A New Frontier: Defining Cyber-Attack and the Ramifications for Jus ad Bellum and Jus in Bello Law

2017 ◽  
Author(s):  
Braydon Roberts
2018 ◽  
Vol 60 (1) ◽  
pp. 203-237
Author(s):  
Nicholas Tsagourias ◽  
Russell Buchan

Automatic cyber defence describes computer operations to neutralise a cyber attack. Once a system detects that it is under cyber attack, it automatically launches offensive cyber operations that pursue the attacker back to its own network with the objective of rescuing stolen data or disabling or destroying the computer hardware and software that is responsible for hosting and distributing the attacking code. The aim of this article is to examine the legality of automatic cyber defence under the law regulating the use of force in international law (jus ad bellum) and under international humanitarian law (jus in bello). Thus, the first part of this article examines automatic cyber defence in the context of the jus ad bellum by considering the legal requirements of an armed attack, necessity, and proportionality. In the second part, it examines the jus in bello aspects of automatic cyber defence and, in particular, whether it triggers an international or a non-international armed conflict and, if so, whether it can comply with the principles of distinction and proportionality.


2012 ◽  
Vol 45 (1) ◽  
pp. 107-124 ◽  
Author(s):  
Raphaël van Steenberghe

Proportionality is a condition provided under both jus ad bellum and jus in bello. Based on a particular interpretation of state practice and international case law, recent legal literature argues that the two notions of proportionality are interrelated in that proportionality under jus in bello is included in the assessment of proportionality under jus ad bellum. This article seeks to refute such a position and, more generally, to clarify the relationship between the two notions of proportionality.The main argument of the article is in line with the traditional position regarding the relationship between jus ad bellum and jus in bello. It is argued that, although sharing common features and being somewhat interconnected, the notions of proportionality provided under these two separate branches of international law remain independent of each other, mainly because of what is referred to in this article as the ‘general versus particular’ dichotomy, which characterises their relations. Proportionality under jus ad bellum is to be measured against the military operation as a whole, whereas proportionality under jus in bello is to be assessed against individual military attacks launched in the framework of this operation.This article nonetheless emphasises the risk of overlap between the assessments of the two notions of proportionality when the use of force involves only one or a few military operations. Indeed, in such situations, the ‘general versus particular’ dichotomy, which normally enables one to make a distinct assessment between the two notions of proportionality, is no longer applicable since it becomes impossible to distinguish between the military operation as a whole and the individual military attacks undertaken during this operation.


2015 ◽  
Vol 84 (1) ◽  
pp. 3-28 ◽  
Author(s):  
James A. Green ◽  
Christopher P.M. Waters

For self-defence actions to be lawful, they must be directed at military targets. The absolute prohibition on non-military targeting under the jus in bello is well known, but the jus ad bellum also limits the target selection of states conducting defensive operations. Restrictions on targeting form a key aspect of the customary international law criteria of necessity and proportionality. In most situations, the jus in bello will be the starting point for the definition of a military targeting rule. Yet it has been argued that there may be circumstances when the jus ad bellum and the jus in bello do not temporally or substantively overlap in situations of self-defence. In order to address any possible gaps in civilian protection, and to bring conceptual clarity to one particular dimension of the relationship between the two regimes, this article explores the independent sources of a military targeting rule. The aim is not to displace the jus in bello as the ‘lead’ regime on how targeting decisions must be made, or to undermine the traditional separation between the two ‘war law’ regimes. Rather, conceptual light is shed on a sometimes assumed but generally neglected dimension of the jus ad bellum’s necessity and proportionality criteria that may, in limited circumstances, have significance for our understanding of human protection during war.


Author(s):  
Daniel R. Brunstetter

Limited force—no-fly zones, limited strikes, Special Forces raids, and drones strikes outside “hot” battlefields—has been at the nexus of the moral and strategic debates about just war since the fall of the Berlin Wall but has remained largely under-theorized. The main premise of the book is that limited force is different than war in scope, strategic purpose, and ethical permissions and restraints. By revisiting the major wars animating contemporary just war scholarship (Kosovo, Afghanistan, Iraq, the drone “wars,” and Libya) and drawing insights from the just war tradition, this book teases out an ethical account of force-short-of-war. It covers the deliberation about whether to use limited force (jus ad vim), restraints that govern its use (jus in vi), when to stop (jus ex vi), and the after-use context (jus post vim). While these moral categories parallel to some extent their just war counterparts of jus ad bellum, jus in bello, jus post bellum, and jus ex bello, the book illustrates how they can be reimagined and recalibrated in a limited force context, while also introducing new specific to the dilemmas associated with escalation and risk. As the argument unfolds, the reader will be presented with a view of limited force as a moral alternative to war, exposed to a series of dilemmas that raise challenges regarding when and how limited force is used, and provided with a more precise and morally enriched vocabulary to talk about limited force and the responsibilities its use entails.


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