Challenges to International Law in the 21st Century [4/4]

Since the 1940s, States have been guided on what is considered appropriate when faced with threats to international and domestic security. In the 21st century however, the nature of war has shifted considerably; new threats in the form of non-state actors and advanced technology means state centric laws are no longer as pertinent. This four part blog will discuss the various challenges international law is being faced with following the changes to warfare and security.

 

Technological advancements have been part of warfare since the invention of the bow and arrow, in the 21st Century however, these changes have now created challenges in the shape of cyber warfare. The strategic threat posed by these new intrusions has resulted in a fundamental shift in the nature of warfare.

 

U.S Military increasing its cyber capacity

The term ‘cyber warfare’ has been used to describe anything ranging from website vandalism to disabling strategic infrastructure. Such a diverse range of threats makes it very difficult to attach a specific definition or policy direction, which only increases the risk of an unlawful response or escalation of force. This new style of warfare has led to a level of ambiguity within global relations meaning “law of international armed conflict has limited application in controlling these activities and resulting harm,”(Huntley, 2010:2).

 

In modern situations, there has been an attempt to clarify what type of cyber-attack could constitute an unlawful use of force. A consensus has been reached that anything which has the effect of death to persons or severe destruction is considered to be excessive and therefore can be challenged (Murphy, 2011: 30). Whilst this might offer some clarity under international law, the legal principles then have to face the problem of anonymity. States may be able to identify an attack has happened, but not who is responsible. In relation to the legal principles therefore, what use is it having strict legal rules if you have no one to use it against.

 

Legal principles cannot offer protection if they do not know who they are defending against. These types of attacks give the enemy new advantages through stealth and unpredictability. When a state cannot pinpoint the ‘culprit’, there can be no legal authorisation for a retaliatory attack if it is not clear whether it was civilian vandalism or a modern attempt of attacking state security. Cyber-warfare therefore, has “fundamentally changed the nature of conflict, expanding it both spatially and temporally,”(Huntley, 2010:31) – it has created new arenas of conflict and raised questions of accountability at a rate at which international law cannot keep up.

 

International legal principles have been put in place as an attempt to avoid a repetition of WWII, whilst also push for a more collective identity. New waves of technology and actors however, have made the world much more fluid and ambiguous, therefore allowing conflict to grow and take shape in areas not yet explored. Such a pace of change places significant pressure on the current laws of conflict and doesn’t seem to be easing up in the foreseeable future. The law of conflict reflects a period of war no longer relevant and therefore has become a less reliable source of protection against these new challenges

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