Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law

Israel Law Review, Vol. 48, No. 1, 2015, pp. 55-80

27 Pages Posted: 21 Jun 2014 Last revised: 4 Jun 2017

Date Written: June 20, 2014

Abstract

This article presents the case for a progressive interpretation of the notion of military objectives in international humanitarian law (IHL), bringing computer data within the scope of this concept. The advent of cyber military operations has presented a dilemma as to the proper understanding of data in IHL. The emerging orthodoxy, represented by the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare, advances the argument that the intangible nature of data renders it ineligible to be an object for the purposes of the rules on targeting in IHL. This article, on the contrary, argues that due to its susceptibility to alteration and destruction, the better view is that data is an object within the meaning of this term under IHL and thus it may qualify as a military objective. The article supports this conclusion by means of a textual, systematic, and teleological interpretation of the definition of military objectives found in treaty and customary law. The upshot of the analysis presented here is that data that does not meet the criteria for qualification as a military objective must be considered a civilian object, with profound implications for the protection of civilian datasets in time of armed conflict.

Keywords: computer data, cyber, international humanitarian law, military objective, object

JEL Classification: K33

Suggested Citation

Mačák, Kubo, Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law (June 20, 2014). Israel Law Review, Vol. 48, No. 1, 2015, pp. 55-80. Available at SSRN: https://ssrn.com/abstract=2456955

Kubo Mačák (Contact Author)

University of Exeter ( email )

Northcote House
The Queen's Drive
Exeter, Devon EX4 4QJ
United Kingdom
+44 1392 72 5607 (Phone)

HOME PAGE: http://www.kubomacak.org

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