The Notion of Combatancy in Cyber Warfare
19 Pages Posted: 23 Aug 2014
Date Written: June 1, 2012
This paper proposes an alternate test for combatant status in cyber warfare focused on State affiliation. Long an important, yet overlooked criterion for combatant status, State affiliation enjoys solid textual support in the extant law and supports the fundamental principles of distinction and discipline through state responsibility. But perhaps most importantly, State affiliation as a criterion for lawful combatancy in cyber warfare is minimally disruptive to emerging State practice thus guaranteeing relevance and alignment of the law with the realities of the cyber battlefield. State affiliation as a stand-alone sole criterion is admittedly a gloss on the present law of combatant status, perhaps at this point more in the nature of lex ferenda. However it is an interpretation that overcomes the existing law’s static and dated character, augmenting its legitimacy by reconciling what States say with what States actually do and will do in cyber warfare.
Keywords: Law of War, Cyber, International Humanitarian Law, Combatant, Combatant Immunity, Law of Armed Conflict, International Law, National Security Law
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