Abstract
The use of cyber force can be as severe and disruptive as traditional armed attacks are. Cyber attacks may neither provoke physical injuries nor cause property damages and still, they can affect essential functions of today’s societies, such as governmental services, business processes or communication systems that progressively depend on information as a vital resource. Whereas several scholars claim that an international treaty, much as new forms of international cooperation, are necessary, a further challenge should be stressed: authors of cyber attacks can be non-state actors, and identifying the party responsible for such a use of force, whether non-state actors or national sovereign states, is often impossible. Accordingly, several programmes on online security and national defence have been developed by sovereign states to tackle this menace and yet, the endurance of Western democracies and their aim to protect basic rights have already been tested by such programmes over the past years. The new scenarios of cyber force do not only concern the field of international law, since they may represent the main threat in the fields of national and constitutional law as well.
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Notes
Besides the traditional distinction between causes (jus ad bellum) and conditions (jus belli) of just wars, lawmakers have added a third scenario, that is the provisions for the aftermath of warfare, or jus post bellum. In this paper, the classical bifurcation between jus ad bellum and jus belli suffices to describe basic tenets of today’s legal framework that may be affected by a new generation of informational attacks.
In addition to the UN Charter and customary law, LOW and IHL refer to the 1907 Hague Convention, the four Geneva Conventions from 1949, and the two 1977 additional Protocols.
By examining causes and conditions of just war through the lens of the moral laws of information ethics, you may wonder what role the fourth law plays in this context, namely the aim to promote “the flourishing of informational entities as well as the whole infosphere… by preserving, cultivating, enhancing and enriching their properties” (Floridi 2008). This moral law is very important for the laws of war, particularly in the field which scholars traditionally sum up as jus post bellum. This paper only deals with the challenges of jus ad bellum and jus in bello, and so I have skipped this part of the analysis on jus post bellum, on which see chapter 7 of Schmidt and Cohen (2013).
Theoretically speaking, we can imagine a cyber attack by non-state actors that does not rise to the level of an armed attack and still, does not constitute a cybercrime. However, authors of The Law of Cyber-Attack admit that “it is unlikely for a private actor to purposefully undermine the function of a computer network without also violating the law” (op. cit., p. 835).
See John Lanchester, The Snowden files: why the British public should be worried about GCHQ, The Guardian, 3 October 2013, at http://www.theguardian.com/world/2013/oct/03/edward-snowden-files-john-lanchester (last accessed 29 August 2014).
See Janan Ganesh, Cynicism is no match for the mortal threat posed by Isis, Financial Times, 26 August 2014, p. 9.
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Pagallo, U. Cyber Force and the Role of Sovereign States in Informational Warfare. Philos. Technol. 28, 407–425 (2015). https://doi.org/10.1007/s13347-014-0177-4
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DOI: https://doi.org/10.1007/s13347-014-0177-4