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North Carolina Journal of International Law and Commercial Regulation

Sneak Preview: Cyber Attacks and the Beginnings of a Cyber Treaty

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The helicopters hummed along the broken Pakistani terrain, their mission accomplished.[1] Osama Bin Laden was dead and the entire SEAL Team Six crew was safe.[2] In three and a half hours the team had entered Pakistani airspace, assaulted the compound in Abbottabad, and returned to Afghanistan, all before the Pakistani government was ever aware of the incursion.[3] The Pakistani air defense never detected the helicopters in its airspace.[4] Some speculated it was this inability to detect U.S. forces that most damaged U.S.-Pakistani relations, more than the actual invasion of Pakistani territory.[5] “Never had the [Pakistani] military, the strongest institution in the country, been so humiliated since it lost three wars to India.”[6] Programmers and hackers stationed at U.S. Cyber Command in Ft. Meade, Maryland, could have contributed to the undetected incursion, using cyber technologies to infiltrate and turn off Pakistan’s air defense system simultaneous to the U.S.’s physical assault.[7]

It would not be the first such cyber attack. In 2007, Israeli bombers flew undetected into Syria, blowing up what was later determined to be a partially completed, North Korean-built nuclear enrichment facility.[8] The bombers flew undetected not due to some new radar-absorbing technology,[9] but because Israel used a complex cyber attack to mask its entry.[10] Israeli programmers manipulated Syria’s air defense[11] so that it would fail to report anything on the radar.[12] Israel and the U.S. often share new technologies as part of their strong relationship in developing cyber weapons.[13] In 2007, both nations joined together to initiate “Olympic Games”– in part an effort to “cripple, at least for a while, Iran’s nuclear progress” through the use of their combined cyber capabilities.[14] Olympic Games used a series of computer worms to progressively infiltrate and seize control of computers in the highly secretive Natanz nuclear enrichment facility in Iran.[15] Eventually, the worm was used to physically alter critical components within the nuclear facility.[16] To purify uranium into a usable energy source for nuclear power, and potentially nuclear weapons, rotors within centrifuges must spin the uranium at the speed of sound.[17] The surreptitious worm was engineered to spin the delicate centrifuges too fast or too slow, ultimately causing them to break apart.[18] The worm reportedly caused nearly a thousand centrifuges to fail,[19] greatly delaying Iranian efforts to enrich uranium.[20] If the U.S. used such cyber attacks against Pakistan during the Bin Laden raid, as developed in conjunction with Israel, what are the international implications? What would limit the U.S. or any other country from using these technologies solely for such a unique scenario? What would keep them from using it to mask planes flying over Iran? What if another country, perhaps China, developed such a capability and used it to hide a Pearl-Harbor level initial strike against a smaller national entity, like Taiwan?

Similar attacks have already occurred. In 2008, a seven-day conflict between Russia and Georgia witnessed the widespread use of cyber attacks by “hacktivists” in Russia, which brought Georgian governmental websites offline.[21] What limits cyber attacks to military targets? Estonia, a highly technological country, was brought to its knees by a series of attacks in 2007 that initiated in Russia and greatly disrupted Estonia’s banking systems.[22] Similarly, during the 2008 Georgia-Russian conflict, cyber attacks were used to shut down Georgia’s banking and mobile phone systems.[23] What limits cyber attacks to state actors? What is the appropriate response if groups such as Al Qaeda or Anonymous[24] initiate cyber attacks against a state or international organization?

These are only a few of the issues impacting the international community as it comes to terms with the growing technological dependency of states and the resulting dramatic impact of cyber attacks. This note is organized into four parts, resulting in the suggestion of an initial framework for an international treaty governing cyber attacks. Part I develops the basic questions surrounding an international cyber treaty, demonstrating several potential benefits of an international accord. Part II discusses customary international law that implicates cyber attacks. It focuses on both jus ad bellum, the international legal framework that governs the escalation to and initiation of war, and jus in bello, the international legal framework that governs once war has begun. Part III addresses the major concerns of an international treaty. It discusses in turn definitional issues, attribution, self-defense, and enforcement. Part IV highlights the feasibility of an international treaty, focusing on varying national perspectives, interests, and potential complications.

The full article will be available soon at Stephen Moore: 39 N.C. J. Int'l L. & Comm. Reg. 223 (forthcoming Fall 2013).

[1] See David E. Sanger, Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power 97 (2012).

[2] Id. at 103.

[3] Id. at 103. (“‘We [do not] think the Paks saw us until we were over the border again,’ one American official told [Sanger]. The whole process—in and out of country—had lasted about three and a half hours, and the Pakistanis had still not scrambled any forces.”). Ultimately, two MH-60 Black Hawk helicopters and two MH-47 Chinooks entered Pakistan air, all undetected by Pakistani air defense. Id. at 97-103.

[4] Id. at 97. It is reported that Pakistan merely had its radar turned off. Id. at 97 (“‘It was a little like us on Pearl Harbor Day – they had their radar off,’ one of Obama’s aides told me later. ‘It was the first of several examples of incompetence that broke our way.’”).

[5] Id. at 105. “With every new detail [of the raid]—how long the SEALs were inside Pakistan, how they refueled on Pakistani territory without being detected—the television commentators in Islamabad stoked the public anger.” Sanger, supra note 2, at 107. Ultimately, the leaders of the Pakistani military and intelligence service were subjected to eleven hours of hearings before the Pakistani parliament, resulting in “a resolution condemning the Abbottabad raid as a violation of sovereignty and a demand for a review of the partnership with the United States ‘with a view to ensuring Pakistan’s national interests were fully respected.’” Id. at107-08.

[6] See id. at 105-06.

[7] See generally Sanger, supra note 1, at 263-64 (explaining U.S. Cyber Command).

[8] See Richard A. Clarke & Robert K. Knake, Cyber War 2-4 (2010).

[9] See id. at 5 (“Those aircraft, designed and first built in the 1970s, were far from stealthy. Their steel and titanium airframes, their sharp edges and corners, the bombs and missiles hanging on their wings, should have lit up the Syrian radars like the Christmas tree illuminating New York’s Rockefeller Plaza in December. But they didn’t.”).

[10] Id. at 5-8.

[11] Syria’s air defense, notably, was Russian-built. Id. at 5.

[12] Id. at 5-8.

[13] See id. at 8 (“Whatever method the Israelis used to trick the Syrian air defense network, it was probably taken from a playbook they borrowed from the U.S.”); see also Sanger, supra note 1, at 195 (“Soon the American and Israeli intelligence partnership kicked into high gear. Olympic Games became part of the weekly conversation between security officials from the two countries, conducted over secure video lines and with visits to Washington and Jerusalem.”).

[14] See Sanger, supra note 1, at 190.

[15] See id. at 188-89.

[16] See id. at 188-89.

[17] See id. at 188-89 (“It was particularly difficult to manufacture the delicate rotors at the center of the machines. The rotors are the most vital single part: they spin at terrifying speeds, and each rotation of each centrifuge creates a slightly more purified version of Uranium-235.”).

[18] See id. at 189 (“[Rotors] are very temperamental. Spin them up too quickly and they can blow apart. Put on the brakes too fast and they get unbalanced. When that happens, the rotors act like a metallic tornado, ripping apart anything in its way.”).

[19] See id. at 206 (“In Natanz, 984 centrifuges came to a screeching halt.”).

[20] See Sanger, supra note 1, at 189.

[21] See Clarke & Knake, supra note 8, at 20; see, e.g.,Mark Clancy, Arm Yourself for Cyber War–Are You Next?, 2012 Sibos Conference Panel (DTCC, New York, N.Y.), (addressing the term “hacktivists” and their role in cyber warfare).

[22] Clarke & Knake, supra note 8, at 12-16 (“Estonians could not use their online banking, their newspapers’ websites, or their government’s electronic services.”). See also Michael N. Schmitt, Cyber Operations in International Law: The Use of Force, Collective Security, Self-Defense, and Armed Conflicts, in Proceedings of a Workshop on Deterring Cyberattacks: Informing Strategies and Developing Options for U.S. Policy 151, (Committee on Deterring Cyberattacks: Informing Strategies and Developing Options for U.S. Policy et al. eds., 2010) (“The impact of the cyber assault proved dramatic; government activities such as the provision of State benefits and the collection of taxes ground to a halt, private and public communications were disrupted and confidence in the economy plummeted.”).

[23] See Clarke & Knake, supra note 8, at 20 (“The attacks triggered an automated response at most of the foreign banks, which shut down connections to the Georgian banking sector. Without access to European settlement systems, Georgia’s banking operations were paralyzed. Credit card systems went down as well, followed soon after by the mobile phone system.”).

[24] “Anonymous is not a group, but rather an Internet gathering.” ANON OPS: A Press Release Dec. 10, 2010, AnonNews (Dec. 10, 2010), “Anonymous is not a group of hackers. We are average Internet Citizens ourselves and our motivation is a collective sense of being fed up with all the minor and major injustices we witness every day.” Id.

Posted by Stephen A. Moore on Wed. October 30, 2013 8:00 AM
Categories: Anonymous, Customary International Law, Cyberwarfare, Osama Bin Laden, Pakistan

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