Law of War 2.0: Cyberwar and the Limits of the UN Charter
| Author | Jasper Kim |
| DOI | http://doi.org/10.1111/j.1758-5899.2011.00098.x |
| Date | 01 October 2011 |
| Published date | 01 October 2011 |
Law of War 2.0: Cyberwar and the
Limits of the UN Charter
Jasper Kim
Graduate School of International Studies, Ewha Womans University
Abstract
‘War’ as we have known and understood it until the 20th century – conflicts involving kinetic weapons such as
bullets, missiles, machine guns, tanks, ships, aircraft carriers, submarines and fighter jets – is rapidly being influenced
and complemented (but not replaced) by a new 21st-century cyberwar era involving Internet-based technologies. The
UN Charter represents one of the primary sources of international law concerning the security of the international
community, which urges states to refrain from the ‘use of force’. But does the UN Charter, specifically Article 51
(known as the ‘collective self-defense’ provision) provide justification for the ‘use of force’ in certain, limited
circumstances, when it is necessary for a state to defend itself against certain cyberwar tactics? This article argues that
it does, and second, suggests language to revise Article 51 of the UN Charter to reflect better the rise of cyberwar
tactics by both state and nonstate actors in the 21st century.
‘War’ as we have known and understood it to mean for
hundreds of years until the 20th century – conflicts involv-
ing kinetic weapons such as bullets, missiles, machine
guns, tanks, ships, aircraft carriers, submarines and fighter
jets – is being reconstituted in the 21st century.
In addition to (but not in replacement of) traditional
warfare using kinetic weapons, is a new norm in modern
warfare that will be increasingly influenced and comple-
mented by conflicts of various durations and scope
involving cyberwar, defined as ‘the use of computer
technologies as both defensive and offensive weapons
in international relations’ (Malawer, 2009), a term which I
further interpret for the purpose of this article to include
targets at both public and private sector levels. In the
current environment, networks will represent a new
added military advantage in a period that has so far
been increasingly influenced by borderless and faceless
enemy forces, unlike previous periods. This represents
the dawn of a new 21st-century era of increasing digital
warfare (viewed by the author as an extended form of
traditional warfare), which poses new challenges and
issues to policy makers. However, the rise of cyber-based
tactics (which I refer to as ‘War 2.0’) has yet to be
matched by what I call a ‘Law of War 2.0 conceptual
framework’ that directly addresses cyberwar issues.
Although cyberwar has not replaced traditional war, the
rise of cyberwar tactics merits an analysis of whether
certain cyberwar tactics justify a use of force by the
aggrieved state to defend itself.
Major shifts in technology are accompanied by new
versions of what the ‘law of war’ means, as traditionally
defined (what I refer to as ‘Law of War 1.0’) and how it
is conducted. In past centuries, those nations with the
largest navies and armadas such as Spain and England
dominated the military landscape. In the 19th and 20th
centuries the invention of the machine gun, tanks, sub-
marines, long-range missiles, propeller and jet military
planes and aircraft carriers, among others, led to the rise
of more mobile military forces used to secure land and
air military superiority. During the First World War (1914–
18), for instance, the use of new technologies such as
tanks, fixed-wing airplanes, blimps and mechanized
artillery weapons represented a tactical technological
advantage to secure military advantage.
From a legal purview, such events led to the
formation of several prominent legal conceptual frame-
works related to traditional warfare, including the First
Geneva Convention (for the Amelioration of the Condi-
tion of the Wounded and Sick in Armed Forces in the
Field) in 1864, and the Second Geneva Convention (for
the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea) in
1906 (First Geneva Convention, 1864; Second Geneva
Convention, 1906).
This was followed by the Kellogg-Briand Pact of 1928
(which sought to curtail traditional kinetic war), the
much-cited Third Geneva Convention (related to the
Treatment of Prisoners of War) in 1929, and the formation
of the League of Nations (the precursor international
organization to the UN). During the Second World War
(1939–45), the use of technologies such as radar, aircraft
carriers and submarines represented a tactical technologi-
cal advantage in terms of military capabilities. This was
followed by a new legal framework in the form of the
Global Policy Volume 2 . Issue 3 . October 2011
ª2011 London School of Economics and Political Science and John Wiley & Sons Ltd. Global Policy (2011) 2:3 doi: 10.1111/j.1758-5899.2011.00098.x
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