Tuesday, November 10, 2015

By Samantha Peacock

When asked about the aspects of cyber warfare and its ramifications Chief of the Defense Staff of the British Armed Forces, General Sir Nicholas Houghton stated, "There is no longer a simple distinction between war and peace. We are in a state of permanent engagement in a global competition." This particular quote resonates with the theme of our class content and conceptualizes cyber warfare as it is seen internationally, a global competition. General Houghton is not alone in his quarrels regarding cyber security and warfare; this problem isn't new but it is new enough to cause threats that cannot be properly assessed or even defined. It's vast and the statement in itself does not answer a question but the content addresses the class' narrative: what connotation does cyber warfare have in relation to the law of war? The evolution of technology is evolving at a faster rate than laws can be created or terms defined. The lines have been blurred as to what is and what is not an act of war. That very sort of line blurring has come into question with the recently leaked U.S. military documents. The ethicality of actions undertaken by the U.S. has drawn sharp criticism after a website published classified documents regarding special forces, operations, drone strikes, targeted kill lists, and extra-judicial killings. First, The Intercept worked with Edward Snowden and now The Intercept has published documents from an anonymous source detailing our military operationsThe source believes the public should be privy to what our government is doing and who they've "decided to kill".  

The drone strike operations America has taken part in has come under scrutiny before but until now has been shredded with secrecy. In response to previous scrutiny America has said they follow a strict criteria and are very precise. These documents paint a different story. Maybe we do have strict criteria but it is evident from these documents that it is not followed.  The document indicates for every 10 individuals killed by an airstrike, 9 of them are not intended targets. Operation Haymaker saw a total of 219 casualties. This operation had 35 intended targets, which equates to a mere 15% of the total casualties. The source concluded that the practice used by special operations to hunt down and kill targets via drone strikes contributes to, "dehumanizing the people before you've even encountered the moral question, is this a legitimate kill or not?" It is my opinion that the public has reason to believe that this dehumanizing effect does not merely extend to those conducting the operations. It was stated that in a 5-month span 90% of those killed were not intended targets yet all deaths all were labeled EKIA, 'enemy killed in action'. If the American people merely see 219 EKIA killed in drone strike in Pakistan, Afghanistan, Syria, Yemen, Iraq, etc. flash across the news an association with those States and terrorism starts to begin. These are no longer countries with living, breathing people but terrorist targets both to the American people and their operatives. When in reality the intended target that U.S. intelligence has been tracking for months via cellphone data could be the suspect's mother, sister, or a child who was given the phone to impede U.S. intelligence. The source stated that in Yemen and Somalia phone data alone has been used to guarantee a kill. Documents now show that the U.S. has relied on less than accurate intelligence in their air strikes, which has came at the cost of civilian causalities. These causalities can be attributed to faulty intelligence or merely being within the vicinity of an intended target. In the case, Prosecutor v. Stanislav Galic the defense argued that the civilian casualties were collateral damage in a legitimate military activity. The U.S. has argued the same defense in response to the backlash. In both instances I believe a reasonable person would conclude that excessive use of force has been used.  
If a state wishes to remain under the political and military reaction threshold that Article 5 of the North Atlantic Treaty transpired to keep then certain requirements must be upheld.  Cyber warfare is a form of hybrid warfare and to remain under the threshold of Article 5, hybrid warfare must remain under the corresponding legal threshold of armed attackThe Obama administration has stated that in strict legal terms the U.S. is in an armed conflict with al Qaeda in Yemen in Somalia and thus the legality of these actions are not in question. Air strikes can be lawfully used against an enemy belligerent in an armed conflict or under circumstances in which the belligerent constitutes an imminent threat to national security. President Obama has also approved air strikes in Yemen on unknown people, labeling them TADS,  “terror attack disruption strikes Under these circumstances I believe it is foreseeable that your intended target could be a civilian and under international law it's hard to find the legality in deeming this proportionate in action or imminent in threat. The documents reveal that intended targets are tracked for months, in one instance the article lists a target that was under surveillance for 8 months and another several years. If the U.S. can track these threats for months or even years, how is this threat imminent?  

 The documents also expose how the President authorizes these targeted killings. When the report was made the President would receive a baseball like card with the target's portrait and the threat they posed to national security. The report concluded that on average it took the President 58 days to sign off on a killing at which point U.S. special forces had 60 days to carry out the strike. Again, I do not see the imminent threat in four months especially in situations like Bilal el-Berjawi where the United States tracked an individual over the course of several years. According to a UN Special Report targeted killings are premeditated acts of lethal force employed by states in times of peace or during armed conflict to eliminate specific individuals outside their custody. The very definition of these killings implies the threat is not imminent. Still the United States believes it has acted in accord with the law of war with the usage of targeted killingsif the civilian casualties could be removed from these strikes I would be inclined to agree. Since, these operations have untold civilian casualties and the threat appears impossible to remove given the United States' strategies, I do not feel these strikes are in accordance with the laws of war. A possible civilian casualty rate of 90% does not reflect proportionality or necessity. These documents expose American secrecy at a new level. With the recent information being made available I believe an important question all Americans should ask is: What danger does technology without any regard to legal or constitutional limits pose?   

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