The application of the principle of distinction in the cyber context: A Chinese perspective

No. Panggil :	eja-21-0572
Nama Orang :	Huang, Zhixiong Ying, Yaohui






Penerbitan :	[Place of publication not identified] : Cambridge - Crime, 2020

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Abstrak	Up to now, the Chinese government has only made very general comments on the application of international humanitarian law to cyberspace. There are indeed Chinese academic papers concerning this issue, but the discussion of the principle of distinction is limited both in length and in academic depth. Compared with the West, research by Chinese scholars on this topic is still in a relatively preliminary stage. At present, there is no specific deconstruction or clarification of the application of the principle of distinction in cyberspace in Chinese academia. As the first paper written by Chinese scholars specifically devoted to this question, this piece provides a different perspective by injecting the positions of Chinese officials and the views of Chinese scholars. The authors aim to clarify whether the existing rules are still completely applicable in the cyber context, and if needed, to find out what kind of improvements and clarifications can be made. Weighing in on these debates, we argue that despite the potential technical challenges and uncertainties, the principle of distinction should be applied to cyberspace. It should also be carefully re-examined and clarified from the standpoint of preventing over militarization and maximizing the protection of the interests of civilians. For human targets, the elements of combatant status identified in customary international law and relevant treaties are not well suited to the digital battlefield. Nevertheless, cyber combatants are still obligated to distinguish themselves from civilians. In applying the principle of distinction, we argue that it makes more sense to focus on substantive elements over formal elements such as carrying arms openly or having a fixed distinctive sign recognizable at a distance. In interpreting direct participation in hostilities, the threshold of harm requires an objective likelihood instead of mere subjective intention; the belligerent nexus should be confirmed, and the causal link should be proximate. Applying the cyber kill chain model by analogy helps us to grasp the whole process of direct participation in hostilities during cyber warfare. For non-human targets, all military objectives must cumulatively fulfil both the effective contribution and definite military advantage criteria, which are equally indispensable. The same requirements apply to dual-use objects. Furthermore, certain data should fall within the ambit of civilian objects.
Entri Tambahan Nama Orang
001 Hak Akses (open/membership)	membership
Kata Kunci	China, principle of distinction, cyberspace, cyber combatant, military objective, data.
ISSN
Tahun Terbit	2020
No. Induk	eja-21-0572
Entri Sumber Data	Cambridge - Crime
Entri Utama Nama orang	Huang, Zhixiong; Ying, Yaohui
Volume, Nomor, Tahun dan Hlm.	vol. 102, no. 913, p. 335-365
Entri Utama Nama Badan
Barcode	eja-21-0572
Subjek Topik
Judul Utama	The application of the principle of distinction in the cyber context: A Chinese perspective
Kode Bahasa	eng
Sumber Koleksi	Perpustakaan Nasional