Cyber Warfare and the Laws of War: A Gap in the Law Governing Invisible Warfare

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Cyber operations and their destructive capabilities were brought to the attention of the international legal community in the late 1990s. Significantly, in 1999 the US Naval War College became the first institution from which a major international legal conference was convened on cyber warfare and international law. Although most States recognize the cyber threat, its legal implications are not widely understood. This article will analyze the laws of war in the jus ad bellum context (law on the commencement of hostilities) as it applies to Cyber Warfare. It will propose a gap in the current law which I argue means that the current laws of war are inadequate in dealing with the evolution of warfare to the cyber realm. 1. UN Charter’s Prohibition on the Use of Force When analyzing international law on jus ad bellum as it currently pertains to Cyber Warfare, our analysis first turns to the general prohibition on the use of force between States contained in Article 2(4), UN Charter. A persistent debate since the drafting of Article 2(4) of the UN Charter is whether provisions of the Article cover only the use of certain types of force or whether the provisions extend further.[i] Article 2(4) requires that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Analyzing Article 2(4) requires interpretation according to the rules set out in the Vienna Convention on the Law of Treaties 1969 (VCLT). As per Article 31 of the VCLT, all treaty terms...