While there is still disagreement as to whether the “effective control” test is the controlling test for the purposes of attribution under the law of State responsibility, there is consensus that the “overall control” test is the correct one for conflict qualification under IHL. A separate standard, the “effective control” test, requires that the State must exercise control over the entire course of the operations in question. The prevailing standard for the characterization of an international armed conflict is that of “overall control”, which requires that the State provides some support and that it participates in the organization, co-ordination, or planning of the relevant operations. However, the correct legal test to use in this regard is the subject of an ongoing controversy. In such situations at the outset of an armed confrontation, the relevant State must exercise a sufficient degree of control over the non-State entity that commences hostilities against another State for the situation to qualify as an IAC. In the cyber context, States often act through non-State intermediaries and proxies. Although it seems generally accepted that if cyber operations have similar effects to classic kinetic operations and two or more States are involved, the resulting situation would qualify as an IAC, the law is unsettled on whether cyber operations that merely disrupt the operation of military or civilian infrastructure amount to a resort to armed force for the purposes of IHL. It is unclear what effect cyber operations unaccompanied by any use of kinetic force would have to have in order for IHL to apply. Furthermore, the law does not prescribe any specific form for the resort to force, so hostilities between the belligerent States may involve any combination of kinetic and cyber operations, or cyber operations alone. Some scholars have suggested that the fighting must be of a certain intensity before international humanitarian law (IHL) comes into effect, but the prevailing view is that any “resort to armed force between States”, however brief or intense, triggers the application of IHL. The law of international armed conflict (IAC) applies to any armed confrontation between two or more States, even if one, several, or all of them deny the existence of an armed conflict.
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