From the Kalashnikov to the Keyboard: International Law's Failure to Define a 'Cyber Use of Force' is Dangerous and May Lead to a Military Response to a 'Cyber Use of Force'

• Date: 01 January 2016
• Author: Adeo Fraser

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From the Kalashnikov to the Keyboard:

International Law’s Failure to Dene a ‘Cyber Use

of Force’ is Dangerous and May Lead to a Military

Response to a ‘Cyber Use of Force’

ADEO FRASER

Introduction

is article will argue that the failure to reconceptualise the cyber discourse may

well result in a military response to a cyber use of force. Furthermore, it will be

argued that the international community must reclaim its ability to create

international norms back from the “event” by bringing cyber operations into the

paradigm of force, cultivating a cyber naming-and-shaming culture, and creating a

completely new framework that denes inter-state “cyber uses of force”1 and “uses

of cyber coercion”.2

e rst part of this article will begin by showing that the term “cyber war” is a

deceptively dangerous and problematic concept. It fails to appreciate either the

force paradigm or the variety of cyber options available to states. e initial part

will also outline dierent types of cyber activity, highlighting that most cyber

operations are not “cyber uses of force” but “uses of cyber coercion”. Moreover,

it will evaluate whether cyber operations fall within the scope of art. 2(4) of the

Charter of the United Nations 19453 and provide evidence that states have not

expressly or implicitly expanded art. 2(4) of the UN Charter beyond armed force.

e second and nal section will evaluate the Sony Pictures v North Korea cyber

operation. It will outline the possible response options available to the US to stress

the fact that as things stand international law may well permit a military response

to a cyber use of force. is section will also show that a Cyber Kellogg–Briand

1 e phrase “cyber uses of force” denes those cyber operations that constitute uses of force

2 omas Shelling, Arms and Inuence (Connecticut: Yale University Press, 2008), p. 4—“Coercion

requires nding a bargain, arranging for him to be better o doing what we want—worse o not

doing what we want—when he takes the threatened penalty into account.” Shelling distinguishes

between “brute force” and “coercion”; this article will accordingly distinguish between cyber uses of

force and describe those cyber operations that fall short of force as uses of cyber coercion.

“Uses of cyber coercion”—denes those operations that fail to reach the cyber use of force threshold

i.e. cyber interventions that fall short of force.

3 Article 2(4) of the Charter of the United Nations 1945, which states that: “[a]ll 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.”

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From the Kalashnikov to the Keyboard 87

Pact is needed because the face of belligerence is changing and incidents such as

the Sony Picture cyber operation are arising with greater frequency. e article

will conclude by emphasising that cyber structural fragility, coupled with the

international community’s event-centric attitude to the creation of international

law, dangerously cultivates the perfect environment for an event that has the

capability to be destructive.

I. Can ere Be a Cyber Use of Force?

Cyber War is a Problematic Term

Cyberspace is warfare’s h domain.4 Moreover, it is likely that Clausewitz would

classify cyber war as this period’s “peculiar form of War”.5 In the history of modern

warfare there has been a distinct and deliberate re-characterisation of war.6 e

term “war” is an outdated concept, and in spite of its frequent reoccurrence in

political rhetoric, international law has rendered the term “war” obsolete. e

notion neither governs the way in which international law characterises what

is now referred to as “force” or an “armed conict”, nor provides the operational

premise through which the jus ad bellum7 and the jus in bello8 are regulated.9 e

use of the term “cyber war” can be traced back to the early 1990s.10 At the time, the

term was thought of as exciting and thought-provoking, but those who employed it

implicitly conceded the need for a more complex legal lexicon that more eectively

addressed the intricacies and varieties of cyber operations available to the state.11

e term “cyber war” has no denitive denition; most denitions employ “war” as

a rhetorical and descriptive term as opposed to an entrenched legal notion.12

4 “War in the Fih Domain” e Economist 1 July 2010 http://www.economist.com/node/16478792

[Accessed 4 August 2015]

5 Carl von Clausewitz, On War (London: Kegan Paul, Trench, Trübner & Co 1940), Book VIII,

Chapter III.B, p. 103

6 Jann K Klener, “Scope of Application of International Humanitarian Law” In Fleck D (ed),

Handbook Of e International Humanitarian Law (Oxford: Oxford University Press, 2013), p. 202

7 Andrew Clapham and Paola Gaeta, e Oxford Handbook of International Law in Armed Conict

(Oxford: Oxford University Press, 2014), p. 379—denes the jus ad bellum as “the rules of

international law regulating the legality of recourse to armed force in international relations”.

8 Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conicts (Oxford:

Hart Publishing, 2008), p. 21—denes the jus in bello as addressing “the conduct of the belligerents

during an armed conict or a belligerent occupation of territory. e ius in bello concentrates on

indicating what the belligerent parties may or may not do during an armed conduct.”

9 Dino Kritsiotis, “Enforced Equations” (2013) 24 E.J.I.L 139

10 John Arquilla and David Ronfelt, “CyberWar is Coming” (1993) 12 C.S. pp. 141–165

11 John Arquilla and David Ronfelt, In Athena’s Camp: Preparing for Conict in the Information Age

(California: Rand Corporation 1997), p. 27, p. 46—in which they distinguish between the terms

“cyberwar” and “netwar”.

12 Laurie R Blank, “Cyberwar versus Cyber Attack: e Role of Rhetoric in the Application of Law

to Activities in Cyberspace” in Jens David Ohlin, Kevin Govern and Claire Finkelstein (ed),

CyberWar: Law and Ethics for Virtual Conicts (Oxford: Oxford University Press, 2015), p. 79;

Samuel Liles, Marcus Rogers, J. Eric Dietz and Dean Larson, “Fourth International Conference

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