Serving as number two in the IDF’s legal division and essentially running its day-to-day affairs, Col. Sharon Afek was already considered one of the smartest and influential lawyers in the country – army lawyers were known to prepare even more meticulously for meetings with him than they would for meetings with top generals.
But his groundbreaking 149-page treatise on the future of cyberwarfare and law, the first major work in Hebrew on the subject, has taken his reputation and influence to a whole new level. The treatise, published earlier this month, greatly increases Israel’s ability to affect how international law evolves around the game-changing issue.
In a recent exclusive interview with The Jerusalem Post, Afek, currently a lecturer at the IDF’s National Defense College, said that this was one of his primary goals in writing the treatise.
“Israel needs to be involved, to be up-to-date on developments and to impact the development of international law [regarding cyberwarfare],” he said.
While Afek repeatedly emphasized that his work was academic and aimed as a tool for policy-makers, his stature and the absence of any similar treatise on the issue could easily lead to his ideas being implemented as a new long-term doctrine.
Afek described the challenges of the new cyberwarfare plane in striking terms. “It is a conceptual revolution,” he said. “Everything we know about war is changing.”
New questions, he said, needed to be asked for redefining what actions “were offensive and which defensive,” and what objects are legally attackable “military targets” and what are not.
In cyberwarfare, he added, one person on one side of the world can push a button with massive impact on the other side of the world, and can target virtually “any aspect of daily life” far more than was traditionally possible.
Also, “attacks” can occur almost instantaneously, with it being impossible or much more difficult to trace the attacker. In some cases, the attacker may lay dormant or covertly be spying on a computer system for years without being noticed.
Moreover, international law’s fundamental civilian-military lines can be blurred, with the military asking civilians to undertake cyber attacks “independently,” or civilians acting independent of the military’s knowledge.
Many are also asking more strongly than ever: “Is international law still relevant?” Afek, who views his treatise also as a “bridge” between the pre- and post-cyber world of war, answers with a resounding “yes,” but then goes further to try to resolve some of the questions of how and where it applies.
One debate in the new wild west of cyberwarfare law is between two schools of thought about where to draw the line of which cyber operations should be declared illegal under international law.
Afek said he believed that state practice was much more closely following the views of leading Prof. Michael Schmitt of the United States Naval War College, who says that cyber operations are only an “attack” under Protocol I to the Geneva Conventions if physical harm results.
This is in contrast to the view of Dr. Knut Dormann of the International Committee of the Red Cross, who says an “attack” should include any operation that targets civilians or civilian objects – a view that Afek said was less accepted.
Another debate has been whether the East (China, Russia, North Korea, Iran) and West (US, Europe) could agree on any sphere of cyber hacking as off-limits.
Richard Clark and Robert Knake (past US government terrorism and cyberwarfare experts) recently proposed an agreement between the East and West to allow cyber operations on military targets, but to refrain from cyber operations on civilian targets, such as banks.
Afek said he agreed with this proposal but doubts “consensus in the near future,” because the various cyber-powers have “different interests,” with countries like China seeking to be able to undertake cyber operations against institutions such as banks as asymmetric warfare to even the imbalance against the US’s greater overall military power.
Afek added there were cultural differences, as countries like China and Russia view the West’s media and other forms of electronic and Internet speech as interference with their control of the political sphere.
Walking through a concrete application of his doctrine, Afek answered questions about what level of cyber operations would be required to violate a truce, the way firing rockets could violate a truce – say, such as the truce negotiated between Israel and Hamas to end Operation Pillar of Defense in November 2012.
Just as Israel has maintained negotiated truces even in cases in which, after a truce was to have kicked in, a few residual rockets were fired by Hamas into open areas, hurting no one, Afek said Israel would probably not declare the violation of a truce simply because some Internet websites were still being hacked by Hamas.
In contrast, just as Israel might declare an end to a truce if a more powerful rocket hit a civilian area causing real physical or economic harm, Afek said that “if bigger civilian objects were harmed” by a cyber operation (trains, elevators, the stock exchange or even larger objects), that could be grounds for saying a truce was ended.
Regarding whether there were different rules of armed conflict for cyberwarfare in dealing with states like Iran, versus terror entities like Hamas or al-Qaida, he first noted that while there is “no consensus,” the “US, Israel, England and others” argue that “self-defense” principles justify attacks against terror groups, even if they are not states.
He added that as such, Israel could respond just as aggressively to cyber attacks by terror groups, also called nonstate actors, and in some cases, possibly more aggressively – because terror groups operations are sometimes more aggressive and a “greater danger.”
Responding strongly to such groups could be important since, otherwise, these groups can use the cyber arena as an “equalizing weapon” to “reduce the differences between strong and smaller” nations and groups in conflict – because it is much cheaper and more available (unlike, for example, a nuclear weapon, which takes time, space and serious funds).
Afek’s doctrine is perhaps the most comprehensive published by a top military official anywhere in the world. Once it is translated into English, it could serve as an unmatched tool for Israel to influence the debate on the rules of the game in war’s new wild west.