Cyber-attacks and International law of armed conflicts; a 'jus ad bellum' perspective

• Author: Titiriga Remus
• Position: Assistant professor, Inha Law School, Korea
• Pages: 179-189

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Titiriga Remus*

Assistant professor

Inha Law School,

100 Inharo, Nam-gu Incheon

402-751, Korea

titiriga_r@yahoo.com

Abstract: This article highlights legal problems of cyber attacks from a ‘jus ad

bellum’ perspective (international dispositions regarding the justification for entering a

war). Since no international instrument whatsoever cover the cyber attacks the a nalogies

with current international solutions are largely emplo yed. We illustrate also the

developments with relevant examples taken from main powers’ do ctrine and practice (US,

Russia and China). The starting points are the provisions regarding the use of

(armed)"force" under Article 2(4) and “armed attack” under Article 51 of United Nations

Charter. T he qualification o f a cyber attac k as use of “armed force ” or “armed attack” is

based a multi criteria threshold developed by Schmitt. Other developments focus the

capacity of p resent International law co ncepts (direct and indirect armed attack,

identification of the aggressor state, pertinence of pre-emptive or interce ptive self defense

vis-à-vis cyber ‘armed attack’, etc.) to answer cyber warfare’s structures a nd challenges.

1. Cyber Means and Legal Perspectives

Computer attacks originate in the world of hackers, majo r actors in information revolution which began in

the 50s and achieved its momentum in the following decades.

This ‘milieu’ developed, for the sake of it, for ideological proposes or for clear criminal aims a

number of ‘malware’ techniques. The first step of the evolution was the advent of ‘viruses’ and ‘T rojan

horses’ which allowed hackers to take control of someone else’s computer in order to steal, alter or

destroy information. The later spreading of the Internet allowed the upgrading of these techniques through

‘viruses’ and computer ‘worms’ that can multiply and spread throughout networks. In the meantime new

‘network malicious techniques’ (such a s denial-of-service-DOS, distributed denial-of-service –DDOS or

‘botnets’) came into being.

By the end of the 80s the American Department of Defense became aware of the new threats.

However the real menaces were consider ed the attacks committed outside t he crime domain and

perpetrated at international level (by a State, on behalf of a State b y terrorists, etc.). The US military

doctrine characterized

1

them as Computer Networks Operations (CNO) under three differen t branches:

 Computer Network Attacks (CNA) were defined as operations to disrupt, deny, degrade, or

destroy infor mation resident in computers, computer networks, or the computers and networks

themselves.

 Computer Network Defences (CND) were defined as defe nsive measures to p rotect and defend

information, computers, and networks from disruption, denial, degradation or destruction. They

used security measures that seek to keep the enemy from learning about own military

capabilities and intentions.2

1

Information operation Joint publication J-13, 13 February 2006, available from:

www.dtic.mil/doctrine/jel/new_pubs/jp3_13.pdf.

2

NS PD 16 [Guidelines for Offensive Cyber-War Fare] (2002) (C) DOD, available from: www.information-

warfare.info/.