CYIL vol. 11 (2020)

CYIL 11 (2020) THE CLASSIFICATION OF ARMED CONFLICTS – INTERNATIONALIZED, … is an armed attack. I would however, support his claim because humanitarian law does not exhaustively define what a weapon is, it only prohibits certain means of warfare. Consequently, anything that is capable of increasing the effects of an attack 48 is a weapon. As much as a knife can be used for peaceful reasons as well as an attack, so does a computer program. After all, dictionaries also define a weapon generically. Merriam-Webster dictionary defines a weapon as “ something (such as a club, knife, or gun) used to injure, defeat, or destroy [or] a means of contending against another ” 49 Cyber tools may very well fit this definition. The problematic of attribution in internationalized conflicts is exacerbated in cyber conflicts, however. Due to the characteristics of cyber space, attacks may be launched by entities other than de iure organs of state. Those non-state actors may be under the control of a state and thus, we return to the internationalization, degree of control and additionally, problems related to proving the source of an attack in virtual space. If, however, the non-state actor is acting on their own, then the Tadić judgment becomes handy. If the hackers were (an organized group, the fight was intensive enough and they were) under the effective control of a state or the state endorsed the operation, it might be attributable to it. If the hackers were militarily organized, the degree of necessary control should be “just” overall. Nonetheless, there may be situations where there was no overall control. In such situations, the future will show how states see the principle of prevention and whether they are willing to apply it to cyber space as requiring states to do anything in their capabilities to prevent transboundary harm. 50 In other aspects of classification of armed conflicts, the cyber operations face the same issues as the kinetic ones. 6. Conclusions The current international law classification of armed conflicts reflects reality of the 20th century and while it may still be useful in some areas of legal tools, it lacks clarity and does not reflect the newest trends in others. One may conclude that the classification itself is still valid even to the new types of conflicts that involve the above-mentioned less traditional transnational, cyber, and internationalized conflicts. And in some cases, if sufficiently clarified, the classification may suitably direct the legal regulation of the conflicts. The problem is that it does not however work in every possible case. Additionally, because the decision time of soldiers in field is very often a matter of seconds, the simpler and clearer the law is, the lower the possibility of its incidental violation. Thus, the current lack of clarity is not helping the international legal regulation and may have serious consequences to both state and individual responsibility. Because some of the above-described factual matters are irreconcilable with the current state of the law, the author of this article suggests that the only way to advance forward, is to convene an additional conference to tackle these issues and update the humanitarian law. 48 See e.g. § 118 of the Czech Criminal Code, Law no. 40/2009 Sb. 49 Definition of a weapon, Merriam-Webster online dictionary URL https://www.merriam-webster.com/dictionary/ weapon. 50 Regarding the emerging principle see e.g. CRAWFORD, J. Brownlie’s Principles of Public International Law . 8th ed. Oxford: OUP, 2012. ISBN: 978-0-19-969969-8, pp. 356-357.

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