UK: Offensive Cyber Operations Policy

On 23 May 2018, the UK Attorney General, the Rt Hon Jeremy Wright QC MP, gave a speech at the Royal Institute of International Affairs (RIIA) to inform on the UK interpretation of international law with regard to cyber-attacks.  This expands upon a speech at the International Institute of Strategic Studies (IISS) on 11 January 2017 regarding the UK application of international law on self-defence.  The following are extracts of these speeches.

Let’s look at the IISS speech first:

·         “Under the UN Charter, armed force may be used both pursuant to a Chapter VII authorisation by the UN Security Council and in individual or collective self-defence under Article 51 of the UN Charter.”  Comment: The UK position is that to trigger collective self-defence there does not need to be a direct threat to the assisting state.  However, the state subject to the threat must have sought the assistance of the assisting state(s).  The UK also recognizes humanitarian intervention as a possible legal basis for the use of force in certain exceptional circumstances.

·         “… Article 51 of the UN Charter does not require a state passively to await an attack but includes the “inherent right” … to use force in self-defence against an “imminent” armed attack …”  Comment: there is no accepted UN definition of “imminent”.

·          “Following the [9/11] attacks, the UN Security Council … confirmed that self-defence could be justified in relation to non-state actors.”  “… self-defence is available as a legal basis where the state from whose territory the actual or imminent armed attack emanates is unable or unwilling to prevent the attack or is not in effective control of the relevant part of its territory.”  Comment: the UK formally notified the UN Security Council (03 December 2015) that Article 51 is the legal basis for UK military action in Syria against Daesh.

·         “Where there is an identified direct and imminent threat to the UK or British interests abroad, the UK has always maintained it will take action to counter that threat.”

·          “The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for the purposes of the exercise of a right of self-defence …”

Turning to the recent RIIA speech:

·         “Cyber space is not – and must never be – a lawless world.  It is the UK’s view that when states and individuals engage in hostile cyber operations, they are governed by law just like activities in any other domain.”

·         “On 26 June 2015, the UN Expert Group, including not just the UK and the US, but also Russia and China, recognized that the UN Charter applies in its entirety to cyberspace.  The Group affirmed the relevance of a state’s inherent right to act in self-defence in response to a cyber operation meeting the threshold of an armed attack.”

·         “… the UK considers it is clear that cyber operations that result in, or present an imminent threat of, death and destruction on an equivalent scale to an armed attack will give rise to an inherent right to take action in self-defence …”

o   “If a hostile state interferes with the operation of one of our nuclear reactors, resulting in widespread loss of life, the fact that the act is carried out by the way of a cyber operation does not prevent it from being viewed as an unlawful use of force or an armed attack against us.”

·         “When states are engaged in an armed conflict, this means that cyber operations can be used to hinder the ability of hostile groups such as Daesh to coordinate attacks, and in order to protect coalition forces on the battlefield.”  Comment: see paragraph below.

·         “In addition, it is also worth stating that, as a matter of law, there is no requirement in the doctrine of countermeasures for a response to be symmetrical to the underlying unlawful act.”  Comment: The UK National Cyber Security Strategy 2016-2021 states that, “… respond to cyber-attacks in the same way we respond to any other attack, using whichever capability is most appropriate, including an offensive capability.

·         “… attribution of conduct … require a state to bear responsibility in international law for its internationally wrongful acts, and also for the acts of individuals acting under its instruction, direction or control.

·          “… our National Offensive Cyber Programme (NOCP) is building a dedicated capability allowing the UK to act in cyberspace.  Comment: the NOCP is a joint Government Communications Headquarters (GCHQ and Ministry of Defence (MoD) partnership.  Detailed liaison with close Allies is critical to ensure deconfliction of cyber operations, and that there is no adverse effect on intelligence collection operations.

On 12 April 2018, Jeremy Fleming, Director of GCHQ, revealed at the CyberUK2018 conference that the UK had conducted a “major offensive cyber campaign” against Daesh.  “These operations have made a significant contribution to coalition efforts to suppress Daesh propaganda, hindered their ability to coordinate attacks, and protected coalition forces on the battlefield."

As well as informing the British public of the legal basis of government policy, the RIIA speech was clearly intended to convey a message to potential hostile actors in order to deter malicious cyber activity.

President Trump and the Conduct of Foreign Policy

A large of volume of opinion has been expressed about President Trump’s conduct of foreign policy.  I have often been asked for my views.  Therefore, this short post adds to that volume; but aims to provide clarity by non-partisan simplicity. 

President Trump’s experience in business has guided his conduct of foreign policy.  The “playbook” accepts that competition and cooperation are not mutually-exclusive states in interactions with an actor.  And, if required, threats can be part of the equation.

While promoting American interests first, he accepts that his interlocutors have their own interests, so the probability of success is increased through reciprocity.  This is a transactional approach to moving issues from competition to cooperation (or challenges to opportunities).  Therefore, the strategy is to achieve American interests through disruption, reciprocity and influence using the instruments of national power to achieve the influence.  This has to be rooted in the competitor’s belief that: President Trump is willing to execute any threat he makes during the negotiation, and that he would rather walk-away rather than make, what he considers to be, a bad deal.

The first step is to achieve disruption to the status quo through, considered by some, an extreme, asymmetric act.  This: introduces complexity, creates a dilemma for the competitor, challenges previous assumptions, and removes any linear thought caused by previous thinking and biases.

Disruption, depending on the response, can be followed by the transactional offer of reciprocity (accompanied by some sort of flattery), or a threat.  Both are designed to achieve a negotiation.

An integrated use of the instruments of national power are used as the tools of influence.  The military tool can range from a security guarantee or cooperation (including arms sales) to a military deployment with a threat of employment.  The economic tool can range from the threat of tariffs or sanctions, to the promise of lifting existing tariffs or sanctions.

This form of hard diplomacy is different.   It can be used to negotiate with partners, as well as competitors, and could also be exploited as a counter to “Gray Zone” tactics where a competitor is acting to achieve objectives thought to be below the threshold of traditional deterrence.

US: The Authorization of the Use of Military Force of 2018

On 16 April 2018, the Chairman of the Senate Foreign Relations Committee (Senator Bob Corker (R-Tennessee) introduced a draft Authorization of the Use of Military Force (AUMF), “To authorize the use of military force against the Taleban, Al Qaida, the Islamic State in Iraq and Syria, and designated associated forces, and to provide an updated, transparent, and sustainable statutory basis for counter-terrorism operations.”

Current US counter-terrorist military operations are conducted under the 2001 and 2002 AUMF’s and Presidential authority granted under Article II of the US Constitution.  The new AUMF is intended to replace the two existing authorizations.

The 2001 AUMF states: “That the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future act of international terrorism against the United States by such nations, organizations or persons.”  Over the years, a growing body of opinion has contended that while the 2001 AUMF authorized military action against Al Qaeda (AQ), the Taleban, and others associated with the September 11 attacks against the US, it did not cover action against: AQ-I (which did not exist until 2004) and became IS, or any other actors that have emerged.

The 2002, Iraq-specific, AUMF gave President Bush authority to “defend the national security of the United States against the continuing threat posed by Iraq implying the state of Iraq (the use of the word “by”), as opposed to non-state actors operating in and from Iraq.”  However, since then it has been argued that it authorizes actions to threats either to or from Iraq, including AQ-I, and then IS.

Over the years, some members of Congress have argued that the AUMF’s should be replaced, but without success.

The Department of Defense position has been consistent.  Any new AUMF should satisfy three conditions:

• All military options should be authorized;
• It cannot be time-restricted; and,
• It cannot be geographically-constrained.

The main points of the draft are:

• It does not restrict military options.
• The authorization is for: the Taleban, Al Qaida, the Islamic State of Iraq and Syria, and associated forces.  The designated “associated forces” are: Al Qaida in the Arabian Peninsula, Al Shabaab, Al Qaida in Syria (including Al Nusrah), the Haqqani Network, and Al Qaida in the Islamic Maghreb.  Additions to the “associated forces” can be notified to Congress for consideration.
•  Military force is authorized in Afghanistan, Iraq, Syria, Somalia, Yemen and Libya. Military force used elsewhere should be notified to Congress within 48 hours of execution with a report detailing its necessity. Comment: The overt authorization by Congress for the use of military force in the designated nations may have negative diplomatic implications if approved.
•  A Presidential report is required, by Congress on 20 January 2022, and every fourth year subsequently, with a proposal to repeal, modify, or leave in place the resolution.  Comment: As 20 January is Presidential Inauguration Day it is likely that this date will have to change.

Even if approved in committee, there is no guarantee that the Senate Majority Leader, Senator Mitch McConnell (R-Ky), will schedule it for debate.

Syria: Tactical Action for Strategic Influence

“Deterrence is a strategy designed to dissuade an adversary from an action not yet taken.”

Bernard Brodie

In the early hours of 14 April 2018, the US, UK and France conducted coordinated strikes on targets associated with the Syrian Chemical Weapons (CW) programme.  It appears that the enduring political desired outcome is to deter the use of CW, the military operational objective was to degrade the capability of the Syrian Armed Forces to use CW, and three tactical targets were selected to achieve these aims.  Writing less than eight hours after the military action, it is too early to address the tactical success of degrading Syrian military capability.  This early article will address some of the possible strategic influence effects.

The strikes in Syria were targeted at the Syrian CW programme; not regime change.  They were selected as: proportionate to the desired outcome, to avoid civilian casualties, and to avoid deliberate targeting of Russian and Iranian support to the Syrian regime.  US, UK and French statements all held Russia accountable for the activity conducted by the Syrian regime and implied that further action would be taken in the event of further CW use.  It will take time to ascertain whether President Assad will have been deterred from further use of CW.

Explicit Russian statements of retaliation have not occurred.  Indeed, other official Russian statements range from stating that retaliation will occur as the Allied action insulted President Putin and that was “unacceptable”, to the fanciful notion that the Syrian AD system, without Russian help, shot-down 71 of 103 cruise missiles!  It will interesting to understand how Putin’s ego and pride has been influenced, and if and how Russian “Gray Zone” activities are affected outside of Syria.

Official Iranian statements have condemned the Allied action as aggression to be countered.  However, like Russia retaliatory actions have not yet taken place.  Outside of Syria, it will be interesting to see if the Allied action has influenced Iranian perception of President Trump’s opposition to the JCPOA and whether they should engage in re-negotiation.  It will also be of interest if Iranian support of proxy groups in: Lebanon, Iraq, Yemen, Bahrain etc, will be affected in the short-term.

A final thought, is how the Allied action will influence North Korean behavior in the forthcoming talks with President Trump.  North Korea has assisted Syria in the development of its missiles and WMD programmes through the Syrian Scientific Research Centre (one of the three selected targets).

It is too early to assess the influence effects of the Allied action, and if it has changed the behavior of any party.  Indeed, such a change of intent may only be short-lived.  Understanding, and then exploiting, any behavioural change into a longer-term advantage is critical.

US Authorization of Military Force

The deaths of four US soldiers in Niger on 04 Oct 17 reignited the debate over replacing the 2001 AUMF that states:  That the President is authorized to use all necessary and appropriate force against those nations, organization, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future act of international terrorism against the United States by such nations, organizations, or persons." 

Over the years a growing body of opinion contended that while the 2001 AUMF authorized military action against Al Qaida (AQ), the Taliban and others associated with the 11 September 2001 attacks against the US, it did not cover action against AQ-I (that did not exist until 2004) and became ISIS, or any other actors that have emerged.  In 2002, the Iraq-specific AUMF gave President Bush authority to "defend the national security of the United States against the continuing threat posed by Iraq” (implying the state of Iraq (use of the word “by”), as opposed to non-state actors operating in and from Iraq.  However, since then it has been argued that it authorizes actions to threats to or from Iraq, including AQ-I and then ISIS.

Section 1264 of the 2018 National Defense Authorization Act (codified at 50 USC 1549) included a new requirement of President Trump’s administration to provide, by 12 March 2018, with a “Report on the Legal and Policy Frameworks Guiding the US Use of Military Force and Related National Security Operations”.  The report was delivered to Congress on time.  Current US military operations are authorized by the 2001 and 2002 AUMF’s and Presidential authority granted by Article II of the US Constitution.

Over the years, some members of Congress have argued that the AUMF’s should be replaced, though without success.

The Department of Defense position has been consistent:

In an interview with Gen Dempsey on 22 Jan 15 (then Chairman of the Joint Chiefs of Staff), endorsed the passing of a new AUMF but made three important points:

·         “.. all options should be on the table, and then we can debate whether we want to use them.  But the authorization should be there.”

·         “It shouldn’t constrain activities geographically, because IS knows no boundaries [and] doesn’t recognize any boundaries – in fact it’s their intention to erase all boundaries to their benefit.”

·         “Constraints on time, or a “sunset clause”, are not necessary.  “I think the nation should speak of its intent to confront this radical, ideological, barbaric group and leave that open until we can deal with it.”

Alongside then Secretary of State Tillerson, in testimony before the Senate Foreign Relation Committee on 29 Oct 17, Secretary of Defence Mattis, in relation to a new AUMF, said:

·         “[The President has] authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”

·         “it lies firmly within any president’s constitutional authority and responsibility as the elected commander-in-chief to designate who presents a threat to our country.”

·         “Though a statement of continued Congressional support would be welcome, a new AUMF is not legally required to address the continuing threat posed by al-Qaida, the Taliban and ISIS.” 

Similar to Gen Dunford’s comments in 2015, Mattis believes that:

·       That a new AUMF cannot be time-restricted, “We cannot put a firm timeline on conflict against an adaptive enemy who would hope that we haven’t the will to fight as long as necessary,” “… we are more likely to end this fight sooner if we don’t tell our adversary the day we intend to stop fighting.”

·       That a new AUMF cannot be geographically constrained, “This is a fight against a transnational enemy, one that does not respect international borders and does not place geographic limits on their areas of operations. So, necessarily, to defend our country, we must be prepared to swiftly engage this global enemy in conjunction with our allies and partners.”

It is too early to say whether this new requirement will lead to further calls for replacing the AUMF’s, but is highly likely the Administration agrees with the DoD’s position.

United States: Authorisation of the Use of Nuclear Weapons

The President of the United States is the sole authority for the use of nuclear weapons.  Options for employment and the launch codes are carried in a briefcase (known as “the Football”) by a military officer who is constantly with the President.  The issue has two elements:

·         Launch on Attack – warning of a launch is transmitted to the President and the Pentagon.  The President would then be formally advised of the options by the Secretary of State for Defense (SecDef) and the Commander of Strategic Command (Comd STRATCOM). A subsequent Presidential order to launch is passed to the SecDef for validation of authenticity and is then passed to the Comd STRATCOM to execute.  The only check on the employment of the weapons would be if the order would be deemed illegal under the Laws of Warfare. However, this is unlikely as this concern would have been raised with the President when advice and discussion of the options took place.

·         First Use – The United States retains the option of First Use as part of its deterrent policy.  However, such an event would be a deliberate planning option.

At present, prompted by animosity by some of President Trump, there is a debate in the United States on changes to the authorisation of the First Use of nuclear weapons.  However, the only formal proposal for changes was proposed in January 2017.  It was sponsored by Edward Markey (D-MA) in the Senate (S.200) and sponsored by Ted Lieu (D-CA) in the House (HR 669) and proposed no first use of nuclear weapons can be authorised unless it is permitted in the Congressional Declaration of War.

As an independent observer, I shall not comment on US constitutional issues or the reasoning behind the current debate.  However, before Congress contemplates any changes there are other issues that to be considered:

• ·         The submitted proposal, and ongioing debate, has not distinguished between strategic and non-strategic nuclear weapons.   Non-strategic nuclear weapons are of shorter range and lower-yield and would be employed for tactical use.
• ·         A Declaration of War that imposes constraints not only affects military options but also Interagency influence operations.  This cedes an advantage to the enemy, reduces the effectiveness of elements of national power and would be against US national interests.
• ·         The constraint would also have implications for any partners, whether NATO or another coalition, again limiting military and influence options.  It may also cause concern about US resolve among the partners.  This would be against the US national interest.
• ·         Similarly, it could also adversely affect relationships with nuclear-capable partners and therefore would also be against the national interest.
• ·         A requirement to return to Congress for any amendment or addition to a Declaration of War would negate timeliness and operational security.

In summary, despite changes in the global operational environment and future technologies (eg Hypersonic missiles), any changes to the current arrangements that reduce flexibility are likely to be detrimental to US national interests.

North Korea: The Art of the Deal?

Current, US activity is rooted in the Diplomatic, Informational, Military and Economic construct (including international pressure, military manoeuvres, sanctions etc).  The different messaging across the principal US players (Trump, McMaster, Mattis, Tillerson, Kelly and Haley) appears to be a synchronised campaign to create multiple dilemmas in Kim’s thinking and is geared to influence Kim that President Trump is willing (whether he is or not) to use military action, and that if that happens the Kim regime will be gone. Kim’s deterrence options are only relevant if the US, South Korea and Allies are perceived as unwilling to bear the cost.  The campaign seems to have worked with North Korean envoys around the world asking whether the US would use a military option as stated.  If deemed credible, such an assessment may even cause some senior figures to consider breaking with the regime at some point.  However, what is the strategy that lies behind this US activity?

On 15 November 2017, the Washington Post reported that President Trump asked South Korean President Moon, “Do you have to re-unify?”  Some have described this as insensitive, especially as President Moon is the son of North Korean refugees with family still in North Korea.  However, …

Although the situation is complex, the following are very basic assumptions of the desired national outcomes of North Korea, South Korea, China and the US:

• ·         North Korea – re-unification under the Kim regime whilst retaining nuclear weapons as a deterrent.
• ·         South Korea – re-unification as a de-nuclearised, capitalist democracy.
• ·         China – a stable peninsular that poses no challenges to China with no US military presence.
• ·         The US - a de-nuclearised North Korea that does not pose a threat to the US or its interests.

Despite these desired national outcomes, are there medium-term objectives that all parties could live with?

• ·         The US has already publicly stated that its aim is a de-nuclearised North Korea that does not pose a threat to the US or its interests; not regime change.
• ·         China’s desired national outcome can be met if the US objective is met.
• ·         South Korea, without giving-up on its desired national outcome, may agree to a medium-term objective of a de-nuclearised North Korea that does not pose a threat.
• ·         The difficulty is North Korea.  Would they settle for a security guarantee from the US, backed by China, that they will not be attacked and there will be no attempt at regime change if they de-nuclearise?

In reaching the objectives outlined above, skilful negotiation (including inducements and pressure) will be required for North and South Korea to relent on their desired national outcomes.  Hence, President Trump and the re-unification question.  Indeed, following the President Trump meeting with President Xi last week, China announced that would be sending an envoy to North Korea.  And, it appears North Korea may be open to negotiation. Also on 15 November 2017, the Korean Workers’ Party newspaper opened with the position that North Korea would give up nuclear weapons when the US does as the US threatens the North Korean regime.

Is President Trump successfully practising the “Art of the Deal”?