Combatant Status: It Is Time for Intermediate Levels of Recognition for Partial Compliance

Under current international law, combatant status is an all-or-nothing proposition. Either a fighting force qualifies under all the criteria of article 4 of the GPW and receives all the privileges and immunities of combatant status, or a force does not qualify, and is provided no protection above that of any other civilian in the area, and may even be disqualified from the protections afforded to civilians. Given the reality of today\u27s battlefields where the conflict is seldom between the armed forces of two nations, these requirements are counterproductive and provide a disincentive for fighters to distinguish themselves from the civilian population. To remedy this counterproductive state of the law, the all-or-nothing nature of combatant status should evolve to allow for intermediate levels of recognition in response to partial compliance with the traditional combatant requirements. As those on the battlefield comply with portions of the combatant requirements, particularly that of distinguishing themselves from noncombatants, they should accrue privileges commensurate with their efforts. Providing intermediate levels of recognition for partial compliance will provide incentives for otherwise unlawful combatants to comply with international law without eroding the maximum benefits offered to those who comply with all requirements of combatant status

Emerging Technologies and LOAC Signaling

As States seek to weaponize new technologies such as robotics, cyber tools and nanotechnology, the current law of armed conflict (LOAC) that guides the employment of existing weapons will signal rules and principles that should guide national decisions on what new technologies to weaponize and how to do so in a way that ensures compliance with battlefield regulation. LOAC has served this signaling function historically with respect to innovative weapon systems such as balloons, submarines, airplanes, and nuclear weapons, and will continue to do so as nations look forward to potentially weaponizing emerging technologies

Combatant Status: It Is Time for Intermediate Levels of Recognition for Partial Compliance

Under current international law, combatant status is an all-or-nothing proposition. Either a fighting force qualifies under all the criteria of article 4 of the GPW and receives all the privileges and immunities of combatant status, or a force does not qualify, and is provided no protection above that of any other civilian in the area, and may even be disqualified from the protections afforded to civilians. Given the reality of today\u27s battlefields where the conflict is seldom between the armed forces of two nations, these requirements are counterproductive and provide a disincentive for fighters to distinguish themselves from the civilian population. To remedy this counterproductive state of the law, the all-or-nothing nature of combatant status should evolve to allow for intermediate levels of recognition in response to partial compliance with the traditional combatant requirements. As those on the battlefield comply with portions of the combatant requirements, particularly that of distinguishing themselves from noncombatants, they should accrue privileges commensurate with their efforts. Providing intermediate levels of recognition for partial compliance will provide incentives for otherwise unlawful combatants to comply with international law without eroding the maximum benefits offered to those who comply with all requirements of combatant status

The Future of the Law of Armed Conflict: Ostriches, Butterflies, and Nanobots

The historical fact that the law of armed conflict (LOAC) has always lagged behind current methods of warfare does not mean that it always must. This Article will argue that the underlying assumption that law must be reactive is not an intrinsic reality inherent in effective armed conflict governance. Rather, just as military practitioners work steadily to predict new threats and defend against them, LOAC practitioners need to focus on the future of armed conflict and attempt to be proactive in evolving the law to meet future needs

Presidential Pronouncements of Customary International Law as an Alternative to the Senate’s Advice and Consent

The Restatement (Fourth) of Foreign Relations Law of the United States has thus far focused on the status of treaties in United States law, and has not specifically considered the topic of customary international law. While the American Law Institute undoubtedly has good reasons for its approach, there is an emerging presidential practice that should catch the attention of the drafters and encourage them to make at least a small foray into customary international law’s impact on the domestic law of the United States. This practice consists of presidents proclaiming to the international community that certain provisions of treaties that are currently before the Senate for its advice and consent have already achieved the status of customary international law and, therefore, are binding on the United States, regardless of Senate action. While it appears that the president has the constitutional authority to determine what is customary international law as part of his foreign relations power, it is less clear that he determines the domestic effect of customary international law, particularly in instances where Congress has intentionally not taken action on a specific treaty. The Restatement (Fourth) has the opportunity to clarify the domestic effect of such presidential actions

Cyber Deterrence

Cyber operations by both state actors and non-state actors are increasing in frequency and severity. As nations struggle to defend their networks and infrastructure, their ability to apply the principles of deterrence to cyber activities correspondingly increases in importance. Cyber deterrence offers much more flexibility and increased options from traditional deterrence methodologies developed in the Cold War’s nuclear age. In addition to traditional retaliation, cyber deterrence includes options such as taking legal action; and making networks invisible, resilient, and interdependent. It also presents new ways to view and apply accepted methodologies such as invulnerability. As the U.S. continues to develop and implement cyber deterrence strategies and capabilities, there are important legal issues that require consideration, including international law, the law of armed conflict, and U.S. domestic law. This paper will identify and discuss six prominent theories of cyber deterrence and briefly analyze legal issues associated with this vital area of national security. The law not only provides important factors that must be considered as cyber deterrence doctrine is solidified, but it also provides significant insights into how these theories of cyber deterrence can best be utilized to support national strategic goals

Autonomy and Precautions in the Law of Armed Conflict

Already a controversial topic, legal debate and broader discussions concerning the amount of human control required in the employment of autonomous weapons—including autonomous cyber capabilities—continues. These discussions, particularly those taking place among States that are Parties to the 1980 Certain Conventional Weapons Convention, reveal a complete lack of consensus on the requirement of human control and serve to distract from the more important question with respect to autonomy in armed conflict: under what conditions could autonomous weapons “select” and “attack” targets in a manner that complies with the law of armed conflict (LOAC). This article analyzes the specific LOAC rules on precautions in attack, as codified in Article 57 of Additional Protocol I, and asserts that these rules do not require human judgment in targeting decisions. Rather, these rules prescribe a particular analysis that must be completed by those who plan or decide upon an attack prior to exercising force, including decisions made by autonomous systems without meaningful human control. To the extent that autonomous weapons and weapons systems using autonomous functions can be designed and employed in such a way to comply with all required precautions, they would not violate the LOAC. A key feature of determining the ability of autonomous weapons and weapons systems using autonomous functions to meet these requirements must be a rigorous weapons review process

Cyber Warfare and Precautions against the Effects of Attacks

Ninety-eight percent of all U.S. government communications travel over civilian-owned-and-operated networks. Additionally, the government relies almost completely on civilian providers for computer software and hardware products, services, and maintenance. This near-complete intermixing of civilian and military computer infrastructure makes many of those civilian objects and providers legitimate targets under the law of armed conflict. Other civilian networks, services, and communications may suffer collateral damage from legitimate attacks on government targets. To protect those civilian objects and providers from the effects of attacks, the law of armed conflict requires a state to segregate its military assets from the civilian population and civilian objects to the maximum extent feasible. Where segregation is not feasible, the government must protect the civilian entities and communications from the effects of attacks. The current integration of U.S. government assets with civilian systems makes segregation impossible and therefore creates a responsibility for the United States to protect those civilian networks, services, and communications. The U.S. government is already taking some steps in that direction, as illustrated by a number of plans and policies initiated over the past decade. However, the current actions do not go far enough. This Article identifies six vital actions the government must take to comply with the law of armed conflict and to ensure not only the survivability of military communication capabilities during times of armed conflict, but also the protection of the civilian populace and civilian objects

Cyber Sovereignty: The Way Ahead

The last few years are full of reports of cyber incidents, some of which have caused significant damage. Each of these cyber events raise important questions about the role and responsibility of States with respect to cyber incidents. The answer to these questions revolves in large part around the international law doctrine of sovereignty. The extent to which nations exercise sovereignty over cyberspace and cyber infrastructure will provide key answers to how much control States must exercise and how much responsibility States must accept for harmful cyber activities when they fail to adequately do so. This article argues that States have sovereign power over their cyber infrastructure and that with that sovereign power comes corresponding responsibility to control that infrastructure and prevent it from being knowingly used to harm other States. This responsibility to prevent external harm extends not only to state actors, but also to non-state actors. This article will review some of the cardinal principles of sovereignty and their application to cyberspace and then consider the corresponding duties and obligations. In each case, the principle of sovereignty will be stated and defined. Its application to cyberspace will then be discussed, including the corresponding duty or obligation that arises from that assertion of sovereignty. Examples of the duty and obligation will be used to help clarify the analysis. Finally, issues that arise from the assertion of that authority and its corresponding duty or obligation will be highlighted