Cyberwar ethicsIsraeli legal expert urges development of ethics code for cyberwarfare
Col. Sharon Afek, former deputy military advocate general, says that countries would benefit from developing an ethics code to govern cyber warfare operations. He notes that existing law already prohibits cyber operations which would directly lead to loss of life, injury, or property damage, such as causing a train to derail or undermining a dam. “Israel faces a complex and challenging period in which we can expect both a cyber arms race with the participation of state and non-state entities, and a massive battle between East and West over the character of the future legal regime,” he writes. He acknowledges, though, that only a catastrophic event like “Pearl Harbor or Twin Towers attack in cyberspace” would accelerate developments in this area.
Israel is already engaged in a cyber arms race with its adversaries, but some of the cyberattacks Israel has launched, and which have launched against it, may not be permissible in the legal regime which is slowly developing, according to a former IDF’s deputy military advocate general.
“Israel faces a complex and challenging period in which we can expect both a cyber arms race with the participation of state and non-state entities, and a massive battle between East and West over the character of the future legal regime,” writes Col. Sharon Afek in a study crafted as part of his research at the National Defense College.
Haaretz reports that Afek presents a number of directions in which cyber law may develop, but he says that it is unlikely that in the near term formal regulations will be drawn up. Only a catastrophic event like “Pearl Harbor or Twin Towers attack in cyberspace” would accelerate developments in this area.
Afek notes that existing law already prohibits cyber operations which would directly lead to loss of life, injury, or property damage, such as causing a train to derail or undermining a dam.
What do existing norms say about cyber operations which do not cause physical damage but still cause significant harm?
“One can create effects in cyberspace that fundamentally undermine the stability of nations through operations that are not kinetic,” writes Afek, referring to operations which do not involve conventional weapons. “Cybernetic tools and capabilities that no one thought to forbid are liable to bring results perceived as a pretext for war.”
Afek points to the fact that cyber operation may prevent the citizens of a country from surfing the Internet, thus undermining faith in the banking system, paralyzing the stock exchange, or shutting down government services. The sense of distress and disorientation under these conditions would not be as severe as if the same citizens were subjected to a conventional military attack.
“Such a country would feel a need to respond and would feel justified in doing so,” Afek writes. “The legal realm must provide a response to these types of cyber operations as well.”
Haarezt notes that for Afek, a cyber action should be considered as a use of force if it exceeds a certain level of seriousness, like an operation which would significantly harm a country’s financial institutions and have an immediate financial impact.
Afek notes, however, that spying and the collection of information from computer systems in foreign countries are not considered “forbidden intervention.”
Afek says that the use of cyber operations in the context of conventional warfare – for example, cyberattacks by Hamas against Israel during two Israeli military operations against the militant Islamist group, Operation Cast Lead in winter 2008-9 and Operation Pillar of Defense in November 2012 – may justify a military response. “Cybernetic operations during an armed conflict could bring about a kinetic response against military targets and the rival’s fighters,” he writes.
Afek’s discussion was published (in Hebrew) as part of the Eshtonot series of military publications issued by the IDF National Defense College’s Research Center.
— Read more in Yonah Jeremy Bob, “Cyberwarfare: A game-changing issue in the next war,” Jerusalem Post (31 January 2014)
