Recent waves of cyber attacks emanated from China despite their vehement denial that they possess “cyber warfare troops.” Meanwhile, the United States, sensing its own security vulnerabilities, stood up its newest military Combatant Command, USCYBERCOM, in 2009. This enabled a coordinated defensive and offensive capability in an increasingly digitized world as evident in the U.S.-led Stuxnet and Flame malware operations against Iran in 2010. As a result, both of the prominent digital players in the international community can bring forth debilitating and warlike capabilities. Washington and Beijing even agreed to a spontaneous two-day summit in June to stem the increasingly dangerous game of digital cat and mouse. Unfortunately, the norms guiding the use of cyber forces have yet to be established.
One crucial point lost amid the backdrop of the new digitized battlefield is the lack of Chinese leadership experience both military and political in utilizing key principles of the laws of armed conflict (LOAC). LOAC principles are becoming the foundation and framework for the emerging rules on cyber warfare. Some in China are slowly recognizing this shift. Given the increasingly interconnected, globalized and legally ill-defined nature of cyber technologies, one false move by either the United States or China could steer them into a cyber collision with horrendous conventional consequences.
General Escalation of Force, Proportionality and Rules of Engagement Concepts in War
Jus in bello (just conduct in war) is the set of general laws and principles that govern the way war is fought. It also incorporates the principles of escalation of force (EOF), proportionality, and the rules of engagement (ROE). This was created to promote humane standards in warfare despite the overreaching, destructive nature inherent in war. With the end of WWII, these principles now have been codified with international and customary laws into the Geneva Convention. These embody the modern concept of the law of armed conflict.
U.S. Experience with the LOAC
The U.S. Department of Defense leadership has a vast experience with these principles as they apply to the doctrine of jus in bello. They presently use various rules, approaches, and protocols to abide by the LOAC. Prior to the start of hostilities, military planners will delineate three key principles taken from the LOAC noted earlier: escalation of force (EOF), proportionality, and rules of engagement (ROE). This is to avoid confusion and miscalculation before, during and after hostilities.
The Army’s Escalation of Force Handbook defines EOF as “sequential actions that begin with nonlethal force measures (visual signals to include flags, spotlights, lasers and pyrotechnics) and may graduate to lethal measures (direct action) to include warning, disabling or deadly shots to defeat a threat and protect the force.” Meanwhile, proportionality is military action that is not excessive in relation to the concrete and direct military advantage anticipated. The Army has a uniform Standard Rules of Engagement dictating engagement of force.
Since September 11, U.S. policy makers and military strategists have been provided a tremendous opportunity to finesse those LOAC concepts based on first-hand experience gained in Iraq, Afghanistan, Libya, Guantanamo Bay, on the Korean peninsula and off the Horn of Africa. Each of these situations has spanned a wide range of possibilities in utilizing both cyber and conventional forces. U.S. commanders were required to tailor and adjust these forces to the realities on the ground. This resulted in the integral inclusion of cyber and information warfare training across all military services and senior leaderships. The significance of these experiences has pushed U.S. policy makers to shape frameworks to govern the nebulous and proliferating world of cyber warfare.
The Tallinn Manual and Emerging Cyber Norms
The law-of-armed-conflict principles already established are guiding the discussion and implementation of the emerging rules, doctrines and frameworks that may one day govern the future of cyber warfare. Realizing the need for a LOAC as it applied to the cyber domain, various states, NGOs and individuals have begun to provide their own precepts. Last year, tremendous work and energy by scholars, policymakers and digital leaders from around the world was poured into the Tallinn Manual on the International Law Applicable to Cyber Warfare. This collaborative document provides a starting point to cover the use of force in cyber warfare by state and nonstate actors. However, this document is merely a guiding post and lacks enforcement mechanisms. There is still no globally recognized norm. China has not provided transparency or information regarding their cyber intentions. Despite this, China’s previous views on conventional use of force may offer some clues on future cyber warfare strategies.
Chinese Concepts of War Containment, War Control & ROE
The Chinese have not had practical, hands-on experience with escalation of force, proportionality or rules of engagement. The Chinese military has not conducted significant operations since its shellacking in the 1979 border war with Vietnam. Their military has a dearth of expertise in applying these concepts in a real-time threat environment. This inexperience is compounded by the fact that the PRC and PLA leadership define the concepts differently from the United States and others. Because LOAC principles gained from battlefield experience are finding their way into the norms of the cyber domain, the Chinese authorities may be ill-prepared to deal with the pandora’s box of cyber warfare. This mismatch of LOAC experience potentially could cause a miscalculation in any cyber encounter.
Lonnie Henley conducted a study on Chinese escalation management in 2006. He found that Chinese military strategists and theorists segregate EOF and proportionality under their concepts of containment of war (遏制战争 ezhi zhanzheng) and war control (战争控制 zhanzheng kongzhi). Further, he pointed out that Chinese perceptions on war containment and control can be described as the “deliberate actions of war leaders to limit or restrain the outbreak, development, scale, intensity, and aftermath of war” as well as controlling its vertical and horizontal escalation. The Chinese concept of war control is unique in that it seeks a united and focused national effort to maintain the political and military initiative at all cost. The concept of seizing the initiative is not new, and it was even an integral part of Mao Zedong’s war strategy. A recent article in Xinhua by Li Duaguang, a professor at the National Defense University, expounded further on war control by stating that “by preparing for war, one can curb war.” This pull towards seizing the initiative could make Chinese leadership lean too far forward on the side of miscalculation and error. Regrettably, there also has been a dearth of current Chinese discussion on these two principles, so it is difficult to assess Chinese intent in the cyber realm.
Yet, Chinese media reports have filled some of the void with regards to ROE(交战规则 jiaozhan guize). Despite a lack of battle-tested ROE experience, China has linked ROE with cyber warfare and basically has asserted that the United States lacks a legal basis for any unilateral cyber rules of engagement of its own. This is because the Chinese fear that unilateral action by the United States, such as establishing a cyber ROE, would set the stage for future U.S. preemptive action in anticipation of a cyber attack that could target China.
Cyber in China’s Recent Defense White Paper
These pronouncements come at the heels of China’s recently published defense white paper that publicly promulgates its military’s intentions. “Cyber” is mentioned only twice in the entire paper. China did recognize however, that “changes in the form of war from mechanization to informationization are accelerating,” while “major powers are vigorously developing new and more sophisticated military technologies so as to ensure that they can maintain strategic superiorities in international competition in such areas as . . . cyber space.” China also unequivocally stated in the document that it would “counterattack” if attacked.
Troubling Prospects for U.S.-Chinese Cyber Operations
This is particularly troubling for Chinese and American authorities because it is unclear whether or not they could manage their cyber responses in a measured and proportional way if an unofficial or official outbreak of digital force, intentional or not, were to occur. The severity of this issue is intensified by the lack of official Chinese pronouncements or transparency on their cyber operations. Clandestine cyber units, such as the PLA-sponsored Unit 61398 in Shanghai, operate with destructive global reach, adding a layer of uncertainty to an illicit cyber response.
After a thorough analysis of the defense white paper, it is clear that the Chinese leadership is reticent to articulate their intentions in cyber warfare. For defense purposes, this is troublesome for Washington. There is a variety of political and military reasons for this course of action. Perhaps this Chinese reluctance in setting the guidelines of response stems from the lack of pressure from the United States and other nations. In any case, it is doubtful that the leadership would state a different course of action than its professed desire to conduct only defensive and nonaggressive operations.