Article

Cyber wars : applying conventional laws of war to cyber warfare and non-state actors

Shaun Roberts

• Northern Kentucky law review, Vol. 41, no. 3, p. 535-572

English

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Given its vulnerabilities and the ease with which its enemies can obtain cyber weapons, the U.S. should be a leader in advocating that existing international laws of war apply to a cyber-attack launched by both a state and non-state actor. To support this position, this Note proceeds in five parts. Part II provides background information on cyber-attacks and cyber warfare. It also highlights a number of recent cyber-attacks by state and non-state actors. Part III offers historical analysis on current international laws of war with emphasis on the U.N. Charter. Part IV highlights the current challenges and current recommendations on whether international laws of war apply to cyber-attacks. This part outlines a number of popular approaches to the question of whether a cyber-attack constitutes an “armed attack,” and whether a non-state actor can commit it. Part V proposes the way forward in addressing the current challenges. Specifically, this Note proposes that a cyber-attack can constitute an “armed attack” under a non-kinetic effects-based approach. Also, this Note argues that non-state actors can commit an “armed attack.” To achieve both, this Note proposes defining cyberspace as a hybrid form of common property. Each state should be able to access the Internet, but each state should be responsible for preventing cyber-attacks from being launched within its territory.

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