target physical infrastructure that relies on computer systems.[12] Questions abound on the relationship between cyber warfare operations and lawful self defence.[13] Understandably, scholars opine that cyber warfare poses unique challenges to contemporary jus ad bellum– the body of law governing legitimate use of force.[14] It is also difficult to ‘attribute’ wrongful acts commissioned by states in the existing framework of international law.[15] Uncertainty over applicability of decisions of landmark cases such as the Nicaragua case[16] that decided issues of attribution and state responsibility, to cyberspace is also a cause for concern.[17]

Further, the absence of an international cyberspace law or a cyber security treaty is the most evident limitation on achieving international regulation in cyber space. Consequently, the Tallinn manual which is a non-binding body of personal opinions has been criticized for being premature and undesirable when no universally acceptable cyber security norms exist.[18] Despite the criticism leveled against it, academic collaboration akin to the one that resulted in the publication of the Tallinn Manual is necessary alongside policy deliberations to consider the exact application of international law to conflicts in cyberspace.

Way Forward

The Tallinn Manual 1.0 attempted to “delineate the threshold dividing cyber war from cybercrime and formalize international rules of engagement in cyber space”.[19] It did so by laying down 95 ‘black-letter rules’, focused on codifying principles applicable to cyber-attacks that qualified as armed conflict, an effort that needs to be continued.  Thus, the second iteration to the Tallinn Manual, the Tallinn Manual 2.0, aims to explore peacetime principles[20] such as sovereignty, jurisdiction, state responsibility and intervention in the context of borderless cyberspace.

With the International Court of Justice confirming[21] that use of force provisions in the UN charter apply regardless of the weapon used,[22] customary international law assumes a prominent position in construction of a safer cyber landscape and must be deliberately studied. The NATO Cooperative Cyber Defence Centre of Excellence has in the past, specifically requested cooperation from India to counter growing cyber threats.[23] India must be invested in building international cyber security cooperation and participate in any future negotiations that seek to formulate cyber warfare regulations.

Read more:

1. What constitutes “attack” in the cyberspace: http://www.itu.int/dms_pub/itu-s/opb/gen/S-GEN-WFS.02-1-2014-PDF-E.pdf (Page 35-37)
2. Contextualizing Tallinn Manual’s definition of “attack”: http://www.studentpulse.com/articles/775/the-law-of-attack-in-cyberspace-considering-the-tallinn-manuals-definition-of-attack-in-the-digital-battlespace
3. US policy on cyber warfare (though not related to the manual, makes for an informative read on how States employ International Law in cyberspace): http://www.state.gov/s/l/releases/remarks/197924.htm

[1] Michael N Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge University Press) (2013)

[2] Jacques Hartmann, The Law of Armed Conflict: International Humanitarian Law in War, 80 Nordic Journal of International Law 121-123 (2011)

[3]International Telecommunication Union & World Federation of Scientists, The Quest For Cyber Confidence (2014), http://www.itu.int/dms_pub/itu-s/opb/gen/S-GEN-WFS.02-1-2014-PDF-E.pdf (last visited Aug 24, 2015)

[4] Knut Dörmann, Computer network attack and International Humanitarian Law, Cambridge Review of International Affairs (2001)

[5] The law governing the use of force comprises of the 1899 and 1907 Hague Conventions, the 4 Geneva Conventions supplemented by Additional Protocols of 1977, as well as customary law and State practice

[6]EJIL: Talk! – The Tallinn Manual on the International Law applicable to Cyber Warfare Ejiltalk.org, http://www.ejiltalk.org/the-tallinn-manual-on-the-international-law-applicable-to-cyber-warfare/ (last visited Aug 24, 2015)

[7]Id.

[8]A Call to Cyber Norms Discussions at the Harvard-MIT–University of Toronto Cyber Norms Workshops, 2O11 and 2O12, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/2015apr14_acalltocybernorms.authcheckdam.pdf (last visited Aug 24, 2015)

[9] Supra N. 3

[10] Incoming: What Is a Cyber Attack? SIGNAL Magazine, http://www.afcea.org/content/?q=incoming-what-cyber-attack (last visited Aug 25, 2015)

[11]Kilovaty, Ido. “Cyber Warfare and the Jus Ad Bellum Challenges: Evaluation in the Light of the Tallinn Manual on the International Law Applicable to Cyber Warfare.” National Security Law Brief 5, no. 1 (2014): 91-124.

[12] Michael J. Norris, The Law of Attack in Cyberspace: Considering the Tallinn Manual’s Definition of ‘Attack’ in the Digital Battlespace, 5 Student Pulse (2013), http://www.studentpulse.com/articles/775/the-law-of-attack-in-cyberspace-considering-the-tallinn-manuals-definition-of-attack-in-the-digital-battlespace (last visited Aug 25, 2015)

[13] Ibid.

[14]Reese Nguyen, Navigating Jus Ad Bellum in the Age of Cyber Warfare, 101 Cal. L. Rev. 1079 (2013). Available at: http://scholarship.law.berkeley.edu/californialawreview/vol101/iss4/4

[15] The Attribution Problem in Cyber Attacks – InfoSec Resources, http://resources.infosecinstitute.com/attribution-problem-in-cyber-attacks/ (last visited Aug 25, 2015)

[16] Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986, available at: http://www.refworld.org/docid/4023a44d2.html [accessed 25 August 2015]

[17] Peter Margulies, Sovereignty and Cyber Attacks: Technology’s Challenge to the Law of State Responsibility, 14 Melbourne Journal of International Law (2013), http://www.austlii.edu.au/au/journals/MelbJIL/2013/16.html (last visited Aug 25, 2015)

[18]Is The Tallinn Manual On The International Law Applicable To International Cyber Warfare Attacks And Defence | Centre Of Excellence For Cyber Security Research And Development In India (CECSRDI) Perry4law.org, http://perry4law.org/cecsrdi/?p=453 (last visited Aug 24, 2015)

[19] D. Fleck, Searching for International Rules Applicable to Cyber Warfare–A Critical First Assessment of the New Tallinn Manual, 18 Journal of Conflict and Security Law 331-351 (2013)

[20]Tallinn 2.0: cyberspace and the law Aspistrategist.org.au, http://www.aspistrategist.org.au/tallinn-2-0-cyberspace-and-the-law/ (last visited Aug 24, 2015)

[21] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996, available at: http://www.refworld.org/docid/4b2913d62.html [accessed 25 August 2015]

[22] Michael Schmitt, Cyberspace and International Law: Penumbral Mist of Uncertainty, 126 Harvard Law Review (2012)

[23] The Hindustan Times, Help counter cyber threats from China: NATO to India, 2011, http://www.hindustantimes.com/world-news/help-counter-cyber-threats-from-china-nato-to-india/article1-743664.aspx (last visited Aug 24, 2015)