Solving the Dilemma of State Responses to Cyberattacks: A Justification for the use of Active Defenses Against States Who Neglect Their Duty to Prevent

摘要

The greatest advances in law, like those in science, come through imagination. When scientific knowledge fails to explain new discoveries about the universe, scientists advance new theories to account for their discoveries' so too with the law. Revolutions in technology, like the Internet, challenge the framework that regulates international armed conflict. Legal scholars must use imagination to find ways to tackle this problem. If not, the law will become obsolete and meaningless to the states that need its guidance. Man has long sought to regulate warfare. From the Chivalric Code to the U.N. Charter, man has placed restraints on the times one can resort to war and the methods with which it is conducted. There are a variety of reasons why, but, to generalize, regulations are the response to perceived problems with the state of war at a given time. Sometimes these perceptions are the result of shifts in the social conscience. At other times, values haven't changed at all, but problems arise due to radical changes in the way war is waged. As warfare changes, so must the law; and warfare is changing fast. Traditionally, the instruments of war were only controlled by states. However, in today's world of globally interconnected computer systems, non-state actors with a laptop computer and an Internet connection can attack the critical infrastructure of another state from across the world. This is a major paradigm shift, which the law of war, today, fails to adequately address. This paper will explore the unique challenges that cyberattacks pose to the law of war and provide an analytical framework for dealing with them.