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Combatant Status and Computer Network Attack


Sean Watts


Creighton University School of Law

August 3, 2009

Virginia Journal of International Law, Vol. 50, No. 2, p. 392, 2010

Abstract:     
The national security implications of computer network attacks (CNA) have become far-reaching and have prompted major adjustments to our nation’s defense structure and strategy. One of the current President’s early executive acts created a national Cyberczar to coordinate U.S. defenses against CNA. Meanwhile, the Department of Defense has recognized cyberspace as a realm of combat operations equivalent in importance to land, sea and space, creating a new Cyber Command believed to be capable of launching offensive CNA. This Article examines the critical question of combatant status in such CNA – specifically, who, under the existing law of war, may lawfully participate in CNA? Existing accounts evaluate combatant status in CNA under traditional criteria applicable to kinetic and line-of-sight warfare. This Article argues such approaches are outmoded and induce states to engage in practices that amount to no more than empty formalism. With historical, textual, and normative analysis, this Article argues that state sanction or imprimatur is an appropriate standard for evaluating combatant status in CNA. The analytical framework proposed not only aligns with existing law and emerging state practice, but may also resolve the question of status in other remote combat engagements.

Number of Pages in PDF File: 57

Keywords: International Humanitarian Law, Law of War, computer network attack, combatant status

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Date posted: August 25, 2009 ; Last revised: February 2, 2010

Suggested Citation

Watts, Sean, Combatant Status and Computer Network Attack (August 3, 2009). Virginia Journal of International Law, Vol. 50, No. 2, p. 392, 2010 . Available at SSRN: http://ssrn.com/abstract=1460680 or http://dx.doi.org/10.2139/ssrn.1460680

Contact Information

Sean Watts (Contact Author)
Creighton University School of Law ( email )
2500 California Plaza
Omaha, NE 68178
United States
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