Berkeley journal of international law, Vol. 30, no. 2, 2012, p. 525-579
by Michael Gervais
In the past few decades, cyber attacks have evolved from boastful hacking to sophisticated cyber assaults that are integrated into the modern military machine. As the tools of cyber attacks become more accessible and dangerous, it’s necessary for state and non-state cyber attackers to understand what limitations they face under international law. This paper confronts the major law-of-war issues faced by scholars and policymakers in the realm of cyber attacks, and explores how the key concepts of international law ought to apply. This paper makes a number of original contributions to the literature on cyber war and on the broader subject of the laws of war. I show that many of the conceptual problems in applying international humanitarian law to cyber attacks are parallel to the problems in applying international humanitarian law to conventional uses of force. The differences are in degree, not of kind. Moreover, I explore the types of cyber attacks that states can undertake to abide by international law, and which ones fall short.