Unexpected Consequences From Knock-On Effects: A Different Standard for Computer Network Operations?
Eric Talbot Jensen, 𝘜𝘯𝘦𝘹𝘱𝘦𝘤𝘵𝘦𝘥 𝘊𝘰𝘯𝘴𝘦𝘲𝘶𝘦𝘯𝘤𝘦𝘴 𝘍𝘳𝘰𝘮 𝘒𝘯𝘰𝘤𝘬-𝘖𝘯 𝘌𝘧𝘧𝘦𝘤𝘵𝘴: 𝘈 𝘋𝘪𝘧𝘧𝘦𝘳𝘦𝘯𝘵 𝘚𝘵𝘢𝘯𝘥𝘢𝘳𝘥 𝘧𝘰𝘳 𝘊𝘰𝘮𝘱𝘶𝘵𝘦𝘳 𝘕𝘦𝘵𝘸𝘰𝘳𝘬 𝘖𝘱𝘦𝘳𝘢𝘵𝘪𝘰𝘯𝘴?, 18 Aᴍ. U. Iɴᴛ'ʟ L. Rᴇᴠ. 1145 (2003).
The evolution of computer network operations (CNO), and computer network attack (CNA) in particular, has vastly expanded the capabilities of today's military commander and, subsequently, expanded the targets he can now attack. This expansion of the commander's potential target list has caused some to cast doubt on the ability of the military commander to adequately apply the traditional principles of the law of war when using CNO. However, commanders need only apply the traditional law of war analysis, including the principle of distinction, the balance between military necessity and humanity, and the principle of proportionality to ensure they correctly apply this new technology during armed conflict. In other words, a commander may use CNA if he, in good faith, believes that the damage to civilian objects and injury to civilians that is expected from the attack, including potential knock-on effects, given the circumstances as known to him at the time after taking all feasible measures to ascertain those circumstances, is not excessive to the concrete and direct military advantage anticipated. Applying this standard is sufficient and there is no need to amend the law of war to account for this new technology.
18 Am. U. Int'l L. Rev.
American University International Law Review