By now, many are familiar with cyber attacks. Yet, it recently came to my attention that there is another type of electronic warfare that is not far away from becoming reality: electro-magnetic warfare. Electro-magnetic warfare consists of Electro-Magnetic Pulse [EMP] attacks that have the capacity to disable any asset that is dependent upon electricity. For instance, depending on the strength of the attack, an EMP attack could shut down a military convoy, an aircraft carrier, a satellite, or a city. Gamers who play Activision’s Modern Warfare line of video-games may be familiar with the hypothetical effect that an EMP attack can have; but the United States is doing what it can to bring that hypothetical to life.
Creating the capability to launch an EMP attack presents myriad concerns. For instance, is an EMP attack considered an armed attack? Does the technology qualify to be classified as military arms? And, if an EMP disables a satellite in outer space, is such an attack considered a violation of the satellite owner’s sovereignty? It is troublesome that international law does not offer an answer to these questions.
In recent years, the international community has battled with similar questions in the context of cyber attacks. Thus far, however, there have been few answers. To date, the best that we have is a NATO report which concludes that the joint U.S.-Israeli cyber attack, Stuxnet, was an unlawful use of force perpetrated in violation of the U.N. Charter Art. 2(4). However, the NATO report is neither authoritative nor conclusive. And, in any event, even if the use of a cyber attack is considered an unlawful use of force there is still no legal justification for a victimized State to retaliate in such a circumstance. Article 51 of the U.N. Charter provides that a State may invoke its right to self-defense only if there has been an armed attack waged against it. Therefore, in the case of EMPs, where it is unlikely that the attack can be considered an armed attack, a victimized State will not have recourse to defend itself under international law.
Given these concerns, some have called for a Convention limiting the use of cyber attacks and refining the definition of “armed attack.” Further concerns have mounted over the likely disparity among various States in their ability to develop the EMP technology. If the U.S. is able to develop a sustainable EMP technology and no other nation can, then what would be the repercussions? Should the international community negotiate and draft a treaty on these non-traditional modes of using force? Do you agree with the NATO report that cyber attack are a use of force? If so, will EMPs be any different? How so?
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