The rise of cyberattacks has unsettled the laws that govern war. Specifically, cyberattacks present questions that complicate the conduct and regulation of traditional warfare. In this paper, I examine the ways in which cyberattacks expose the weaknesses of the current paradigm of anticipatory self-defense. Notably, I demonstrate how other areas of international humanitarian law, including Article 51 of the UN Charter on self-defense and the just war theory, are less helpful in addressing the riddles that emerge in situations where a state has been subjected to a cyberattack. I conclude that cyber operations have rendered the current legal framework for conducting anticipatory attacks less effective. I contend that customary international law requirements to justify anticipatory force, including the qualifications of attacks as armed and imminent, are inappropriate, and potentially costly, in the context of cyberattacks. I substantiate my claim through an exploration of the unique technical nature of cyberweapons and three distinct cases of cyberattacks. I illustrate, with examples, that the existing international law framework (which was built for kinetic warfare) cannot effectively regulate cyberattacks, and the scholarly projects that stretch existing legal frameworks to fit a substantially different type of warfare offer little practical insights. As such, I advance the basic building blocks of a novel framework to illuminate state conduct in circumstances of cyberattacks. I propose a Cyber Defense Clock, which offers a new approach to self-defense when it comes to cyberattacks. Through an ex ante and ex post facto timeline, I suggest preventive and responsive measures that states can adopt in these situations. I highlight that (ex ante) states should invest in strengthening their cybersecurity infrastructure to deter attacks and (ex post facto) increase their responses to cyberattacks that fall short of satisfying the threshold of armed attacks yet merit a reaction.
Samara Friedman (Tue,) studied this question.