One of the greatest challenges of law is keeping up with the advancement of technology. In this respect, international law is no different. Indeed, the process of creating international law is hampered by constraints that do not affect the making of domestic law. In an autocratic state, the rule of law is the will of the ruler and is enforced by the ruler. In a democratic state, the rule of law is a composite of the diverse opinions of legislators who have come together to forge a principle that carries the support of the majority. That norm is then applied to the entire state and enforced by the government on its people. The law of nations, however, is enforceable only by the nations themselves, making the creation of norm-creating law more difficult.
In responding to the advancement of weaponry, the international community has struggled to promulgate standards of conduct in a timely manner that carry nearly universal support and adherence. On the heels of the first use of poison gas during World War I came the 1925 Geneva Gas Protocol, regulating the use of gas and “bacteriological” warfare. However, the Hague Rules of Aerial Warfare, crafted in the aftermath of the first use of aircraft in armed conflict, is a dead letter. It took nearly fifty years to formulate a total ban on biological weapons in the form of the 1972 Biological Weapons Convention and an additional twenty years to devise a comprehensive treaty outlawing the use of chemical weapons with the passage of the 1993 Chemical Weapons Convention. On the other hand, some rules of warfare have been rather ahead of their time, such as the treaty banning the use of environmental modification techniques in warfare, the protocol banning weapons whose fragments cannot be detected by X-ray, and the protocol banning the use of blinding lasers.
Overall, the body of jus in bello has been able to adapt to the development of new means of warfare remarkably well. For example, armed forces have applied the rules set forth in the Hague Regulations on Land Warfare to air warfare with relative ease. The basic principles of military necessity, proportionality, humanity, chivalry, and distinction are not situation-specific; they govern all use of force everywhere. Therein lies the problem inherent in the emergence of cyberspace as a medium of warfare: Cyberspace is nowhere.
Computer technology has advanced to the point where military forces now have the capability to inºict injury, death, and destruction via cyberspace. Not all of the injury is physical. Using techniques that disrupt automated systems or destroy or alter data, computers that fall into the wrong hands are capable of doing long-lasting personal and economic damage to military and civilians alike. The highly destructive scenarios that various authors on cyberwar have theorized, as well as the potential use of cyberwar techniques in asymmetrical warfare, underscore the need for an unambiguous standard of conduct for information warfare that will be universally recognized and respected—a cyber-jus in bello.
This Article will examine the principles and specific areas that a comprehensive body of international law regulating information warfare must cover. It will explore the tension between the needs of military forces to engage in information warfare and the rights of non-participants to safety and security. In doing so, the Article attempts to fashion a legal standard that is palatable to the major participants in information warfare. To that end, a hypothetical convention, Regulating the Use of Information Systems in Armed Conflict, is presented at the end of this work.
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