Is the current framework of IHL sufficient to deal with cyber warfare?
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Is the current framework of IHL sufficient to deal with cyber warfare?
The world is on the verge of becoming a technological village. The advent and globalization of internet have become the most powerful and fastest growing technological revolution.[1] The number of individuals using the internet has increased tremendously with businesses, non-state communities, states and individuals being connected using the internet. These different communities have become interdependent. In a similar manner, the military has become dependent on networks and computer systems. This use of technology and its other uses regarding criminal activities has resulted in the rise of cyber warfare. Cyber warfare has been described as being very dangerous.[2] The issue of cyber warfare has raised major concerns regarding the preparedness of the international humanitarian law, hereafter IHL, in preventing its occurrence. This paper seeks to explore the ability of the current framework of IHL in preventing cyber warfare.
According to Ayalew, cyber warfare refers to the trespassing of one sate’s computers or networks with the intent of causing harm.[3] Moreover, a cyber attack may imply any action that involves the use of computers that results in denial, degradation, disruption or destruction of information in the computers in those states. The latter definition of cyber warfare implies that it does not have to include armed conflict. Droege accounts for the applicability of IHL in cyber warfare only if it involves armed conflict.[4] In cases when cyber warfare does not involve the use of armed conflict, the framework of IHL does not have the capability to deal with such situations.
Another drawback of the IHL in countering cyber warfare can be seen in the Jus in bello, the law of war.[5] This law determines the conduct during armed conflict. The principle of distinction of this law between the civilians and combatants with the latter being the only one who should be targeted during a war. Such a principle does not apply in the case of cyber warfare. As stated earlier, different communities both from the civil and military sector have become interdependent. Such interlink between various communities implies that cyber warfare may involve civilian networks.
The law of neutrality as defined in IHL that limits attack on neutral territories.[6] Such law would be easily applied in the case of international armed conflicts. However, cyber warfare makes it difficult to uphold this law in the sense that technological infrastructure of the neutral territories cannot be distinguished from those of the conflicting parties. Therefore, neutral territories will end up suffering any event of cyber warfare attacks on either of the conflicting parties.
The IHL also is hindered in curbing cyber warfare by its protective nature to some perpetrators. Ayalew explains that most perpetrators of the cyber attack are civilians who are protected by IHL against being attacked directly.[7] Droege further adds to this factor by considering the Articles on Responsibility of States for Internationally Wrongful Acts.[8] In this case, the direction or control of states in cyber warfare operations has to be demonstrated for it to be considered responsible for the operation. Lack of such control or direction implies that the operation cannot be imputed to the state concerned even in instances when it is committed by personnel depending highly on the authorities of a state.
The Tallin Manual on the International Law Applicable to Cyber Warfare made trial in applying the current framework of IHL to cyber warfare. However, the manual has various drawbacks. For instance, it fails to account whether cyber warfare is war in the sense of armed conflict. Moreover, the interconnectedness of the cyberspace is not well considered. In light of these drawbacks and many more that do exist, it would be prudent to conclude that the current IHL framework is not able to deal with cyber warfare.
[1] Melzer, Nils. ‘Cyberwarfare and international law.’ (UNIDIR, 2011) 3.
[2] Kleffner, Jann K., and Heather A. Harrison Dinniss. ‘Keeping the Cyber Peace: International Legal Aspects of Cyber Activities in Peace Operations.” (2013) Int’l L. Stud. Ser. US Naval War CoL, 512.
[3] Ayalew, Yohannes Eneyew. ‘Cyber Warfare: A New Hullaballoo under International Humanitarian Law.’ (2015) Beijing Law Review, 211.
[4] Droege, Cordula. ‘Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians.’ (2012) International Review of the Red Cross, 542.
[5] Ayalew, Yohannes Eneyew. ‘Cyber Warfare: A New Hullaballoo under International Humanitarian Law.’ (2015) Beijing Law Review, 221.
[6] Droege, Cordula. ‘Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians.’ (2012) International Review of the Red Cross, 565.
[7] Ayalew, Yohannes Eneyew. ‘Cyber Warfare: A New Hullaballoo under International Humanitarian Law.’ (2015) Beijing Law Review, 221.
[8] Droege, Cordula. ‘Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians.’ (2012) International Review of the Red Cross, 544.
