Classification of Cyber Conflict

• Author: Michael N. Schmitt
• Position: Chairman, International Law Department, U.S. Naval War College
• Pages: 233-251

Classification of Cyber Conflict Vol. 89

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Classification of Cyber Conflict

Michael N. Schmitt*

I. INTRODUCTION

ew international humanitarian law topics are proving as problematic in

modern warfare as “classification of conflict,” that is, the identification of

the type of conflict to which particular hostilities amount as a matter of

law.

1

Classifying the conflict in question is always the first step in any inter-

national humanitarian law analysis, for the nature of the conflict determines

the applicable legal regime. Accordingly, classification is a subject of semi-

nal importance.

The current difficulties derive from the advent of hostilities over the

past two decades that do not neatly fit the traditional bifurcation of conflict

* Chairman, International Law Department, U.S. Naval War College. A previous ver-

sion of this paper was published in 17 JOURNAL OF CONFLICT AND SECURITY LAW 245

(2012). The opinions shared in this paper are those of the author and do not necessarily

reflect the views and opinions of the U.S. Naval War College, the Dept. of the Navy or

Dept. of Defense.

1

. For a comprehensive survey of the subject, including case studies, see INTERNA-

TIONAL LAW AND THE CLASSIFICATION OF CONFLICT (Elizabeth Wilmshurst ed., 2011).

The work is t he culmination of a two-year Chatham House-sponsored project involving a

group of international experts. This article has benefitted from participation in that pro-

cess and the author is grateful to his colleagues for their insights.

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into either State-on-State or purely internal. For instance, the International

Criminal Tribunal for the former Yugoslavia (ICTY) struggled with criteria

for internationalization of non-international conflict in its first case, Tadić.

2

Less than a decade later, transnational terrorism refocused attention on

classification issues. Was such terrorism international in character because

it transcended borders or non-international because it did not involve the

forces of one State engaging in hostilities against those of another (or was it

even armed conflict at all)?

3

More recently, external recognition of the Na-

tional Transitional Council as the legitimate government of Libya raised the

question of whether such recognition “de-internationalized” the conflict

between the States that were fighting on the side of the rebels and Qadda-

fi’s forces.

4

In the future, cyber warfare will further complicate classification. Cyber

operations have the potential for producing vast societal and economic dis-

ruption without causing the physical damage typically associated with

armed conflict. They are also inherently transborder, thereby frustrating

any approach to classification based on geographical factors. Moreover,

massive attacks can be launched by a single individual or by a group that is

organized entirely on-line. This is in sharp contrast to traditional warfare,

which depends on either the involvement of a State’s armed forces or that

of a group capable of mounting typical military operations.

2

. Prosecutor v. Tadić; Case No. IT-94-1-l, Decision on Defence Motion for Inter-

locutory Appeal on Jurisdiction, ¶ 76 (Int’l Crim. Trib. for the former Yugoslavia Oct. 2,

1995) [hereinafter Tadić Decision on Defence Motion]. The seminal article on interna-

tionalization is Hans-Peter Gasser, Internationalized Non-International Armed Conflicts: Case

Studies of Afghanistan, Kampuchea, and Lebanon, 33 AMERICAN UNIVERSITY LAW REVIEW 145

(1983). See also Christopher Greenwood, International Humanitarian Law and the Tadić Case, 7

EUROPEAN JOURNAL OF INTERNATIONAL LAW 265 (1996); Theodor Meron, Classification

of Armed Conflict in the Former Yugoslavia: Nic aragua’s Fallout, 92 AMERICAN JOURNAL OF IN-

TERNATIONAL LAW 236 (1998).

3

. For conflicting views on this subject, see HCJ 769/02 Public Committee against

Torture in Israel v. Government of Israel 2006(2) PD 459 [2006] (Isr.), reprinted in 46 IN-

TERNATIONAL LEGAL MATERIALS 373 (2007), available at http://elyon1.court.gov.il/files_

eng/02/690/007/a34/02007690.a34.pdf; Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

4

. Clearly, the conflict between NATO (and o ther) forces and the Libyan security ap-

paratus was international in character. The question is whether the recognition of the re-

bels (National Transitional Council) meant that NATO forces were now fighting on the

side of the government against dissident armed forces (the remnants of the Libyan armed

forces still loyal to Qa ddafi) such that the conflict became non-international. On the

recognition of the National transitional Council, see Stefan Talmon, Recognition of the Libyan

National Transitional Council, AMERICAN SOCIETY OF INTERNATIONAL LAW INSIGHTS (June

16, 2011), http//www.asil.org/ insights110616.cfm.