North Carolina Journal of International Law and Commercial Regulation’s 2014
symposium, various panelists offered their views on the
growing area of cyber warfare. Cyber
warfare is a relatively new development that is creating ethical and legal ambiguity
under current international law.
international law recognizes the idea of jus
ad bellum, literally translated to mean “right to war”. This theory determines situations when it is
lawful to resort to war. The United States, and now most countries, claim jus ad bellum theory properly applies
to cyberspace warfare. Prevailing
international law claims under jus ad
bellum that a right to war occurs when there is armed conflict. This naturally raises the follow-up question—what
counts as armed conflict within cyber warfare? The very nature of cyber space does not make
for an easy analysis. For example, would
using cyber warfare to cause economic disruptions or interference constitute
armed conflict? Current international law says economic
coercion does not constitute an attack. Of
course, when this principle was derived, the typical scenario of economic
coercion typically involved some type of trade embargo. There is some doubt whether economic disruption
achieved through cyber warfare tactics might be construed differently and rise to
the standard of armed conflict. This
lack of clarity and the nature of cyber warfare makes it hard for the typical
cyber warfare tactic to reach the standard of armed conflict and to thusly have
current rules of warfare and defense apply.
One panelist, Gary Brown, noted that a way to fill in the legal gap concerning cyber warfare would
be through the development of social norms to help govern the growing area. Currently, there are not really any norms present
in cyber warfare. The United States is
trying to lead change to have norms in cyber warfare, but recent scandals have made progress difficult. Furthermore, countries are hesitant to
promote norms that would limit their actions, at least without an incentive. With the difficulty of establishing norms in cyber
warfare, it would seem an international treaty would be another option. While all the panelists seemed to express a
desire for an international treaty to help govern cyber warfare and to help clarify
the area’s ethical and legal uncertainties, they also expressed skepticism
whether such a treaty could be achieved. Until then, the ethical and legal issues of cyber warfare will remain
one of the biggest challenges facing modern international law.
 The panelists consisted of Catherine B. Lotrionte, Major General Charles J. Dunlap, Jr., USAF (retired), and Gary Brown.
 This article shall focus on the cyber
warfare of state actors versus other state actors, as opposed to state actors
versus non-state actors.
 Dimitar Kostadinov, Fitting Cyber Attacks to Jus Ad Bellum, InfoSec Institute (last visited Feb. 1, 2014), http://resources.infosecinstitute.com/fitting-cyber-attacks-to-jus-ad-bellum-instrument-based-approach/.
 Id.; see also Marco Roscini, World Wide Warfare - ‘Jus Ad Bellum’ and the
Use of Cyber Force, Max Planck Yearbook of United Nations Law (June 30,
2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1683370.
 An example of economic disruption would
be altering bank account information by scrambling account numbers and balances,
so that it is unclear how much money an account contains. Similarly, another example would be knocking
out the power grid of a traffic system to create alarm that leads to economic
 The United States has expressed that an
actor using “force” would activate a countries’ right to defend itself, but
there is uncertainty whether or not the United States is using the word “force”
to actually mean a weaker standard than “armed conflict”.
e.g., Alison Smale, Anger Growing
Among Allies on U.S. Spying, NY Times
(Oct. 23, 2013), http://www.nytimes.com/2013/10/24/world/europe/united-states-disputes-reports-of-wiretapping-in-Europe.html?pagewanted=all.
Posted by Mark A. Kochuk on Thu. February 13, 2014 8:00 AM
Customary International Law, Cyberwarfare, Symposium