Expert manuals play an increasingly important role on the development of international law into new areas and environments. While not formally a source of law themselves, their influence on those involved in the development and construction of more formal sources of law takes place on multiple levels and in a variety of ways. This contribution explores some of the different elements that effect the influence these manuals wield. The selection of experts, their qualifications, diversity and ability to adapt to new environments and technological domains is a core components of this influence. Likewise the methodology used by the manual, the attempt to separate lex lata from lex ferenda and the method of representing differing views within the group will all have an impact on its subsequent influence. Manuals will continue to play a valuable role in the development of international law, by influencing the decision of policy makers, treaty negotiators and others, particularly in an era characterised by lack of agreement between states and stagnation of formal law making processes in emerging domains.
The information revolution has transformed both modern societies and the way in which they conduct warfare. Cyber Warfare and the Laws of War analyses the status of computer network attacks in international law and examines their treatment under the laws of armed conflict. The first part of the book deals with the resort to force by states and discusses the threshold issues of force and armed attack by examining the permitted responses against such attacks. The second part offers a comprehensive analysis of the applicability of international humanitarian law to computer network attacks. By examining the legal framework regulating these attacks, Heather Harrison Dinniss addresses the issues associated with this method of attack in terms of the current law and explores the underlying debates which are shaping the modern laws applicable in armed conflict.
Chapter 8 continues the exploration of issues raised by human enhancement technologies. Building on the discussion in the previous chapter, this contribution begins by examining the question of whether and under what circumstances we might consider that individuals who enhance their natural abilities might be considered something other than human – and what that might mean for their treatment under the law. Biochemical enhancement, cybernetic technologies such as brain machine interfaces and advances in prosthetic technologies all have the capacity to alter and augment the human experience and raise interesting challenges for the law. This chapter looks specifically at the application of the laws of armed conflict (international humanitarian law) in relation to these techniques and the effects of human rights law in an age of enhanced humans – whether they be civilian or military personnel. Clear synergies also exist with the discussions in Chapter 13 on brain-machine interfaces. Attention is given in the final section to questions as to the adequacy of the current rights frameworks and as to the distinction between national and international systems.
The current focus on an ever-increasing sophistication of weapons systems usually overlooks efforts of states to enhance the physical and mental capabilities of human soldiers. While such techniques and technologies have a long history (e.g. the use of drugs and alcohol in order to overcome fear and fatigue; the use of night-vision goggles etc.), they have attained a new quality. For instance, certain armed forces are introducing wearable robotics suit (Powered exoskeletons). Furthermore, the development of military applications of brain-computer interfaces continues, which would allow for direct communication between a human brain and a computer – and eventually vice-versa. These technologies raise a number of pertinent international legal issues, such as: What are the potential consequences for compliance with the rules and principles of the law of armed conflict? What implications may such technologies have for the accountability of states and individuals? And what would the use of such technologies mean for the human rights of the human soldier?
Cyber warfare and the advent of computer network operations have forced us to look again at the concept of the military objective. The definition set out in Article 52(2) of Additional Protocol I – that an object must by its nature, location, purpose or use, make an effective contribution to military action – is accepted as customary international law; its application in the cyber context, however, raises a number of issues which are examined in this article. First, the question of whether data may constitute a military objective is discussed. In particular, the issue of whether the requirement that the definition applies to ‘objects’ requires that the purported target must have tangible or material form. The article argues on the basis of both textual and contextual analysis that this is not required, but it contends that it may prove to be useful to differentiate between operational- and content-level data. The second part of the article examines the qualifying contribution of military objectives such as their nature, location, purpose or use, and questions whether network location rather than geographical location may be used as a qualifying criterion in the cyber context. The final part of the article addresses the question of whether the particular ability of cyber operations to effect results at increasingly precise levels of specificity places an obligation on a party to an armed conflict to define military objectives at their smallest possible formulation – that is, a small piece of code or component rather than the computer or system itself. Such a requirement would have significant implications for the cyber context where much of the infrastructure is dual use, but the distinction between civilian objects and military objectives is a binary classification.
This chapter discusses the legal issues raised by the use of cyber operations during armed conflict.
Although none of the laws governing the conduct of hostilities address cyber operations explicitly, the laws are framed in general terms that may be interpreted to incorporate technological advances. This chapter thus explores the way in which those laws may be adapted and applied.
The chapter first considers the general applicability of the jus in bello to cyber operations. It then turns to the crucial principle of distinction, and assesses how this is to be applied in the cyber context. In particular, this section of the chapter assesses what may be targeted i.e., what constitutes a ‘military objective’, the issue of ‘dual use’ objects in the cyber context and the prohibition on indiscriminate attacks. The chapter then considers the various ways in which the principle of precaution may be relevant to cyber-attacks. It also provides an examination of a number of jus in bello requirements for measures of special protection, and assesses how these rules are relevant to cyber warfare. The final section turns to IHL’s restrictions on the ‘means and methods’ of warfare, including – but not limited to – the law of weaponry.
Advances in technologies that could endow humans with physical or mental abilities that go beyond the statistically normal level of functioning are occurring at an incredible pace. The use of these human enhancement technologies by the military, for instance in the spheres of biotechnology, cybernetics and prosthetics, raise a number of questions under the international legal frameworks governing military technology, namely the law of armed conflict and human rights law. The article examines these frameworks with a focus on weapons law, the law pertaining to the detention of and by “enhanced individuals,” the human rights of those individuals and their responsibility for the actions they take while under the influence of enhancements.