Different Problems Require Different Solutions: How Air Warfare Norms Should Inform IHL Targeting Law Reform & Cyber Warfare

On February 19, 2018, United Nations Secretary-General Antonio Guterres claimed that he was “absolutely convinced” that “the next war will begin with a massive cyber-attack to destroy military capacity . . . and paralyze basic infrastructure.” The Secretary-General’s greatest concern, however, is that he believes “there is no regulatory scheme for that type of warfare, it is not clear how the Geneva Convention or international humanitarian law applies to it.” Although Additional Protocol I to the Geneva Conventions (AP I) targeting laws generally identify who and what States may target in war, it expressly limits itself to attacks affecting people and objects on land. But what about online?

This Note discusses the limited applicability of the current targeting laws to cyber warfare. Specifically, it asks whether the land-centric AP I targeting laws adequately address cyber-attacks. It analogizes the unique features of cyber warfare to those in air warfare. Because both cyber and air warfare, unlike land combat, are fought beyond the traditional battlefield and closer to civilians, are object-prime targeting methods of warfare, and serve strategic attack objectives, AP I land-centric targeting laws cannot adequately regulate these types of warfare. This Note finds that, like airspace, the cyberspace domain is sufficiently different from land and, thus, requires specific rules similar to those provided under the laws of air warfare.