Lawful Targets in Cyber Operations: Does the Principle of Distinction Apply?
International Law Studies, 2013
25 Pages Posted: 21 Jan 2016
Date Written: June 20, 2013
Most of the advanced and largest militaries in the world have, in recent years, devoted significant attention and resources to the development of the capacity to conduct – and defend against – cyber operations. Indeed, cyber operations feature prominently in discussions over future conflicts and are expected to be an inherent and major component in the waging of war. But cyber operations are not usually conducted with the aim of straightforward material harm to a physical military object and their use raises complex questions concerning the choice of targets. During armed conflict, international law provides detailed rules on targeting, most of which stem from the fundamental principle of distinction. The cyber sphere, however, presents unique challenges to our ability to adequately distinguish between military and civilian, and thereby adhere to this fundamental principle. Moreover, the nature of cyber operations is such that it does not neatly fit into the paradigm of hostilities around which the law of armed conflict (LOAC) is constructed. In fact, it has even been debated whether the LOAC rules on targeting would always apply to cyber operations, and whether the need to distinguish between military and civilian and the prohibition on attacking civilian targets is applicable to all forms of cyber operations or not. This article will examine these questions in the following manner. Part I it will address the question of the nature of cyber operations that are likely to take place and which are referred to as cyber attacks. This will be followed by an examination of cyber operations as fitting within the notion of attack. Part II will then turn to an analysis of the appropriate threshold of harm that would lead a cyber operation to be considered an attack under LOAC – and thus subject to the principle of distinction – with particular focus on destruction of data and harm that does not have direct physical manifestation.
Keywords: cyber, IHL, LOAC, cyberwar
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