Combatant Status and Computer Network Attack

Full Title of Reference

Combatant Status and Computer Network Attack

Full Citation

Sean Watts, Combatant Status and Computer Network Attack, 50 Va. J. Int'l L. 391 (2010). Web SSRN

BibTeX

Categorization

• Actors and Threats: States
• Issues: Cyberwar
• Approaches: International Law (including Laws of War)

Key Words

Cyber Warfare, International Humanitarian Law, Computer Network Attack, Combatant Status, State Affiliation, Civilian Participation, Geneva Conventions

Synopsis

The national security implications of computer network attacks (CNA) have become far-reaching and have prompted major adjustments to our nation’s defense structure and strategy. One of the current President’s early executive acts created a national Cyberczar to coordinate U.S. defenses against CNA. Meanwhile, the Department of Defense has recognized cyberspace as a realm of combat operations equivalent in importance to land, sea and space, creating a new Cyber Command believed to be capable of launching offensive CNA. This Article examines the critical question of combatant status in such CNA – specifically, who, under the existing law of war, may lawfully participate in CNA? Existing accounts evaluate combatant status in CNA under traditional criteria applicable to kinetic and line-of-sight warfare. This Article argues such approaches are outmoded and induce states to engage in practices that amount to no more than empty formalism. With historical, textual, and normative analysis, this Article argues that state sanction or imprimatur is an appropriate standard for evaluating combatant status in CNA. The analytical framework proposed not only aligns with existing law and emerging state practice, but may also resolve the question of status in other remote combat engagements.

In the face of conflicting evaluations of the adequacy of existing law, state affiliation charts a course responsive to both textual and normative considerations. As a threshold for combatant status in CNAs, state affiliation enjoys solid textual support, appearing as a precondition in well over a century of positive law. In the same way that war evolved to render the Treaty of London criteria for merchant shipping attacks irrelevant, state practice has proved or soon will prove that the Geneva criteria are an outmoded test for evaluating combatant status in CNA. If the law of war is to continue to regulate the boundaries of the combatant class, resort to criteria tailored to the realities of combat should displace tradition-bound prerequisites. Normatively, state affiliation serves the long-standing principles of distinction and discipline among combatants, while doing so with minimal disruption to existing state practice. Further, adjusting the combatant threshold to account for the realities of CNAs may serve as a first step to reevaluating lawful participation in hostilities in other forms of remote warfare.

Additional Notes and Highlights

Expertise Required: Law - Moderate

Blog Post: A critique of this reference by Geoffrey Corn

Blog Post: A response to Geoffrey Corn's critique by Sean Watts