The Missing Component in Deterrence Theory: The Legal Framework

Abstract

This chapter takes the starting point that power to deter, consists of three components: (physical) capacities, concepts (strategy, plans, decision-making procedures) and will (moral, determination, audacity). In case one of these components is underdeveloped or not in place, (coercive) power fails. Modern technologies (e.g. ICT, AI) and strategic insights (e.g. the utility of soft and smart power) urge for a reinterpretation of the ‘physical’ component, and include cyber capacities as well as culture, knowledge or law(fare) as capacities (or power instruments), too. Moreover, and taking cyber capabilities as a test case, these developments put even more weight on the conceptual and moral components of power.

This chapter focusses on the legal framework as a key, but underrated, conceptual element of deterrent power. Using cyber threats as a case, it offers a legal framework enabling decision-makers to effectively generate deterrent power by showing which legal bases (should) undergird the employment of the variety of responses available to States. In democratic rule-of-law States, the principles of legitimacy and legality demand that the use of power (instruments) by States must be based on a legal basis and should respect other institutional features too.

Through two illustrative vignettes the generic value of the framework will be illustrated for the potential use of power instruments - diplomacy, information, military, economy, culture, legal, knowledge - in its various modalities, including cyber operations. This legal framework, though tailored to cyber capabilities, may be used as a starting point for conceptualising the legal framework for so-called cross domain and cross dimensional, or full spectrum deterrence.

Keywords: Legal framework, legal bases, deterrence, cyber operations, attribution, cyberspace

JEL Classification: K33, K40, F51, F52, N40