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Kubo Macak

University of Exeter, Law, Faculty Member

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Dr Kubo Mačák is an Associate Professor of Public International Law at the University of Exeter (United Kingdom). He holds a DPhil in international law from the University of Oxford. Kubo has held research positions at the Universities of Bonn (Germany), Haifa (Israel), and Wuhan (China). He has worked at the United Nations ad hoc tribunals for the former Yugoslavia and Rwanda. He is currently serving as a core expert in the Woomera Manual on the International Law of Military Space Operations project. His research interests span international humanitarian law, international cyber law, and general international law.
Phone: +44 1392 725 607
Address: University of Exeter
Law School
Room 103E
Amory Building
Rennes Drive
Exeter
EX4 4RJ
United Kingdom

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Papers by Kubo Macak

Z Huang & K Mačák, ‘Towards the International Rule of Law in Cyberspace: Contrasting Chinese and Western Approaches’, (2017) 16 Chinese Journal of Internaional Law __ (forthcoming)

by Zhixiong Huang and Kubo Macak

China and Western countries have repeatedly portrayed each other as potential or actual adversari... more China and Western countries have repeatedly portrayed each other as potential or actual adversaries in cyberspace. Yet, both sides ostensibly subscribe to an international consensus that cyber operations must be subjected to the rule of law. Against this background, the article examines five key aspects of the rule of law in cyberspace, which are ordinarily understood as areas of contention: (1) preferred method of identification and development of international law; (2) competing models of cyberspace governance; (3) application of sovereignty to cyberspace; (4) question of militarization of cyberspace; and (5) legality of cyber espionage. Our analysis demonstrates that it is inaccurate to view China and the West as sharply divided and competing camps. Rather, the emerging picture reveals a web of relationships and views that reflect an overall trajectory of convergence, even if modest in scope and velocity.

Is the international law of cyber security in crisis?

2016 8th International Conference on Cyber Conflict (CyCon), 2016

Principles of Neutrality and Impartiality of Humanitarian Action in the Aftermath of the 2011 Libyan Conflict

K Mačák, ‘A Matter of Principle(s): The Legal Effect of Impartiality and Neutrality on States as Humanitarian Actors’, (2016) 97 International Review of the Red Cross 157

This article examines the legal nature of the principles of impartiality and neutrality of humani... more This article examines the legal nature of the principles of impartiality and neutrality of humanitarian action, focusing on States as humanitarian actors. It argues that international law does not provide a general legal basis for the universal applicability of these principles, contrary to a common interpretation of the International Court of Justice's 1986 judgment in the Nicaragua case. Nevertheless, impartiality and neutrality may have a significant legal effect on the conduct of States. They may be directly binding on States through the operation of Security Council resolutions drafted in mandatory language. In addition, they may have indirect effect due to the States’ obligation to respect humanitarian organizations’ adherence to the principles. On the basis of this argument, the article pleads for increased conceptual clarity and, in turn, effectiveness of humanitarian action.

K Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’, (2016) 21 Journal of Conflict and Security Law 405

Cyber operations pose a set of novel challenges to the generally conservative body of the law of ... more Cyber operations pose a set of novel challenges to the generally conservative body of the law of State responsibility. Central among them is the problem of attribution, which lies at the intersection of technology and law. This article reflects the recent developments in the States’ technological capacity to identify the sources of cyber attacks from the perspective of international law. It revisits Article 8 of the International Law Commission’s Articles on State Responsibility in order to ‘decode’ its contents vis-à-vis its drafting history and with an eye on its future application to the conduct in cyberspace. The article argues that there are three autonomous standards of attribution built into that provision: instructions, direction, and control. It then demonstrates the utility and limitations of each of them against the backdrop of actual and hypothetical cyber operations. The article concludes with suggestions for further development of the law in this area, focussing on the missing potential of the law to regulate instigation of wrongful cyber conduct and on the prohibitively strict test of control applicable de lege lata.

K Mačák, ‘From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers’, (2017) 30 Leiden Journal of International Law __ (forthcoming)

Several indicators point to a crisis at the heart of the emerging area of international cyber sec... more Several indicators point to a crisis at the heart of the emerging area of international cyber security law. First, proposals of internationally binding treaties by the leading stakeholders, including China and Russia, have been met with little enthusiasm by other states, and are generally seen as having limited prospects of success. Second, states are extremely reluctant to commit themselves to specific interpretations of controversial legal questions and thus to express their cyber opinio juris. Third, instead of interpreting or developing rules, state representatives seek refuge in the more ambiguous term 'norms'. This article argues that the reluctance of states to engage themselves in international law-making has generated a power vacuum, lending credence to claims that international law fails in addressing modern challenges posed by the rapid technological development. In response, several non-state-driven norm-making initiatives have sought to fill the void, including Microsoft's cyber norms proposals and the Tallinn Manual project. The article then contends that this emerging body of non-binding norms presents states with a critical window of opportunity to reclaim a central law-making position, similarly to historical precedents including the development of legal regimes for Antarctica and nuclear safety. Whether the supposed crisis will lead to the demise of interstate cyberspace governance or to a recalibration of legal approaches will thus be decided in the near future. States should assume a central role if they want to ensure that the existing power vacuum is not exploited in a way that would upset their ability to achieve their strategic and political goals.

K Mačák, ‘A Needle in a Haystack? Locating the Legal Basis for Detention in Non-International Armed Conflict’, (2015) 45 Israel Yearbook on Human Rights 87

Israel Yearbook on Human Rights

The article examines the problem of the absence of an express legal basis to detain in the law of... more The article examines the problem of the absence of an express legal basis to detain in the law of non-international armed conflict. It considers the attempts to locate the legal basis by way of logical inference either from a putative power to kill in non-international armed conflicts or from the power to detain in international armed conflicts. It also considers teleological and practical arguments posed against the existence of a legal power to detain. It then argues that the preferred interpretation is to view the legal basis to detain as inherent in the law of non-international armed conflict. The existence of an implicit legal basis is consistent with the understandings and expectations of the drafters of Additional Protocol I, as evidenced by a close examination of the travaux préparatoires. Moreover, the post-World War II practice and some modern-day pronouncements corroborate the existence of an inherent legal basis in customary IHL. Finally, in light of the challenges posed by modern conflicts marked by the asymmetry of the parties and by the extraterritoriality of the hostilities, the law of NIAC is far more effective if it is interpreted to contain a legal power to detain than if it is not.

K Mačák, ‘Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law’, (2015) 48(1) Israel Law Review 55

Israel Law Review

This article presents the case for a progressive interpretation of the notion of military objecti... more This article presents the case for a progressive interpretation of the notion of military objectives in international humanitarian law (IHL), bringing computer data within the scope of this concept. The advent of cyber military operations has presented a dilemma as to the proper understanding of data in IHL. The emerging orthodoxy, represented by the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare, advances the argument that the intangible nature of data renders it ineligible to be an object for the purposes of the rules on targeting in IHL. This article, on the contrary, argues that due to its susceptibility to alteration and destruction, the better view is that data is an object within the meaning of this term under IHL and thus it may qualify as a military objective. The article supports this conclusion by means of a textual, systematic, and teleological interpretation of the definition of military objectives found in treaty and customary law. The upshot of the analysis presented here is that data that does not meet the criteria for qualification as a military objective must be considered a civilian object, with profound implications for the protection of civilian datasets in time of armed conflict.

K Mačák, ‘Principles of Neutrality and Impartiality of Humanitarian Action in the Aftermath of the 2011 Libyan Conflict’ in A Zwitter and others (eds), Humanitarian Action: Global, Regional and Domestic Legal Responses (Cambridge University Press, Cambridge 2014)

Humanitarian Action: Global, Regional and Domestic Legal Responses, Nov 1, 2014

"Have the principles of neutrality and impartiality of humanitarian action become a myth, a dead ... more "Have the principles of neutrality and impartiality of humanitarian action become a myth, a dead concept emptied of its contents due to the reality of modern asymmetrical armed conflicts? This chapter considers the events of the Libyan civil war of 2011 against the legal backdrop of international humanitarian law (IHL) to argue that although these two principles have been placed under severe strain in Libya, any reports of their death would nonetheless be greatly exaggerated. Although the trend of their weakening that has been observed in the wars in Iraq and Afghanistan has in some ways continued, they still constitute, in law and in practice, the guiding principles of humanitarian action.

The analysis provided in this chapter is divided into three main parts. Part I provides the legal framework applicable to the provision of humanitarian action during the Libyan conflict from the perspective of IHL. Part II analyses how principles of neutrality and impartiality of humanitarian action have been respected by the quantitative and qualitative nature of aid provided in Libya by external actors. Part III analyses to what extent the conflict posed a challenge to neutrality and impartiality with respect to agents of humanitarian action, contrasting the different problems faced by humanitarian agencies on the one hand and multi-purpose actors on the other. The conclusion draws lessons to be learned from the analysis presented and supports on its basis the central claim of this chapter that the two principles, even if badly battered during the war, are still alive and kicking."

K Mačák and N Zamir, ‘The Applicability of International Humanitarian Law to the Conﬂict in Libya’ (2012) 14(4) International Community Law Review 403

International Community Law Review, Dec 1, 2012

The purpose of this article is to examine the applicability of international humanitarian law to ... more The purpose of this article is to examine the applicability of international humanitarian law to the 2011 conﬂict in Libya in its consecutive phases. We argue that the situation in Libya rose to the level of noninternational armed conﬂict between the government forces and insurgents united by the National Transitional Council by the end of February 2011. The military intervention by a multi-state coalition acting under the Security Council mandate since March 2011 occasioned an international armed conﬂict between Libya and the intervening States. We consider and reject the arguments in favour of conﬂict convergence caused by the increased collaboration between the rebels and NATO forces. Similarly, we refute the propositions that the Gaddaﬁ government’s gradual loss of power brought about conﬂict deinternationalisation. Finally, we conclude that both parallel conﬂicts in Libya terminated at the end of October 2011. The article aspires to shed light on the controversial issues relating to conﬂict qualiﬁcation in general and to serve as a basis for the assessment of the scope of responsibility of the actors in the Libyan conﬂict in particular.

K Mačák, ‘“That’s a Secret I Must Keep to Myself, Your Honour!” Comparative and Theoretical Assessment of Legal Professional Privilege in England and on the Continent’ (2010) 10 Common Law Review 17

Common Law Review

Z Huang & K Mačák, ‘Towards the International Rule of Law in Cyberspace: Contrasting Chinese and Western Approaches’, (2017) 16 Chinese Journal of Internaional Law __ (forthcoming)

by Zhixiong Huang and Kubo Macak

China and Western countries have repeatedly portrayed each other as potential or actual adversari... more China and Western countries have repeatedly portrayed each other as potential or actual adversaries in cyberspace. Yet, both sides ostensibly subscribe to an international consensus that cyber operations must be subjected to the rule of law. Against this background, the article examines five key aspects of the rule of law in cyberspace, which are ordinarily understood as areas of contention: (1) preferred method of identification and development of international law; (2) competing models of cyberspace governance; (3) application of sovereignty to cyberspace; (4) question of militarization of cyberspace; and (5) legality of cyber espionage. Our analysis demonstrates that it is inaccurate to view China and the West as sharply divided and competing camps. Rather, the emerging picture reveals a web of relationships and views that reflect an overall trajectory of convergence, even if modest in scope and velocity.

Is the international law of cyber security in crisis?

2016 8th International Conference on Cyber Conflict (CyCon), 2016

Principles of Neutrality and Impartiality of Humanitarian Action in the Aftermath of the 2011 Libyan Conflict

K Mačák, ‘A Matter of Principle(s): The Legal Effect of Impartiality and Neutrality on States as Humanitarian Actors’, (2016) 97 International Review of the Red Cross 157

This article examines the legal nature of the principles of impartiality and neutrality of humani... more This article examines the legal nature of the principles of impartiality and neutrality of humanitarian action, focusing on States as humanitarian actors. It argues that international law does not provide a general legal basis for the universal applicability of these principles, contrary to a common interpretation of the International Court of Justice's 1986 judgment in the Nicaragua case. Nevertheless, impartiality and neutrality may have a significant legal effect on the conduct of States. They may be directly binding on States through the operation of Security Council resolutions drafted in mandatory language. In addition, they may have indirect effect due to the States’ obligation to respect humanitarian organizations’ adherence to the principles. On the basis of this argument, the article pleads for increased conceptual clarity and, in turn, effectiveness of humanitarian action.

K Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’, (2016) 21 Journal of Conflict and Security Law 405

Cyber operations pose a set of novel challenges to the generally conservative body of the law of ... more Cyber operations pose a set of novel challenges to the generally conservative body of the law of State responsibility. Central among them is the problem of attribution, which lies at the intersection of technology and law. This article reflects the recent developments in the States’ technological capacity to identify the sources of cyber attacks from the perspective of international law. It revisits Article 8 of the International Law Commission’s Articles on State Responsibility in order to ‘decode’ its contents vis-à-vis its drafting history and with an eye on its future application to the conduct in cyberspace. The article argues that there are three autonomous standards of attribution built into that provision: instructions, direction, and control. It then demonstrates the utility and limitations of each of them against the backdrop of actual and hypothetical cyber operations. The article concludes with suggestions for further development of the law in this area, focussing on the missing potential of the law to regulate instigation of wrongful cyber conduct and on the prohibitively strict test of control applicable de lege lata.

K Mačák, ‘From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers’, (2017) 30 Leiden Journal of International Law __ (forthcoming)

Several indicators point to a crisis at the heart of the emerging area of international cyber sec... more Several indicators point to a crisis at the heart of the emerging area of international cyber security law. First, proposals of internationally binding treaties by the leading stakeholders, including China and Russia, have been met with little enthusiasm by other states, and are generally seen as having limited prospects of success. Second, states are extremely reluctant to commit themselves to specific interpretations of controversial legal questions and thus to express their cyber opinio juris. Third, instead of interpreting or developing rules, state representatives seek refuge in the more ambiguous term 'norms'. This article argues that the reluctance of states to engage themselves in international law-making has generated a power vacuum, lending credence to claims that international law fails in addressing modern challenges posed by the rapid technological development. In response, several non-state-driven norm-making initiatives have sought to fill the void, including Microsoft's cyber norms proposals and the Tallinn Manual project. The article then contends that this emerging body of non-binding norms presents states with a critical window of opportunity to reclaim a central law-making position, similarly to historical precedents including the development of legal regimes for Antarctica and nuclear safety. Whether the supposed crisis will lead to the demise of interstate cyberspace governance or to a recalibration of legal approaches will thus be decided in the near future. States should assume a central role if they want to ensure that the existing power vacuum is not exploited in a way that would upset their ability to achieve their strategic and political goals.

K Mačák, ‘A Needle in a Haystack? Locating the Legal Basis for Detention in Non-International Armed Conflict’, (2015) 45 Israel Yearbook on Human Rights 87

Israel Yearbook on Human Rights

The article examines the problem of the absence of an express legal basis to detain in the law of... more The article examines the problem of the absence of an express legal basis to detain in the law of non-international armed conflict. It considers the attempts to locate the legal basis by way of logical inference either from a putative power to kill in non-international armed conflicts or from the power to detain in international armed conflicts. It also considers teleological and practical arguments posed against the existence of a legal power to detain. It then argues that the preferred interpretation is to view the legal basis to detain as inherent in the law of non-international armed conflict. The existence of an implicit legal basis is consistent with the understandings and expectations of the drafters of Additional Protocol I, as evidenced by a close examination of the travaux préparatoires. Moreover, the post-World War II practice and some modern-day pronouncements corroborate the existence of an inherent legal basis in customary IHL. Finally, in light of the challenges posed by modern conflicts marked by the asymmetry of the parties and by the extraterritoriality of the hostilities, the law of NIAC is far more effective if it is interpreted to contain a legal power to detain than if it is not.

K Mačák, ‘Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law’, (2015) 48(1) Israel Law Review 55

Israel Law Review

This article presents the case for a progressive interpretation of the notion of military objecti... more This article presents the case for a progressive interpretation of the notion of military objectives in international humanitarian law (IHL), bringing computer data within the scope of this concept. The advent of cyber military operations has presented a dilemma as to the proper understanding of data in IHL. The emerging orthodoxy, represented by the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare, advances the argument that the intangible nature of data renders it ineligible to be an object for the purposes of the rules on targeting in IHL. This article, on the contrary, argues that due to its susceptibility to alteration and destruction, the better view is that data is an object within the meaning of this term under IHL and thus it may qualify as a military objective. The article supports this conclusion by means of a textual, systematic, and teleological interpretation of the definition of military objectives found in treaty and customary law. The upshot of the analysis presented here is that data that does not meet the criteria for qualification as a military objective must be considered a civilian object, with profound implications for the protection of civilian datasets in time of armed conflict.

K Mačák, ‘Principles of Neutrality and Impartiality of Humanitarian Action in the Aftermath of the 2011 Libyan Conflict’ in A Zwitter and others (eds), Humanitarian Action: Global, Regional and Domestic Legal Responses (Cambridge University Press, Cambridge 2014)

Humanitarian Action: Global, Regional and Domestic Legal Responses, Nov 1, 2014

"Have the principles of neutrality and impartiality of humanitarian action become a myth, a dead ... more "Have the principles of neutrality and impartiality of humanitarian action become a myth, a dead concept emptied of its contents due to the reality of modern asymmetrical armed conflicts? This chapter considers the events of the Libyan civil war of 2011 against the legal backdrop of international humanitarian law (IHL) to argue that although these two principles have been placed under severe strain in Libya, any reports of their death would nonetheless be greatly exaggerated. Although the trend of their weakening that has been observed in the wars in Iraq and Afghanistan has in some ways continued, they still constitute, in law and in practice, the guiding principles of humanitarian action.

The analysis provided in this chapter is divided into three main parts. Part I provides the legal framework applicable to the provision of humanitarian action during the Libyan conflict from the perspective of IHL. Part II analyses how principles of neutrality and impartiality of humanitarian action have been respected by the quantitative and qualitative nature of aid provided in Libya by external actors. Part III analyses to what extent the conflict posed a challenge to neutrality and impartiality with respect to agents of humanitarian action, contrasting the different problems faced by humanitarian agencies on the one hand and multi-purpose actors on the other. The conclusion draws lessons to be learned from the analysis presented and supports on its basis the central claim of this chapter that the two principles, even if badly battered during the war, are still alive and kicking."

K Mačák and N Zamir, ‘The Applicability of International Humanitarian Law to the Conﬂict in Libya’ (2012) 14(4) International Community Law Review 403

International Community Law Review, Dec 1, 2012

The purpose of this article is to examine the applicability of international humanitarian law to ... more The purpose of this article is to examine the applicability of international humanitarian law to the 2011 conﬂict in Libya in its consecutive phases. We argue that the situation in Libya rose to the level of noninternational armed conﬂict between the government forces and insurgents united by the National Transitional Council by the end of February 2011. The military intervention by a multi-state coalition acting under the Security Council mandate since March 2011 occasioned an international armed conﬂict between Libya and the intervening States. We consider and reject the arguments in favour of conﬂict convergence caused by the increased collaboration between the rebels and NATO forces. Similarly, we refute the propositions that the Gaddaﬁ government’s gradual loss of power brought about conﬂict deinternationalisation. Finally, we conclude that both parallel conﬂicts in Libya terminated at the end of October 2011. The article aspires to shed light on the controversial issues relating to conﬂict qualiﬁcation in general and to serve as a basis for the assessment of the scope of responsibility of the actors in the Libyan conﬂict in particular.

K Mačák, ‘“That’s a Secret I Must Keep to Myself, Your Honour!” Comparative and Theoretical Assessment of Legal Professional Privilege in England and on the Continent’ (2010) 10 Common Law Review 17

Common Law Review