The Duty of Due Diligence and Cyber Incitements to Violence

Abstract

This short essay, based on comments delivered at a Touro Law School Institute on Human Rights and the Holocaust workshop, explores benefits and costs of an international law duty of due diligence in cyberspace, especially as a response to cyber incitements to violence. A duty on the part of States to prevent harm emanating from cyber infrastructure located on their territory is in some respects attractive. Such a duty might better incentivize responsible management of cyber infrastructure and augment security between States. Moreover, a more refined duty of diligence in cyberspace positions State victims of harm, such as incitements to violence, to resort to countermeasures as a form of self-help in scenarios where full attribution is not feasible. However, the essay cautions that increased availability of self-help, especially in the form of countermeasures, may present its own destabilizing and escalatory consequences.

Keywords: Cyber, Cyberspace, Countermeasures, State Responsibility, Public International Law, Due Diligence, Incitement to Violence, Incitement to Genocide