Chapter

Cyberwar versus cyber attack : the role of rhetoric in the application of law to activities in cyberspace

Laurie R Blank

Cyberwar : law and ethics for virtual conflicts

Oxford : Oxford University Press, 2015

p. 76-101

English

This chapter examines the dynamic between international legal norms and rhetoric with regards to “activities in cyberspace”, namely cyber attacks, or cyberwar. The author affirms that the terms “cyber attack” or “cyberwar” are overly used to relate to a wide spectrum of broad cyber activities and potential threats that in fact, should not necessarily be included in the “war” paradigm and the legal obligations attached to it [Law of armed conflict ]. Therefore, this chapter first examines the consequences of “war” rhetoric in the cyber realm, relating it to the lessons learned from a decade of counterterrorism in the United States. It then focuses on the consequences of the use of the term “cyber attack” by exploring the definitions and legal implications of “armed attack” both in jus ad bellum and in jus in bello. Consequently, the author stresses that when rhetoric blurs definitional categories, conflates legal regimes or inappropriately triggers legal authorities or obligations when it should not, it may have a substantial and detrimental impact on the rights and freedoms individuals enjoy. In light of the author’s point of view, the “runaway rhetoric” of cyberwar and cyber attack has the potential to lead to these types of excesses unless careful attention is paid to ensure that this sort of rhetoric does not become law. [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