Abstract
Abstract Western nations face a glaring punishment problem in the cyber domain. Repeatedly, other nations assail their political and economic interests. Repeatedly, Western leaders warn about the gravity of such actions. And yet repeatedly, the victims failed to punish to deter the offenders. This article examines why and how this situation arose and what to do about it. The Western approach to cyber conflict prevention emphasizes the centrality of existing international law and norms. The legal and normative framework is not adequate for this purpose, however, because it does not provide sufficient grounds to credibly respond to actions falling short of war. Consequently, the Western approach has failed spectacularly. It fails to grasp a central truth about contemporary security affairs: much of modern interstate rivalry fits neither the destructive criteria of war nor the acceptable boundaries of peaceful rivalry. Rather, it is unpeace, or mid-spectrum rivalry that is more damaging than traditional peacetime activity, but not physically violent like war. Nations use cyberspace to achieve some of the political and strategic objectives of war without firing a single gun. The lack of an effective Western response betrays not tolerance of aggression but a failure to devise a response strategy commensurate with the legal and doctrinal ambiguities of unpeace. Existing law and norms are a source of the problem, not its solution. An interim solution must be found instead in the development of new doctrine—in a consequentialist strategy that affects adversaries’ material interests to deter actions which international law and security strategy do not ordinarily recognize as deserving a strong response.
Highlights
Western nations face a glaring punishment problem in the cyber domain
Macron’s foreign policy advisor warned that France had “a doctrine of retaliation when it comes to Russian cyber attacks,” adding ominously: “We are ready to retaliate to cyberattacks not just in kind but with any other conventional measure....” [9]
A former senior British government official questioned the thesis of covert punishment in cyberspace: “Very often, nothing is said about a response—not because it was classified, but because nothing happened.”3 within institutions such as NATO, the European Union, and the Five Eyes community, which together envelop the family of Western nations
Summary
Western nations face a glaring punishment problem in the cyber domain. Repeatedly, other nations assail their political and economic interests. The binary thinking that underpins the legal framework (Give us war or give us peace for anything in between we struggle to interpret!) hinders the refinement of doctrine for a new era of conflict It offers no or few clear benchmarks to guide the response to technological acts of unpeace. General Paul Nakasone, Alexander’s current successor, and senior advisor Michael Sulmeyer reaffirmed: “[U.S.] cyber forces abide by widely accepted principles of international law, and when they take direct action, they narrowly tailor the effect,” emphasizing the laws of war: “[O]ur actions must remain consistent with the law of armed conflict and other important international norms” [58] This policy course follows the direction set by the first US International Strategy for Cyberspace, which expressed a commitment to build a “global consensus” around norms of conduct drawing from existing international law [59]. It represents an expansive normative program, one in which, at least implicitly, the familiar corpus of principles, rules, and norms that were developed to constrain war in other domains of conflict should apply, in some as yet undefined and contested but sorely needed way, to constrain damaging actions below its threshold
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