complex than this simple division of responsibilities.222 For example, IHRL does apply during armed conflicts, as the ICJ decided in the Nuclear Weapons Advisory Opinion, whereas determining whether there has been an arbitrary deprivation of the right to life is determined by IHL acting as lex specialis.223 There is now an elaborate system of law of war treaties governing many aspects of the conduct of modern warfare, from permissible weapons to the treatment of POWs and non-combatants.224 A gap in the literature to date is whether these regimes also apply to IW.
Applying IHL to Cyber Attacks
To enable IHL to regulate contemporary armed conflict effectively, it must set forth realistic rules governing the use of deadly force that reflect the levels of violence and the nature of the threat posed to society. There are several IHL norms that are due special consideration in the IW context. These include: (1) the paramount distinction between combatant and non-combatants; (2) between civilian and military infrastructure; (3) and the prohibition against disproportionate attacks. Each norm will be addressed in turn.
First is the distinction between combatants and non-combatants. Only members of a nation’s regular armed forces are entitled to use force against the enemy according to the combatant privilege enshrined in the Hague Conventions.225 Combatants must follow laws of war, but failing to do so does not remove “combatant” status.226 Given the absence of traditional combatant status including the wearing of identifying insignia in IW, would the Hague Conventions apply to captured cyber attackers? The language of
223 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226.
224 The U.S., for example, is party to 18 law of war treaties.
225 Protocol I, Art. 43.
226 Protocol I, Art. 44.