Cyber warfare and the advent of computer network operations have forced us to look again at the concept of the military objective. The definition set out in Article 52(2) of Additional Protocol I – that an object must by its nature, location, purpose or use, make an effective contribution to military action – is accepted as customary international law; its application in the cyber context, however, raises a number of issues which are examined in this article. First, the question of whether data may constitute a military objective is discussed. In particular, the issue of whether the requirement that the definition applies to ‘objects’ requires that the purported target must have tangible or material form. The article argues on the basis of both textual and contextual analysis that this is not required, but it contends that it may prove to be useful to differentiate between operational- and content-level data. The second part of the article examines the qualifying contribution of military objectives such as their nature, location, purpose or use, and questions whether network location rather than geographical location may be used as a qualifying criterion in the cyber context. The final part of the article addresses the question of whether the particular ability of cyber operations to effect results at increasingly precise levels of specificity places an obligation on a party to an armed conflict to define military objectives at their smallest possible formulation – that is, a small piece of code or component rather than the computer or system itself. Such a requirement would have significant implications for the cyber context where much of the infrastructure is dual use, but the distinction between civilian objects and military objectives is a binary classification.
This chapter discusses the legal issues raised by the use of cyber operations during armed conflict.
Although none of the laws governing the conduct of hostilities address cyber operations explicitly, the laws are framed in general terms that may be interpreted to incorporate technological advances. This chapter thus explores the way in which those laws may be adapted and applied.
The chapter first considers the general applicability of the jus in bello to cyber operations. It then turns to the crucial principle of distinction, and assesses how this is to be applied in the cyber context. In particular, this section of the chapter assesses what may be targeted i.e., what constitutes a ‘military objective’, the issue of ‘dual use’ objects in the cyber context and the prohibition on indiscriminate attacks. The chapter then considers the various ways in which the principle of precaution may be relevant to cyber-attacks. It also provides an examination of a number of jus in bello requirements for measures of special protection, and assesses how these rules are relevant to cyber warfare. The final section turns to IHL’s restrictions on the ‘means and methods’ of warfare, including – but not limited to – the law of weaponry.
Advances in technologies that could endow humans with physical or mental abilities that go beyond the statistically normal level of functioning are occurring at an incredible pace. The use of these human enhancement technologies by the military, for instance in the spheres of biotechnology, cybernetics and prosthetics, raise a number of questions under the international legal frameworks governing military technology, namely the law of armed conflict and human rights law. The article examines these frameworks with a focus on weapons law, the law pertaining to the detention of and by “enhanced individuals,” the human rights of those individuals and their responsibility for the actions they take while under the influence of enhancements.
The International Law Association Study Group on the Conduct of Hostilities in the 21st Century was established in 2011 and held its first meeting in 2012. The Study Group has explored numerous issues arising from the relationship between international humanitarian law (IHL) and international human rights law in the conduct of military operations, technological challenges posed by new weapons systems, and the basic principles of IHL in the conduct of hostilities. In 2015, the Study Group established three working groups focusing on core issues within IHL in relation to the conduct of hostilities in modern warfare. These working group topics were military objectives, the principle of proportionality, and precautions in attacks. Each of these working group reports contributed to this final report, which the Study Group presented at the 77th International Law Association Conference in Johannesburg, South Africa on August 7–11, 2016.
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