Combatant Status and Computer Network Attack

[Sean Watts is an Assistant Professor at Creighton University Law School]

A stunningly prescient, yet unfortunately anonymously authored, piece in the 1921 British Yearbook of International Law, argued that the application of science to warfare would inevitably lead to more destructive and intolerable forms of war. From this gloomy premise, the author concluded that efforts to develop laws of war were misplaced and would ultimately discredit international law, which could never keep up with the pace of invention. Although the author wrote nearly a century ago, and conjured hydroplanes and aerial bombardment as he wrote, his concerns are echoed in current law of war scholarship examining innovations in warfare.

Alongside transnational terrorist threats, the national security implications of computer network attacks (CNA) have prompted major adjustments to states’ defense strategies. A growing number of states now recognize cyberspace as a realm of combat operations equivalent in importance to land, sea and space, with many now capable of launching offensive CNA. My Article examines the question of combatant status in such CNA—specifically, who, under the existing law of war, may lawfully participate in CNA? Existing accounts evaluate combatant status in CNA under traditional criteria applicable to kinetic and line-of-sight warfare. I argue such approaches are outmoded and induce states to engage in practices that amount to no more than empty formalism. With historical, textual, and normative analysis, I argue that state sanction or imprimatur is an appropriate standard for evaluating combatant status in CNA. The analytical framework proposed not only aligns with existing law and emerging state practice, but may also resolve the question of status in other remote combat engagements.

Thanks to Opinio Juris for hosting this forum and also to the Virginia Journal of International Law (VJIL), whom I’d like to congratulate on the publication of their 50th Anniversary Volume. I’m honored that Professor Geoff Corn, a longtime mentor, has agreed to comment on the article—I look forward to his thoughts and those of Opinio Juris readers.