OPINION | The Nexus Between Cyber Warfare & International Humanitarian Law

OPINION | The Nexus Between Cyber Warfare & International Humanitarian Law

By Yohannes Eneyew Ayalew

To begin with, the nexus between international humanitarian law and cyber warfare now a day is interwoven and interconnected.

OPINION | The Nexus Between Cyber Warfare and International Humanitarian Law (IHL)

As we know, International Humanitarian Law (IHL) deals the rules that militaries must follow when participating in a war. These laws of war describe what actions may or may not be taken against non-combatants, soldiers, and unlawful combatants.

A key point of IHL is that civilians and non-combatants may not be killed or treated inhumanely during times of war

The International Humanitarian law has banned the use of many weapons, which includes exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.

The International Criminal Court (ICC), with the objective of repressing inter alia war crimes, was created by the 1998 Rome Statute to try cases relating to IHL. The ongoing 21st century is the Era where several new military warfare concepts have emerged. The concept of Cyber warfare is one of them. Where computer networks are used for cyber-attacks instead of conventional weapons; and satellites are used for providing images far more detailed than human spies and reconnaissance units have ever offered.

However, as Cyber technology is the new phenomena in the 21st century, IHL faces the new challenge of addressing ethical standards for war in cyber space. Though the obvious wars on land, sea, and air may be claimed as issues covered by the existing rules and customs of warfare, cyberspace is undefined. While cyberspace itself is non-physical, it is a critical infrastructure that can greatly affect the physical world. Logic bombs and computer viruses can disrupt everything from electric grids and the stock market to nuclear power plants and water treatment facilities.

Besides, As far as the nexus between IHL and Cyber warfare is concerned, it is worthy to reiterate the central themes of humanitarian laws; Interalia. Jus in bello, conjointly called the law of war, the law of armed conflict (LoAC) or international humanitarian law (IHL) [1] is the section of law of nations handling the protection of persons who are not any longer collaborating within the hostilities which restricts the means and strategies of warfare. It includes written agreement law and customary law, because the latter has been crystallized throughout history[2].

Treaty law consists primarily of two sets of IHL legal package: that is Hague Conventions and Geneva Conventions. The first one, Hague Conventions deals with sensible military aspects of the conduct of hostilities, consisting of city rules of 1899 and 1907, plus numerous other conventions and agreements prohibiting the employment of sure weapons and military tactics.

The second one, Geneva Conventions concentrates on the protection of civilians, prisoners of war, wounded and sick toward land and sea, comprising of the four 1949 Geneva ConventionS [3].

Further Protocol III was added in 2005 regarding the Adoption of a further Distinctive Emblem [4]

International law is a body of rules and regulations governing the relation between various states and International Humanitarian law is just a part of it, which applies to armed conflict.

It covers two areas:

The protection of those who are not a part or not a party to conflict.
Restrictions on the means of warfare―in particular weapons and the methods of warfare, like military tactics.

International Humanitarian Law protects those who are not taking part in the fighting, like civilians and medical and religious military personnel. International Humanitarian Law prohibits all means and methods of warfare which fails to discriminate between those taking part in the fighting and those, such as civilians, the purpose being protecting the civilian population, individual civilians and civilian property;

Cause injury which results into unnecessary sufferings and;
Cause severe and permanent damage to the environment [5]

Cyber warfare has been explained as any hostile measure taken against an enemy designed “to discover, destroy, disrupt, alter, destroy, disrupt or transfer data kept in a computer, which is manipulated through a computer or transmitted through a computer network”30. Simply it is an attack based on networks which is adopted by many countries to reduce their frustration and also to avoid the real war situation. Chinese attack on US, Chinese attack on Google, attack by Ghost net spyware network upon confidential information of more than 100 countries are the examples which introduces the concepts of cyber warfare. Facebook has taught us that some-one is always watching our activities, but it is always acceptable when it is not a big boss [6]

Contemporary armed conflicts are to be controlled by a body of law by which came in to existence as binding and relatively comprehensive document in the second half of the 20th century and which have not yet become adaptable to contemporary legal as well as practical challenges introduced by new technologies of warfare interalia cyber warfare.

Some scholars like Cordula Droege, a legal expert of International committee of Red Cross (ICRC), explain that the existing legal framework is applicable and must be respected even in the cyber realm [7].

The researcher on the other hand argues it is very difficult to apply the existing IHL legal regime to cyber realm because the technicality of the subject matter results in non-compliance.

The following is an overview of weapons that are regulated by IHL treaties [8].

Even though IHL doesn't specifically mention cyber warfare, the Martens clause [9], that is associated with accepted principle of IHL, says that whenever a state of affairs isn't coated by a global agreement, “civilians and combatants stay below the protection and authority of the principles of jurisprudence derived from established custom, from the principles of humanity, and from the dictates of public conscience”.

In fact, it is the role of ICRC to look into the valid developments that need to be incorporated in IHL. Generally speaking, it shall be taken for granted that new scenarios of warfare are not far-flung from IHL regulation.

However it also regulates, through its general rules, the legitimacy of all means and strategies of warfare, as well as the employment of all weapons. specifically, Article 36 of I protocol to the Geneva Conventions provides that, “in the study, development, acquisition or adoption of a brand new weapon, means that or methodology of warfare, a High contracting Party is below associate obligation to see whether or not its employment would, in some or all circumstances, be prohibited by this Protocol or by the other rule of jurisprudence applicable to the High Contracting Party.”

On the far side the precise obligation it imposes on States parties, this rule shows that general IHL rules apply to new technology.

Unless IHL addresses specific guidelines for warring nations to follow in cyberspace, civilians and non-com- batants could be seriously endangered in the event of cyber-war [10].

However, there are still arguments’ inclining to the position that IHL provisions do not specifically mention cyber operations. Because of this, and because the exploitation of cyber technology is relatively new and sometimes appears to introduce a complete qualitative change in the means and methods of warfare, it has occasionally been argued that IHL is ill adapted to the cyber realm and cannot be applied to cyber warfare [11].

But one has to note that, the absence in IHL of specific references to cyber operations does not mean that such operations are not subject to the rules of IHL. New technologies of all kinds are being developed all the time and IHL is sufficiently broad to accommodate these developments [12].

IHL prohibits or limits the use of certain weapons specifically (for instance, chemical or biological weapons, or anti-personnel mines). Beyond the specific obligation it imposes on states party to Additional Protocol I, this rule shows that IHL rules apply to new technology.

Now the researcher raises the issue that should International Humanitarian Law in black and white applies to Cyber warfare or not?

At this juncture it is worthy to reiterate the notion that IHL is only applicable if cyber operations are conducted in the context of and related to an armed conflict. Thus, there is a fast and hard rule that when cyber operations are conducted in the context of an ongoing armed conflict they are governed by the same IHL rules as that conflict: for instance, if in parallel or in addition to a bomb, Airplane or missile attack, a party to the conflict also launches a cyber-attack on the computer systems of its adversary.

However, a number of operations referred to as cyber warfare may not be carried out in the context of armed conflicts at all. Terms like “cyber attacks” or “cyber terrorism” may evoke methods of warfare, but the operations they refer to are not necessarily conducted in an armed conflict. Cyber operations can be and are in fact used in crimes committed in everyday situations that have nothing to do with war [13].


In a nut shell, the researcher argues IHL will apply to cyber operations that are conducted within the framework of an ongoing international or non-international armed conflict in addition to kinetic operations.

About The Author:

Yohannes Eneyew AyalewSchool of Law, Samara University, Samara, Ethiopia 

Publication Details:

This article is an extract from a research paper - "Cyber Warfare : A New Hullaballo under International Humanitarian Law" , Beijing Law Review, Vol. 06, No. 04 (2015), Article ID: 60300.14 Pages, DOI: 10.4236/blr.2015.64021

Copyright © 2015 by author and Scientific Research Publishing Inc.
This work is licensed under the Creative Commons Attribution International License (CC BY).

References:

[1] Glance at, The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force By Howard M. Hensel The Law of Armed Conflict: International Humanitarian Law in War By Gary D. Solis ; International law and armed conflict: exploring the fault lines: By Michael N. Schmitt, Jelena Pejic, Yoram Dinsṭein; The conduct of hostilities under the law of international armed conflict By YoramDinstein ; The contemporary law of armed conflict By Leslie Green; The law of war By Ingrid Detter.

[2] ICRC has contributed with a recent customary IHL database published with the results of research on customary humanitarian law conducted in 2005, available at www.icrc.org/customaryihl.html last visited 15 January, 2014.

[3] Supplementary to earlier Conventions of 1846, 1906 and 1929. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949 [GC I]; see also Jean Pictet (ed.), Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952 ; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949 [GC II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949 [GC III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 [GC IV]. It’s more complemented by the two further Protocols of 1977, regarding the protection of victims of international and non-international armed conflicts. i.e. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977 [AP I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977 [AP II].

[4] Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem, December 8 2005 [AP III].

[5]WWW.INTERNATIONAL%20HUMANITARIAN%20LAW%20AND%20NEW%20WEAPON%20TECHNOLOGIES%20_%20LAW%20MANTRA.htm Last visited 15 January 2014.

[6] Legal Vacuum in Cyber Space, International Committee of the Red Cross, available at http://www.icrc.org/eng/resources/documents/interview/2011/cyber-warfare-interview-2011-08-16.htm, last visited 15 January 2014.

[7] Supra note 44.


[9] International humanitarian law contains basic principles and rules governing the choice of weapons and prohibits or restricts the employment of certain weapons. The ICRC plays a leading role in the promotion and development of law regulating the use of certain weapons. See http://www.icrc.org/eng/war-and-law/weapons/overview-weapons.htm last visited16-05-2014.

[10] The clause took its name from a declaration read by Fyodor Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words: “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” see http://en.wikipedia.org/wiki/Martens_Clause last visited 21-05-2014.

[11]International Humanitarian Law for Cyber warfare; Max Blumenthal School of International Service The American University 4400 Massachusetts Ave NW Washington, DC 20016.

[12]Charles J. Dunlap Jr., “Perspectives for cyber strategists on law for cyber war”, in Strategic Studies Quarterly, Spring 2011, p. 81.

[13]Supra note 15, p. 8.

[14] Ibid p. 542.
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