Cyber neutrality : a textual analysis of traditional jus in bello neutrality rules through a purpose-based lens
Zachary P. Augustine
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The air force law review, Vol. 71, 2014, p. 69-106
Along with its benefits, military uses of cyberspace present a number of legal challenges, both internationally and domestically. One key challenge is the difficulty of gaining international consensus on whether traditional laws of armed conflict apply to cyber operations. This article analyzes one of the traditional international rules of armed conflict that might limit a primary benefit of cyber operations: the ability to deceive an adversary. The law of neutrality limits certain deceptive behavior in traditional armed conflict. Maneuvering military forces and weaponry along unexpected routes to surprise an enemy has been a staple of warfare throughout history and is a legitimate form of deception so long as the route does not pass through a neutralstate. Does this limitation also prevent maneuvering cyber “forces” or “weaponry” through a neutral state? This article highlights the key neutrality rules that are potentially relevant to activities in cyberspace and then analyze the applicability of these rules to a belligerent’s cyber operations. It discusses international standards of attribution and where those standards might present practical problems in applying neutrality rules to cyber activities. It then analyzes the potential neutrality implications of several recently reported malicious cyber activities and concludes that neutrality rules do place limits on deceptive cyber practices in an armed conflict. But, while individual belligerents generally have the ability to apply neutrality rules to their own conduct in the cyber domain, neutral states will have difficulty establishing neutrality violations by belligerents and will likely have to rely on notifications from the belligerents themselves.
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