Cyberspace, Electronic Warfare, and a Better Jus Ad Bellum Analogy.

• Author: Burks, Thomas R.

1. Introduction II. Jus Ad Bellum--A Brief History III. Analyzing Analogy--Cyberspace to Electronic Warfare A. Shared Characteristics B. The Difference Between C. Reconciling the Difference IV. The Wisdom of Common Analysis A. Textual Consistency B. Consistency of Purpose C. Interpretive Consistency D. Consistency with State Practice V. Principles of Application A. Guiding Principles B. Critique and Response VI. Effects Model Critiqued A. Analogical Imprecision B. Attempts to Avoid False Equivalence C. Implications of Imprecision VII. Concluding Thoughts I. INTRODUCTION

   The advent of cyberspace and subsequent development of its many applications has transformed both the public and private sectors like few technological developments before it. Though much of this innovation has proven beneficial, the rapid pace of cyberspace development has often outstripped the law's ability to address those innovations which are not. In particular, reconciling state cyberspace operations with the international law applicable to armed conflict has proven difficult. This body of law is divided into two broad categories: the law governing the conditions under which states may lawfully resort to armed force-the jus ad bellum-and the law governing the manner in which belligerents fight once a conflict has commenced-the jus in bello. [1] The jus ad bellum and its reconciliation to cyberspace operations is the focus of this article.

   The modern jus ad bellum is rooted in the idea of "force," a concept that will later be covered in greater detail. For now, it is enough to note that Article 2(4) of the United Nations Charter prohibits the use or threat of force unless a narrow exception applies. [2] Consequently, the threshold matter in any jus ad bellum-related analysis is whether a particular action amounts to a threat or use of force. The issue is deceptively straightforward, and particularly so in the case of cyberspace operations which do not look or act like what is typically considered a use of force. Malicious code does not, for instance, bear any resemblance to a ballistic missile or an armored column. The critical issue, then, is what exactly does force look like when perpetrated through a cyberspace operation?

   Much scholarly ink has been spilled trying to develop an analytical tool capable of a ready response to this question. It should be acknowledged that cyberspace operations approaching the use of force threshold are exceedingly rare. However, the time and attention provided this limited category of state actions is warranted given that states are not limited to an in-kind response to a cyberspace attack. Indeed, a state that finds itself the victim of an armed attack perpetrated through cyberspace could conceivably respond with conventional armed force. [3] An analytical model that distinguishes between force and non-force in cyberspace is thus a matter of considerable importance, as the potential consequences of Article 2(4)-breaching cyberspace operations are as grave as they are rare.

   Of the efforts to date, the consequentialist approach of the Tallinn Manual on the International Law Applicable to Cyber Warfare (Tallinn 1.0) and its second edition, Tallinn 2.0, has gained the most traction. [4],[5] Under the Tallinn approach,-referred to hereafter as the "effects model"-a cyberspace operation is a use of force if its effect is analogous to the effect of a kinetic or non-kinetic use of forcel. [6] The effects model's employment of analogy is unremarkable, as the use of analogical tools is quite common in legal analysis. What is unusual is the extent to which the effects model's analogy departs from the traditional jus ad bellum analysis, which has always focused on the modality used (armed force) to determine whether a state action violates Article 2(4). Not so under the effects model's approach to cyberspace operations, which purports to analogize effects but makes no similar claim on the means used to create those effects.

   Deviating from a time-honored approach is not necessarily wrong, of course, but it should be done carefully and in full consideration of whether the traditional model has proven insufficient. As the following analysis will demonstrate, the traditional means-focused approach to the jus ad bellum was abandoned prematurely in favor of an imprecise effects-based model that is workable in only a small category of cases, and worse yet, threatens to undermine the jus ad bellum framework of the UN Charter. Exacerbating this flaw is the fact that operations approaching the scale of this small category have not occurred and are unlikely to, which results in applying the effects model to scenarios to which it is least analytically suited. The result is that in the world of cyberspace operations as they actually exist, the effects model falls short of the mark.

   Avoiding these pitfalls and successfully reconciling cyberspace operations to the jus ad bellum lies not in wholly abandoning a means-based test or in embracing a purely consequential comparison, but rather in analogizing cyberspace operations to a type of armed force it closely resembles, namely, electronic warfare. Electronic warfare and cyberspace operations are remarkably similar in how they work, how they are used, and even in their limitations. By virtue of these shared characteristics, electronic warfare is able to analogically bridge the gap between armed force and cyberspace operations, thus permitting analysis under a more traditional jus ad bellum. The result is a more precise analogy capable of analyzing the world of cyberspace operations as it exists, and of doing so in a manner that upholds, rather than undermines, the UN Charter framework.

   In making the case for this new analogical model, this article will begin in Part II with a brief history of the jus ad bellum and efforts to date to apply its legal principles to cyberspace operations. Part III begins with the characteristics of strong legal analogies and then demonstrates the level of similarity between cyberspace operations and electronic warfare. Part IV analyzes the wisdom of adopting the proposed analogical model in light of the text and purpose of the UN Charter, as well as how the UN Charter has been interpreted by the International Court of Justice and by state practice in the cyberspace context. Part V provides three principles to guide application of the electronic warfare-cyberspace operations analogy, and Part VI completes the analysis by demonstrating the fundamental weaknesses of the effects model. Finally, in Part VII, the article concludes with final thoughts on the wisdom of using the electronic warfare-cyberspace operations analogy. The ultimate conclusion is that the effects model was a step too far and it is time for a return to judging cyberspace operations through a more traditional approach to the jus ad bellum.

2. JUS AD BELLUM--A BRIEF HISTORY

   The modern jus ad bellum has its origins in the 1648 Peace of Westphalia, a series of treaties that ended Europe's Thirty Years War and established principles designed to prevent war in the future. [7] This contribution to peaceful dispute resolution was short-lived, however, and by the nineteenth and early twentieth centuries states considered themselves free to "wage war ... without reservation ... for any reason on earth." [8] To the extent the jus ad bellum even existed during this period, whether its requirements were met was entirely the business of the state that wished to wage it. [9]

   Coinciding with this mindset was an explosion of technological development and industrial capacity that produced new and more powerful weapons. [10] Consequently, an era in which states were somewhat cavalier about resorting to war happened to correspond with the ability to kill large numbers of people with ever greater efficiency. Perhaps as a result of this industrialization of warfare, the idea that a state may resort to war wherever and whenever it wants began to erode. The Hague Convention (II) of 1907, for instance, expressly forbade using war as a means of collecting contract debts. [11] This rather modest restriction did little to prevent World War I, but it was nevertheless a start. Following World War I came the League of Nations, which declared all wars a "matter of concern" for its member states and permitted collective action should the "peace of nations" be threatened. [12] Notably, the League of Nations did not prohibit war as such; it simply made war the rest of the world's business. Facial remediation of this issue came via the Kellogg-Briand Pact of 1928, in which member states renounced war as an "instrument of national policy." [13] By the late 1920s, then, the jus ad bellum consisted of an outright prohibition on war for at least the Kellogg-Briand Pact's members states if not also as a matter of customary international law. However, the Kellogg-Briand Pact's failure to define "war". [14] and the ability of states to adopt very expansive concepts of self-defense made this prohibition anything but ironclad, as the widespread death and destruction of World War II readily demonstrated. [15]

   In the final months of World War II, the leaders of 50 nations came together in an effort to remediate the failures of the past. The end result of their collaboration was the United Nations, [16] a group and international agreement (the UN Charter) that would eventually include 193 member states. [17] Of the many important provisions in the UN Charter, perhaps the most profound is Article 2(4)'s requirement that member states "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." [18] Like many areas of law, however, the UN Charter includes exceptions to its general rule. The first is Article 51's recognition that a state has an inherent right to...