In 2009, the NATO Cooperative Cyber Defence Centre of Excellence (CCD COE) in Tallinn, Estonia, established an “International Group of Experts” to conduct the first comprehensive examination of the international law governing cyber warfare. The group consisted of twenty international law scholars and practitioners, including senior military officers responsible for legal advice on cyber operations. Three organizations provided observers to the process: the International Committee of the Red Cross, NATO's Allied Command Transformation, and the United States Cyber Command. A team of technical experts provided advice throughout the process. The resulting product of the three-year process was the Tallinn Manual on the International Law Applicable to Cyber Warfare.

The authority of the International Group of Experts is not to be exaggerated. All members participated in their personal capacity. Moreover, no attempt was made to ensure geographical representation. Instead, participants were selected based on their mastery of the relevant law or their sensitivity to the cyber contexts in which that law would be applied, or both. Although a number of States took the opportunity to informally provide feedback on drafts of the Tallinn Manual, this was always done in an unof?cial, non-attributable, and non-binding manner. Other international experts served as peer reviewers of the product, providing advice on revisions and corrections. Ultimately, all members of the International Group of Experts agreed with the formulation of the so-called “Rules” set forth in the Manual. They also agreed that the accompanying Commentary fairly explained how each rule was meant to be interpreted and applied, and fully captured any differences of opinion in that regard. Ultimately, the Tallinn Manual should be characterized as a consensus academic work by an international group of experts who devoted three years to identifying the lex lata applicable to cyber warfare.

Cyberspace and cyber technology are increasingly used by states and individuals for peaceful purposes, but they are also employed maliciously. Cyber attacks—that is, the use of cyber technology to attack a state's infrastructure—are perhaps one of the most serious threats currently facing states. Although not all cyber attacks are warlike, some of them may indeed be so, which immediately gives rise to the question of whether the current legal regulation of the use of force (jus ad bellum) applies to such attacks. The ‘Tallinn Manual’ on the International Law Applicable to Cyber Warfare responds to this question by mapping out the jus ad bellum and jus in bello rules that apply in such circumstances. The statement of the Rules is accompanied by a Commentary which clarifies the content of those rules, and explains their application in the specific context of cyber war.

In the following, I will present and critically comment on the jus ad bellum rules found in Chapter II of the Tallinn Manual: that is, Rules 10–19. The aim of this commentary is to draw attention to certain important but contested issues, identify jurisprudential ambiguities, and where possible offer alternative views.

According to Rule 10, ‘A cyber operation that constitutes a threat or use of force against the territorial integrity or political independence of any state, or that is in any other manner inconsistent with the purposes of the United Nations, is unlawful.’

Reports of cyber operations have increased so dramatically in recent years that they have become commonplace. The reality that most attacks to date have resulted in relatively benign consequences—inconvenience and offence through defacement of government websites and/or temporary suspension of access—only serves to heighten awareness of the damage that could result from much more serious attacks on networks controlling, for example, vital public transport and emergency infrastructure, the financial system and sensitive communications networks. The threat of apocalyptic consequences has galvanized States into proactive cyber defence measures—spawning an entirely new category of bureaucracy that until recently might readily have been cynically dismissed as manipulative fear-mongering to justify yet more human and financial resources allocated to the public sector.

That governments should proactively mitigate emergent and potentially catastrophic risks is an a priori notion. Citizens of a State whose government did not take cyber defence seriously would be entitled to feel aggrieved—particularly in the aftermath of a serious cyber attack where the lack of proaction on the part of central authorities was exposed. In contrast, expectations should be significantly lower for any proactive clarification of the applicable international law. The making of new, or even the clarification of the content of existing, international law has tended to be more reactive—requiring a major catalyst to expose the need for either clarification or regulation. It has been rare in the history of international law for new development to pre-empt subsequent catastrophe.

The judgment delivered by Trial Chamber I of the International Criminal Court on 14 March 2012 in the case of The Prosecutor v. Thomas Lubanga Dyilo was welcomed by a number of experts as a landmark decision. Not only was the judgment the first ever adopted by the Court, thus marking a new step in the operationalization of the Rome Statute, but it also provided an opportunity for addressing a number of procedural and substantive issues that are essential to the progressive development of both international criminal and humanitarian law.

This chapter does not seek to provide a comprehensive analysis of all these issues. It focuses instead on the core of the judgment, i.e., the definitions of the war crimes for which Thomas Lubanga Dyilo was convicted (Sect. 4.3). The Trial Chamber found that the accused was guilty of conscripting and enlisting children under 15 into an armed group, namely the Forces Patriotiques Pour la Libération du Congo (UPC/FPLC), and of using them to participate actively in hostilities. These crimes occurred in the Ituri region of the Democratic Republic of the Congo from September 2002 to August 2003. This article also examines how the Trial Chamber addressed the preliminary question of the characterization of the situation during the relevant period (Sect. 4.2). The judgment provides essential insight into the Trial Chamber's understanding of the notion of armed conflict within the framework of the Rome Statute.

On March 14, 2012, ICC Trial Chamber I issued its judgment convicting Thomas Lubanga Dyilo, a rebel leader in the Democratic Republic of the Congo (DRC). Lubanga was found guilty, as a co-perpetrator, of the war crimes of conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities from early September 2002 to August 13, 2003, in a non-international conflict in the DRC's Ituri region. Lubanga was charged exclusively with child-soldier-related crimes. He had served as President of the Union des patriotes congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC), the entities into which he had unlawfully conscripted, used, and enlisted children. His lengthy trial was punctuated with due process concerns regarding the disclosure of evidence, confidentiality agreements, the Office of the Prosecutor's (OTP) delegation of investigative responsibilities to intermediaries, and the reliability of witness testimony. A stay of proceedings had twice been ordered.

On July 10, 2012, ICC Trial Chamber I sentenced Lubanga—the ICC's first convict—to a prison term of fourteen years. It deducted the six years that Lubanga had already spent in detention (his surrender to the ICC occurred on March 16, 2006) from the sentence. In dissent, Judge Odio Benito would have marginally increased the sentence by one year, to fifteen years. According to the Rome Statute and the Rules of Procedure and Evidence, Lubanga will be eligible for a sentence reduction, contingent upon his deportment as a prisoner, once he serves two-thirds of the term (namely, mid-2015).

On 14 March 2012, the International Criminal Court (‘ICC’) delivered its historic and much anticipated first judgment in the case of Prosecutor v Thomas Lubanga Dyilo. The Accused in the case was charged and convicted of conscripting and enlisting children under the age of 15 into armed forces or groups and using those children to participate actively in hostilities. While the ICC was not the first international court to have done so, having been beaten to this distinction by the Special Court for Sierra Leone (‘SCSL’), it is an important judgment nonetheless for providing some much needed clarification on the law. One of the more significant contributions of the Lubanga judgment was the recognition of the crime of ‘using’ children to participate actively in hostilities as an offense in its own right, distinct from the ‘recruitment’ crimes of conscripting or enlisting children into armed forces or groups. All three crimes are referred to in the single provision of Article 8(2)(e)(vii) of the Rome Statute (‘child soldiers provision’). The case is unique due to the Prosecution's attempt to run the novel argument that acts of sexual violence (rape, forced marriages and sexual slavery) by commanders against girls—primarily ‘child soldiers’ but also civilians—constituted the crime of using child soldiers.

Section 6.2 of this article begins with an overview of how the prosecution of Mr. Lubanga was undertaken and progressed. Notably, sexual violence came to attain prominence haphazardly and belatedly in the proceedings rather than by way of any deliberate case theory properly investigated, pleaded and particularized in the Document Containing the Charges from the outset. Bound by charges of conscription, enlistment and use of child soldiers as confirmed by the Pre-Trial Chamber, the Prosecution found itself in the difficult position of pursuing a sexual violence case with the blunt instrument of the child soldiers provision. Misconceptions in the SCSL, which saw the crime of use conflated with conscription/enlistment, were also repeated by the Prosecution in Lubanga.

Seeking to balance military necessity with humanitarian considerations, the Law of Armed Conflict (LOAC) restricts the manner in which force can be used during warfare and prohibits certain kinds of attacks. In order to protect civilians and civilian objects while pursuing attacks against combatants and military objectives, LOAC prescribes strict targeting rules which are based on the principles of distinction, proportionality and precautions. The investigation of civilian casualties that have occurred during armed conflict enforces (and reinforces) these targeting rules and serves a similar purpose—protecting the civilian population from the effects of military operations.

The present article discusses the circumstances which give rise to a duty to investigate civilian casualties. It considers whether and to what extent a State whose armed forces caused civilian causalities during combat is required—under LOAC—to investigate these incidents. While the starting point is the case where a suspected war crime is involved, the article also deals with the question whether there is a duty to investigate incidents which indicate a LOAC violation that does not trigger individual criminal responsibility, namely a suspected failure to take feasible precautions in attack. It further considers whether an obligation to investigate arises in each and every case of civilian casualties, notwithstanding they are not necessarily unlawful under LOAC.

The current conflict in Afghanistan has been in existence since October 2001, following the attacks on the United States (US) on 11 September 2001. Due in part to the 2011 death of Osama bin Laden and the further dismantling of Al-Qaeda, on 21 May 2012 the leaders of the NATO-member countries met in Chicago and agreed upon an exit strategy. The NATO-led ISAF Forces plan to give Afghan forces command of all combat missions by mid-2013, and move from combat roles to a role of supporting, advising, training and assisting the Afghan security forces. The withdrawal of the remaining 130,000 foreign troops is set to occur by the end of 2014.

The conflict in Colombia, categorized by most as a non-international armed conflict, continued between government forces and FARC (Fuerzas Armadas Revolucionarias de Colombia) rebels, resulting in what Human Rights Watch (HRW) terms “serious abuses” by the rebel guerrilla groups and paramilitary organizations. As a result of this conflict, ongoing since 1964, figures cited by HRW show more than four million Colombians have been displaced and more than 100,000 are displaced each year that the conflict continues. In November, the first peace talks in approximately a decade between the FARC and Colombian government officials began in Norway.