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Cyber operations are fast becoming a fixture of modern warfare.1They first appeared overtly in the 2008 international armed conflict between Georgia and Russia,2were employed during the international and non-international armed conflicts in Afghanistan and Iraq,3figured in operations throughout the non-international armed conflicts in Libya and Syria,4and most recently played a bit part during the 2014 international armed conflict between Russia and Ukraine.5The United States has established US Cyber Command to conduct defensive and offensive cyber operations during armed conflicts, and other States, most notably China, are following suit by acquiring cyber capabilities and developing their force structures to leverage them.6The spread of cyber wherewithal is not limited to the regular armed forces and other organs of the State. Non-State actors have discovered the utility of cyber operations as a means of asymmetrical warfare when facing a State's superior conventional forces.7Cyber operations have already become an integral facet of command, control, communications, computer, intelligence, surveillance, and reconnaissance activities in the battlespace, and it is inevitable that they will soon play a central role in "attacking" one's enemy.8
This emergent reality begs the question of how to treat cyber operations in the context of international humanitarian law (IHL). This is an essential query not only from the perspective of persons and objects protected by IHL during armed conflict, but also from that of States, which are currently in the process of acquiring cyber capabilities, developing the tactics, techniques and procedures for their use, and crafting cyber-specific rules of engagement. Lying at the heart of the matter is a decade-old dispute over when cyber operations directed against protected persons and objects are prohibited. In particular, the debate circulates around the scope of the concept of "attack" under IHL, a normatively critical notion in light of the fact that most of the law regulating the conduct of hostilities is framed in terms of attacks.
The debate was engaged soon after the turn of the millennium. Two approaches...