Cyberwar: What Law to Apply? And to Whom?
L.J.M. Boer & A.R. Lodder, Chapter 10 Cyberwar, in: Leukfeldt/Stol (eds.), Cyber Safety: An Introduction, Eleven Publishing, Forthcoming
13 Pages Posted: 14 Apr 2012
Date Written: April 13, 2012
Cyberwar is a rather conspicuous concept. We can imagine what cyberattacks can lead to: outages, nuclear disasters, or the breakdown of the world’s financial system. But although we have already come pretty close to catastrophe on a few occasions, these scenarios still belong for the most part to the domain of our imagination. The fact, however, that cyberwar is considered to be within the realm of possibility has secured it a top spot on political and military agendas: the fifth domain of warfare.
If cyberwar is indeed the next type of warfare, how does it relate to public international law as we understand it today? Given the scope and purpose of this chapter, we have limited our discussion to two important areas that are challenged by the recurrence of cyberattacks. Firstly, we consider the harm that cyberattacks can potentially inflict, and the pressure that this puts on the logic of the laws of conflict management (Wingfield 2000). Cyberspace can be used, for example, to disable an opponent’s military defenses, its financial system, or its electricity grid. Although the consequences of cyberattacks could be equally severe as those caused by conventional military force, the laws of armed conflict are based exclusively on the use of the latter kind of force (Schmitt 1999). The way we interpret the central features of this body of law – the use of force, armed attacks, and the right to self-defense – is therefore challenged. Secondly, we discuss the difficulty of attributing cyberattacks to a state (Döge 2011). Even if attacks can be traced, this does not mean that the state in question can be held legally responsible for the attack. This defies the way we currently deal with wrongful acts between states.
But first, the next section outlines cyberwar as a concept and provides a working definition. We pay particular attention to the differences between cyberwar, cybercrime and cyberespionage, as these are often confused. Next, in section 10.4, we examine the laws of conflict management and state responsibility in relation to cyberwar. We conclude with an overview of the key concepts.
Keywords: internet, law of armed conflict, internet governance, cyberwar, cybercrime
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