test fundamental assumptions in international law regarding self-defense and the use of force. Only through an analysis of the available legal frameworks may a compromise position be synthesized that responds to the unique challenges posed by IW while keeping intact Articles 2(4) and 51 in the U.N. Charter system that together provide the primary bulwark against the proliferation of violence in international relations.
The technology-laden practice of modern IW, including responding to cyber attacks with armed force against information assets, raises a host of legal concerns. 11 and perhaps most importantly to the functioning of a useful legal regime (3) can a cyber attack be a “use of force” as defined by Article 2(4) of the UN Charter?12 If the answer to the final question is yes, would such an attack activate the Article 51 right of self-defense?13 Critically, what are the standards of proof required to establish the origin of a cyber attack? The identity of the perpetrators is likely to be hidden as was the case in Estonia; there are no flags or tanks in a cyber attack. Is a pre-emptive cyber attack the same as a pre-emptive physical invasion? This will depend on the scale of the attack. But responding on an ad hoc case-by-case basis is fraught with difficulties. What level of civilian casualties is acceptable in a cyber attack, and should this be analyzed from an IHL or IHRL paradigm? How does this rubric change in wartime and peacetime? Should responses to domestic versus foreign cyber attacks differ? What is the appropriate role of law enforcement in juxtaposition with the defense establishment? How do theoretical concerns surrounding sovereignty interact with cyberspace? Thoughts on each of these questions will be provided throughout the paper.
11 Remarks by Prof. Helen Stacy. Meeting of the Committee on Policy Consequences and Legal/Ethical Implications of Offensive Information Warfare, Apr. 10-11, 2007. Stanford Univ., Lou Henry Hoover Building.
12 UN Charter, Art. 2, para 4.
13 UN Charter, Art. 51.