We asked Michael Niekamp and Florian Grunert to give an outlook on their presentation titled A Non-Attribution-Dilemma and its Impact on Legal Regulation of Cyberwar:
A general challenge of cyberwar lies in the field of legal regulation under conditions of non-attribution. The optimistic view emphasizes that our international law and its underlying standards are sufficient (in principle and de facto) to solve all emerging problems. A more sceptical view postulates “the impossibility of global regulation”.
Although we lean towards the sceptical view, we’ll provide a different and new line of reasoning for the impossibility of a rational legal regulation by formulating a non-attribution-dilemma. In contrast to some prominent arguments, we do not overestimate the suggestive power of the non-attribution-problem concerning the question of rational “deterrence through a threat of retaliation” (DTR for short), but argue that non-attribution causes serious problems of legal regulation of cyberwar.
Our arguments rely heavily on the premise that attribution is not possible. If you do not accept this premise, there is nothing of interest in our talk. In the second part we therefore sketch some conceptual difficulties of non-attribution and provide a useful distinction between different kinds of impossibilities of attribution. Even in the weakest sense of impossibility all relevant problems of non-attribution remain to legal regulation.
In the third part we set the floor for some important logical clarifications of the category of war and a sound principle of self-defence. Both presuppose the possibility of attribution and cannot address situations under conditions of non-attribution. Some legal professionals argue that there is no widely accepted definition (no sufficient conditions) of “war”. They try to refuse our arguments for this reason. We argue that this point is mistaken and relies on a fatal misunderstanding. We do not need sufficient conditions in the definition of “war”, but some undisputed necessary conditions of a meaningful concept of “war”. Thereupon we consider the epistemic difficulties/impossibility of an intersubjectively detectable breach of law and outline their argumentative consequences for legal regulation. We are able to formulate an interesting dilemma according to the non-attribution-problem which is sufficient for arguing that there is a regulatory gap.