There is an ongoing debate about the adequacy of International Humanitarian Law (IHL) when it comes to applying to cyber operations in armed conflicts. Challenges in applying IHL to cyber warfare stem from cyberspace’s distinct characteristics, such as concerns about proportionality and differentiating between attacks, despite similarities with traditional warfare. The Tallinn Manual offers advice without legal power, prompting some specialists to call for new laws focusing on cyber warfare[i]. In the end, although IHL can be applied, its success may need more explanation and adjustments to tackle the intricacies of contemporary cyber activities.[ii]
The Characteristics of Cyber Warfare
Cyber warfare entails using digital attacks by a state or non-state actor to disrupt, degrade, or destroy critical infrastructure, military operations, or communication systems. Cyber operations are unlike traditional warfare because they are non-lethal, posing a challenge for categorizing them within current IHL standards that focus on regulating conflict involving physical harm and casualties.
Critical attributes of Cyber Warfare
Lack of Visibility: Cyberattacks may be initiated without revealing the identity of the attackers, making it difficult to identify them.
Non-Physical Impact: While certain cyberattacks can result in direct harm (such as power grid disruptions causing civilian casualties), others may simply disrupt systems without causing immediate physical damage.
Swift Escalation: Cyber attacks can rapidly turn into large-scale military conflicts, blurring the distinction between peace and war.
These attributes present a difficulty for IHL, which typically distinguishes between fighters and non-combatants and restricts acceptable methods of war based on the principles of distinction and proportionality.
Challenges to International Humanitarian Law in the realm of Cyber Warfare
1. The Principle of Distinction:
The principle of distinction mandates that parties in a conflict differentiate between military targets and civilian objects. In cyber warfare, the difficulty lies in the interconnected networks relied upon by military and civilian infrastructures, such as telecommunications and power grids. Attacks targeting items with both civilian and military applications.
2. Proportionality and Collateral Damage:
IHL requires that the harm to civilians and civilian objects must not be disproportionately in relation to the anticipated military advantage. Assessing proportionality in cyber warfare is challenging due to the potential for cascading effects from an attack on a single system (like financial institutions), which could cause significant economic or societal damage.
Current IHL Framework and Cyber Warfare
Despite facing these challenges, some individuals believe that the fundamental principles of IHL- distinction, proportionality, and necessity can be applied to cyber warfare. Primary initiatives aimed at narrowing the divide between international humanitarian law and cyber warfare consist of:
1. The Tallinn Manual:
The Tallinn Manual on Cyber Warfare applies established IHL principles to cyber operations as an academic study, without legal binding. It proposes that cyber activities classified as an “armed attack” should be controlled by the same rules that regulate traditional military operations. Nevertheless, the manual acknowledges deficiencies in existing legislation, particularly concerning cyber activities of a less severe nature that do not reach the level of armed conflict.[iii]
2. The Geneva Conventions and Traditional International Humanitarian Law:
The Geneva Conventions do not specifically discuss cyber warfare, but traditional IHL provides some direction. In theory, cyber operations can adhere to the principles of proportionality and distinction. Yet, the difficulty is in understanding how these principles relate to online actions that may not result in immediate tangible outcomes.[iv]
Shortcomings of IHL
1. Describing Cyber Attacks within the Context of Warfare:
IHL has not defined what counts as a “cyberattack” during wartime. The point at which a cyber operation qualifies as an “armed attack” according to IHL is unclear, leading to uncertainty about its classification under IHL.
2. Non-State Actors and Proxy Conflict:
The emergence of non-state actors and proxy groups in cyber warfare poses substantial legal obstacles. It is challenging to directly attribute actions to a state due to the involvement of non-state actors in numerous cyber operations. Presently, international humanitarian law faces difficulty in distinguishing between state and non-state actors in the cyber realm.
The Effects of Cyber Warfare on humanitarian efforts
The main focus of IHL is the safeguarding of civilians from physical harm. Still, cyber warfare can negatively impact civilians by interrupting critical services like healthcare, water, and food supply, without directly causing physical harm. Under the current IHL, indirect effects are not adequately controlled because the focus is on direct harm and its physical outcomes.
Conclusion
Though International Humanitarian Law principles lay the groundwork for governing cyber warfare, they fall short in fully tackling the distinctive obstacles presented by the digital aspect of contemporary conflict. An international agreement is needed to define what counts as a cyberattack during times of war, including determining when cyber operations can be considered “armed attacks” according to International Humanitarian Law (IHL).
The fast-paced advancement of cyber operations requires the creation of precise legal standards and improved definitions under the IHL framework to guarantee adequate protection for civilians and civilian infrastructure. The global community needs to collaborate in updating and broadening the scope of International Humanitarian Law to adapt to the changing nature of cyber warfare.
[i] Khawaja, Amna Adnan. “Cyber Warfare and International Humanitarian Law.” DLP Forum, 25 Aug. 2022, www.dlpforum.org/2022/08/17/cyber-warfare-and-international-humanitarian-law, (Date Accession: 28.10.2024).
[ii] Law and Policy | CyberPeace Institute. Cyberconflicts.cyberpeaceinstitute.org/law-and-policy, (Date Accession: 28.10.2024).
[iii] “Cyber Warfare: does International Humanitarian Law apply?” International Committee of the Red Cross, 25 May 2023, www.icrc.org/en/document/cyber-warfare-and-international-humanitarian-law , (Date Accession: 28.10.2024).
[iv] Melzer, Nils and UNIDIR. Cyberwarfare and International Law. 2011, unidir.org/files/publication/pdfs/cyberwarfare-and-international-law-382.pdf , (Date Accession: 28.10.2024).
