Hack Backs: How Indigenous Australian laws of war can apply in cyberspace  

The Laws of Yesterday’s Wars was launched at the Australian National University on 13 April 2022 by Air Commodore Patrick Keane AM CSC, Professor Tim McCormack FAAL and Samuel White. In part one of this series, Samuel White outlines how Indigenous Australian laws of wars can be relevant to a modern type of warfare – cyber. 

Ambellin Kwaymullina once wrote ‘Australia is a continent, not a country.’ As Kwaymullina writes, First Nations in Australia had international laws for trade and migration. The customs and norms for operating in this interconnected continent were shattered with British colonisation, with the fragments only starting to be combined. However, these are not lessons from the past. Modern military strategists are beginning to grabble with an issue of interconnected nations – an issue that was the everyday life of First Nations: that is, the spectrum of competition.  

War, in the Roman, and later European concept, relates to ‘the contention between two or more States, through their armed forces, for the purpose of overpowering each other, and imposing such conditions of peace as the victor pleases’. This threshold has arguably lowered, requiring merely a use of force to trigger some sort of international law prohibition. Importantly, international law views force as physical. Accordingly, under existing, Westernised international law, economic or informational pressure do not meet these thresholds. These so-called ‘sub use of force’ operations neatly exploit the Western thresholds of ‘war’ and ‘peace’

This has led to a shift in the military lexicon to a ‘new’ form of warfare – the spectrum of competition. It consists of concurrent states of affairs that parties can fluidly move between: co-operation, competition and conflict. Although new to Western warfare, this situation was commonplace within Indigenous Australia: co-operation over land management, competition over valuable resources, and conflict over trespass. 

Whilst the predating of competition to war has been recognised elsewhere, military strategists seem to have been constrained by their Eurocentric thinking. Why not look elsewhere? Perhaps it is because First Nations warfare has been ‘one of the most disputed topics of social anthropology for decades. Peter Dennis wrote that ‘the egalitarian, non-cohesive nature’ of Indigenous Australian society precluded complex military strategy. Meanwhile, military historian Jeffrey Grey concluded Indigenous Australian peoples could not organize anything akin to a battle.  

The dearth of academic commentary is probably a combination of self-censorship and simplistic/racist writings of early British observers. Archaeological evidence supports academic findings, indicating the existence of complex and large-scale military engagements within hunter-gatherer societies. There is also clear support for customs that mitigated the excesses of war, from which lessons can be drawn to inform modern operations including in cyber. 

Lesson 1: Sovereignty to be protected  

Academic commentary around sovereignty has begun to consider whether it is a rule (to be enforced) or a principle (to be abided by). First Nations demonstrate the importance of sovereignty being a rule. Early British settlers often remarked on the strength by which First Nations resisted territorial encroachment. In protecting their Country, but not others, First Nations ‘affirmed their rights as proprietors’, according to Henry Reynolds. In this respect, recent experiences in Ukraine by Russian aggression has demonstrated the need to maintain an ability to enforce sovereign claims, lest they be encroached.  

First Nations enforced their sovereignty through military power. All members of society were required to uphold custom and law, and to protect Country. So too, with direction from the Australian Government, could Australians be educated in their critical role of maintaining sovereignty in an era of cyber? This would constitute a rather novel, but not impractical, form of social resilience. Promoting social resilience in the modern, connected world has been the focus of many States: focus in primary and secondary education, as occurs in Sweden; through truth verification bodies, as occurs in Argentina; or through the use of military personnel to report suspected interference operations and to write comments, as occurs in Israel. Why not, then, look to the lessons of our First Nations? 

This is not to say that Australia need be belligerent. As I have argued elsewhere, within the cyber domain Australia has clear constitutional authority to take pro-active steps to defend itself and to punish those who interfere with its domain reservee (the central functions of government). There are, of course, political and strategic reasons we may not wish to; but the option remains.   

Lesson 2: Avoid escalation  

The second lesson can be applied to the Department of Defence’s current mission: to shape, deter, respond. A logical issue with deterrence theory is that it can escalate very quickly. The trick is to operate in a manner that avoids this. 

Payback was a notion that underwrote Indigenous warfare. It related to legitimacy and justice – junkarti (literally ‘straight’ in Lardil). It provided an exact, tit for tat reciprocity for past actions. As Tyson Yunkaporta explains, the rules of engagement were that cuts could only be inflicted on the arms, back or shoulders. But these cuts, at the end of sparring, had to be replicated on one another. This meant that no one could walk away holding a grudge. 

Junkarti ensured equity and helped curb the violence and brutality of warfare, as few persons cared to endure more than a few blows or cuts in payback for what they had inflicted – let alone be killed for killing an opponent. Acting in a de-escalatory manner was not to say that violence or aggression was prohibited. Yet Indigenous cultural norms promoted training to disarm, rather than to kill. This has been mirrored by other cultural restrictions in societies that practice warfare across a spectrum (rather than a binary construct) – such as the Mexica.  

From a cyber-domain perspective, this could extend to focusing on tactics, techniques and procedures that allow for temporary knockouts rather than permanent damage. In many ways, distributed denial of service attacks allows for just this. These attacks utilise extended networks of computers to flood a targeted system, providing temporary knockout effects. If the correct nodes in the computer network are chosen, it can be the cyber equivalent of a nerve centre knockout similar to what the First Nations peoples trained for.

Lesson 3: Empathetic relations 

Escalation, in a global era of deterrence theory, is a state of affairs to be avoided. Again, recent experiences in Ukraine and the sabre rattling (the making of military threats as a form of deterrence) Russia demonstrate that there is incentive to be able to effectively operate within an environment that has the potential for risk. One solution, then, is to act in a manner that Australia is happy to have reciprocated. This is particularly relevant for a nation dedicated to a rules-based global order.   

The first sign of blood was often sufficient for the blood-causing side to declare victory: as one observer noted, ‘in tribal fights as soon as a black on either side was wounded, his side began a retreat‘. A shout would then go around the battlefield and all would temporarily quit fighting to discuss the implications of the casualty’s fall. This would often take the battle off into a new direction. There were specific shouts passed around a battlefield if anyone had fallen (often ‘blood’ – indicating a wounding). This enabled hostilities to halt quickly.  

Within the cyber domain, the application of this is clear. It may take time, but in an interconnected world where cyber offensives are easier than cyber defence, we must be prepared to facilitate norms such as those that existed in First Nations Australia.  

The result of this complex series of laws of war allowed for the spectrum of co-operation, competition and conflict to be easily navigated. Except for long-standing feuds, which could fester for decades, Indigenous Australian conflicts typically ended on a note of complete forgiveness and goodwill. A police officer who witnessed a battle in far north Queensland was astounded at the wholehearted manner in which animosities were dropped: 

I could not refrain from wondering at the entire absence of any ill-feeling or animosity among these people. They had been only a few minutes previously emulating each other in inflicting severe wounds and hurts, nay, even in slaughtering their enemies, and yet, here they were laughing, chatting, and feasting, with every manifestation of goodwill and reciprocal friendship. That the battle… had been fought in downright earnest was only too apparent. But it had not left a vestige of that acrimony which we should have looked for from a like contest between civilised people. 

Although it may seem unrealistic from an Anglo-Saxon perspective, there are clear alternatives to how war can be fought. It requires critical questions to be asked, and our cultural norms to be critically assessed. For, as Audre Lorde warned us, ‘the master’s tools will never dismantle the master’s house’. Failing to do so, and maintaining our house, will only result in it being blown down.  

Samuel White is a Cybersecurity Post-Doctoral Fellow & RUMLAE Associate Researcher at the University of Adelaide, Adjunct Research Fellow at the University of New England, & Legal Officer in the Australian Regular Army. His new book, the Laws of Yesterday’s Wars is available now at Brill Publishing.