The Geography of Cyber Conflict: Through a Glass Darkly

• Author: Ashley Deeks
• Position: Associate Professor of Law, University of Virginia School of Law
• Pages: 1-20

Geography of Cyber Conflict Vol. 89

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Imagine

The Geography of Cyber Conflict:

Through a Glass Darkly

Ashley Deeks*

I. INTRODUCTION

an Israeli Air Force jet is shot down in international airspace just

outside Turkish airspace. Imagine further that the Israel Defense Forces

(IDF) and Israeli intelligence services quickly ascertain with a high level of

confidence that a Hezbollah cell located in Turkey was responsible for the

shoot-down. Israel now confronts a difficult question: having suffered an

armed attack, may it use force in self-defense against a non-state actor in the

territory of a state with which it is not in an armed conflict and that was not

the author of the attack?

In previous work, I have argued that Israel may only take action in

Turkish territory against Hezbollah if it has Turkish consent or if it deter-

mines that Turkey is unwilling or unable to suppress the threat posed by

Hezbollah.

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This “unwilling or unable” test, which has analogical roots in

* Associate Professor of Law, University of Virginia School of Law. © 2013 by Ash-

ley Deeks.

1. See generally Ashley Deeks, “Unwilling or Unable”: Toward a Normative Framework for

Extraterritorial Self-Defense, 52 VIRGINIA JOURNAL OF INTERNATIONAL LAW 483 (2012).

International Law Studies 2013

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the law of neutrality,

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serves as an attempt to balance the security of the

State that suffered the attack (the “victim State”) against the sovereignty of

the State from which the non-State actor launched the attack (the “territo-

rial State”). The test also reflects the international community’s interest in

reducing to the lowest level feasible inter-State conflict (and State uses of

force in self-defense).

Imagine now that the IDF learns that its air force’s command and con-

trol center is being severely compromised electronically and has begun to

send faulty coordinates to all of the IDF’s military aircraft, including those

currently airborne. As a result of the cyber attack,

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the IDF loses commu-

nications with two of its jets, which crash into the Mediterranean Sea. Israel

has a high level of confidence that several servers in Turkey are the source

of the ongoing attack; additionally, the offending code behind the attack

has Hezbollah’s digital fingerprints on it and Israel has intelligence that

Hezbollah has been trying for several years to conduct just such an attack.

Assuming that Israel has the technological capacity to disable the Turkish

servers currently routing the attack and believes that such an action is the

only way to stop this attack, may Israel disable those Turkish servers (using

cyber or kinetic tools)? What, if anything, must it do first?

This article argues that the “unwilling or unable” test applies to this

scenario as well, although the issues facing Israel and Turkey in the two

scenarios are different in important ways. Other scholars have suggested

that the “unwilling or unable” test is relevant in the cyber context,

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but no

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. J.M. SPAIGHT, WAR RIGHTS ON LAND 482 (1911) (“[W]her e the neutral cannot or

will not enforce its rights, then the belligerent is fully entitled to prevent the violation

permitted by the neutral redounding to his disadvantage.”).

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. This paper uses the phrase “cy ber attacks” generically to refer to acts that “alter,

disrupt, deceive, degrade, or destroy computer systems or networks or the information

and/or programs resident in or transiting these systems or networks,” TECHNOLOGY,

POLICY, LAW AND ETHICS REGARDING U.S. ACQUISITION AND USE OF CYBERATTACK

CAPABILITIES 1 (WILLIAM OWENS, KENNETH DAM, & HERBERT LIN, EDS., 2009) [herein-

after OWENS ET AL.]. A particular cyber attack may or may not constitute a use of force or

armed attack, as those terms are used in the jus ad bellum sense.

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. See Duncan Hollis, Why States Need an International Law for Information Operations , 11

LEWIS & CLARK LAW REVIEW 1023, 1050 (2007) (“International law contemplates that the

[State injured by information operations] would notify the State from whose territory it

believes the IO originated and request that State put a stop to it. T he requested State is

expected to comply with such requests . . . . Only if the requested Stat e is unable or unwill-

ing to stop the IO can the aggrieved State take counter-measures (or perhaps exercise a

right of self-defense against the requested State . . . .”); George Walker, Information Warfare

and Neutrality, 33 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 1079, 1199 (2000)