9 - Challenges to Article 36 Reviews Posed by (Autonomous) Cyber Capabilities

Summary

Chapter 9 focuses on an Article 36 review of (autonomous) cyber capabilities. As in the case of autonomous weapons systems, the most burning questions for a weapons review in the cyber context remain: How to meaningfully incorporate advice on the law of targeting as part of the weapons review? How to determine when a given capability is ‘new’ for review purposes and when to initiate a review? How and when can testing and evaluation processes meaningfully inform the review outcome? Furthermore, some challenges distinct to cyber capabilities also exist. Most importantly, cyber capabilities test the underlying assumptions of the law of armed conflict. The effects of their use may be more deleterious than the consequences produced by traditional weaponry, and yet they may fall outside the legal review requirement because the effects produced do not constitute an ‘attack’ in its conventional interpretation. [142 words]