Fault Lines In The Application Of International Humanitarian Law To Cyberwarfare

Abstract

The dynamics of warfare have changed from the conventional wars fought on the battlefield to virtual warfare as states have been involved in the cyber arms race. From simple distributed denial-of-service (DDoS) attacks to the potent Stuxnet and Flame the cyber weapons vary in their potential human cost. The Law of Armed Conflict (LOAC) is drafted flexibly to adapt to changing circumstances. This paper is primarily based upon the assumption that existing treaty law is sufficient in many aspects yet in some areas treaty-making is also needed. What is the foreseeable solution is the comprehensive state practice for interpreting the existing rules (lex lata) regulating the armed conflict in the cyber context. This is because armed conflicts in cyberspace differ from kinetic warfare in multiple dimensions. The world community is yet to reach a consensus on how LOAC protects at times of cyberwarfare. From defining the basic terms like attack and object to the attribution need resolution. Given such ambiguity, international humanitarian law (IHL, interchangeably used with LOAC) will more frequently be violated in conflicts occurring in cyberspace than in physical space. Efforts by states in sincere exploitation of existing laws are the sine qua non for the evolution of IHL in the cyber context.