Similar to the debate surrounding IW, concerns exist that shifting counter terrorism from a crime control to a conflict model would displace human rights norms as a primary legal constraint. Such a situation requires a compromise between individual civil and political rights, on the one hand, and economic and national security interests on the other. One aspect of human rights related to IW is that of privacy. A potential patchwork of privacy protections could include the right to expect and enjoy physical privacy; privacy of personal information; privacy of communications and space; and freedom from surveillance. Thus there is an inherent need for compromise between individual civil and political rights, on the one hand, and economic and national security interests on the other.
Summary of the Present Legal Regime and a Proposal Going Forward
Neither IHL, nor IHRL, or any of the other treaty systems or legal principles discussed in this paper serves as a standalone analogue to deal with state-sponsored IW. Yet the international community is already being confronted with situations in which cyber attacks are being state-sponsored to a greater or lesser extent. In the case of the Estonian assault for example, the preponderance of available evidence points to some degree of Russian involvement in inciting and carrying out the cyber attack on Estonia. But regardless of the level of Russian involvement, the cyber attack did not rise to the level of an armed attack required to activate IHL. Nevertheless, it should not be possible for states that sponsor cyber attacks to avoid responsibility. This necessitates the creation of a two-tiered system in international law for response to cyber attacks, a default state which is active during peace-time and another which is engaged in an international armed conflict.