Armed attack in cyberspace: deterring asymmetric warfare with an asymmetric definition
Air Force Law Review, Winter, 2009 by Graham H. Todd
I. INTRODUCTION
II. APPLYING CURRENT INTERNATIONAL LAW TO CYBERSPACE ATTACKS: FALLING
SHORT WITHOUT DEFINITIONS
A. What is Cyberspace?
B. Current Legal Approaches to Cyberspace Attacks
C. Looking to Jus in Bello to Define Armed Attack
D. Armed Attack and Jus ad Bellum
E. Weapons are the Key
III. THE KEY TO THIS PUZZLE: CYBERSPACE WEAPONS AND THE
CRIMINAL LAW DEFINITION-BASED MODEL
A. Defining Cyberspace Weapons
B. Applying the Definition of a Cyberspace Weapon
C. When is the Use of a Cyberspace Weapon a Cyberspace Attack?
D. Flies in the Ointment: Attribution and Espionage
IV. APPLYING THE DEFINITIONS AND EXERCISING SELF-DEFENSE IN CYBERSPACE
V. LOOKING FORWARD AND CONCLUDING THOUGHTS
China is likely to take advantage of the U.S. dependence on cyberspace for four significant reasons…. Fourth, there is an underdeveloped legal framework to guide response. (1)
There is currently no international, legally binding instrument that would address cyberspace attacks as threats to national security. (2)
I. INTRODUCTION
Change has come and gone. While academics have been discussing methods to define the use of force in cyberspace, governments and policy makers may have missed an opportunity to shape the law of war. Just like a child “pinching” a peppermint from the candy store while the owner was not looking, someone may have successfully launched two cyberspace attacks, and no one called either one an unlawful use of force or armed attack. Did a state actor set a precedent that could become part of customary international law?
Every day there are new stories and developments about the increasing connectivity of people around the world spurred by the continued fast pace of technological developments in the computer and communications industries. Military applications of cyberspace are also rapidly evolving, moving the domain of cyberspace to the front lines of conflicts. But, the legal frameworks that regulate war or armed conflict are lagging far behind the technological changes that have already occurred. Today, cyberspace is seamless and transcends international boundaries at the speed of light. Unfortunately, law, especially international law, failed to keep pace with the new applications of existing technologies. (3) On the criminal front, law enforcement agencies are swamped with allegations ranging from identity theft to theft of corporate data, while armed with only a marginally effective process to investigate, extradite, and prosecute international cyberspace criminals. However, the conduct of military operations in and through cyberspace, with potentially greater global implications, is bypassing the currently inadequate mire of international law. What if international law could provide a framework capable of enabling deterrence in cyberspace?
Scholars have written many articles regarding cyberspace attacks in the international regime and what constitutes a use of force or act of war in cyberspace. (4) Yet, there is no consensus regarding how to define attacks in cyberspace under international law. The unique qualities of operations in cyberspace will make this the most difficult domain in which to resolve international disputes and conflict. In this article, I intend to offer a new methodology for determining armed attacks in cyberspace by using existing criminal law legal tools. Specifically, this methodology will borrow from the criminal law’s definitions of cyberspace crimes, in order to craft a definition of a cyberspace weapon. More importantly, by defining cyberspace weapon, this methodology will enable the international community to define what constitutes a cyberspace attack. Providing the legal framework for a definition of cyberspace attack, such as the new methodology outlined in this article, will serve to reduce the potential for conflict in cyberspace.
The article will first examine cyberspace and how current approaches have attempted to apply international law to armed attacks in cyberspace
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