IHL & New Technologies: Part V - Pushing back the gray

Source: Flickr / Copyright: Marsmet Tallahassee

Source: Flickr / Copyright: Marsmet Tallahassee

In our final installment, the ICRC's deputy legal advisor in Washington, Gary Brown, sums up some of the "gray areas" explored by our guest bloggers as part of our

IHL and New Technologies

series.*

As he explains, bringing the hot-button topic of cyber operations and international humanitarian law into sharp focus can be tricky...

The law of cyber conflict is a fertile area for discussion and research, as so few of the many questions surrounding it have been answered definitively.  We’re grateful to Professors Eric Jensen and Mike Schmitt, as well as our own Dr Cordula Droege, for taking the time to bring the interplay between cyber operations and international humanitarian law into focus.

Nearly all international law experts, including those writing here, agree that IHL applies to cyber warfare.  The problem, of course, is that any new area of military operations can make it difficult to determine how existing rules apply, and cyber operations are especially tricky in that regard.  Dr Droege noted the challenges in ensuring IHL provides sufficient protection for civilians during times of war.

Taking a somewhat different emphasis, Professor Schmitt suggested IHL is an inherently flexible body of law that has adapted before and can continue to adapt in order to remain relevant to cyberspace operations.  He made a strong case for this position, citing historical examples of improvements in battlefield technology that had not been anticipated, such as weapons fired at targets beyond visual range and even machine guns.  Similarly adapting to new developments, the experts gathered by Professor Schmitt to draft the Tallinn Manual on the International Law Applicable to Cyber Warfare concluded that cyber operations with violent consequences should be considered violent acts for purposes of IHL, a logical interpretation of IHL.  Dr Droege noted that acts of cyber interference that lead to disruption in the physical world constitute cyber attacks, a potentially broader interpretation of the term than that taken by the majority of the experts who drafted the Tallinn Manual, who were of the view that cyber interference with the functionality of an object constitutes an attack only when the restoration of functionality requires replacement of physical components.

All the Intercross contributors concluded IHL must evolve with the times, but Professor Jensen additionally pointed out the critical signaling function of IHL.  He urged a more comprehensive role, in which IHL does more than record past practice – rather attempting to anticipate difficult operational scenarios, thoroughly discussing them to give future commanders intellectual structure within which to exercise their considerable discretion.

In my own view, one of the great challenges in cyber operations will be in determining exactly which actions constitute stepping beyond the bounds of cyber espionage and onto the cyber field of battle – a determination as important as the classification of traditional conflicts we wrote about last month.  Cyberspace espionage periodically dominates the headlines, as it has over the last few weeks, and in an increasingly wired world there is no reason to think that will change.  Professor Schmitt provided a robust list of other issues that also remain unresolved in the context of applying IHL to cyber operations, including the level of attribution required for cyber counterattacks, the treatment of any reverberating effects of cyber attacks, and perhaps the most fundamental cyber issue, the “geography” of cyber armed conflict.

The law surrounding cyber operations will continue to generate fascinating issues for IHL practitioners and others.  As cyber operations become more common – and more public – perhaps the situation will become clearer.  Concluding that “IHL applies to cyber warfare” is an essential step towards limiting the humanitarian cost of cyber operations during armed conflicts, even though many challenges remain to be addressed once this framework has been set.  In the future, ICRC hopes to play a role in facilitating discussions of exactly how IHL applies to cyber operations, pushing back the areas of gray to provide clear rules for the protection of the civilian population.

* IHL & New Technologies is part of a longer-running Intercross series on IHL and Contemporary Challenges.

Previous posts in the IHL And The Challenges Of Contemporary Armed Conflicts series:

Typology of conflicts, in five parts.

IHL and Terrorism, in five parts.

International Law And The Challenges Of Contemporary Armed Conflicts, an ICRC Report presented at the 31st International Conference of the Red Cross And Red Crescent, Geneva, 2011.