Is the Principle of Distinction Still Relevent in Cyberwarfare?

Abstract

From the ICRC to the Tallinn Manual on international law applicable to Cyberwarfare, there is a broad consensus to agree that cyberwar, like any other method or means of warfare, is subject to the law of armed conflict including one of its « cardinal principles » the principle of distinction. However, the transposition of the principle of distinction into cyberspace raises important legal questions. Indeed, the prohibition of direct attacks against civilians expressed by the principle of distinction can’t easely be transposed to cyber-operations that are in part or completely dematerialized. This invites us to reread the principle carefully in order to assess whether it is strictly focalized on the prohibition of “attacks” against civilians or whether it should also be interpreted as prohibiting any military cyber operations against them. The interconnectivity characterizing cyber space also challenges the protective statute given by the principle of distinction. By blurring the distinction between civilians and the military cyberwarfare makes the enforcement of the principle of distinction all the more challenging.

Keywords: Cyber-security, International Law, Law of armed conflict, International Humanitarian Law, Use of force, War