ICRC, NATO and the U.S. – Direct Participation in Hacktivities – Targeting Private Contractors and Civilians in Cyberspace under International Humanitarian Law

38 Pages Posted: 27 Feb 2017

See all articles by Ido Kilovaty

Ido Kilovaty

University of Tulsa College of Law; Yale University - Law School

Date Written: December 24, 2016

Abstract

Cyber-attacks have become increasingly common and are an integral part of contemporary armed conflicts. With that premise in mind, the question arises of whether or not a civilian carrying out cyber-attacks during an armed conflict becomes a legitimate target under international humanitarian law. This paper aims to explore this question using three different analytical and conceptual frameworks while looking at a variety of cyber-attacks along with their subsequent effects. One of the core principles of the law of armed conflict is distinction, which states that civilians in an armed conflict are granted a set of protections, mainly the protection from direct attacks by the adversary, whereas combatants (or members of armed groups) and military objectives may become legitimate targets of direct attacks. Although civilians are generally protected from direct attacks, they can still become victims of an attack because they lose this protection “for such time as they take direct part in hostilities.” In other words, under certain circumstances, if a civilian decides to engage in hostile cyber activities (or “hacktivities”), they may well become a target of a direct lethal attack. I will argue that although the answer is highly nuanced and context dependent, the most salutary doctrinal revision that can be made in this area is that the threshold of harm must adapt to the particular intricacies of cyberspace.

Keywords: cyber warfare, international law, international humanitarian law, law of armed conflict, information warfare

Suggested Citation

Kilovaty, Ido, ICRC, NATO and the U.S. – Direct Participation in Hacktivities – Targeting Private Contractors and Civilians in Cyberspace under International Humanitarian Law (December 24, 2016). Duke Law & Technology Review, Vol. 15, 2016, Available at SSRN: https://ssrn.com/abstract=2922950

Ido Kilovaty (Contact Author)

University of Tulsa College of Law ( email )

3120 E. Fourth Place
Tulsa, OK 74104
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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