From munitions to malware : a comparative analysis of civilian targetability in cyber conflict
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Journal of law and cyber warfare, Vol. 7, no. 2, 2019, p. 30-66
Warfare is no longer limited to the bounds of physical space. Modern conflict now takes place not only on land, in air, or at sea, but also in cyberspace. While the international community has established widely accepted conventions governing armed conflict, including those designed to protect civilians, these conventions primarily apply to and envision scenarios embracing conventional warfare. The application of such conventions to conflicts in cyberspace raises novel questions, particularly questions regarding the targetability of civilians directly participating in cyber hostilities. This article proceeds to examine and compare the proposed standards for direct civilian participation in cyber hostilities as promulgated by the ICRC's Interpretive Guidance and the Tallinn Manual 2.0. Specifically, this article addresses the course of conduct that a civilian must undertake before he or she is considered a direct participant in a cyber hostility. Upon laying this groundwork, the article then addresses the issue of duration—the time in which a civilian is considered a direct participant in hostilities and thus, targetable by his or her adversary. In applying the standards of both the ICRC's Interpretive Guidance and the Tallinn Manual 2.0 to hypothetical scenarios involving the direct participation of civilians in cyber hostilities, the article aligns itself with a position advocated by the Tallinn Manual experts—that addressing the duration of direct civilian participation in cyber hostilities is superior because it properly considers the realities of modern conflict and effectively balances military necessity with humanitarian considerations.