Applicability of Jus in Bello in Cyber Space: Dilemmas and Challenges

Introduction

According to the inaugural Defense News Leadership Poll underwritten by United Technologies at the beginning of 2014, more than forty-five percent of responding national security leaders of the United States believed that cyber warfare is the greatest threat to the United States and its interest (“Poll: Cyberwarfare is Top Threat,” 2014). Terrorism, as the second-ranking threat polls about twenty percentage points lower. This deep concern echoes the recent escalation of tensions associated with malicious conduct in cyber space as well as the existence of ongoing armed conflicts. In March 2014, while the Crimea crisis was unfolding, NATO’s network system (including its main public website, site of its cyber security center and unclassified e-mail network) was brought down by series of distributed denial of service (DDoS) attacks (Croft & Apps, 2014). Not long after, a Russia-owned company indicated that a United States surveillance drone flying over Crimea region had been intercepted by “breaking the link with US operators with complex radio-electronic technology” (Porche III, 2014). Although it is unclear that whether such claim is true, there is no doubt that the policy makers and national security professionals believe that the cyber space has become one of the most crucial battlefields in the 21^st century.

For international law scholars, the most important question would be the most fundamental one: how do the traditional jus in bello rules fit in this new type of warfare? This is not a new question since the science and technology has continually evolved throughout human history. As a result, state actor has frequently challenged the concept of jus in bello when technological innovation has seemed to outpace the development of the legal doctrine. With regard to cyber space, these concerns are understandable that more serious since this new forum of warfare is fundamentally different from the kinetic battlefield. Such differences weaken the presumption and mechanism of conventional jus in bello rules. In this context, it is crucially important that international co-operation shall play a more active role in the law-searching (or law-making) process.

For the purpose of this article, the author limits the discussion in the context of international armed conflicts. The author argues that although the leading principles of conventional jus in bello rules, for example, principle of distinction and principle of proportionality are still on the slate as lex lata, the traditional interpretation of such principles and according conduct manuals for troops do not adequately protect humanity. As stated by Mr. Harold Koh, the Legal Advisor of U.S. Department of State, there is wide agreement that “cyberspace is not a ‘law-free’ zone where anyone can conduct hostile activities without rules or restraint” (Koh, 2012). Logically, just as with other weapons and methods of warfare, the use of cyber technology in hostilities does not per se constitute a violation of international law, as far as such use is complying with jus in bello principles (Koh, 2012; Woltag, 2010, para. 10). However, it is different to compare the use of a “data stream” to the use of a sword in kinetic warfare (Turns, 2013, p. 212). Since “data stream” may only cause indirect and intangible harm (Turns, 2013, p. 212). Traditionally, the implementation of jus in bello rules relies on two assumptions. First, the use of force is in control of the party. Second, the targets can be identified. While in cyber space, the capability to control the cyber attacks is extremely limited since most of the severe consequence of such attacks are secondary and uncertain. Also, dual-use infrastructures are more common in information and communication industry than any other sectors in a country. The dual-use nature of those infrastructures as potential targets makes the principle of distinction unclear. Moreover, compared with the highly professional military function in kinetic warfare, cyber troops usually consist of large percentage of civilian operators. The de-professionalization of cyber warfare also destabilizes one of the most important pillars of jus in bello, which is that only combatants have the privilege to kill. Hence, the legal analysis of jus in bello in cyber space is always to some extent distorted and murky.