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 questions that arise upon the arrival of new weaponry on the battlefield often look alike. The central question is: Is pre-existing IHL applicable to newly developed means and methods of warfare that find no explicit mentioning in the established legal order? The answer is yes. The law of armed conflict is flexible enough to accommodate new technological developments. (2) This was envisaged already by the so-called Martens Clause; it is implied by Article 36 of Additional Protocol I; and it was confirmed by the International Court of Justice when the Court considered the legality of nuclear weapons. (3) The various rules and prohibitions arising, for example, out of the principle of distinction do not depend on the type of weapon or the specific method used. Unquestionably, they also apply to cyber warfare and computer network attacks.
Still, subsuming a new technology under pre-existing rules naturally raises the question of whether this is sufficient in terms of legal clarity and in view of the new technology's specific characteristics. As far as the conduct of hostilities in and via cyberspace is concerned, this assessment is ongoing. Visible or readily discernible state practice is still scarce. The military potential of computer network attacks is only now starting to be fully explored, and it is difficult to assess how realistic or likely the theoretical worst-case scenarios that are contemplated in the literature--e. …