Regulation of Cyberwar Michael Niekamp and Florian Grunert - PowerPoint PPT Presentation

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna A Non-Attribution- Dilemma and its Impact on Legal Regulation of Cyberwar Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna What does 'non- attribution ' mean to the concept and underlying principles of 'war' and 'self-defence'? Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 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 We’ll show a regulatory gap in our legal system Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 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! Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna How can we precisely understand 'non-attribution'? Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible technical legal moral leg Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna Attribution in cyberspace Ontologically Ontologically possible impossible Epistemologically Epistemologically possible impossible Empirically Empirically possible impossible No application of the Other problems may term 'war' and self- occur defense Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna Attribution in cyberspace Ontologically Ontologically possible impossible Epistemologically Epistemologically possible impossible Empirically Empirically possible impossible No application of the Other problems may term 'war' and self- occur defense Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna Attribution in cyberspace Ontologically Ontologically possible impossible Epistemologically Epistemologically possible impossible Empirically Empirically possible impossible No application of the Other problems may term 'war' and self- occur defense Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna Why is attribution so important in any definition of war? Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna '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. Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna Three conceptually necessary conditions in any definition of 'war' Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 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/Two- place-Condition) Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 2. Condition It is conceptually impossible to be in a state of war with oneself. (Non- Reflexivity-Condition) Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 3. Condition It is conceptually necessary that two conflicting parties are epistemically distinct in a stage of war. (Epistemic Distinction-Condition) Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna Why is attribution even more important in any legal definition of a 'just' war? Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna ● Bellum omnium contra omnes Natural ● Collective irrational state of war (absolute right to state everything, no duty at all) ● Universally accepted prohibition of use of force First order ● Formulating exceptions from the general rule (e.g. ius ad regulatory state bellum (just war), self-defence, emergency relief, etc.) Second order ● Formulating conditions of application for the exceptional regulatory rules (e.g. excess of self-defence) = justification strategies state Third ● Formulating conditions of application for a justification order strategy (e.g. failure of justification) = reasonable excuse regulatory state Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna What are the usual constraints of 'self-defence'? Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 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) Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 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) Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna Impossibility-'Theorem' If attribution is impossible Principles [(1), (2), (3), (4)] and [(8), (9) ,(10)] cannot hold true at the same time Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 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 non- attribution. Michael Niekamp and Florian Grunert University of Osnabrück

A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna 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 Michael Niekamp and Florian Grunert University of Osnabrück