Resolving Cyber Issues Sets the State for Future Weapons

[A note from Ryan Goodman: On Monday, Professor Michael Schmitt helped launch Just Security with a Guest Post on the law of cyber conflict. Professor Eric Talbot Jensen accepted our invitation to write on the topic of the next generation of technology and the law of armed conflict (LOAC), especially in light of his forthcoming article, The Future of the Law of Armed Conflict: Ostriches, Butterflies, and Nanobots, 35 Michigan Journal of International Law (forthcoming 2014). I encourage readers who are interested in this topic to read Eric’s full-length article as well. It is a great exploration of the next technological frontier for LOAC.]

As observed by former legal advisor to the U.S. State Department, Harold Koh, “Increasingly, we find ourselves addressing twenty-first century challenges with twentieth-century laws.”  This has become a common mantra among those who are tasked with applying current law to modern warfare.  Nowhere has this discussion been more hotly debated than in the area of cyber warfare, with academics, practitioners and even governments taking views across the spectrum; some advocate that the current law is sufficient to regulate cyber warfare with no modification, others argue that current law is a solid foundation but some modification or evolution may be necessary, and still others advocate for new laws to adequately regulate this new technology.

With respect to the vast majority of armed conflicts that will occur in the near future, I place myself in the middle category, believing that for most armed conflicts, current laws concerning jus ad bellum and jus in bello are sufficient.  However, as advancing weapons technologies make their way into armed conflicts, their use will require an evolution of how we understand and apply certain legal principles.  For example, within the jus in bello, the current definition of “attack” as an act of violence may be too narrow to account for the broadened spectrum of activities that can be accomplished through cyber means.  These activities may not look like traditional “violence” but may still leave the victim feeling “attacked.”  Similarly, our understanding of the fundamental principles of distinction and discrimination may need to adapt to cyber tools that infect hundreds of thousands of computers, including civilian computers, in order to specifically “attack” one targeted system which is a lawful military objective.  The recently published Tallinn Manual on the International Law Applicable to Cyber Warfare acknowledges many of these concerns, and recognizes current law may need to evolve to adequately address possible uses of cyber capabilities.

The resolution of how the law applies to cyber technologies is vitally important for the use of cyber in future conflicts.  It will also likely set the stage for resolving similar questions with respect to a host of future technologies that are waiting in the wings.

For example, the processes of miniaturization and the weaponization of nanotechnology promise to create a host of weapons that will challenge the traditional application of the current law.  Nanobots will be invisible to the naked eye and can swarm across a border and implant themselves in people or on materiel and collect data. Such an operation may be analogous to traditional spying, but a country that is subject to millions of these nanocollectors may feel the victim of a use of force or armed attack, especially if the same nanobots also carry a latent destructive capability that can be triggered remotely at some time in the future.

Similarly, advances in genomics and virology may allow the creation of a virus coded specifically to an individual’s DNA or group’s genetic or chemical characteristics.  Like computer malware, the virus may infect numerous “hosts” without doing much harm other than creating a mass transport system of sneezing or coughing to get the virus to the intended target where it has lethal effect.  Advanced weapons such as micro drones, robots and other autonomous weapons systems will also put pressure on the specific application of current legal norms.

With advanced technologies on the cusp of development and employment such as those mentioned above, the resolution of the legal issues surrounding cyber operations will set the stage for similar resolution of these advancing technologies.  Effectively evolving legal norms to regulate cyber operations will allow the international community to adapt the law adequately to cover future weapon systems. 

About the Author(s)

Eric Jensen

Professor at Brigham Young Law School, Special Counsel to the General Counsel of the Department of Defense, Former Chief of the Army’s International Law Branch, and Former Legal Advisor to US Military Forces in Iraq and Bosnia