Overview

The growth of cyberspace is posing challenges to many aspects of the international system and foremost among them is the current Law of Armed Conflict (LOAC) paradigm. While humanitarian concerns have strongly influenced recent LOAC development, state interests-and not humanitarian concerns-ultimately determine how states conduct war. Accordingly, states will continually explore and consider the nascent opportunities presented by cyberspace to determine whether cyberspace operations enables them to more easily or efficiently achieve their political objectives. In doing so, state practice will challenge many of the current LOAC provisions. Chief among these are rules regarding combatantcy and targeting of civilians. The rules concerning combatantcy developed because the state controlled a monopoly on the use of force and could only employ this force effectively through an organized military structure. However, the unique aspects of cyberspace challenges both the monopoly states have on the use of force and the need to employ that force through an organized military structure. Similarly, the rules concerning the targeting of civilians developed after states concluded that targeting civilians did not ultimately further their political objectives However, cyberspace provide states the opportunity to target civilians in a more efficient and less directly violent manner.This compilation includes a reproduction of the 2019 Worldwide Threat Assessment of the U.S. Intelligence Community.As the importance of cyberspace and cyber operations have increased, so have the attempts to place them within the current Law of Armed Conflict (LOAC) paradigm. Most notable is the Tallinn Manual on the International Law Applicable to Cyber Warfare. These efforts provide valuable insight into how the current LOAC paradigm generally applies, or should apply, to military cyber operations. However, these efforts also acknowledge that cyberspace provide unique challenges and thus there is significant uncertainty as to how it specifically applies in various situations due to the lack of treaties, state practice or official public statements on military cyber operations. While the efforts to define how the current LOAC paradigm applies to military operations in cyberspace is important, they often overlook the more fundamental fact that cyberspace will alter the ways states fight wars and, as a result, will threaten the current LOAC paradigm. Since a full assessment of that subject far exceeds what can be addressed here, this paper will instead narrowly focus on the potential impact cyberspace may have on the rules regarding both combatancy and targeting civilians. This paper is broken down into three sections. First, we will briefly look at the factors that drive the LOAC development with focus on why cyberspace will challenge the current paradigm. Second, we will look at the factors that drove combatant status development under LOAC and how the unique characteristics of cyberspace challenge this foundation. Finally, we will look at how the protection of civilian developed under LOAC and how cyberspace could weaken this protection.

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