In this paper, the authors undertake a study of cyber warfare reviewing theories, law, policies, actual incidents - and the dilemma of anonymity. Starting with the United Kingdom perspective on cyber warfare, the authors then consider United States' views including the perspective of its military on the law of war and its general inapplicability to cyber conflict. Consideration is then given to the work of the United Nations' group of cyber security specialists and diplomats who as of July 2010 have agreed upon a set of recommendations to the United Nations Secretary General for negotiations on an international computer security treaty. An examination of the use of a nation's cybercrime law to prosecute violations that occur over the Internet indicates the inherent limits caused by the jurisdictional limits of domestic law to address cross-border cybercrime scenarios. Actual incidents from Estonia (2007), Georgia (2008), Republic of Korea (2009), Japan (2010), ongoing attacks on the United States as well as other incidents and reports on ongoing attacks are considered as well. Despite the increasing sophistication of such cyber attacks, it is evident that these attacks were met with a limited use of law and policy to combat them that can be only be characterised as a response posture defined by restraint. Recommendations are then examined for overcoming the attribution problem. The paper then considers when do cyber attacks rise to the level of an act of war by reference to the work of scholars such as Schmitt and Wingfield. Further evaluation of the special impact that non-state actors may have and some theories on how to deal with the problem of asymmetric players are considered. Discussion and possible solutions are offered. A conclusion is offered drawing some guidance from the writings of the Chinese philosopher Sun Tzu. Finally, an appendix providing a technical overview of the problem of attribution and the dilemma of anonymity in cyberspace is provided.
|European Journal of Law and Technology
|Published - 2010
- cyber warfare
- Sun Tzu
- International Law