Computer Attacks on Critical National Infrastructure: A Use of Force Invoking the Right to Self-Defense

Abstract

Computer networks create tremendously increased capabilities but also represent equally increased vulnerabilities. These vulnerabilites are especially acute in relation to potential attacks on critical national infrasturucture. This Article proposes that international law must evolve to recognize that attacks against a nation's critical national infrastructure from any source constitute a use of force. Such attacks, therefore, give the victim state the right to proportional self-defense - including anticipatory self-defense - even if the computer network attack is not an armed attack under Article 51 of the United Nations Charter. Due to the instantaneous nature of computer network attacks, the right to respond must accrue immediately, despite the traditional obstacles of attribution (determining the attacker's identity), characterization (determining the attacker's intent), and the inviolability of neutrals.

Keywords: law of war, use of force, armed attack, computer network operations, computer network attack, self-defense, infrastructure protection, homeland security

JEL Classification: K32, K33, K42