Hollis & van Benthem: Threatening Force in Cyberspace

Duncan B. Hollis (Temple Univ. - Law) & Tsvetelina J van Benthem have posted Threatening Force in Cyberspace (in Big Data and Armed Conflict: Legal Issues Above and Below the Armed Conflict Threshold, Laura Dickinson & Edward Berg eds., forthcoming). Here's the abstract:

Threats have long been endemic in inter-State relations with diverse goals, communicative values and means of signaling. Yet, international law explicitly focuses on just one type of threat – threats of force. Under the jus ad bellum, States must refrain from threats of force in their international relations. As we explain, this prohibition has received limited attention from States unlike its companion – the prohibition on uses of force. Yet, existing doctrine establishes that States can violate it by threatening force implicitly as well as explicitly, with the legal threshold measured via an objective methodology. This chapter aims to update and extend the international legal prohibition on threats of force to cyberspace. The idiosyncrasies of information and communications technologies provide fertile ground for cyber-specific threatening behavior. The ubiquity of unauthorized access means that a compromise for one purpose – e.g., espionage – could, under the right circumstances, simultaneously (and implicitly) threaten a future use of force. Our chapter aims to offers an initial analytical frame for identifying when this may (or may not) be a credible possibility. In particular, we highlight the potential of “Big Data” to change the nature of cyber threats of force as well as its capacity to improve States’ ability to identify them. We argue that advancements in digital technologies are likely to put the viability and sufficiency of existing legal standards and methodologies to the test.

Our chapter concludes with a call for States to recognize and accommodate the prohibition on threats of force in all their cyber operations. Applying this prohibition to cyberspace may offer a new and meaningful way to enhance the stability and security of international relations in cyberspace. At the same time, a greater appreciation of Big Data’s potential may itself evolve States’ general understanding of the jus ad bellum in this digital age.