International Humanitarian Law Commons^™

The Strategic Use Of Ransomware Operations As A Method Of Warfare, Jeffrey Biller

International Law Studies

This article examines the potential use and legal limitations of ransomware to achieve strategic effects in armed conflicts. Ransomware is defined here as the temporary encryption of data until some pre-condition is met to release the encryption. The article focuses on international law as applicable to a State’s use of ransomware against another State, where both are parties to an existing international armed conflict. The author finds that international humanitarian law does not currently prohibit most uses of ransomware against non-military related targets in armed conflicts. While the encryption of data may be a legal violation when it inhibits the …

Cyber Peacekeeping Operations And The Regulation Of The Use Of Lethal Force, Nicholas Tsagourias, Giacomo Biggio

International Law Studies

Peacekeeping is an essential tool at the disposal of the United Nations for the maintenance of international peace and security. The growing relevance of cyber technologies presents itself as an opportunity to adapt peacekeeping to the challenges of a rapidly evolving security landscape. This article introduces the notion of "cyber-peacekeeping," defined as the incorporation and use of cyber capabilities by peacekeepers. It discusses the legal basis for cyber-peacekeeping and the foundational principles of consent, impartiality, and use of defensive force. The article examines the use of lethal force by cyber-peacekeepers under the law of armed conflict paradigm. It considers the …

The Plea Of Necessity: An Oft Overlooked Response Option To Hostile Cyber Operations, Louise Arimatsu, Michael N. Schmitt

International Law Studies

States are increasingly focused on the measures—cyber or otherwise—that they can take in response to hostile cyber operations. Although cyber operations are usually responded to with acts of “retorsion” (acts that are lawful, although unfriendly), international law recognizes other self-help mechanisms that allow for more robust responses. In the cyber context, most attention has focused on countermeasures and self-defense. Yet, both are subject to various limitations that constrain their availability.

This article examines a further option, the so-called “plea of necessity.” It allows States to respond to a hostile cyber operation when the action taken would otherwise be unlawful but …

Neutrality And Cyberspace: Bridging The Gap Between Theory And Reality, Noam Neuman

International Law Studies

While there exists a broad consensus among States that international law generally applies to the cyber domain, particular views regarding the applicability of the law of neutrality have rarely been put forward, and presently there seems to be insufficient State practice and domain-specific opinio juris in this regard. Against this backdrop, several attempts have been made throughout the years to apply certain neutrality rules to cyberspace by referring to analogies from other domains. However, this legal regime provides an emblematic example of what the introduction of traditional rules of international law, formulated with the physical domains of warfare in mind, …

Responding To Hostile Cyber Operations: The “In-Kind” Option, Michael N. Schmitt, Durward E. Johnson

International Law Studies

Facing hostile cyber operations, States are crafting responsive strategies, tactics and rules of engagement. One of the major challenges in doing so is that key aspects of the international law governing cyber responses are vague, unsettled or complex. Not surprisingly, therefore, international law is markedly absent from strategies and operational concepts. Rather, they tend to take on a practical “tit-for-tat” feel as policymakers logically view “in-kind” responses as “fair play.” For them, responding in-kind surely must be lawful notwithstanding any challenges in discerning the precise legal character of the initial hostile cyber operation.

Testing that sense, this article examines the …

Autonomous Cyber Weapons And Command Responsibility, Russell Buchan, Nicholas Tsagourias

International Law Studies

Autonomous cyber weapons have made their way onto the battlefield, raising the question of whether commanders can be held criminally responsible under command responsibility when war crimes are committed. The doctrine of command responsibility has a long history in international criminal law and comprises three core elements: the existence of a superior-subordinate relationship, the commander’s knowledge of the crime, and the commander’s failure to prevent or repress the subordinate’s criminal actions. This article unpacks the content of these elements and applies them to autonomous cyber weapons by treating them as being analogous to soldiers since they operate within an organized …

Will Cyber Autonomy Undercut Democratic Accountability?, Ashley Deeks

International Law Studies

In recent years, legislative bodies such as the U.S. Congress and the U.K. Parliament have struggled to maintain a role for themselves in government decisions to conduct military operations against foreign adversaries. Some of these challenges arise from constitutional structures, but they are also due to the changing nature of conflict: a shift away from large-scale kinetic operations and toward smaller-scale operations—including cyber operations—that are less visible and that do not require robust legislative support. These modern operations leave legislatures to engage in ex post and sometimes ineffective efforts to hold their executive branches accountable for international uses of force …

Autonomous Cyber Capabilities Below And Above The Use Of Force Threshold: Balancing Proportionality And The Need For Speed, Peter Margulies

International Law Studies

Protecting the cyber domain requires speedy responses. Mustering that speed will be a task reserved for autonomous cyber agents—software that chooses particular actions without prior human approval. Unfortunately, autonomous agents also suffer from marked deficits, including bias, unintelligibility, and a lack of contextual judgment. Those deficits pose serious challenges for compliance with international law principles such as proportionality.

In the jus ad bellum, jus in bello, and the law of countermeasures, compliance with proportionality reduces harm and the risk of escalation. Autonomous agent flaws will impair their ability to make the fine-grained decisions that proportionality entails. However, a …

Classification Of Cyber Capabilities And Operations As Weapons, Means, Or Methods Of Warfare, Jeffrey T. Biller, Michael N. Schmitt

International Law Studies

Despite several persistent controversies regarding how international law applies to cyber operations during an armed conflict, general understanding of the law in this domain is maturing. Reasoning by analogy to non-cyber application and interpretation of international law underlies much of the progress. Yet, although preexisting normative structures and legal terminology enable legal advisors and scholars to usefully draw upon previously acquired experience and understanding, there are obstacles to definitive analogizing that result from fundamental differences between cyber and kinetic operations. The number of imperfect analogies that underlie some of the normative uncertainty in the field underscores this point.

One key …

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

International Law Studies

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

Emerging Technologies And Loac Signaling, Eric Talbot Jensen

International Law Studies

As States seek to weaponize new technologies such as robotics, cyber tools and nanotechnology, the current law of armed conflict (LOAC) that guides the employment of existing weapons will signal rules and principles that should guide national decisions on what new technologies to weaponize and how to do so in a way that ensures compliance with battlefield regulation. LOAC has served this "signaling" function historically with respect to innovative weapon systems such as balloons, submarines, airplanes, and nuclear weapons, and will continue to do so as nations look forward to potentially weaponizing emerging technologies.

State Opinio Juris And International Humanitarian Law Pluralism, Michael N. Schmitt, Sean Watts

International Law Studies

International humanitarian law has developed through a pluralistic process. Its history reveals a pattern of rough proportionality between State opinio juris and non-State expressions of law. These diverse sources have maintained a respectable yet realistic balance between humanity and military necessity. However, current IHL dialogue presents a stark contrast to the vibrant and pluralistic exchanges of the past. The substantive input of non-State actors such as non-governmental organizations, tribunals, and scholars far outpaces the work of States. Parity of input, especially in quantitative terms, is surely too much to demand and surely not necessary given the special status of State …

Methods And Means Of Cyber Warfare, William H. Boothby

International Law Studies

No abstract provided.

The Law Of State Responsibility In Relation To Border Crossings: An Ignored Legal Paradigm, Louise Arimatsu

International Law Studies

No abstract provided.

Cyber War And International Law: Concluding Remarks At The 2012 Naval War College International Law Conference, Yoram Dinstein

International Law Studies

No abstract provided.

The Role Of Counterterrorism Law In Shaping Ad Bellum Norms For Cyber Warfare, William Banks

International Law Studies

No abstract provided.

Networks In Non-International Armed Conflicts: Crossing Borders And Defining "Organized Armed Groups", Peter Margulies

International Law Studies

No abstract provided.

Anticipatory Self-Defense In The Cyber Context, Terry D. Gill, Paul A.L. Ducheine

International Law Studies

No abstract provided.

International Law And Cyber Threats From Non-State Actors, Laurie R. Blank

International Law Studies

No abstract provided.

Lawful Targets In Cyber Operations: Does The Principle Of Distinction Apply?, Noam Lubell

International Law Studies

No abstract provided.

Territorial Sovereignty And Neutrality In Cyberspace, Wolff Heintschel Von Heinegg

International Law Studies

No abstract provided.

Precision Air Warfare And The Law Of Armed Conflict, Christopher J. Markham, Michael N. Schmitt

International Law Studies

No abstract provided.

Keeping The Cyber Peace: International Legal Aspects Of Cyber Activities In Peace Operations, Jann K. Kleffner, Heather A. Harrison Dinniss

International Law Studies

No abstract provided.

Computer Network Operations And U.S. Domestic Law: An Overview, Robert N. Chesney

International Law Studies

No abstract provided.

Classification Of Cyber Conflict, Michael N. Schmitt

International Law Studies

No abstract provided.

Cyber War And International Law: Does The International Legal Process Constitute A Threat To U.S. Vital Interests?, John F. Murphy

International Law Studies

No abstract provided.

Cyber Warfare: Implications For Non-International Armed Conflicts, Robin Geiss

International Law Studies

No abstract provided.

The Cyber Road Ahead: Merging Lanes And Legal Challenges, Kenneth Watkin

International Law Studies

No abstract provided.

The Road Ahead: Gaps, Leaks And Drips, Michael J. Glennon

International Law Studies

No abstract provided.

Geography Of Armed Conflict: Why It Is A Mistake To Fish For The Red Herring, Geoffrey S. Corn

International Law Studies

No abstract provided.