The Israeli strike on the cyber-attack infrastructure of Hamas presents us with a new set of problems regarding the rules of war. On May 6, the Israeli military put out an announcement saying that they had responded to Hamas cyber activities. An unspecified Hamas cyber-attack on Israel apparently took place and Israel responded by taking out Hamas cyber headquarters with a precision guided bomb, destroying both infrastructure and the people (and hence accumulated expertise) manning it. While a mistaken impression was created that this was a standalone, it was not, for a variety of legal reasons.
The first issue is one of proportionality. A lethal attack in response to a non-lethal cyber-attack has been discussed but never acted upon precisely because of issues of proportionality. After all how do you justify killing a bunch of people that simply sent your computer haywire!
This is why one must remember that this attack happened not as a standalone operation, but was clubbed in with the Israeli military response to Hamas rockets hitting southern Israel. This is not different from what NATO did during the bombing of Serbia in 1999. By itself hitting Serbian TV that was putting out a steady stream of anti-NATO content lampooning its leaders would have been a war crime.
However NATO justified the killing of 16 people in Serbian TV headquarters as part of the extended NATO bombing campaign. As such this loophole is called ‘accretion of events’, which enables a retaliation not proportionate to the actual ‘provocation’ but rather to an accumulated set of provocations, which has of late included non-kinetic attacks in the entirety of events.
To explain this simply, scenario one: Think of your friend hacking your computer and preventing you from accessing your Gmail (it’s a non-kinetic attack). The question is do you have the right to kill her in self-defence, and is this an explanation that will hold up in court? Obviously not. Scenario two: Now consider your friend turned out to be a psycho. She was hiding in your bedroom, wired your computer to electrocute you (it’s a kinetic attack) when you touched the keyboard, hacked your email and changed the password (a non-kinetic attack) and then attacked you with a knife (a kinetic attack) when you entered the room.
In scenario one no court would uphold you killing your friend. In scenario two you could very well get away with killing your friend on the grounds of self-defence and a court would have little hesitation in accepting your defence. What Israel did on May 6 and what NATO did in 1999 was closer to scenario two, though much of the reportage surrounding it would suggest it was scenario one.
While this is the case that both Israel and NATO would like to make it is not so simple. The fact remains that the exact match would actually be scenario three: Your psycho friend waiting for you in the room has brought her friend along. While she tries to electrocute you and stab you, the friend was only responsible for hacking your email, and yet you kill both; your justification being the friend was her partner in crime.
So while Israel is trying to portray what it did as scenario two to conflate issues and confer legality on its actions, what it actually did was scenario three. On the other hand, Israel’s detractors and those advocating kinetic retaliation against non-kinetic strikes have an interest in portraying scenario three as scenario one, ignoring the psycho altogether.
In a court, while defending your actions in scenario three, you would get away with killing your psycho friend, but you could not get away with killing her friend (who hacked your email), unless you can prove the hacker friend was going to attack you.
This is where the principle of prevention versus pre-emption comes in. Prevention is illegal but pre-emption is not.
So if after you killed your psycho friend, you saw the hacker friend in one corner and a knife in the other and killed her assuming she would attack you, a judge would convict you. This is prevention. However, if the hacker friend picked up the knife and charged you before you killed her, that is pre-emption and the judge would have to acquit you.
This is possibly why Israel is refusing to divulge the details of the Hamas cyber-attack, if it would have real world kinetic consequences (like turning on and off traffic lights in Israel leading to road accidents and deaths) or if it was non-lethal (not allowing you to access your bank account causing economic losses).
The truth is one will probably never know, but shifts in law happen when one repeatedly breaks the law and makes it the new normal, as was done with targeted killing by drones. Attempted assassinations used to be illegal till the 1990s, but repeat iterations by United States and Israeli drones in the 2000s made it a legally acceptable norm.
The question is, will Israel make this the new norm or keep it as an exception, all indicators being that Israel just opened a new paradigm of war.
Abhijit Iyer-Mitra is a defence economist and senior fellow at Institute of Peace and Conflict Studies, New Delhi. He tweets at @iyervval. Views are personal.
For more Opinion pieces, click here