KUDLÁČKOVÁ, Ivana, Jakub HARAŠTA and David WALLACE. Cyber Weapons Review in Situations Below the Threshold of Armed Conflict. In T. Jančárková, L. Lindström, M. Signoretti, I. Tolga, G. Visky. 2020 12th International Conference on Cyber Conflict 20/20 Vision: The Next Decade. Tallinn: NATO CCDCOE Publications, 2020. p. 97-112, 380 pp. ISBN 978-9949-9904-7-4.
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Basic information
Original name Cyber Weapons Review in Situations Below the Threshold of Armed Conflict
Authors KUDLÁČKOVÁ, Ivana (203 Czech Republic, guarantor), Jakub HARAŠTA (203 Czech Republic, belonging to the institution) and David WALLACE (840 United States of America).
Edition Tallinn, 2020 12th International Conference on Cyber Conflict 20/20 Vision: The Next Decade, p. 97-112, 380 pp. 2020.
Publisher NATO CCDCOE Publications
Other information
Original language English
Type of outcome Proceedings paper
Field of Study 50501 Law
Country of publisher Estonia
Confidentiality degree is not subject to a state or trade secret
Publication form electronic version available online
WWW Text sborníku Text příspěvku
Organization unit Faculty of Law
ISBN 978-9949-9904-7-4
Keywords in English cyber weapons; software; legal review; art. 36 of Additional Protocol I; human rights
Tags International impact, Reviewed
Changed by Changed by: JUDr. Mgr. Jakub Harašta, Ph.D., učo 323070. Changed: 19/10/2020 09:41.
Abstract
The use of cyber weapons raises many issues, one of which is the scope of legal requirements affecting the legal review of cyber weapons under Additional Protocol I and customary international law. This paper explores the review of cyber weapons intended for use below the threshold of armed conflict. As the line between war and peace is often increasingly blurred and the majority of cyber incidents are below the threshold of armed conflict, the laws and principles of international humanitarian law do not apply. In this paper, we engage in a scenariobased thought experiment exploring the legal framework affecting the use of cyber weapons outside armed conflict. In such situations, the well-known article 36 of Additional Protocol I and customary international law are not triggered. As a result, there is no explicit legal obligation to conduct a cyber weapons review in situations when cyber weapons are deployed in situations falling below the threshold of armed conflict. Our starting point is that even though international humanitarian law is not applicable, the use of cyber weapons is not completely unregulated. In the paper, we search for answer to following research question: what are the legal requirements for weapons review in situations where their intended use is for situations below the threshold of armed conflict? We identify the black-letter legal framework and explore the state practice of NATO member states where available. The paper argues that there are many obligations to be considered when deploying cyber weapons in situations below the threshold of armed conflict. The conclusion is that there is no obligation to conduct a review outside Article 36 of Additional Protocol I. That being said, there are definitely policy benefits in conducting broader software assessment to ensure respect to international law obligations of a state.
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EF16_019/0000822, research and development projectName: Centrum excelence pro kyberkriminalitu, kyberbezpečnost a ochranu kritických informačních infrastruktur
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