And this is where the group split. Some of the group said—and I’m one of these—that I anticipate that the law will move in the direction of not looking so much at the nature of the harm but rather the severity of the consequences. But the law hasn’t done that yet....Others said, no, no, if we interpret that law in the cyber context, then we are there now. We need to be looking at the severity of the consequences. Speaking personally, that argument appeals to me. I believe that’s where we will be in 10 years, but I don’t believe that’s where we are today.
IDEAS: How about the Chinese military hacking The New York Times?
SCHMITT: It doesn’t rise to the level of use of force, but it certainly isn’t lawful.
IDEAS: The recently leaked Presidential Policy Directive 20 indicates pretty clearly that the Obama administration is aggressively trying to build up its ability to do catastrophic damage to its enemies in cyberspace. At the same time, it also demands that national security experts ensure that any US cyberattacks are legal.
SCHMITT: There are some states that are saying this is the fifth domain after land, water, air, and space, and international law doesn’t reach it. But Obama is telling operators that if the United States engages in operations, understand that there is a body of law, understand that the body of law will limit when you can engage, the level at which you can engage, and who you target....If we are in an armed conflict with the Taliban or with Al Qaeda, and we are going to use cyber, we are going to have to abide by rules like minimizing harm to the civilian population in strikes.
IDEAS: What about the rest of the world, though?
SCHMITT: Most of the states that we operate with on the battlefield and most of the states that are close friends and allies, most of them accept the notion that international law applies. I would characterize the view that it does not apply as really a fringe view, albeit one that is held by states that are quite important.
IDEAS: Like China?
SCHMITT: With regard to China, I’m not a Sinologist, but I will tell you that I have heard from Chinese in and out of government and I am surprised sometimes at the positions that have been taken. They are very sophisticated international lawyers, but the assertion that international law doesn’t apply simply doesn’t fly.
Gal Beckerman is a journalist and author. His first book, “When They Come for Us, We’ll Be Gone: The Epic Struggle to Save Soviet Jewry,” was named a best book of the year by The New Yorker and The Washington Post in 2010, and has been released in paperback.