provisions form the basis of a legal regime that both defines inappropriate conduct related to IW, and provides for reparations or other compensation to affected nations.
After a cyber attack rises to the level of an armed attack, an international security system is activated combining elements of IHL and IHRL.250 Both regimes have much to offer in forming a final regulatory system. For example, it may be possible to graft on IHL’s proportionality principle to IHRL. A solely human rights framework is insufficient since it would not address the relative importance of objects and people, or the proportionate assessment regarding the number of non-combatant casualties. Moreover, command responsibility is well-established under IHL – commanders should apply the same IHL principles to computer attacks that they do to the use of bombs and missiles.251 Another important distinction between IHRL and IHL in terms of controlling the use of force is that the former seeks review of every use of lethal force by agents of the state, while the latter is based on the premise that force will be used and humans intentionally killed. In practical terms, a human rights supervisory framework works to limit the development and use of a shoot-to-kill policy, whereas IHL is directed toward controlling how such a policy is implemented.252
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
250 Given the degree of interaction between IHRL and IHL and their sharing of many functional principles, it may become more and more difficult to suggest that human rights bodies should not apply alongside principles of IHL during armed attacks. States, after all, do exercise internal governance during armed conflict. Watkin, supra note 93. Theodor Meron has noted that “because human rights law, or at a minimum its non-derogable core, continues to apply in times of armed conflict, gaps in protection under the law of war can be filled in some circumstances.” Id. There is an ongoing tension between efforts to incorporate humanitarian standards into non-international armed conflicts and the view of states that such conflicts involve the legitimate suppression of criminal activity. Id. The challenge lies in separating incidents that are simply criminal in nature from those that form part of the armed conflict.
251 Reynolds, supra note 191.