Cyber Attacks: Proportionality and Precautions in Attack

AuthorEric Talbot Jensen
PositionAssociate Professor, Brigham Young University Law School
Pages198-217
International Law Studies 2013
198
W
Cyber Attacks: Proportionality and
Precautions in Attack
Eric Talbot Jensen*
I. INTRODUCTION
hen David Sanger
1
and Ellen Nakashima
2
officially broke the news
that the United States and Israel had been involved in a long-term collabo-
rative cyber operation focused on Iran and its nuclear development capa-
bilities, they only confirmed what many had assumed for some time.
3
In
* Associate Professor, Brigham Young University Law School. The author wishes to
thank Brooke Robinson and Brigham Udall for their exc eptional research assistance. ©
2013 by Eric Talbot Jensen.
1
. David E. Sanger, Obama Order Sped Up Wave of Cyberattacks Against Iran, NEW YORK
TIMES, June 1, 2012, at A1, available at http://www.nytimes.com/2012/06/01/world
/middleeast/obama-ordered-wave-of-cyberattacks-against-iran.html?page wanted=all&_r=
0; see also DAVID E. SANGER, CONFRONT AND CONCEAL: OBAMAS SECRET WARS AND
SURPRISING USE OF AMERICAN POWER (2012).
2
. Ellen Nakashima, Greg Miller & Julie Tate, U.S., Israel developed Flame computer virus
to slow Iranian nuclear efforts, officials say, WASHINGTON POST (June 19, 2012), http://articles.
washingtonpost.com/2012-06-19/world/35460741_1_stuxnet-computer-virus-mal ware.
3
. William J. Broad, John Markoff & David E. Sanger, Israeli Test on Worm Called Cru-
cial in Iran Nuclear Delay, NEW YORK TIMES, Jan. 15, 2011, at A1, available at http://
www.nytimes.com/2011/01/16/world/middleeast/16stuxnet.html; Tucker Reals, Stuxnet
Worm a U.S. Cyber-Attack on Iran Nukes?, CBS NEWS (Sept. 24, 2010, 6 :41 AM),
http://www.cbsnews.com/8301-501465_162-20017507-501465.html; A worm in the centri-
Cyber Attacks: Proportionality and Precautions Vol. 89
199
fact, with the discovery of Stuxnet in 2010, many scholars and practitioners
had speculated on whether the use of the Stuxnet malware, if State spon-
sored, amounted to a “use of force” or even an “armed attack” under the
UN Charter paradigm.
4
Some even began to consider the hypothetical legality of Stuxnet-type
cyber actions within an armed conflict as opposed to a use of force or
armed attack that would initiate an armed conflict. For these writers, the
major issues revolved around the cyber tool’s compliance with the law of
armed conflict (LOAC) and principles such as discrimination and propor-
tionality. For example, Jeremy Richmond analyzed Stuxnet in light of these
principles and concluded that whoever designed the malware did so with
the clear intent to comply with the LOAC.
5
Even prior to the discovery of Stuxnet, a group of legal and technical
experts
6
were gathered by the Estonian Cooperative Cyber Defence Centre
of Excellence to draft a manual, known as the Tallinn Manual on the Interna-
tional Law Applicable to Cyber Warfare .
7
The Manual explores the international
law governing the use of forcein both its jus ad bellum and jus in bello as-
pects
8
as applied to cyber operations conducted by States and non-State
actors. Several key principles arose during the Manual discussions in rela-
tion to the principles of proportionality and precautions in and against at-
tack, including a number of challenging aspects in applying these principles
fuge, ECONOMIST, Oct. 2, 2010, at 63, available at http://www.economist.com/node/
17147818.
4
. Gary D. Brown, Why Iran Didn't Admit Stuxnet Was an Attac k, JOINT FORCE QUAR-
TERLY, Oct. 2011, at 70, available at http://www.ndu.edu/press/lib/images/jfq -
63/JFQ63_70-73_Brown.pdf; Chance Cammack, Comment, The St uxnet Worm and Potential
Prosecution by the International Criminal Court Under the Newly D efined Crime of Aggression, 20
TULANE JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 303, 32023 (2011);
John Richardson, Stuxnet as Cyberwarfare: Applying the Law of War to the Virtual Battlefield, 29
JOHN MARSHALL JOURNAL OF COMPUTER & INFORMATION LAW 1, 911 (2011).
5
. Jeremy Richmond, Note, Evolving Battlefields: Does STUXNET Demonstrate a Need for
Modifications to the Law of Armed Conflict?, 35 FORDHAM INTERNATIONAL LAW JOURNAL
842, 88393 (2012).
6
. The author was a member of the group.
7
. TALLINN MANUAL ON THE INTERNATIONAL LAW APPLICABLE TO CYBER WAR-
FARE (Michael N. Schmitt ed., 2013) [hereinafter TALLINN MANUAL].
8
. The ju s ad bellum regulates the laws of conflict management, or the laws governing
going to war. The jus in bello regulates activities once armed conflict has begun. T hough
some terms are similar in both bodies of law, they are considered separate and distinct
under the current armed conflict paradigm.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT