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* MN Schmitt (ed), ''Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations'' (CUP 2017)
* MN Schmitt (ed), ''Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations'' (CUP 2017)

[[Category:International armed conflict]]

Revision as of 12:16, 12 October 2018

Definition

International armed conflict
The law of international armed conflict (IAC) applies to any armed confrontation between two or more States.[1] Some scholars have suggested that the fighting must be of a certain intensity before international humanitarian law (IHL) comes into effect,[2] but the prevailing view is that any “resort to armed force between States”,[3] however brief or intense, triggers the application of IHL.[4] The law does not prescribe any specific form for the resort to force.[5] Consequently, the hostilities between the belligerent States may involve any combination of kinetic and cyber operations, or cyber operations alone.[6]

It is unclear what effect would cyber operations unaccompanied by any use of kinetic force have to have in order for IHL to apply. Although it is generally accepted that if cyber operations have similar effects to classic kinetic operations and two or more State actors are involved, the resulting situation would qualify as an IAC,[7] the law is unsettled on whether cyber operations that merely disrupt the operation of military or civilian infrastructure amount to a resort to armed force for the purposes of IHL.[8]

In the cyber context, States often act through non-State intermediaries and proxies (see also attribution). If that is the case at the outset of an armed confrontation, the relevant State must exercise sufficient degree of control over the non-State entity that commences hostilities against another State for the situation to qualify as an IAC. However, the correct legal test to use in this regard is subject of an ongoing controversy.[9]

Two specific standards have emerged in international jurisprudence. The higher of the two is the “effective control” test, which requires that the State must exercise control over the entire course of the operations in question.[10] By contrast, the “overall control” test is less demanding, requiring only that the State provides some support and that it participates in the organization, co-ordination, or planning of the relevant operations.[11] According to the now prevailing view, the “effective control” test is the controlling test for the purposes of attribution under the law of State responsibility, but the “overall control” test is the correct one for conflict qualification under IHL.[12] This is also confirmed by decades of consistent practice by international criminal tribunals including the ICTY, the ECCC, and the ICC.[13]

Appendixes

See also

Notes and references

  1. ↑ Common Article 2 to the Geneva Conventions (stipulating that the Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties”).
  2. ↑ See, eg, C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), The Handbook of International Humanitarian Law (2nd edn, OUP 2008) 48; ILA Use of Force Committee, Final Report on the Definition of Armed Conflict in International Law (2010) 32; GD Solis, The Law of Armed Conflict: International Humanitarian Law in War (2nd edn, CUP 2016) 162.
  3. ↑ Prosecutor v Tadić (Decision on Jurisdiction) IT-94-1-AR72 (2 October 1995) [70].
  4. ↑ See, eg, JS Pictet (ed) Geneva Convention IV relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC 1958) 20–21; Y Sandoz, C Swinarski, and B Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 35; R Provost, International Human Rights and Humanitarian Law (CUP 2002) 250; JK Kleffner, ‘Scope of Application of International Humanitarian Law’ in D Fleck (ed), The Handbook of International Humanitarian Law (3rd edn, OUP 2013) 45; A Clapham, ‘Concept of International Armed Conflict’ in A Clapham, P Gaeta, and M Sassòli (eds), The 1949 Geneva Conventions: A Commentary (OUP 2015) 16 [38]; T Ferraro and L Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 79 [218]; N Zamir, Classification of Conflicts in International Humanitarian Law: The Legal Impact of Foreign Intervention in Civil Wars (Edward Elgar 2017) 53–55; K Mačák, Internationalization of Armed Conflicts in International Law (OUP 2018) 15–16.
  5. ↑ Cf. Legality of the Threat or Use of Nuclear Weapons Case (Advisory Opinion) [1996] ICJ Rep 226, para. 89 (holding that the relevant rules of IHL apply “to all international armed conflict, whatever type of weapons might be used”) (emphasis added).
  6. ↑ Tallinn Manual 2.0, commentary to rule 82, para. 11.
  7. ↑ T Ferraro and L Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 92, para. 255.
  8. ↑ T Ferraro and L Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 92, para. 256.
  9. ↑ See further K Mačák, Internationalization of Armed Conflicts in International Law (OUP 2018) 39–47.
  10. ↑ See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, paras. 112–15; see further K Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 421.
  11. ↑ Prosecutor v Prlić et al (Trial Judgment) IT-04-74-T (29 May 2013), para. 86(a).
  12. ↑ Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para. ___; ; but see T Ferraro and L Cameron, ‘Article 2: Application of the Convention’, in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 99 [271] (arguing that overall control is the controlling test in both contexts).
  13. ↑

Bibliography and further reading

  • MN Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017)
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