The majority of cyber attacks conducted today do not rise to the level of an armed attack or a use of force. A state that found itself the victim of a cyber attack equivalent to a use of force, but not an armed attack, would be prohibited from using force to defend itself but cyber espionage might cause much greater damage to the national security of the U.S. than the physical destruction of a weapons system or military facility. The application of traditional jus ad bellum and jus in bello principles can be seen as creating an incentive for parties to engage in cyberwarfare by reducing the potential risk of retribution. The author considers that the continued application of a law of armed conflict paradigm to modern conflict, one which is fundamentally different from that by which it was formed, will not only fail to protect the national security of the United States, but will also fail to protect the very interests it was designed to protect.
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