Abstract
With an ever-increasing reliance on State cyber-attacks, the need for an international treaty governing the actions of Nation-States in the realm of cyberwarfare has never been greater. States now have the ability to cause unprecedented civilian loss with their cyber actions. States can destroy financial records, disrupt stock markets, manipulate cryptocurrency, shut off nuclear reactors, turn off power grids, open dams, and even shut down air traffic control systems with the click of a mouse. This article argues that any cyber-attack launched with a reasonable expectation to inflict “incidental loss of civilian life, injury to civilians, or damage to civilian objects,” must be subject to the existing laws of proportionality. This article further examines the broader concept of proportionality, and the difficulties associated with applying a proportionality analysis to an offensive cyber-strike. This paper asserts that the ambiguities and complexities associated with applying the law of proportionality—in its current state and within a cyber context—will leave civilian populations vulnerable to the aggressive cyber actions of the world’s cyber powers. Consequently, this article stresses the necessity of developing a proportionality standard within a unified international cyberwarfare convention and asserts that such a standard is required in order to prevent the creation of a pathway towards lethal cyber aggressions unrestrained by the laws of war.
Citation
Hensey Fenton III,
Proportionality and its Applicability in the Realm of Cyber Attacks,
29 Duke Journal of Comparative & International Law
335-359
(2019)
Available at: https://scholarship.law.duke.edu/djcil/vol29/iss2/6