Cyber attacks with non-physical purposes are difficult to classify. Sabotaging power grids in a civilian area to cause chaos and fear will foreseeably also kill many when, for example, essential equipment in hospitals and nursing homes loses power. This could be considered a terroristic wartime act under the narrower definition of war.
What if the same cyber act — sabotaging utility supply — is targeted in a way that damages only the economy by disrupting transportation and associated logistics, which then costs billions of dollars in immediate and associated losses in industrial and commercial activity as well as insurance claims? What about even more abstract cyber sabotage, such as manipulating stock-market transactions? Should these attacks be treated as acts of war?
The less physical the sabotage or denial-of-service and its effects, the harder it is to classify it as “war” in the narrow sense. Yet, these actions undeniably strike at a country’s ability to project power. Should the concept of warfare be stretched to include contemporary cyber conflict? It is critical to examine how cyber activity should be classified because warfare is governed by a special set of international laws and norms, including but not limited to the LOAC.
The ethic of cooperation between enemies in warfare
Adversaries at war often cooperate with one another — and not just by allying with “the enemy of my enemy” for the moment. Rather, adversaries will cooperate even as they are trying to kill one another, including in ways that make it harder for them to win.
Cooperation can be ad hoc, regulated by informal practices or formal laws and treaties within and between states, or built into the structure of warfare via international law and institutions, such as non-combatant immunity, equal medical treatment, and requirements for prisoner-of-war (POW) treatment.
Sometimes, enemies at war cooperate in order to better kill each other, for example, only in ways mutually deemed “fair” such as by restricting the use of chemical and biological weapons. Sometimes, they cooperate on upholding principles of civilian and medical immunity to avoid killing the wrong people while trying to kill each other. Cooperation arises from various motivations, including reciprocity, self-preservation, and efficiency, but also warrior honor, humanitarianism, and human rights.
The benefits of cooperation come at a cost, however. “Fair fight” practices are not extended to everyone, and warfighters will exclude categories of people they deem unworthy. Half-god Achilles mutilates Hector’s body after killing him because he does not consider Hector his peer. Every civilization has treated “barbarians” according to different standards, and more recently, the US government classified terrorists as “illegal enemy combatants” to deny them POW protections. Well meaning motivations for cooperation can also have tragic unintended consequences, such as when “humanitarian pauses” inadvertently prolong a conflict by giving combatants time to rearm.
Cooperative norms and laws also govern the boundaries of warfare including not only the question of who qualifies as a legitimate warfighter but also which political entities are legitimate and where the battlefield is. Dominant conceptions, however, are constantly contested — by non-state actors or targeted killings, for example — and will be further challenged by cyber warfare’s non-physical nature.
Sustainable equilibria will not exist without agreement on the nature of the activity — even wars need norms so that everyone at least knows what determines who won and what is won. This has been especially important since the 18th-Century European jus victoriae (law of victory), which states that the outcome of pitched battle determines who and what is won, is no longer readily accepted, as questions of right have returned to the fore and war is now expected to rectify injustices. Pitched battle remains influential because it confers the imprimatur of decisiveness. Even Mao Zedong, who advocated continuous guerrilla warfare, propaganda and political work, argued that ultimate victory required the “concentration of troops” in pitched battle.
While winning a battle is still considered necessary, it is however no longer sufficient for coercing the loser’s acceptance. Yet, war can only determine effective right; it cannot resolve questions of justice and morality. The resulting disequilibrium about the meaning of war will only be exacerbated by cyber warfare.
Is “cyber warfare” actually war?
Ambiguity about any particular cyber attack’s motive or meaning could lead to only one party thinking it is at war, while the other does not. What difference would that make? “War” and “not-war” are regulated by different laws and norms on a breadth of issues, including who the legitimate participants are, who may be legitimately targeted, how prisoners should be treated, what constitutes a proportional and reasonable response, and what is required to win.
For example, if a particular cyber attack is an act of war, then its perpetrators are warfighters, covered by the Geneva Conventions. If not-war, then perpetrators are criminals, and subject to domestic law, bilateral treaties, and limited international law.
If it is war, ironically, the scope of legitimate targets is more restricted, to fellow warfighters, and civilians cannot be intentionally targeted. If not-war, then it is merely a crime and can target anyone.
If it is war, then the attack can be met with a physical response – and a disproportionate one – which will quickly descend into “kinetic” war. If not-war, states would be expected to respond with in-kind or proportional responses to avoid escalation into warfare. If a state were confident of winning a physical war, however, it might repeatedly walk right up to the line of “war” and hope that the enemy (intentionally or accidentally) crosses it first.
Cyber attacks can also be used to wage a limited conflict to avoid the costs of physical war while harming the enemy. Without mutual understanding of whether a cyber conflict is war or merely geopolitical “competition”, however, it can quickly escalate into physical war.