Advantage one is Ambiguity —



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0. 1AC A5
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1AC — Plan

Thus the plan — The United States federal government should substantially increase its security cooperation with the North Atlantic Treaty Organization by clarifying cyberwarfare within the North Atlantic Treaty.

1AC — International Law Adv

Advantage two is International Law



Cyberwarfare threatens to outpace and undermine international humanitarian law.


Sohail ’22 (Humna, LLM International Law Candidate at International Islamic University Islamabad, Pakistan, “FAULT LINES IN THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW TO CYBERWARFARE,” 2022, Journal of Digital Forensics, Security and Law: Vol. 17 , Article 8. Available at: https://commons.erau.edu/jdfsl/vol17/iss1/8, DOA: 6-8-2022)
ABSTRACT
The dynamics of warfare have changed from the conventional wars fought on the battlefield to virtual warfare as states have been involved in the cyber arms race. From simple distributed denial-of-service (DDoS) attacks to the potent Stuxnet and Flame the cyberweapons vary in their potential human cost. The Law of Armed Conflict (LOAC) is drafted flexibly to adapt to changing circumstances. This paper is primarily based upon the assumption that existing treaty law is sufficient in many aspects yet in some areas treaty-making is also needed. What is the foreseeable solution is the comprehensive state practice for interpreting the existing rules (lex lata) regulating the armed conflict in the cyber context. This is because armed conflicts in cyberspace differ from kinetic warfare in multiple dimensions. The world community is yet to reach a consensus on how LOAC protects at times of cyberwarfare. From defining the basic terms like attack and object to the attribution needs resolution. Given such ambiguity, international humanitarian law (IHL, interchangeably used with LOAC) will more frequently be violated in conflicts occurring in cyberspace than in physical space. Efforts by states in sincere exploitation of existing laws are the sine qua non for the evolution of IHL in the cyber context.
Keywords: international humanitarian law, cyberwarfare, cyberattack, data, attribution, international armed conflict, non-international armed conflict
1. INTRODUCTION
A sword never kills anybody: it is a tool in the killer’s hand. (Lucius A. Seneca)
International Humanitarian Law (IHL) consists of a body of rules, both conventional and customary, that regulates the conduct of belligerents during an armed conflict by prohibiting the use of certain methods means of warfare. The term war is deliberately omitted for a war-like situation might exist even when there is no formal declaration of war. So, to determine the applicability of IHL, it is quintessential to determine the onset of an armed conflict. The test for it was laid down by International Criminal Tribunal for Former Yugoslavia (ICTY) in the Tadic1 case in the following words:
“An armed conflict exists when states resort to force in their relations inter se or when there is a protracted armed violence between governmental forces and organized armed groups or between such groups only.”
The said criterion also implies classifying armed conflicts broadly into international armed conflict (IAC) or an armed conflict not of an international character (NIAC also termed internal armed conflict). The said classification is essential for there are different laws applicable to each kind of conflict. Many of the treaty-based provisions have attained the status of customary norms, and as such, they bind all states equally2. However, many states are yet to ratify the Additional Protocols, and the provisions therein are not customary, and as such, they are binding only onto the states who have ratified them. The drafters intended to regulate physical warfare, and the modern warfare mediums like cyberspace were not known then.
The technological sophistication has enabled States to develop new weapons, and the law governing the use of such weapons needs to be exhaustive enough to adapt to changing circumstances3 (Kathleen, 2006). Notwithstanding the relatively lesser number of scenarios where states have acknowledged the employment of cyber warfare during an armed conflict, the debate on the legal issues incidental to the conflicts involving cyberspace is high (Gisel, 2020). Cyberwarfare is referred to as the fifth domain of warfare, the other conventional domains being the land, air, sea, and outer space. Cyberspace offers virtual connectivity independent of territorial limits. With the multiple benefits of such interconnectivity comes the drawbacks, such as the users in interface with the network can easily be targeted where ever they are (Dinniss, 2008). There is always a possibility of a bug in the product unknown to manufacturers at the time of release, which the attacker can exploit for various purposes. For instance, the attacker succeeds in penetrating the main server of a hospital, and thereby all the interconnected devices are compromised, even the pacemaker installed inside the patient’s body. Through command and control software, the attacker can even break down the pacemaker’s functioning, which will ultimately result in the patient’s death in the absence of any backup. So one can speak volumes of the human costs of wired or cyber operations4. This calls for an in-depth dwelling into the potential issue that the world would probably come across in the near future as all states, from giant economies to the poor and developing nations, are enhancing their cyber capabilities.
Cyber operations do not take part in a legal vacuum as they are becoming part of modern-day armed conflicts, which demands the evolutionary interpretation of IHL. This paper focuses on some significant debates in the study of IHL in cyberwarfare. Firstly, the history of cyber-attacks is briefly discussed to tell readers about the onset of debate. Introducing cyberwarfare is followed by a brief discussion on how the network functions and types of attacks based on purposes. The very terms "attack" and "object" in the cyber context are analyzed in detail as they form the basis of every provision of LOAC. The contemporary debates as to the interpretation of these terms are included in the scope of the present study. Lastly, the attribution issue in cyberwarfare is analyzed to introduce the reader to the difficulty involved in classifying the armed conflict, which is crucial because there is a different set of rules applicable to each class of armed conflict. The study ends with the recommendation that mainly revolves around the need that states should be more expressive in their practices concerning cyber warfare as IHL is still in the budding phase. The need of the hour is that a new customary norm should emerge, but states need to put sincere efforts as in the horizontal hierarchy of sovereign states law-making power vests in states. The recent cyberattacks in the ongoing armed conflict between Russia and Ukraine by the ’patriots’ once again brought the application of IHL to the limelight.
2. THE ONSET OF DEBATE ON NEXUS BETWEEN IHL CYBERWARFARE
To make the debate better understandable for the reader, the history of cyber armed conflict that diverted the attention of international humanitarian law experts is discussed. The very beginning of the twenty-first century marked the independence of Estonia from the Soviet Union, which had occupied the land since the Second World War. The Statue (bronze soldier) at the center of Tallinn, the capital of Estonia, was removed by the Tallinn residents who took the statute to be the sign of being occupied by the Soviet Union for nearly half a century (McGuinness, 2017). This enraged the ethnic Russians living in Estonia, who started social media campaigns for riots. This marked the onset of attacks from worldwide on both government and private cyberinfrastructures of Estonia. The disruption so caused halted the normal functioning of the state for some ten days. Though it was an issue of law concerning the justification for the use of force (jus ad bellum) and not IHL, it was for the first time the world was witnessing the attacks in a domain not discussed before. In 2008 the debate on the application of IHL to cyberwarfare started following the Russo-Georgian war, which is regarded as "the first case in the history of a coordinated cyberspace domain attack synchronized with major combat actions in the other warfighting domains" (David, 2011). These attacks were more disruptive than destructive (Swanson, 2010). These attacks have played a huge role in making analysts and scholars think of the nexus between IHL and attacks in the cyber domain (Tikk, 2010).
There have been certain international and national efforts to develop the rules governing the armed conflicts in cyberspace. The most significant being the Tallinn Manual compiled by the twenty individuals in the international group of experts (IGE) under the auspices of the North Atlantic Treaty Organisation (NATO) and observership of the International Committee of the Red Cross (ICRC). The Manual was intended to be based on existing law (lex lata), and nowhere was it intended to be referring to an altogether new law (lex feranda). For this reason, the rules in the Manual stayed closer to the rules of IHL, a lex specialis for regulating the conduct of hostilities during an armed conflict. However, the sovereign states have the prerogative of making binding rules for them either by a treaty formation or by the consistent and coherent state practices out of the sense of legal obligation developing a new customary norm. Manual has only the persuasive value for the States. Some states, including France, have come up with laws specifically on the subject matter beforehand, which is a positive sign in terms of expression of state practice.
Whenever some grey area in terms of war comes under discussion, the first provision that legal minds refer to is the Martens Clause that was initially the part of the preamble of Hague Convention II of 1899 and then incorporated as a substantial part in the Geneva law5 and the Hague law6 . The Martens clause extends the application of international law based on coherent and consistent usages, public conscience, and humanity to complex cases. The vitality of said clause is manifested from the fact that it is restated in modern conventions and has been referred to by international courts7 and tribunals8 , especially where they faced the instances of legal vacuum (non-liquet), and it has become part of customary international law9 . The insertion of this clause primarily made IHL of an evolving nature capable of dealing with and adapting to the changing dynamics of warfare. IHL has undoubtedly filled in the potential legal gaps by the way it is drafted. Questions and debates as to the evolution of "interpretation" of IHL are the tasks of the states, courts, organizations tasked with disseminating IHL (primarily ICRC), and the researchers. As far as cyber warfare is concerned, the researchers and the non-state neutral entities have been positively playing their role, and now it is the states that need to step up by way of practice or by entering into an international agreement. The latter does not seem to be a viable solution as states do not seem to be willing to be vocal about the restrictions on their cyber capabilities, which is improving over time) (Turns, 2012).

That lack of consensus has led to existential disagreements over the application of international law, tearing it’s effectiveness to shreds



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