Jack McDonald

This chapter questions the direct applicability of the just war tradition's principle of distinction to electronic attacks involving computer network exploitation (CNE). It offers three principle challenges to maintaining the norm of distinction in electronic attacks that are rooted in the impossibility of foreknowledge of the object of attack in a computer network. In lay terms, without significant inside assistance it is impossible for a hostile agent seeking to exploit a computer network from knowing the network's architecture and role prior to conducting hostile exploitation of the network. Due to this lack of knowledge, it is impossible for the hostile agent to be certain that initial exploitation will be free of negative consequences. This impossibility of foreknowledge leads to three distinct challenges in applying the principle of distinction to cyber attacks: First, if any form of network exploitation is considered equal to an act of harm, then these first steps are performed blind, it is also very easy to mask IP addresses meaning that there is a significant chance that well informed attempts at exploitation may unwittingly target non-military systems; second, many forms of cyber attack utilise civilian infrastructure or third party networks that may not be willing participants, but would need to be targeted regardless; third, many forms of CNE require the construction and deployment of autonomous software programmes ('viruses', 'malware', etc) in order to circumvent security measures. These programmes are too small and rudimentary to 2 replicate the decision-making processes of human beings, and cannot distinguish between targets.

President Obama led a large scale expansion in the use of targeted killings against al-Qaeda and “associated forces” across the world. Decried as “extrajudicial killings” and human rights violations, the American government nonetheless defends the use of lethal force in this way as lawful acts of war. Yet some critics argue that the kind of war America claims to be waging - a transnational armed conflict - doesn’t exist. Taking the American argument as a starting point, this book examines the consequences of treating transnational armed conflict in the same way as any other form of armed conflict. In doing so it argues that it is impossible to understand American actions without reference to American interpretations of international treaties and customary law. This book analyses the legal construction of transnational armed conflict and the role that the rules of war play in the constitution of war itself. These legal interpretations constitute America’s war with al-Qaeda, as well as explain why America has grown to rely upon targeted killings as a means of warfare. This analysis allows us to understand the social construction of legitimate violence in warfare, and the relationship between secret legal opinions and acts of violence half a world away. In so doing, it highlights the changing role that the law of war plays in contemporary warfare as well as important conceptual challenges implicit in applying the rules of war to remote forms of warfare. This highlights the consequences of transnational warfare for civilians and American democracy.

This book examines the normative debates around the American use of targeted killings. It questions whether the Obama administration’s defence of its use of targeted killings is cohesive or hypocritical. In doing so, the book departs from the disciplinary purpose of international law, constitutional law and the just war tradition and instead examines discipline-specific defences of targeted killings to identify their requisite normative principles in order to compare these norms across disciplines. The methodology used in this book means that it argues that targeted killings are only defensible as acts of war, but it also highlights the normative role of accountability and responsibility in this defence. In doing so, it offers an argument that the use of ‘pattern of life’ killings by the CIA falls outside the defence offered by the Obama administration, but that this same type of targeting could be used by the military due to differing standards/mechanisms of responsibility assignment in these organisations. The book thus provides a way of investigating contemporary wars where the conduct of war lacks the traditional hallmarks of conventional warfare. Furthermore, by drawing attention to differing normative concepts that underpin competing interpretations of law and morality, it provides a way of analysing contemporary political violence in an interdisciplinary fashion without seeking to displace single disciplinary study.