Cyber Attacks and International Law of Armed Conflicts: A 'Jus Ad Bellum' Perspective

Abstract

The research highlights legal problems related to cyber warfare from the point of view of 'jus ad bellum' (dispositions regarding the justification for entering a war). No international instrument whatsoever covers the cyber instruments yet, therefore analogies with actual international solutions are largely employed. We illustrate the main developments with relevant examples from main powers doctrine and practice (US, Russia and China).The starting points are the provisions regarding the use of (armed) 'force' under Article 2(4) and the 'armed attack' under Article 51 of United Nations Charter (conditions for legitimate self defense). The qualification of a cyber attack as 'armed force' or as 'armed attack' is based on a criteria threshold developed by Schmitt. Other developments analyze the capacity of present international law concepts (direct and indirect armed attack, identification of the aggressor state, pertinence of preemptive or interceptive self defense vis-a-vis a cyber armed attack, etc.) to reveal the cyber warfare structure and challenges. The final conclusion underlines the evolution of cyber attacks in the real world. No State is willing to escalate cyber attacks so that the magnitude of destruction would qualify them as cyber warfare and trigger an armed conflict or a full blown war. The States prefer to act unnoticed and therefore today’s cyber attacks are just new developments in the field of espionage or covered operations.