Cyberwar/Cyber Attack: The Role of Rhetoric in the Application of Law to Activities in Cyberspace

Abstract

This chapter analyses how the interplay between law and rhetoric forms an important backdrop to the analysis of the international legal norms that govern how a State can respond to cyber threats or engage in other cyber operations. Rhetoric that opens the door to overly broad responses necessitates an understanding of the relevant legal paradigms, the boundaries between them and the fundamental principles that guide their application. Use of terms like ‘war’ and ‘attack’ for a much wider array of activities also facilitates a blurring of the lines between relevant and applicable legal frameworks, which can have a detrimental effect on both individual rights and the development of the law. With regard to cyber threats and cyber attacks, both the jus ad bellum and the law of armed conflict help shape the parameters of lawful and effective action, not only by guiding the appropriate conduct when force may lawfully be used or during armed conflict, but also by delineating the dividing line between crime and war and between self-defence and law enforcement.

The chapter examines the consequences of the use of the terms ‘cyber war/cyber warfare’ or ‘cyber attack’ to connote a wide range of actual and potential cyber activity or threats, across a broad spectrum of activity. After setting forth the traditional meaning of ‘war’ and the current framework, which uses the term ‘armed conflict’ rather than ‘war’, this discussion highlights the consequences of the rhetoric of ‘war’ in the cyber realm, with specific reference to lessons learned from the past decade of counterterrorism. Second, the chapter analyzes the consequences of the term ‘cyber attack’, focusing on both the jus ad bellum concept of ‘armed attack’ and the law of armed conflict definition of ‘attack’. In particular, the use of ‘cyber attack’ to subsume an extraordinarily broad set of activities has consequences both in terms of the specific understanding of the word ‘attack’ in each legal regime, and in blurring the notion of ‘attack’ into one unspecified and extensive term that conflates two or more legal concepts. Each of these results has significant ramifications for the application of international law, the preservation of the international system, and the protection of persons during times of conflict, thus demanding attention to the rhetoric of cyberspace rather than just the legal implications of cyber activity alone.

Keywords: cyber, cyber attack, cyberwar, cyber warfare, law of armed conflict, international humanitarian law, jus ad bellum, self-defense, armed attack