succeeded in bringing the entire country to a halt, ruining the economy, and leading to widespread unrest, rioting, and potentially a spate of tragic deaths.
The Intersections of International Humanitarian and Human Rights Law
In order to determine what combination of IHL and IHRL should be considered in grafting a legal regime to deal with cyber attacks that rise to the level of an armed attack, it is necessary to investigate the intersections in these two distinct bodies of law. International human rights law and international humanitarian law differ in their formulation, structure, application, and enforcement. Rene Provost has argued that the distinctions between the two regimes are far from merely “semantic and contextual,”215 but areas of overlap exist. Since WWII, increased international consensus has led to the establishment of numerous norms and standards in both human rights and humanitarian law aimed at better protecting human integrity. The question then naturally arises, is each system a clearly-defined, or amorphous, legal entity crafted to meet specific and distinct societal needs during peace and armed conflict?
The unique threat posed by non-state actors, combined with the lack of a consensus on the legal categorization of conflict, creates conditions in which the criminal law enforcement and armed conflict paradigms overlap. This overlap affects the applicability of human rights law, which is most commonly associated with law enforcement, and humanitarian law, which applies during armed conflict.216 Human rights conventions generally do not impose obligations on individuals. Though if there is an applicable treaty or erga omnes customary law obligation, then states must protect
215 Rene Provost, Aid and Intervention: International Human Rights and Humanitarian Law 343 (2002).
216 Watkin, supra note 93.