Regulation of Cyberwar Michael Niekamp and Florian Grunert - - PowerPoint PPT Presentation
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar November 29 th 2012 Vienna A Non-Attribution- Dilemma and its Impact on Legal Regulation of Cyberwar Michael Niekamp and Florian Grunert University of Osnabrck A
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Is the International Law a) formally consistent b) substantially convincing c) applicable in all cases of cyberwar? The optimistic view from a wide range of the legal profession argues that a)-c) holds true, even under conditions of non-attribution We’ll show a regulatory gap in our legal system We’ll show a regulatory gap in our legal system
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible technical moral leg legal
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible Empirically impossible No application of the term 'war' and self- defense Ontologically impossible Epistemologically impossible Other problems may
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible Empirically impossible No application of the term 'war' and self- defense Ontologically impossible Epistemologically impossible Other problems may
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible Empirically impossible No application of the term 'war' and self- defense Ontologically impossible Epistemologically impossible Other problems may
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Natural state First order regulatory state Second
regulatory state Third
regulatory state
everything, no duty at all)
bellum (just war), self-defence, emergency relief, etc.)
rules (e.g. excess of self-defence) = justification strategies
strategy (e.g. failure of justification) = reasonable excuse
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
1) No unconditional right of self-defence (Self-Commitment of 'just' self-defence) 2) It is conceptually impossible to be in a state of self-defense without there being someone against whom one is in self-defense. (Binary-Condition/Two-place-Condition) 3) It is conceptually impossible to be in a state of self-defense against oneself. (Non-Reflexivity-Condition) 4) It is conceptually necessary that a self-defending party is epistemically distinct from the offender. (Epistemic Distinction- Condition) 5) Any contractual party has the inherent (moral and legal) right to act in self-defense, before/during/after an (immoral and illegal) attack from an offender. (Weak Principle of Self-Defense)
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
6) Self-defense has to be directed against the attacker and has to rely on the will to defend. (Strong Principle of Self-Defense) 7) A offender has a legal duty to tolerate the defenders enforcement power, so one cannot deduce a right of self-defense when one is offended by an act of self-defense. (No Self-Defense against Self-Defense) 8) Hypothetical causal connections cannot be incorporated in (international) criminal law. (Exclusion of Hypothetical Causes for Justification) 9) Mistakes of law must not justify self-defense. (Exclusion of Putative-Self-Defense as a reasonable justification) 10) Mistakes of fact must not excuse self-defense. (Exclusion of Putative-Self-Defense as an Ground for Excuse)
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
The main goal of legal regulation is to avoid a stage of arbitrariness, e.g. anarchy. If legal regulation permits war without epistemically justified reasons, it is indistinguishable from arbitrary anarchy. If Putative-Self-Defense is legal, any (false) allegation becomes a potential justifying reason to declare war.
bellum omnium contra omnes
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
The point of EIA is that we cannot guarantee the exclusion of Putative-Self-Defense. When any EIA- cyberattack is a reason for self-defense, any regulation is pointless. Therefore EIA leads to a reductio ad absurdum for a rational concept of (epistemically justified) self-defense, because either it misses its own aim of rational regulation or it is indistinguishable from anarchy
bellum omnium contra omnes
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
We analysed the terms non-/attribution, war and self-defense. This gave us a basic overview about the problems with attribution which occur with the term war in cyberspace, either for the right to declare war (ius ad bellum) or the right to defend or attack an enemy in war. We presented a fundamental regulation gap through non-attribution which is followed by the consequences for our international law and especially the terms used in it.
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Any Questions?
Michael Niekamp Telefon: +49541/969-7112 E-Mail: mniekamp@uos.de Florian Grunert Telefon: +49541/969-7107 E-Mail: fgrunert@uos.de
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
What does 'non- attribution' mean to the concept and underlying principles of 'war' and 'self-defence'?
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Is the International Law a) formally consistent b) substantially convincing c) applicable in all cases of cyberwar? The optimistic view from a wide range of the legal profession argues that a)-c) holds true, even under conditions of non-attribution We’ll show a regulatory gap in our legal system We’ll show a regulatory gap in our legal system
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
You should not talk about cyberwar (under conditions of attribution) for normative reasons (e.g. Kyrahs talk). In our talk things get even worse: We say that we cannot talk about cyberwar under the conditions of non-attribution for conceptual reasons!
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
How can we precisely understand 'non-attribution'?
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible technical moral leg legal
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible Empirically impossible No application of the term 'war' and self- defense Ontologically impossible Epistemologically impossible Other problems may
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible Empirically impossible No application of the term 'war' and self- defense Ontologically impossible Epistemologically impossible Other problems may
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna Attribution in cyberspace Ontologically possible Epistemologically possible Empirically possible Empirically impossible No application of the term 'war' and self- defense Ontologically impossible Epistemologically impossible Other problems may
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Why is attribution so important in any definition of war?
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
'War' is 'an actual, intentional and widespread armed conflict between political communities' (Orend 2008, see also Oppenheimer 1952, Dinstein 2011) or complementary as an organized conflict, staged under use of weapons and violence/force of at least two competing parties, the aim of most wars is the betterment (recovery, attainment) of one’s own strategic situation respectively to prevent the opposite.
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
It is conceptually impossible to be in a state of war without there being someone with whom one is at
place-Condition)
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
It is conceptually impossible to be in a state of war with oneself. (Non- Reflexivity-Condition)
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
It is conceptually necessary that two conflicting parties are epistemically distinct in a stage of war. (Epistemic Distinction-Condition)
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Why is attribution even more important in any legal definition of a 'just' war?
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Natural state First order regulatory state Second
regulatory state Third
regulatory state
everything, no duty at all)
bellum (just war), self-defence, emergency relief, etc.)
rules (e.g. excess of self-defence) = justification strategies
strategy (e.g. failure of justification) = reasonable excuse
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
What are the usual constraints
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
1) No unconditional right of self-defence (Self-Commitment of 'just' self-defence) 2) It is conceptually impossible to be in a state of self-defense without there being someone against whom one is in self-defense. (Binary-Condition/Two-place-Condition) 3) It is conceptually impossible to be in a state of self-defense against oneself. (Non-Reflexivity-Condition) 4) It is conceptually necessary that a self-defending party is epistemically distinct from the offender. (Epistemic Distinction- Condition) 5) Any contractual party has the inherent (moral and legal) right to act in self-defense, before/during/after an (immoral and illegal) attack from an offender. (Weak Principle of Self-Defense)
Constraints of self-defence
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
6) Self-defense has to be directed against the attacker and has to rely on the will to defend. (Strong Principle of Self-Defense) 7) A offender has a legal duty to tolerate the defenders enforcement power, so one cannot deduce a right of self-defense when one is offended by an act of self-defense. (No Self-Defense against Self-Defense) 8) Hypothetical causal connections cannot be incorporated in (international) criminal law. (Exclusion of Hypothetical Causes for Justification) 9) Mistakes of law must not justify self-defense. (Exclusion of Putative-Self-Defense as a reasonable justification) 10) Mistakes of fact must not excuse self-defense. (Exclusion of Putative-Self-Defense as an Ground for Excuse)
Constraints of self-defence
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
If attribution is impossible Principles [(1), (2), (3), (4)] and [(8), (9) ,(10)] cannot hold true at the same time
Impossibility-'Theorem'
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
You either have to allow hypothetical
and cannot preclude the possibility that
act in self-defence for unsuitable reasons or you prohibit putative reasons and cannot act in self-defence under conditions of non- attribution.
Impossibility-'Theorem'
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
The main goal of legal regulation is to avoid a stage of arbitrariness, e.g. anarchy. If legal regulation permits war without epistemically justified reasons, it is indistinguishable from arbitrary anarchy. If Putative-Self-Defense is legal, any (false) allegation becomes a potential justifying reason to declare war.
Non-Attribution-Dilemma
bellum omnium contra omnes
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
The point of EIA is that we cannot guarantee the exclusion of Putative-Self-Defense. When any EIA- cyberattack is a reason for self-defense, any regulation is pointless. Therefore EIA leads to a reductio ad absurdum for a rational concept of (epistemically justified) self-defense, because either it misses its own aim of rational regulation or it is indistinguishable from anarchy
Non-Attribution-Dilemma
bellum omnium contra omnes
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Conclusion
We analysed the terms non-/attribution, war and self-defense. This gave us a basic overview about the problems with attribution which occur with the term war in cyberspace, either for the right to declare war (ius ad bellum) or the right to defend or attack an enemy in war. We presented a fundamental regulation gap through non-attribution which is followed by the consequences for our international law and especially the terms used in it.
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Consequences
Do you think that deterrence through a threath of retaliation is not possible anymore, or is this impossibility of attribution?
Michael Niekamp and Florian Grunert University of Osnabrück
A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar
November 29th 2012 Vienna
Thank you for your attention!
Any Questions?
Michael Niekamp Telefon: +49541/969-7112 E-Mail: mniekamp@uos.de Florian Grunert Telefon: +49541/969-7107 E-Mail: fgrunert@uos.de