Chapter

Cyber causation

Jens David Ohlin

Cyberwar : law and ethics for virtual conflicts

Oxford : Oxford University Press, 2015

p. 37-54

English

This article argues that the development of increasingly sophisticated and powerful cyber weapons and the increasing threat cyber-attacks poses to States will force the law of war, or international humanitarian law (IHL), to develop a more nuanced, balanced and precise account of causation. It first provides greater insight on why causation is practically irrelevant in traditional basic non-cyber warfare structures of IHL. It also advances several hypothetical cases of cyber-attacks that could trigger the emergence of unprecedented legal situations requiring IHL to develop an account of causation. Exploring causation theories outside frameworks of international law (i.e. in domestic criminal and tort law), this article also acknowledges that some of those theories cannot be properly used or are inappropriate under circumstances where IHL is applicable, while providing specific examples and counterarguments. Finally, using George Fletcher’s distinction between the pattern of subjective criminality and the pattern of manifest criminality, the author demonstrates that causation in IHL must be based (by necessity due to the lack of ‘‘fact-finding resources”) on the pattern of manifest criminality, applicable by a reasonable third-party observer. In other words, this means that the law regulating cyber warfare should put a particular emphasis on high-levels of transparency in its governing principles, which is somewhat missing in the current state of IHL. [Summary by students at the International Criminal and Humanitarian Law Clinic, Laval University]

• Full text (restricted access : ICRC)

• Cyberwar : law and ethics for virtual conflicts / ed. by Jens David Ohlin, Kevin Govern, Claire Finkelstein