CYIL vol. 11 (2020)

MILAN LIPOVSKÝ CYIL 11 (2020) Though the situation seems to be clear examples of NIACs, if the de facto state(s) did not come to exist as a result of violation of a peremptory norm of international law and due to the fact that constitutive elements of statehood are fulfilled, the author of this article suggests that such conflicts should be considered as an IAC. Even if it was actually a conflict with the parent state (unlike in the above-described scenario). On the other hand, one must keep in mind that though the constitutive elements of statehood are the most important requirements for existence of a state and recognition has only declaratory character, it still bears important weight. It is clearly visible in the Libyan conflict. In relation to this conflict, there is a discussion whether recognition of the rebels as the representatives of Libya means that NATO’s support against the former regime actually de-internationalized the formerly IAC or not. 47 If so, recognition would have quasi constitutive consequences as to the classification of the conflict. 4.6 Conclusions While there are clearly some controversial issues that the classification of conflicts needs to address so it would follow the reality of the 21 st century, it is not as outdated as it may seem. However, that only applies to the classification itself. There are many other aspects that the space given by this article did not allow to address and those definitely need to be solved by the international community. Particularly, in internationalized armed conflicts, one of the most important questions is whether members of the armed groups are entitled to POW status or not. Also, are they entitled to soldier’s immunity or not? There is simply no explicit solution to it in current humanitarian law and a new convention addressing those issues could be a good solution. 5. Cyber conflict Cyber activities are probably the largest challenge that classification of armed conflicts faces. The traditional differences of armed conflicts are based upon the category of participants and territory(ies) that the conflicts take place within. The category of participants of the conflict may be solved by traditional methods. Though, (even individual) hackers capable of causing damage larger than traditional means of warfare can be non-state actors, their activities may still be attributed to states by the current methods of attribution described above. It must be kept in mind however, that the evidentiary challenges are obviously much more complicated. To put it very simply, the law of war requires soldiers to wear uniforms in the field, but we can’t even see the hackers. So how should they be classified? The ways to prove their identity is thus dependent on the IT capabilities of victims. The category of territory is also quite challenging. How is the territory defined in cyber space? By location of the hacker, victim territory, servers used for the attack, etc.? One of the main arguments claiming that a cyber fight may not constitute an armed attack might be that “cyber-tools” do not fit into the armed force. Michael Schmitt argues with article 49 (1) API which states that “‘[a] ttacks’ means acts of violence against the adversary, whether in offence or in defence .” I am afraid that is a rather circular argument because it only leads to the doubt about whether cyber-activity is an act of violence, instead of whether it 47 SCHMITT, M. N. Classification of Cyber Conflict. In: International Law Studies Series , vol. 89, 2013, p. 234.

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