Ohlin: Cyber-Causation

Jens David Ohlin (Cornell Univ. - Law) has posted Cyber-Causation (in Cyberwar: Law and Ethics for Virtual Conflicts, Jens David Ohlin, Claire Finkelstein, & Kevin Govern eds., forthcoming). Here's the abstract:

This Chapter argues that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Part I will explain in greater detail why causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of traditional International Humanitarian Law (IHL). Part II will then introduce various cyber-attack scenarios that will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I will place less emphasis on which account of causation is abstractly correct and will instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). Finally, Part III will explain why some traditional theories of causation cannot be reflexively and uncritically grafted into IHL. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. By deploying George Fletcher’s famous distinction between the pattern of subjective criminality and the pattern of manifest criminality, I will show that the former is appropriate for the criminal law’s extensive fact-finding system, but IHL, burdened by the lack of fact-finding resources, must rely on the pattern of manifest criminality. Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.