With increasing network intrusions affecting the U.S. government and American companies, and unsecured connectivity creating new vulnerabilities to cyber attacks, the United States is implementing a whole-of-government, all-tools approach to countering cyber threats. This article discusses the role played by the Department of Justice within this government-wide effort, including its progress in attributing cyber activities to their source, and how attribution can be used to deter, disrupt, and defend against cyber threats. In doing so, the article demonstrates the need for a continued commitment to and discussion around effective cyber security tools.
As private military and security companies (PMSCs) are increasingly hired to perform a variety of tasks in armed conflicts, determining their status under international humanitarian law (IHL) is crucial. Given that most PMSC employees are civilians, a particularly pressing question is whether they are directly participating in hostilities, and are therefore legitimate targets. This article examines contractor activities for the U.S., analyzing them against the narrow interpretation of direct participation in hostilities developed by the International Committee of the Red Cross. The article argues that applying this narrow interpretation would provide U.S. civilian contractors with greater protection on the battlefield than current U.S. law and policy provides.
The Irony of the Iron Dome: Intelligent Defense Systems, Law, and Security
by Daphné Richemond-Barak & Ayal Feinberg
International humanitarian law (IHL) does not directly address intelligent defense systems (IDSs), such as Israel’s Iron Dome. This Article argues that IHL should encourage the development of systems like Iron Dome by conceptualizing IDSs as civil defense. The authors contend that amidst the rise of contemporary conflicts, IDSs provide heightened protection against indiscriminate attacks, consequently affording greater military flexibility without sacrificing civilian safety. Although IDSs challenge the prevailing logic of IHL, which typically focuses on minimizing damage to the opposing side, the Authors argue that failing to incentivize IDSs is contrary to IHL’s overarching humanitarian goals, specifically that of protecting civilians. Conceptualizing IDSs as civil defense better addresses the legal and security dilemmas arising out of their use.
While the United States possesses a powerful cyber arsenal, an array of vague and conflicting legal and policy requirements impede its effective use. One of the most contentious areas of confusion involves unacknowledged, or covert, U.S. activities in cyberspace. While covert activities are traditionally subject to formalistic decision-making and oversight rules, “traditional military activities” (TMA) are generally excepted from these regulations. This Article argues that the current TMA framework does not adequately address military information support operations (MISO) in cyberspace. Because the conduct of covert military activities in cyberspace requires a clear analytical framework to properly identify which activities in cyberspace are TMA, the Author examines the operation of current statutes and lays out a novel TMA framework to assist policymakers.
Proportionality Decision Making in Targeting: Heuristics, Cognitive Biases, and the Law
by Luke A. Whittemore
Proportionality is a core principle of international humanitarian law (IHL), but remains plagued with questions surrounding its application. The principle is susceptible to broad ranges of judgment, and commanders who make proportionality decisions do so under significant uncertainty, subject to a variety of pressures, as well as their own cognitive biases. Such a decision-making environment may result in decisions that deviate from what is expected by rational choice theory. Yet few writers have examined how commanders engage in proportionality analysis as human beings limited by their cognitive capacities, in suboptimal decision-making environments; there are almost no public studies of heuristics, cognitive biases, and IHL principles in targeting decisions. This Article explores how heuristics and cognitive biases might affect proportionality analysis, provides an interdisciplinary approach to IHL targeting principles and heuristics programs, and discusses how future research in this area might develop.