The establishment of an International Cyber War Treaty for cyber warfare operations would secure a plethora of positive benefits for the international community.
First and foremost, it would grant a sense of security to the more vulnerable states.
On the other hand, establishing a set of humanitarian rules to be obeyed during an armed –or cyber- conflict, it would settle and clarify the current ambiguities regarding the conduct and responsibilities of the belligerent states during the hostilities.
Dunkan Hollis suggests that an ‘ILIO offers an opportunity for states to acknowledge their collective interest in combating non-state actors engaged in terrorism,’ adding that it offers an opportunity of better addressing non-international armed conflicts. That is, compared to traditional Loac. Hollis: ‘It is no secret that the law of war has proven largely inadequate (or incapable) of addressing non-international armed conflicts.’
Robbat is also in favour of that, as he argues that
‘the convention must enter a Universal IW Cooperation and Extradition Agreement to respond to the greatly increased (non-state) terrorist threat. The treaty should require nations to cooperate in investigations, by allowing victim-states access to computer networks in the country where the accused resides. Refusal to cooperate with a reasonable investigation should be met with sanctions against that nation’.
Their line of thought, however, lends itself to some major flaws. Firstly, tackling terrorism should not be the object of an international treaty regulating cyber attacks.
And secondly, a non-international cyber conflict is nonexistent; it simply falls under the category of cyber crimes, regulated under domestic criminal law, given that they are not state-sponsored. It goes without saying that an internationalized conflict, that is, containing international and non-international elements, is a whole different story, certainly worth being covered under a new regime for cyber warfare operations.
Challenges to overcome
On the other hand, could it be said that an international treaty would create more problems than to offer solutions?
Barkham argues that a major issue that should eventually be overcome is the problem of determination of the identity of the attacker. As discussed above, there is a great difficulty of discovering the exact location and identity of the perpetrator of the attack. Using the existent technology, it is apparently difficult in discerning between private hackers and state-sponsored attacks.
Direct consequence of the above is the problem of attribution to the state for the acts of non-state actors. Will the future international convention regulate issues of state ‘attributability’ or should the –recognised as customary law- 2001 Draft Articles continue being used?
International Cyber War Treaty Monitoring System
Another option is to have the International Court of Justice as a means of settling differences, but it would slow down even more the already cumbersome procedure, given its heavy workload.
Lastly, compliance by countries is a topic that should be considered, as with the drafting of all international treaties.