ABSTRACT
It has long been an article of faith in the international legal community that international law, and international humanitarian law (IHL) in particular, would shield civilization from unrelenting cyber conflict. As cyberspace capabilities and the reliance of governments and civil society on the backbone of cyberspace to host communications, critical infrastructure, financial system, personal memories, military and intelligence records, etc, grew, there was an understanding that the complex system of international law built over past centuries was sufficiently robust to flex to this new challenge. One reason is the Martens Clause, which says in cases not addressed in the Hague Conventions warfare will continue to be subject to ‘the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’. Another is historical precedent. Lawyers noted that international law has successfully expanded to deal with emerging legal challenges related to air warfare, precision munitions, and noninternational armed conflict (NIAC). Surely, cyber warfare would be no different.
