In last July, my article about Cyber attacks and International law of armed conflicts; a “jus ad Bellum” perspective was published in the Journal of International Commercial Law and Technology, Vol.8, No.3 (July 2013), pp. 179-189. It can be downloaded at SSRN http://ssrn.com/abstract=2011479.
The article is based on a presentation I made in 2009 at Winchester in the UK. It highlights the legal problems of cyber attacks from a ‘jus ad Bellum’ perspective (rules regarding the justification for entering a war). Today no international instrument whatsoever covers such cyber-attacks, and the analogies with other global solutions must be used accordingly.
The developments were taken from the leading powers' doctrine or practice (in the US, Russia, and China).
At the analytical-legal level, the starting points are the provisions for the use of (armed) "force" under Article 2(4) and the “armed attack” under Article 51 of the United Nations Charter.
There were inherent difficulties for characterizing cyberattacks under the actual framework of armed conflicts. Hence, the qualification of a cyber attack either as the use of “armed force” or as “armed attack” has employed the multi-criteria threshold developed by Michael Schmitt. Further developments concerned the capacity of International law concepts to apprehend other cyber-warfare characteristics.
At the analytical-legal level, the starting points are the provisions for the use of (armed) "force" under Article 2(4) and the “armed attack” under Article 51 of the United Nations Charter.
There were inherent difficulties for characterizing cyberattacks under the actual framework of armed conflicts. Hence, the qualification of a cyber attack either as the use of “armed force” or as “armed attack” has employed the multi-criteria threshold developed by Michael Schmitt. Further developments concerned the capacity of International law concepts to apprehend other cyber-warfare characteristics.
On the practical side, major nation-states with significant kinetic and cyberattacks capabilities (as the US, Russia, and China) seem aware of global risks. The real cyber-attacks show the States acting hidden behind private actors (in the case of Russia or China) or using highly specialized military forces (in the US). Nobody is willing to escalate computer network attacks to match the “armed attack” threshold (of Schmitt’s criteria) and risk triggering a legitimate defense and eventually a full-blown war.
Finally, one might qualify these cyber uses as “cyber warfare” just as a metaphor. Under the actual international regulation, most cyber acts that can be (loosely) linked to a State belong to cyber exploitation, a new secret domain that increases States' reach.
One can reasonably hope that States with cyber facilities will achieve by such means their political aims, and they will stop the riskier developments toward real ‘cyber warfare.’
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