Sean Watts, Tallinn Manual contributor, on cyber & LOAC: ABA NatSec conference

Again, I had the opportunity to attend the ABA Standing Committee on Law and National Security’s 22nd Annual Review of the Field of National Security Law in Washington, D.C.  The conference wrapped up today, and was a great event.  Fish for lunch though?  C’mon Ritz Carlton, you’re better than that.

Anyways, the fifth panel of the conference was “The Law of Armed Conflict: Past, Present and Future.”  The panel was quite distinguished, and I don’t mean to marginalize their contributions, but I want to focus on comments from Sean Watts, Associate Professor of Law at Creighton University School of Law.  More importantly, Mr. Watts participated in the drafting of the Tallinn Manual on International Law Applicable to Cyber Warfare.  His comments pertained to cyberwar under LOAC and the difficulties behind drafting the Tallinn Manual.

In particular, Mr. Watts noted three questions the Tallinn Manual had difficulty in answering:

1. It’s unclear as to how relevant LOAC’s principles of targeting are to cyber.  Further, there is no consensus on the meaning of an (armed) attack.  An attack that causes a mere disruption of service (like a DDOS attack) probably doesn’t meet that threshold.  Mr. Watts suggested that destruction of data gets us closer, though.
2. The status of people that carry out cyberattacks is uncertain.  He was interested in status for three reasons: treatment after capture, targeting, and consequences of hostilities.
3. Finally, Mr. Watts questioned the link between perfidy and cyberattack.  Perfidy is a LOAC principle that you can’t come to your enemy under a flag of surrender and then turn your weapon on them.  Perfidy hinges on deception, and in the cyber context, it’s relevant when you “let something in” that otherwise appears benign.  Mr. Watts thought that the drafters of the Manual missed something with regard to perfidy.  How do you limit it?  He suggested notions of honor, even chivalry.

In closing, Mr. Watts argued that a cyber treaty isn’t likely.  Nevertheless, cyber may reinvigorate our interest in LOAC principles.

Again, this my incomplete paraphrase of Mr. Watts’ talk at the ABA conference.  Again, a great talk.  And again, all credit to the ABA and Mr. Watts.