Cyber Conflict and the Thresholds of War
Forthcoming, Is the International Legal Order Unraveling? (David Sloss, ed.) Oxford University Press (2022)
38 Pages Posted: 9 Jul 2021
Date Written: June 22, 2021
Cyberspace has revolutionized the way in which states engage in conflict with one another. While it is widely accepted that international law applies to cyberspace, there remains the question of whether cyberspace is truly novel and distinctive in its effects to the extent that our existing legal thresholds for war have become outdated. Namely, this chapter defines the “thresholds of war” as use of force, armed attack, and armed conflict. Through an analysis of the novelty of cyber conflict, this chapter seeks to make two contributions. First, to demonstrate that cyber conflict can be understood not only through its kinetic consequences, but also through a variety of mass-scale and devastating effects that lie below the thresholds of war as articulated through the decades. Second, that these thresholds of war are outdated and in need of recalibration to properly capture actions that legitimate and illegitimate in cyberspace. This chapter argues that the current international legal order is at danger of creating a lawless cyberspace, where states engage in offensive cyberspace behavior based on an assumption that any effects below the thresholds of war are permissible. Redrawing the line between the permissible and impermissible in cyberspace is of utmost importance to tackle this concern.
Keywords: cyber warfare, cyber conflict, cybersecurity, use of force, law of armed conflict, cyber attacks, internationa law
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