Cyber war and the law of neutrality

Abstract

This chapter considers the potential for the contemporary and future application of the international law of neutrality in the context of cyber warfare. The relevant provisions are mostly contained in treaties and other legal instruments that are now more than a century old, such as the Hague Conventions of 1907. Although customarily thought of as old-fashioned and arguably irrelevant to the age of cyber in its obsession with safeguarding the territorial sovereignty of neutral States, the law of neutrality is at least quite likely to be of direct application in future armed conflicts situated in cyberspace. This stems in part from the politico-economic realities of an increasingly interconnected international society in today’s world, which may cause States to continue to insist on their neutrality in the conflicts of the future. But it is also largely a function of the provisions of the law itself, particularly the jus in bello: the routing of hostile data through cyber infrastructure belonging to a neutral State and the legal status of “hacktivists” in neutral territory could be examples. The existing law, old as it is, can be applied by analogy to cyber hostilities.