Cyber-attack and the Prohibition of the Use of Force: The scope of Article 2(4) in Cyberspace

By: Anat Eisenstein Bar-On

Modern technology has become the core of our existence. While all of our personal information is at the palm of our hands, we are more exposed and vulnerable than ever. Recently, cyber-attacks have become more frequent and global, turning cyberspace to the new war arena of the 21st century. Indeed, many states and individuals have been the target of numerous cyber-attacks, due to their dependency on computers, networks and the internet. Cybercrimes, aimed at the private sector, such as espionage or fraud, are governed by national legislation. Whereas, cyber-attacks aimed at states and initiated by states are governed by international law, in general, and jus ad bellum, in particular. The main question is – to what extent? In this research, I shall offer a different perspective on the scope of article 2(4) of the UN Charter in cyberspace. The prevailing legal assumption is that article 2(4) applies on a cyber-attack that resembles in its effects to a kinetic attack. However, this hypothesis creates a legal lacuna, whereas it does not consider cyber-attacks aimed at hospital data, banking systems or state authority networks as use of force. This has a significant impact on the right of self-defense, and basically denies states of such right. I will not challenge the basis of this legal assumption. I agree that article 2(4) should apply on cyber-attacks, though the scope of application is not wide enough. In this research, I shall attempt to fill the legal gap and suggest that since kinetic and cyber-attacks exist in parallel dimensions, they should not be compared to one another, but rather analyzed on their own. The prohibition of the use of force has evolved over the years, and adjusted itself according to legal developments and changes in modern lives. Every milestone, starting from the drafting of article 2(4), through the cold war, terror and even belligerent occupation, was a legal challenge that shaped and molded the prohibition of the use of force doctrine. Cyberspace possesses a new challenge, as it offers a new perspective on operational fields. Nonetheless, article 2(4) is a solid legal pillar; it should be inspired by our ever changing world (in this case, virtual v. real worlds), and not merely by legal paradigms.