The world is facing nation state supported Advanced Persistent Threats as well as organised ransomware attacks. The supply chain attack on SolarWinds and ransomware attack on Colonial Pipeline are the glaring and recent examples where criminals were allegedly supported by the nation-state. Thus there exists a grey zone of overlap between Cybercrime and Cyberwar. However, the responses to two are entirely different. Failure to differentiate can impact adversely and lead to use of incorrect defensive mechanisms, detrimental to the safety and security of the nation.
UN Secretary-General Antonio Guterres has said, “Episodes of cyber warfare between states already exist. What is worse is that there is no regulatory scheme for that type of warfare, it is not clear how the Geneva Convention or international humanitarian law applies to it.”
The International community is attempting to create an appropriate convention for cyber war but is failing. The reasons are manifold, including:
It is at an early stage and nations have not yet developed their full capacity of cyber arsenals, and therefore, do not want any restrictions on it
There is a lack of consensus on what amounts to a cyber war and how will it differentiate from a cyberattack using (or abusing) non-state actors
International politics
The ‘Tallinn Manual’ is not even an official document. It is an attempt to map a real-world war in a virtual world, which may not be practical. The ‘Tallinn Manual’ is at the very initial stage of codification of a cyber war but is still years away from practical use. Therefore, the very first step is to segregate acts of cyber-crime from cyber war.
To achieve this, this ‘Budapest Convention’ is not the best, but a good start point. If an attack is coming from any signatory country, it must first be assumed to be an act of cyber-crime and the signatory country is obliged to protect the victim country from any cyber-crime originating from its jurisdictional area. If no such action is taken, then it can be presumed that the attacking nation-state has initiated a cyber war or is abetting a cyber war. Therefore, to filter chaff from actual acts of cyber war, the acts of cyber-crime must be identified.
Additionally, India should enter into various bilateral and multilateral treaties to contain cyber-crime. A lesson from China who has taken a step further, is to contain/prevent the precursor stage of cyber war. China has entered into bilateral treaties/agreements with various nations including the US and Canada not to conduct state-sponsored cyberattacks against each other’s private sectors aimed at stealing trade secrets or other confidential business information. Additionally, India could enter into a strategic cyber war partnership with other nations, especially Israel and US to support each other in case of any cyber war on the respective countries.
India with its significant manpower and technical know-how should proactively support weaker nations to establish their cyber defences. It will have a multi-fold impact. Firstly, it will be a formal sign of a reckonable cyber power. Secondly, it will prevent these nations from becoming a source of routed cyberattacks on India. These nations can also become strategic partners in case India comes under a cyber offensive.
The Budapest Convention on Cyber Crime has 68 countries as its members. From the perspective of cyber war it is necessary to filter out cyber-crime from acts of war by a nation state. It will be an arduous task to enter into a bilateral relationship with these 56 countries to ensure that they take appropriate action if a cyber-crime is originating from their country. It is, therefore, necessary that India becomes a signatory to the Convention of Cyber Crime by the Council of Europe. This will help forces to filter cybercrime out and can also be used as a ground to formulate lateral discussions on cyber war, as an early agreement at the United Nations is not expected.
Recognising the Act of Cyberwar from Cyber Crimes is a prerequisite for National Cyber Security. Therefore, bilateral and multilateral treaties provide some clarity to identify chaff of Cybercrimes from the acts of cyberwar and cyber aggression by a nation-state. Presently the Indian establishment is shy of signing any such treaty or agreement and the reasons for the same are better known to the government and its agencies.
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