Revisiting Belligerent Reprisals in the Age of Cyber

29 Pages Posted: 16 Jan 2019

See all articles by David A. Wallace

David A. Wallace

United States Military Academy, West Point

Shane Reeves

United States Military Academy, West Point

Trent Powell

Government of the United States of America - The Judge Advocate General's Legal Center and School

Date Written: 2018

Abstract

This article critically explores the legal landscape of belligerent reprisals and considers whether the use of these measures is a viable enforcement mechanism under International Humanitarian Law (IHL) in the context of cyber operations. Because of the layered approach to this inquiry, the article has seven parts that build upon each other. Part II of the article provides an overview of the history of belligerent reprisals under IHL. Part III discusses belligerent reprisals in the context of today's understanding of IHL. Part IV further explores cyber operations and belligerent reprisals. Countermeasures (at one time known as peacetime reprisals) under the law of state responsibility forms the basis of Part V. Part VI provides an analytical framework for considering how cyber means and methods could effectively facilitate an expand use of belligerent reprisals for some States under certain conditions. Additionally, this section serves as the lens for re-examining the propriety and practicality of breathing life back into this controversial enforcement mechanism under IHL. Lastly, Part VII summarizes and concludes the article.

Keywords: law of armed conflict, international humanitarian law, reprisals, cyber space, cyber warfare, cyber operations, countermeasures, jus in bello

JEL Classification: K33

Suggested Citation

Wallace, David A. and Reeves, Shane and Powell, Trent, Revisiting Belligerent Reprisals in the Age of Cyber (2018). Marquette Law Review, Vol. 102, No. 1, Fall 2018. Available at SSRN: https://ssrn.com/abstract=3311795

David A. Wallace

United States Military Academy, West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

Shane Reeves (Contact Author)

United States Military Academy, West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

Trent Powell

Government of the United States of America - The Judge Advocate General's Legal Center and School

600 Massie Road
Charlottesville, VA 22903-1781
United States

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