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The purpose of this Chapter is to establish when the law of armed conflict applies to cyber operations. As conventional jus in bello does not provide a general definition of ‘armed conflict’ but merely distinguishes between different types of armed conflicts to which different sets of rules apply, these types of conflict are addressed in turn. First, the Chapter focuses on international armed conflicts and distinguishes between several scenarios that might lead to the application of the jus in bello to cyber operations. In particular, both cyber operations in the context of an existing traditional armed conflict and standalone cyber operations are discussed in order to establish whether international humanitarian law applies to them. The Chapter also deals with cyber operations in the context of belligerent occupation. Cyber operations in and as non-international armed conflicts are then examined, before turning to cyber operations as internal disturbances and tensions.

The focus of this chapter is on the law of armed conflict and as such, analyses the influence of international humanitarian law (IHL) on the rules on the use of force, discussing the implementation of specific elements of IHL, in particular the principle of distinction in the rules of engagement (ROE) which authorize the use of force against persons and objects. Further, in discussing the principle of distinction, specific attention is given to the role of ROE as regards targeting persons and objects, including the concept of direct participation in hostilities and the difference between status-based targeting and behaviour-based targeting. This chapter will also explore other elements of the principles of IHL, such as proportionality and precautions in attack.

This chapter examines two legal models for combating transnational terrorism: extraterritorial law enforcement and transnational counterterrorist military operations. It challenges conventional opinion that military operations against transnational terrorists which do not fall neatly within the state-centric conflict categories derived from the Geneva Conventions should be treated as extraterritorial law enforcement activities. It argues that the humanitarian law framework must be extended to counterterrorist military operations by appealing to core historical principles of humanitarian law and to military protocol, namely, the mandate in the U.S. Department of Defense Law of War Program to “comply with the principles of the law of war during all military operations.” It contends that it is invalid and disingenuous to characterize counterterror military operations employing combat power under a “deadly force as a first resort” authority as extraterritorial law enforcement. The chapter also considers the underlying nature and purpose of the existing law-triggering paradigm, the different nature of the authority derived from the law of armed conflict compared to the law enforcement framework, and the importance of maintaining a clear distinction between jus ad bellum and jus in bello.

This chapter introduces the central aim of this book: to provide a comprehensive examination of the notion, process, and effects of internationalization of armed conflicts in international law. It presents a brief research overview, outlining the scope of the enquiry, the research methodology, and the structure of the book. It then lays out the conceptual and normative framework for the rest of the book. To that end, it first justifies the need for the present study by confirming the continuing distinction between international and non-international armed conflicts in international law. Then, it puts forward a conception of internationalization that expresses the legal transformation from a non-international to an international armed conflict.

This chapter identifies the moral norms applicable to killing in armed conflict and determine whether and to what extent the law of armed conflict (LOAC) and international criminal law (ICL) track these moral norms, and justifiably or unjustifiably depart from them. Section 1 explores the moral and legal norms governing the killing of civilians not directly participating in hostilities, both as an intended means and as a foreseen side effect. It defends one account of these norms against important philosophical challenges by Thomas Scanlon, Victor Tadros, Frances Kamm, and Jeff McMahan. It argues that these moral norms are best understood and defended using the distinctions drawn in criminal law theory between wrongdoing, justifiability, and justification. The remainder of the chapter examines the moral and legal norms governing the killing of civilians directly participating in hostilities as well as of members of armed forces and organized armed groups. Section 2 identifies the conditions under which individuals lose their moral immunity from direct attack, partly by critically examining an analogy drawn by Jeff McMahan between these conditions and the legal doctrine of criminal complicity.

The chapter explores the temporal scope of the law of armed conflict in multinational military operations. In particular, it is discussed under which conditions armed conflicts begin and terminate as a matter of international humanitarian law (IHL). Asymmetric conflict structures, fluctuating levels of violence, and the involvement of a multitude of state and non-state actors who enter and leave the battlefield at different stages during the hostilities make it especially difficult to determine the end of an armed conflict. Often, periods of intense fighting alternate with periods of relative calm. It is therefore argued that two requirements should be satisfied before an armed conflict within the meaning of IHL ought to be considered over: the situation must fall below a certain qualitative threshold separating the armed conflict from the post-conflict phase; and the threshold must be crossed with a degree of stability and permanence.

This chapter situates counterinsurgency and the evolving character of war against the growing juridification of warfare. It introduces important concepts of the law of armed conflict and international human rights law, positions counterinsurgency theory and practice within war, and illustrates the intersection of key legal and military principles. The general picture to emerge is one of alleged gaps in legal and military doctrine. The synergy, and tension, of international law with war is arguably most apparent in counterinsurgency. The legal issues are examined against the backdrop of the recalibration of US national security focus from the War on Terror to counterinsurgency. Debates about successful counterinsurgency and relevant law are said to have converged around the weight to be afforded to killing and capturing, and determining whether civilians are directly participating in hostilities

The interplay between law and rhetoric forms an important backdrop for analyzing international legal norms governing state response to cyber threats. First, the term “cyberwar” or “cyberwarfare” is used to connote a wide range of actual and potential cyber activities or threats across a broad spectrum of activity. This chapter highlights the consequences of “war” rhetoric in the cyber realm, with specific reference to lessons from the past decade of counterterrorism. It then analyzes the consequences of the term “cyber attack,” focusing on both the jus ad bellum concept of “armed attack” and the law of armed conflict definition of “attack,” particularly with regard to blurring the notion of “attack” into one unspecified and extensive term conflating two or more legal concepts. Each of these results has significant ramifications for the application of international law, the preservation of the international system, and the protection of persons during times of conflict.

The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e. the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one, and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint. What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC might have transformed into an IAC because of Russia’s overall control of these non-State actors.

Gabriella Blum provides a broad conceptual account of the phenomenon described in the previous chapter. Blum asks us to understand the expansion of the law of war in terms of a shift from “collectivism” to “cosmopolitanism.” In this account, from the end of the nineteenth century and through much of the twentieth, the legal regulation of war operated on the level of the “collective”— that is, through a “state-oriented set of obligations, which viewed war as an intercollective effort.” More recently, however, the law of war has moved toward embracing the commitments of “cosmopolitan individualism,” a theory that understands rights as vested in individuals “regardless of national affiliation or territorial boundaries.” Blum argues that this shift has worked to unsettle and destabilize the foundational distinctions upon which the law of war was predicated.

This chapter examines the assertion that the traditional law of armed conflict should be amended to allow fighters from nonstate entities who would not otherwise meet the requirements for combatant status to gain that status if they comply with the law-of-war requirements for combatants. It argues that no new status designation category is required, and instead calls for a broader interpretation of existing language in the 1977 Protocol Additional I to the Geneva Conventions to account for fighters who purposely attack from within civilian populations or use civilian status to frustrate targeting efforts. It further contends that on the contemporary battlefield “actual harm” is too narrow when defining “direct participation in hostilities,” and that criteria are necessary to address actions that may not cause “actual harm” but still make a person targetable. In this modernized view of “unlawful combatants” and “direct participation in hostilities,” the fighters are members of armed groups analogous to modern state militaries and civilians purposely attack from within civilian populations and hide behind their protected status to frustrate legitimate targeting efforts.

This chapter proposes a sovereign agency theory for reunifying the law of armed conflict (LOAC) in counterinsurgency operations. It begins with an overview of the current paradigm of LOAC applicability based on conflict characterization, including a historical background on the bifurcation of the LOAC into provisions regulating international armed conflicts (IAC) and non-international armed conflicts (NIAC). More specifically, it considers whether such bifurcation has been effective in curbing either the violence against victims of armed conflict or in promoting LOAC compliance by participants in armed conflict. It argues that states should apply the LOAC to their use of armed forces to apply sovereign force and outlines some benefits of the sovereign agency theory, including historical examples. Finally, the chapter suggests that the traditional international humanitarian law (IHL) dichotomy between IAC and NIAC causes confusion and, at times, a failure to apply core IHL protections to armed conflict.

This chapter examines who may be targeted in non-international armed conflicts (NIAC) in the context of contemporary counterinsurgency operations against non-state belligerents. It analyzes the International Committee of the Red Cross's (ICRC) study called Interpretative Guidance on the Meaning of Direct Participation in Hostilities (DPH Study), which endorses the concept of “continuous combat function” (CCF) as a means of establishing direct participation in hostilities. The chapter first considers the law of armed conflict's categorization of civilians and belligerents before turning to a discussion of organizational membership and the implications of subordination to command and control for belligerents and civilians in any armed conflict. It then explains the difference between status- and conduct-based targeting and why the use of conduct undermines the extension of the DPH rule to define enemy belligerent forces. It presents a proposal of how to reconcile the DPH Study with status-based targeting presumptions to maintain the distinction between civilians and belligerents.

Sarah Sewall’s chapter appears to tell a familiar story about the tension between “law on the books” and “law in practice.” Law’s efficacy, Sewall insists, will always be measured by its capacity to restrain actual practice. If too wide a gap opens between norm and practice, the very integrity of law will be eroded, as regulations turn farcical. This, Sewall fears, will be the consequence of the growth and proliferation of new laws of armed conflict. On closer inspection, Sewall’s argument reveals itself to be narrowly tailored to the specific problems raised by the fraught effort to submit war to legal regulation. Sewall notes that the law of armed conflict (LOAC) is built on a paradoxical relationship to violence. At its most basic level, the LOAC authorizes the purposeful, premeditated killing of another person. In this regard, the LOAC serves not only as a restraint but also as an authorization.

This chapter considers the normative underpinnings of the present-day regulation of combatancy. It argues that a wholesale denial of combatant status to fighters in internationalized armed conflicts would be incongruous with the principles of distinction and equal application of the law. The chapter then considers specific objections against the extension of combatant status to non-state actors from the perspective of internationalized armed conflicts. It argues that although some of the objections carry certain weight in the context of traditional civil wars, their effect in internationalized armed conflicts is significantly weaker. The chapter thus shows that in principle, the availability of combatant status to fighters in internationalized armed conflicts is in accordance with the normative underpinnings of International Humanitarian Law.

This chapter focuses on Hamas’s use of “battlefield lawfare”—battlefield tactics designed to gain advantage from the greater leverage that the law of armed conflict (LOAC) and its processes exert over Israel than Hamas. Section I analyzes Hamas’s battlefield lawfare, including violating LOAC so as to elicit alleged Israeli violations of LOAC. Section II addresses claims that Israel itself has, usually in response to Hamas battlefield lawfare, violated LOAC. Section III describes Israeli military steps to protect itself against Hamas battlefield lawfare, including changes to Israeli battlefield tactics; enhancing Israel’s legal public diplomacy; expanding the role of military lawyers in Israel’s combat decision-making; enhancing Israel’s own investigations into alleged war crimes by its troops; and providing the press and public with data illustrating Israeli targeting decision-making. Section IV addresses broad lessons learned and the future of Hamas battlefield lawfare and Israeli responses.

States routinely define the principle of military necessity in doctrinal publications such as law of armed conflict (LOAC) military manuals. These definitions are based on a model of military necessity famously articulated by Francis Lieber and built upon by the American military tribunal at Nuremberg. Generations of armed forces members have been trained on this doctrinal definition of military necessity. But does it serve them well? This chapter closely examines doctrinal military necessity by breaking it down into its constituent elements, specifically as (a) a principle (b) that confers a right, permission, or justification (c) to use any military measures or force (d) required to defeat the enemy (e) as quickly and efficiently as possible (f) so long as such measures or force are not otherwise prohibited elsewhere in the LOAC. The chapter then explores these elements and reveals the deep practical and conceptual problems posed by each. The chapter concludes that doctrinal military necessity, as based on the Lieber/Nuremberg model, fails to serve the principal goal of military doctrine: to provide combatants with clear and direct guidance—in this case legal guidance—on warfighting. Consequently, the chapter recommends that states abandon the Lieber/Nuremberg model of military necessity and reformulate their doctrinal definitions to better attend to the needs of combatants.

This chapter considers the theoretical ramifications of extending the law of belligerent occupation to internationalized armed conflicts. It examines three logically connected assumptions that seemingly militate against its applicability to non-state actors. These could be summarized as claims that non-state actors lack the capacity to have rights and duties under the law of occupation; that they may not become subjects of the law of occupation due to their sovereignty deficit; and that in any event, they would be unable to comply with the rules of this body of law. The chapter argues that none of those obstacles is insurmountable in the context of internationalized armed conflicts. Overall, this chapter thus stands for the proposition that the law of belligerent occupation may in principle apply to those conflicts.

Some states (mainly the United States and Israel) intermingle the terms/principles of the law of armed conflicts/international humanitarian law regime and the regime of the law on the use of force in order to avoid legal constraints and to justify attacks against non-state armed groups in violation of the sovereignty of other states and the rights of particular persons. The counterterrorism strategy is created under the influence of legal arguments, and thus the recent trend of abusive interpretation of the regimes could encourage decision-makers to resort to military measures instead of using less intrusive instruments such as criminal cooperation. This tendency is more visible in times of crisis. States are then still interested in having legal justification for their actions, but they tend to see the role of law differently: the law is expected to serve the authorities, rather than to guide them, when the state’s fundamental interest—its security—is under threat.