Interview with Anat Eisenstein Bar-On

Please tell us a little about yourself, and your way to the academic field?
I'm a Ph.D. student in Law at the Hebrew University of Jerusalem. My road to the academic activities was actually paved after years of practicing Law, both in public and private sectors, in Commercial and International Law. There, I have realized that a real difference in International legal perception would probably not commence from diplomatic deliberations, but rather from the academic field. In fact, this matter is discussed at length in my research, as I argue that the international community lacks the ability, or perhaps the desire, to promote adequate changes in current legal paradigm, while scholars, from around the world, have identified it as essential to maintain the relevancy of International Law to future threats.

What is the main core of your research and how is it related to cyber security?
In my research, I argue that according to the prevailing legal interpretation of article 2(4) of the United Nations Charter, the use of force doctrine is applicable only to cyber-operations which inflict physical consequences. Other cyber-operations, which do not result in any physical element thereto, but nonetheless create considerable harm and havoc, and these days, are more frequent than ever, may fall short of the legal threshold. being considered a use of force. Such legal conclusion, as was introduced in the Tallinn Manual, generates a clear distinction in the application of the legal doctrine to cyber-operations or kinetic ones. Arguably, the drafters of the Tallinn-Manual discounted the virtual nature of cyberspace (a non-physical dimension) and formulated a legal threshold which is arguably ill-suited for cyberspace, as most cyber-operations do not inflict physical consequences (in spite of their severity). Consider for example a missile attack on a power plant. This would no doubt be considered as use of force, and might even rise to the level of an armed-attack. Now, imagine that the same power plant shut down for a few minutes due to a cyber-operation, which did not involve any physical damages or casualties. Under current legal interpretation, such cyber-operation does not amount to the use-of-force level, despite that nonetheless violated the "territorial integrity" of that State. Therefore, I contend that the use-of-force threshold introduced by the Tallinn Manual is inadequate and might not be satisfactorily addressed to the threats to international peace and security imposed by cyber-operations. In fact, in this respect, it should be mentioned that many States have already recognized the destructive potential of cyber means, and established cyber units in their militaries, as well as developed military doctrines and protocols, aimed to address the difficulties of vulnerabilities of States in the field of cyber.

What do you think is the solution?
In my opinion, current legal interpretation may eventually undermine the long-lasting international stability of the prohibition of the use of force: As technology continues to advance rapidly, the legal interpretation fails to adapt itself, and therefore, might gradually turn article 2(4) of the UNC irrelevant or, inapplicable in cyberspace. Therefore, in my research I offer a fresh perspective, and argue that the prohibition of the use of force should be adjusted according to the unique characteristics thereof, thus eliminate the physical consequential requirements of the use of force doctrine.

Why did you chose this area over all other?
The tension between real and virtual is important in order to examine the future and relevancy of International Law. Although, the paradigm of International Law has been previously discussed by many scholars, cyber has triggered this debate once again, focusing on the continuance relevancy of a solid legal pillar of International Law, that is – article 2(4) of the United Nations Charter - which has endured as a dynamic norm adjusted and amended through, and according to, the change of times. Difficulties in application and implementation might undermine the international legal system as a whole, and might also affect the stability of its institutions. It is important to recognize these difficulties and offer suitable solutions in order to maintain international peace and stability.

Do you think that in this cyber age these issues are even more complex compared to other times in history?
We live in a dynamic world, which is constantly changing. In fact, geo-political changes have affected the interpretative development of the international legal paradigm throughout history. In my research, I argue that such direct correlation could be found in various legal fields, and inspired by lessons of past interpretative development. Also, I argue that the prohibition of the use of force should be adjusted according to the unique characteristics of cyberspace. As such, I believe that this cyber age should not be compared to other historical times, since in retrospect, each historical era could be considered as complex at the time. Nonetheless, I agree that in this cyber age, the international community is facing new challenges, such as the tension of real v. virtual, concerning the application of old rules to new threats.

What is the next phase in your professional life?
Currently, I focus on my research, which hopefully could one day contribute to the legal debate on the influence of cyber-operations to our world.

What is your message to the public?
Regulation is important in order to prevent States (and others) from exploiting the many positive advantages of cyber means. However, this could only be achieved if we accept that the destructive potential of cyber means is not only virtual, but could have devastating results in the real world as well.