Jus ad Bellum and Cyber Warfare in Northeast Asia

• Author: Boris Kondoch
• Pages: 459-478

Cyber Warfare in Northeast Asia

459

VI JEAIL 2 (2013)

Boris Kondoch

∗

Cyber attacks have become a grave threat to international peace and security.

Northeast Asia is a critical point of many of these cyber operations. First, South

Korea has been the target of cyber attacks from North Korea. Second, there are

harsh debates on this matter between the US and China. While the United States

have expressed their concerns about the growing threat of cyber intrusions from

China, the People’s Republic of China has blamed the US for attacks against their

respective computer networks. From the perspective of the jus ad bellum, potential

 

examines which cyber operations amount to the use of force as stipulated in

Article 2(4) of the UN Charter and discusses the conditions under which type of

cyber attacks could trigger the right to self-defense. In addition, other available

remedies outside the framework of Article 51 of the UN Charter will be discussed.

Keywords

Cyber Attack, Jus ad Bellum, Right to Self-defense, Armed Attack, Pre-

emptive Self-defense, Security Council, ICJ, ICC, Counter-Measures

Cyber war is arguably at the most serious end of the spectrum of security

challenges posed by – and within – cyberspace.

On Cyber Warfare1

 th century were those of oil and bullets, but the war of the 21st

century are information wars.

Kim Jong-il2

1 P. Cornish et al., On Cyber Warfare, A Chatham House Report, Nov. 2010, available at http://www.chathamhouse.

org/publications/papers/view/109508 (last visited on Aug. 19, 2013).

2 Hyeong-woo Lee & Kang-kyu Lee, Cyber War and Policy Suggestions for South Korean Planners, 21 Int’l J.

KOREAN UNIFICATION STUD. 2, 85-106, 96 (2012).

Jus ad Bellum and Cyber

Warfare in Northeast Asia

∗ Professor at the Far East University, Korea and General Editor of the Journal of International Peacekeeping (Brill/

Martinus Nijhoff). Diplom-Jurist (Johann Wolfgang Goethe-Univ.). The article is dedicated to Professor Sung Hack Kang

(Korea University), one of the leading political scientists of Korea, for his warm hearted and intellectual support as my

mentor. The author would like to express his gratitude to Professor Bruce ‘Ossie’ Oswald and Professor Eric Yong-Joong

Lee for their warm encouragement and comments. The author may be contacted at: kondoch@hotmail.com / Address:

Far Eastern University, Eumseong-gun, Chungcheonbuk-do 369-700 Korea.

DOI: http://dx.doi.org/10.14330/jeail.2013.6.2.06

460 Boris Kondoch

1. Introduction

Cyberspace has become a national security concern since the last twenty years.

3

While some commentators view the current debate on cyber war as exaggerated

and as hype,

4

others including US Defense Secretary Leon Panetta are warning

that a cyber version of 9-11 or Pearl Harbour could take place in the near future.

5

Many States including China, Russia and the United States consider ‘cyberspace’

as a future battleground. They have responded to the threat from cyberspace by

formulating cyber strategies and incorporating cyber units into their armed forces.

Although cyber war has not yet occurred, there have been frequent reports about

so-called cyber attacks.

6

Cyber attacks may be defined as any harmful activity in

cyberspace including inter alia those operations with “the aim to degrade, disrupt,

deny or destroy information resident in computers, or to compromise the computers

themselves.”

7

Typical examples of cyber attacks are distributed denial of service

attacks, planting inaccurate information, and infiltration of secure computer

networks. Many cyber attacks are still carried out by private individuals (hackers,

organized criminal networks, industrial spies) rather than government-sponsored

hackers.

International lawyers started to show an interest in the legal regulation of cyber

warfare during the late 1990s.

8

The academic debate continued after September 11

because of the potential threat of computer network attacks conducted by terrorist

3 For details, see D. ReveRon, CybeRspaCe and national seCuRity, thReats, oppoRtunities, and poweR in a viRtual

woRld (2012).

4 See, e.g., T. Rid, Cyber War Will Not Take Place, 35 J. stRategiC stud. 5-32 (2011); T. Rid, Think Again: Cyber War.

Don’t Fear the Digital Bogeyman. Virtual Conflict Is Still More Hype than Reality, FoReign pol’y, Feb. 27, 2012,

available at http://www.foreignpolicy.com/articles/2012/02/27/cyberwar (last visited on Aug. 20, 2013); B. Valeriano &

R. Maness, The Fog of Cyberwar. Why the Threat Doesn’t Live up to the Hype, FoReign aFF. Nov. 21, 2012, available at

http://www.foreignaffairs.com/articles/138443/brandon-valeriano-and-ryan-maness/the-fog-of-cyberwar (last visited on

Aug. 20, 2013).

5 E. Bumiller & T. Shanker, Panetta Warns of Dire Threat of Cyberattack on U.S., N.Y. Times, Oct. 11, 2012, available at

http://www.nytimes.com/2012/10/12/world/panetta-warns-of-dire-threat-of-cyberattack.html?_r=0 (last visited on Nov.

5, 2013); J. Healey, Preparing for Cyber 9/12, Atlatic Council, available at http://www.atlanticcouncil.org/publications/

issue-briefs/preparing-for-cyber-9-12 (last visited on Nov. 5, 2013).

6 For details, see H. Dinniss, CybeR waRFaRe and the laws oF waR 281-292 (2012).

7 M. Roscini, World Wide Warfare – Jus ad bellum and the Use of Cyber Force, 14 max planCk u.n.y.b. 91-96 (2010).

For further discussion of the terms cyber warfare, cyber crimes and cyber attack, see O. Hathaway et al., The Law of

Cyber Attack, 100 CaliF. L. Rev. 817-886 (2012).

8 See, e.g., M. Schmitt, Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative

Framework, 37 Colum. J. tRansnat’l l. 885-938 (1999); W. shaRp sR., CybeR spaCe and the use oF FoRCe (1999).