War and law in cyberspace.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 12:45 p.m., Friday, March 26, by its moderator, Duncan Hollis of Temple University School of Law, who introduced the panelists: Jack Beard of the University of California (Los Angeles) School of Law; Eliana Davidson of the U.S. Department of Defense, Office of the General Counsel; Robin Geiss of the International Committee of the Red Cross; and Herb Lin of the National Research Council of the National Academies. *

* Jack Beard, Eliana Davidson, and Herb Lin did not submit remarks for the Proceedings.

THE CONDUCT OF HOSTILITIES IN AND VIA CYBERSPACE

TECHNOLOGICAL EVOLUTION: A COMMON CHALLENGE TO THE HUMANITARIAN LEGAL ORDER

International Humanitarian Law (IHL) throughout its long lifetime has always been accompanied by continuous technological evolution. In the beginning of the 20th century, lawyers were concerned with regulating the launching of explosives from balloons; in the beginning of the 21st century, the legal regulation of remote-controlled and automated weapons systems, as well as computer network attacks, is at issue. Clearly, the emergence of novel weaponry is nothing unorthodox to the humanitarian legal framework. Nevertheless, it is a constant challenge. Of course, as far as computer network attacks and, more generally, the conduct of hostilities in and via cyberspace are concerned, we are not simply discussing the nascence of a new weapon. Cyberspace is potentially opening up an entirely novel war-fighting domain (1)--a new manmade theatre of war, in addition to the natural theatres of land, air, sea, and outer space, and interlinked with all of them. Cyberspace is an artificial and homogenous space that provides worldwide interconnectivity without borders. It is easily accessible and, despite a persistent digital divide, it is available in all quarters of the world. These features are of greatest utility in peacetime. But in times of war interconnectivity means that anything with an interface with the Internet can be targeted from anywhere in the world, with launch-to-impact time being reduced to seconds. Interconnectivity also means that the effects of an attack may have repercussions on various other systems. At least for the time being, military electronic networks remain heavily dependent on commercial infrastructure. In addition, the digitalization on which cyberspace is built ensures anonymity and thus complicates not only the attribution of conduct but also the distinction of actors. Thus, reconciling the emergence of cyberspace as a new war-fighting domain with the established humanitarian legal framework is a challenging task.

As technologies evolve, the legal...

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