Direct Participation in Cyber Hostilities: Terms of Reference for Like-Minded States?

Abstract

According to its recently published cyber strategy, the U.S. seeks to develop international consensus on how traditional law of armed conflict (LOAC) norms and understandings are modified and applied in cyberspace to help secure this global commons. Although the International Committee of the Red Cross's Interpretive Guidance on Direct Participation in Hostilities and the recent U.S. cyber strategy documents and policy statements are very different in many ways, examination of the relationships between their different aspects could be very useful in setting terms of reference framing the discussions which must occur to develop consensus on how LOAC rules and understandings regarding direct participation in hostilities could be adapted for use in cyberspace. This requires identification of their respective strengths and weaknesses, and potential areas of common ground between them. To be useful, this examination must include consideration of the significance of rules of engagement, formulations of hostile intent, and the proper inferences to be drawn from intelligence analyses as well as the legal standards by which direct participation in hostilities is determined.