indiscriminate nature of the cyber attack against Estonia would have made it disproportionate and hence illegal under IHL and in violation of Protocol I.
Together, the IHL provisions discussed above point to a basis in treaties existing under IHL for certain limited responses to cyber attacks.234 In fact, according to the DOD, “The law of war is probably the single area of international law in which current legal obligations can be applied with the greatest confidence to information operations.”235 This fact is especially important given how many treaties lose affect during armed conflicts.236 Collectively, these principles form the basis of non-derogable norms that should be applied with the greatest confidence to IW.
Information Warfare, International Criminal and Human Rights Law
Efforts to control the power of the state and its impact on individual citizens spawned human rights norms – “concerned with the organization of state power vis-à-vis the individual.”237 Increasingly the use of force during armed conflict is being assessed through the perspective of human rights law especially in the aftermath of the September 11, 2001 attacks.238 This is true even though as some authors have argued that “some 95 percent of all the problems and challenges posed by criminals and hackers will have to be dealt with in the same way as other criminal activities, to be dealt with by law enforcement, and treated as normal actuarial losses and ‘cost of doing business.’”239 It
234 For example, the Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land 1907, articles 8 and 9 state, “A neutral power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraph apparatus belonging to it or to Companies or private individuals.”
235 DOD, supra note 33.
236 Consider the norm of reciprocity. This is correctly integral to IHL, but is far less important in human rights norms. States may not ignore human rights obligations simply because another state has done so. Provost, supra note 215 at 289.
237 Watkin, supra note 93.
239 Cordesman, supra note 46.