How would NATO's mutual defense clause apply to cyber war? Nobody really knows, acknowledges Lt. Gen. Mark Schissler, deputy chairman of the North Atlantic Treaty Organization Military Committee. (File)
The North Atlantic Treaty Organization’s most powerful tool is its collective defense clause, Article 5, which requires NATO member states to come to the aid of any other member state that comes under armed attack. But that tool would be of little use in cyber war, NATO officials acknowledge.
Article 5—which has been invoked only once, after the attacks of Sept. 11, 2001—is one of the world’s guiding laws of armed conflict, but until recently, little attention has been paid to applying the rule to cyberspace. That’s changing, according to NATO officials.
“It’s important work and I think the alliance recognizes we need to get underway with that, but first we need to understand what we think about cyber…and then think about whether we’re going to put in change that would specifically address cyber aggression into article 5 or leave it as it stands,” Air Force Lt. Gen. Mark Schissler, deputy chairman of the NATO military committee, said June 25 at the AFCEA cyber symposium in Baltimore. “Obviously [that is] huge work for technicians and for lawyers, separate from ambassadors and mill-runners.”
Major questions surround exactly how Article 5 would be applied in cyber conflict, Schissler said. Much remains to be determined, starting with the very definition of a cyber attack and what would constitute enough of an incident to trigger an international response under Article 5. It’s particularly unclear since a purely cyber-based attack—unattached to any related traditional or kinetic conflict—has not really happened yet.
“We don’t know exactly know how to define Article 5 in cyber, and that’s work yet to be done,” he said. “The question might assume that there’s something that was purely a cyber attack that would be separate from any other form of action. We actually haven’t seen that; we’ve normally seen it in some combination. Article 5 was, along with many other parts of NATO documents, written at a time when cyber wasn’t addressed, so we may have to update that. But we haven’t figured that out.”
According to Melissa Hathaway, president of Hathaway Global Strategies and former acting senior director for cyberspace at the National Security Council, there are some helpful materials emerging to help guide the decision-making surrounding international cyber policy. Among them: the Tallinn Manual, a NATO-commissioned manual written last year by several dozen cyber experts that builds on existing international law.
The Tallinn Manual has “really informed the NATO conversation, as well as the global conversation, on how the laws of armed conflict would actually apply in the cyber world, giving us the parameters of left and right – how we should think about thresholds, proportionality [and] measured response,” Hathaway said. “To what extent does a disruption of service or disruption of property meet the threshold of LOAC? And what would activate Article 5 of the alliance? There’s still a lot more to go.”
The manual is named for the Estonian city that famously underwent a series of cyber attacks in 2007 – an incident that stands out as a defining moment in the history of cyber conflict. The world has learned much about the problem from and since the attacks on Estonia, and those lessons continue to emerge as the international cyber law debate takes shape.
“It’s so difficult to identify, sometimes, when you are already in crisis, when you are attacked. And sometimes the effects are not just your website is damaged or closed; sometimes effects might be very different – train accidents or accidents in energy systems,” said Lt. Gen. Johannes Kert, military representative of the Estonian Delegation in NATO’s Cooperative cyber Defense Centre. “Later, you understand the reason. You may not catch it immediately. Cyber is such a complex thing, it makes it really difficult to identify who’s behind it. Deniability is still the beauty of the game and attackers end to use it.”
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