Of the diverse array of contemporary challenges around humanitarian access in armed conflict, a particular set of issues concerns the so-called “criminalization” of humanitarian action under counterterrorism frameworks. This presentation raises some key elements of that set of issues.

First, I should note that I am speaking today in my personal capacity only, and my views do not represent those of the U.S. government, the Department of Defense, or U.S. Cyber Command. At the outset, let me provide a brief overview of U.S. Cyber Command. It is a relatively new command within the Department of Defense. Established about seven years ago as a subunified command, it is an operational headquarters at the strategic level but at the moment subordinate to U.S. Strategic Command, one of the combatant commands within the Department of Defense. The 2017 National Defense Authorization Act included a provision stating that there shall be established a combatant command known as U.S. Cyber Command. As a result, there is now a lot of movement afoot to see how we will meet that legislative intent. In all likelihood, U.S. Cyber Command will elevate at some time in the future as a full combatant command.

In the first place, the motion cannot get off the ground because there is no objective way to tell what jurisdictional decisions are “expansive.” In every contested jurisdictional proceeding, the respondent, at that phase of the case, will regard the court's decision as overly expansive if the court seizes jurisdiction. Whereas the claimant will not.