May 2008 Vol. 106 No. 7 THE REVIEW

Hacking into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare

Jeffrey T.G. Kelsey

Cyber warfare is an emerging form of warfare not explicitly addressed by existing international law. While most agree that legal restrictions should apply to cyber warfare, the international community has yet to reach consensus on how international humanitarian law (“IHL”) applies to this new form of conflict. After providing an overview of the global Internet structure and outlining several cyber warfare scenarios, this Note argues that violations of the traditional principles of distinction and neutrality are more likely to occur in cyber warfare than in conventional warfare. States have strong incentives to engage in prohibited cyber attacks, despite the risk of war crimes accusations. This Note argues that belligerents will violate the principle of distinction more frequently in cyber warfare than in conventional warfare. Many cyber attacks will unavoidably violate neutrality law, making these violations more likely in cyber conflicts than in conventional wars. Rather than condemn all uses of cyber weapons, this Note argues that IHL should evolve to encourage the use of cyber warfare in some situations and provide states better guidance in the conduct of these attacks.

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