Cyber Warfare and International Law

April 19, 2010

The risk of cyber warfare in the 21^st century poses the urgent need to assess the applicability of jus ad bellum and jus in bello as international regulatory frameworks for that kind of conflict. Below I refer to jus in bello mostly. Respect for international humanitarian law (IHL) in the course of offensive or defensive cyber warfare operations is mandatory. It is foreseeable, however, that IHL rules will be constantly violated in this type of conflict by aggressor states, hackers and terrorist organizations, posing serious threats to international peace and security.

Several incentives foster the violation of IHL in the context of cyber warfare. Some of them are: the prohibition of states to retaliate against civilians; the increased opportunity for aggressors to safely attack civilians and states in a cyber battle field that makes it difficult for the victim to find the source of the attack; the low economic cost of preparing and executing cyber attacks compared to military attacks; the lower risk for the life, liberty and integrity of the aggressor; the difficulty of delineating a frontier between cyber warfare operations violating IHL from those that do not; the possibility of attacking a state from within the state; and the difficulty of determining what is a cyber attack, and when it is taking place.

In May of 2007 Estonia was the victim of a cyber attack. In spite of the fact that the main targets were public institutions, the blockade over the emergency line caused by the attack had the effect of obstructing emergency calls for at least one hour. Notwithstanding the fact that the attack was very damaging, it is unclear what type of response by Estonia against the aggressor would have complied with the rules of international law and IHL, and particularly, with the principles of proportionality and neutrality. I believe that international law does not provide adequate answers to these questions.

Moreover, I believe that international law is ineffective to address and respond to the risk of cyber warfare, and therefore needs a radical evolution in order to be in capacity to provide effective solutions against it.

Sadly enough, terrorism and cyber warfare seem to be reaching their goal: seriously jeopardizing the safety of citizens around the world, destabilizing international law, and delegitimizing the use of force under traditional international law principles. It seems clearer every day that an effective response to those threats depends upon the transgression by states of human rights law (against terrorism) and of international law (use of force and IHL).

This paradox is a symptom of the complexities and liquidity of 21^st century-second modernity (Beck, Bauman). It seems that the best option currently available to states in order to protect their boundaries,  and government and civilian networks, is to strengthen technological and defense barriers against offenders, and to recur to their ‘inherent right to self defense’, whatever that means, trying as much as they can not to incur in violations of IHL and international law.