use of weapons of mass destruction.90 In fact, a Russian policymaker recently published a critique in the aftermath of the Estonian cyber attack that “Russia reserves the right to respond to an information warfare attack with nuclear weapons” [emphasis added].91 On the other hand, former CIA Director John Deutch ranks information warfare “a close third behind the proliferation of weapons of mass destruction and the use by terrorists of a nuclear, biological, or chemical weapon.”92 Although the U.S. has not as brazenly argued that IW is tantamount to a nuclear exchange, Deutch’s meaning is clear. These incendiary statements point to the extreme danger that great powers see in IW, as well as the extraordinary harm that could result in not laying out an appropriate legal framework from the outset to deal with cyber attacks.
Given the problems of non-proliferation, what is the most appropriate analogy in international law for IW? Is there a possibility that IW could be outlawed as nuclear weapons nearly were by the International Court of Justice (“ICJ”) in the Nuclear Weapons Advisory Opinion? The answer to these queries will do much to guide the discussion of cyber warfare’s place in IHL and IHRL. Simply put, there is no stand alone analogy for IW. Each regime of international law that will be considered is inadequate in one way or another to the task, including communications law, space law, the law of the sea, and other applicable accords. Yet by fitting together strands of these various regimes it is possible to graft together two appropriate legal frameworks – one applicable in peace-time and another that is activated after an armed attack occurs. This is necessary to ensure that legal principles are seamlessly applied to avoid gaps in humanitarian
90 Joyner, supra note 14.
91 DOD, supra note 33.
92 Mann, Cyber-threat Expands with Unchecked Speed, Aviation Week and Space Technology, July 8, 1996, at 64.