The nexus between international humanitarian law and cyber warfare now a day is interwoven and interconnected.
By Yohannes Eneyew Ayalew
To begin with,
the nexus between international humanitarian law and cyber warfare now a day is
interwoven and interconnected.
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 Ayalew , School 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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