More on cyberattack and international law, Koh’s full remarks: WashPo/InformationWeekGovernment/Opinio Juris

A few more details for last night’s news that the U.S. believes international law applies to cyberwar.

First, an article written by Ellen Nakashima for The Washington Post.  According to Nakashima, Koh believes that cyberattacks “that cause a nuclear plant meltdown, open a dam above a populated area or disable an air-traffic control system . . . are examples of activity that probably would constitute an illegal use of force.”

Another interesting quote from Koh: “In our view, there is no threshold for a use of deadly force to qualify as an ‘armed attack’ that may warrant a forcible response . . ..”

***

InformationWeek’s J. Nicholas Hoover also covered the CyberComm conference where Koh made his remarks.  Hoover quoted Col. Gary Brown, CyberComm’s outgoing SJA, on how the law surrounding cyberexploitation needs work but norms might emerge: “We’re starting to see public condemnation of espionage and starting to see attribution to foreign nations . . . That’s an indication that there might be something different about cyber espionage than regular espionage.”

***

Via Opinio Juris’ Chris Borgen, the text of Koh’s address.  Won’t post it all . . .

Question 2: Is cyberspace a law-free zone, where anything goes?

Answer 2: Emphatically no. Cyberspace is not a “law-free” zone where anyone can conduct hostile activities without rules or restraint.

. . .

In assessing whether an event constituted a use of force in or through cyberspace, we must evaluate factors: including the context of the event, the actor perpetrating the action (recognizing challenging issues of attribution in cyberspace), the target and location, effects and intent, among other possible issues.

. . .

Question 5: Do jus in bello rules apply to computer network attacks?

Answer 5: Yes. In the context of an armed conflict, the law of armed conflict applies to regulate the use of cyber tools in hostilities, just as it does other tools. The principles of necessity and proportionality limit uses of force in self-defense and would regulate what may constitute a lawful response under the circumstances.

. . .

Question 8: How should States assess their cyber weapons?

Answer 8: States should undertake a legal review of weapons, including those that employ a cyber capability.

. . .

Question 9: In this analysis, what role does State sovereignty play?

Answer 9: States conducting activities in cyberspace must take into account the sovereignty of other States, including outside the context of armed conflict.

. . .

Question 10: Are States responsible when cyber acts are undertaken through proxies?

Answer 10: Yes. States are legally responsible for activities undertaken through “proxy actors,” who act on the State’s instructions or under its direction or control.

. . .

Why should U.S Government lawyers care about international law in cyberspace at all?

The Answer: Because compliance with international law frees us to do more, and do more legitimately, in cyberspace, in a way that more fully promotes our national interests. Compliance with international law in cyberspace is part and parcel of our broader “smart power” approach to international law as part of U.S. foreign policy.

 

Again, all credit to Opinio Juris for originally posting these remarks.

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  1. […] David Koh says LOAC applies in cyberspace […]

Authors

Untitled Document
Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic.Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

is 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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