Application of International Law in Cyber Warfare Operations

Abstract

In the not-so-distant future, a concerted ‘Cyber Attack’, effectuated via the Internet, could cause massive destruction to any society dependent on computer networks, especially in key target fields of transport, energy supply and communication infrastructures, leading to human casualties and serious destruction of property – reproducing the same, if not more, damage that would be caused by conventional armed attacks. Despite last decade’s abundant legal literature on the subject, not only is a clear and unambiguous international consensus regarding the legal status of Cyber Warfare Operations hitherto nonexistent, but also the views of international law scholars present a peculiarly high level of heterogeneity. Are Cyber Attacks prohibited under the non-use of force doctrine or permitted within the concept of self-defence? Are they even subject to the Law of War? In order to find answers to questions such as the aforementioned, various aspects of International Law will be applied, underlining the need for a reform of notions such as armed conflict, use of force and attack. This paper will attempt to ‘navigate’ through the ‘sea’ of multitudinous and farraginous papers written by lawyers from military, humanitarian and academic backgrounds, by dividing its corpus into the following distinct sections. In the first part, a delineation of the terms Cyberspace and Cyber Warfare Operations will be attempted, coupled with an examination of the various hacking techniques and the typology of potential attacks. Secondly, the jus ad bellum will be applied in Cyber Attacks with the goal of classifying them under the existing ‘costumes’ of ‘use of force’ and/or ‘aggression’. Their relationship with the concept of self-defence will be examined in a two-fold way. Is a Cyber Attack tantamount to an ‘armed attack’, in order to trigger the lawful right of self-defence, according to UN Charter article 51? And vice-versa, is it possible for self-defence to be waged in the form of a Cyber Attack? State responsibility will be subsequently addressed, using as a ‘compass’ the 2001 Draft Articles on State Responsibility and the relative jurisprudence by international tribunals. Thirdly, certain bedrock rules of the jus in bello will be applied in Cyber Attacks, concluding that the cardinal principles of distinction, humanity and proportionality are outdated albeit essential. Lastly, this paper will address the existing international treaty systems in the quest of determining a satisfactory framework under which Cyber Attacks can be regulated. Separate emphasis is to be laid upon on the need for the creation of a jus novum, specifically tailored to modulate this novel and multifaceted method of warfare.