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Part Three Distinction, 10 The Law of Armed Conflict Implications of Covered or Concealed Cyber Operations: Perfidy, Ruses, and the Principle of Passive Distinction

Gary P. Corn, Peter P. Pascucci

From: The Impact of Emerging Technologies on the Law of Armed Conflict

Edited By: MAJ Ronald T.P. Alcala, Eric Talbot Jensen

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 20 September 2021

Subject(s):
Armed conflict — Conduct of hostilities

This chapter addresses the complex Law of War issues of distinction as applied to cyber operations. Cyberspace is now widely recognized as an operational domain of conflict and states are adopting cyber capabilities and operational constructs as means and methods of warfare at an increasing rate. Owing to the nature of this new and unique domain, operations security is at a premium. The use of cover and concealment and, at some level, the deception inherent thereto directly implicates in novel ways the traditional LOAC rules designed to ensure respect for the principle of honor in the conduct of hostilities and to protect civilians and civilian objects from the dangers of war. These rules must be interpreted in light of the unique aspects of cyberspace and the distinctive challenges it poses. A better understanding of how the cardinal principle of distinction and the LOAC rules meant to implement it awaits elucidation through state practice and opinion. In the meantime, thoughtful discussion and detailed analysis of the issues of perfidy, ruses, and the passive precautions rule are necessary to ensure that the spirit and intent of the LOAC are properly balanced against military necessity.

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