"The increasing interest in cyber operations, or 'efforts to alter, disrupt, degrade or destroy computer systems or networks or the information or programs on them,' as a warfighting tool raises questions regarding application of the 'jus in bello' to 'cyber warriors,' or actors involved with cyber operations. Most cyber warriors will not be evaluated under the law of armed conflict. Cyber operations to date generally have amounted to nothing more than annoyances or crimes, or were in reality espionage, and therefore are regulated by municipal criminal law. […] Nevertheless, the question of the legal status of cyber warriors under the 'jus in bello' is likely to arise in two circumstances. First, the international armed conflicts and non-international armed conflicts of the present and the future are likely to include cyber operations as one element of an integrated war strategy. […] Second, an isolated cyber operation may have sufficient kinetic effects to rise to the level of an 'armed attack,' justifying the use of force in lawful self-defense. […] Under these two circumstances, categorization of cyber warriors as combatants, civilians or potentially unlawful combatants carries consequences. The most important of these are with respect to targeting. […] This article analyzes the difficult legal questions raised by application of the 'jus in bello' categories to cyber warriors. The traditional category approach to targeting and detention works best when participation is limited to traditional combatants and it is possible to distinguish on the battlefield between combatants and civilians. Both assumptions are challenged in cyber operations."
2013 Naval War College International Law Studies. Posted here with permission. Documents are for personal use only and not for commercial profit.
U.S. Naval War College: http://www.usnwc.edu/
Naval War College International Law Studies (2013), v. 89, p. 288-308