무력충돌시 비국가행위자의 사이버공격에 대한 국제인도법의 적용

The Application of International Humanitarian Law during Armed Conflicts to Cyber Attacks by Non-State Actors

In recent years, there has been a dramatic increase in the number of cyber attacks, both by nations and non-state actors. However currently, there are no provisions in the international laws of war that explicitly out law or even regulate cyber warfare. Furthermore, given the rise of the non-state actors importance and influence in the international community, it is quite troubling that these international laws of war only apply to state actors. As cyber attacks increase, Non-state actors like civilian hackers and hacktivists will play a larger role in combat. Their presence on the battlefield poses unique challenges to applying the Law of Armed Conflicts(LOAC). The LOAC has a preference for civilian and prisoner of war statuses. Along with specific statuses come protection from targeting and immunity from criminal prosecution. These two factors together, the LOAC’s preferences and the dual dimensions in which cyber attacks occur, allow non-state actors to enjoy the best of both status worlds. As civilians that enjoy protection from direct attack, they may fight without forfeiting their status due to the difficulty of proving direct participation in hostilities. If captured, non-state actors may claim prisoner of war status and enjoy immunity from prosecution despite being unlawful combatants. The LOAC must prevent hackers and hacktivists from occupying the gray area of unlawful combatants by making the law more black and white. States should be given a choice: either directly incorporate them into armed forces or apply to those individuals a broader interpretation of direct participation in hostilities, effectively eliminating the presumption of prisoner of war status. This new approach is necessary to ensure that non-state actors face the same risks as other unlawful combatants.