Cyber Wars: Applying Conventional Laws to War to Cyber Warfare and Non-State Actors
![handle is hein.journals/nkenlr41 and id is 559 raw text is: CYBER WARS: APPLYING CONVENTIONAL LAWS OF WAR TO
CYBER WARFARE AND NON-STATE ACTORS
Shaun Roberts
. INTRODUCTION
In May 2007, Estonia suffered a massive cyber-attack on both its government
and civilian networks, [h]itting the websites of banks, ministries, newspapers,
and broadcasters, and shutting down communications so that Estonia could not
communicate with the outside world.' The attack left Estonians unable to call for
emergency services, and it also left many government and non-government
entities unable to access the Internet for nearly two weeks.2 The overall damage
from the cyber-attack was estimated to be roughly 5 percent of the overall
economic activity of the country. This damage was not surprising for a country
considered to be the most wired in Europe as roughly 90 percent of banking
transactions and online tax payments, and roughly 5 percent of voting for
national elections is conducted online.4 While no state has claimed responsibility
for the attack, a non-state actor associated with the Kremlin-backed youth
movement accepted responsibility without any state involvement.
Although the Estonian story is real, imagine, hypothetically, that members of
Al Qaeda launched a cyber-attack against the air traffic control systems of the
John F. Kennedy International airport in New York, shutting down any
communication between air traffic control and the planes landing and taking off.
As a result, the lack of communication causes several planes to crash, causing
death and destruction to several hundred affected.
The types of options available to both the Estonian and U.S. governments
depend on how international laws of war apply to cyber-attacks. Specifically,
two issues must be addressed. Under international laws of war, a state that
suffers an armed attack can assert a right of self-defense against the actor.6
Thus, the first question is whether a cyber-attack can ever constitute an armed
attack under the U.N. Charter. Yet, for state actors like the Estonian
government, another legal question must be addressed when attacks the cyber-
1. Jeffrey T.G. Kelsey, Hacking Into International Humanitarian Law: The Principles of
Distinction and Neutrality In The Age of Cyber Warfare, 106 MICH. L. REv. 1427, 1429 (2008).
2. Sheng Li, When Does Internet Denial Trigger the Right ofArmed Self-Defense?, 38 YALE
J. INT'L L. 179, 199 (2013).
3. Seeid.at201.
4. Joshua Davis, Hackers Take Down the Most Wired Country in Europe, WIRED MAG. (Aug.
21, 2007), http://www.wired.com/politics/security/magazine/1 5-09/ff estonia.
5. Charles Clover, Kremlin-Backed Group Behind Estonia Cyber Blitz, FIN. TIMES (Mar. 11,
2009), http://www.ft.com/cms/s/0/57536d5a-Oddc- 11 de-8ea3-0000779fd2ac.html.
6. See U.N. Charter art. 51 [hereinafter Charter].](ViewImageLocal?handle=hein.journals/nkenlr41&div=31&collection=&method=preview&ext=.png&size=3)
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Cyber Wars: Applying Conventional Laws to War to Cyber Warfare and Non-State Actors
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