Updated: Nov 15
Sanskar Modi(Research Intern)
“Indeed in today’s world, the act of terror could come not only from a few extremists in suicide vests but from a few keystrokes on the computer-a weapon of mass destruction”(1).
The centuries-old traditional methods and jargon in the regime of warfare have been replaced by the latest techniques and modern equipment. Today, the concept of war has been drastically changed with the technology dominating the warfare regime. The concept of war is tilting more towards kinetic to non-kinetic military operations which normally involve military operations with the help of Computer. Therefore, it is necessary to comprehend the meaning of the term Cyber Warfare. This is relatively a recent technological term in the field of armed conflict and it refers to “means and methods of warfare that consist of cyber operations amounting to or conducted in the context of, an armed conflict, within the meaning of IHL”(2). They can achieve military aims without harming civilians. Cyber Warfare has a variety of targets in the real world like industries, infrastructure, telecommunications, transport, or governmental and financial systems which can be disrupted by cyber-attacks.
The recent border tensions between India and China has triggered a flurry of intelligence about Chinese indulging in cyber warfare and is targeting India's security and defence-related information(3). This recent belligerent act of cyber warfare has ignited the debate as to whether the current IHL rules are sufficient to incorporate the Cyber Warfare under its ambit. This is because the concept of conducting war through cyber-attack has emerged after the invention and codification of International Humanitarian Laws and therefore critics argue that the principles and methods in the application of cyber-warfare do not directly comply with the IHL Rules. Therefore, there is a need to show the adequacy of existing laws in regulating cyber-crime. This article aims to analyze the existing laws with respect to Cyberwarfare and the challenges existing in the International Humanitarian Laws with respect to Cyber-warfare. It will further delve into the existing lacunas in current statutes in dealing with Cyber-crimes. The article concludes on a point that cyber warfare is a component of IHLbut there is a need to revisit the existing legal framework until the cyber treaty is reached.
B) APPLICABILITY OF INTERNATIONAL HUMANITARIAN LAWS IN CYBER WARFARE
War is generally fought on four main stages that are, Air, Water, Land & Space but the technological development has expanded the scope of to a new form of warfare called 'Cyber Space'. Cyber Space can be attacked in any of the three forms namely Cyber Attack, Cyber Espionage, and Sabotage.
International Humanitarian Law (hereinafter referred to as IHL) and Customary International Humanitarian Law (hereinafter referred to as CIHL) are the authorities that guide the norms regarding the applicability of both the armed conflicts that is, International Armed Conflict (hereinafter referred to as IAC) and Non-International Armed Conflict (hereinafter referred to as NIAC). IAC refers to the armed conflict between two or more sovereign states while NIAC refers to the conflict that took place within the territory of any particular state where the conflict lies between government authorities and organized armed groups.IHL applies to both combatants and civilians.
Cyber Attack is possible in both the forms of Armed Conflicts, however, NIAC can be governed through the domestic laws, and therefore a need arises to comprehend the applicability of IHL in IAC through Cyber Warfare. The application of IHL in cyberspace is possible if the term 'force' as mentioned in Article 2(4) of the UN Charter incorporates cyber-attack too. But there are two contradicting views on this law, one set of jurist advocates exclusion of cyber-attack from the realms of prohibitions under Article 2(4) of the Charter. The other view supports the inclusion of cyber-attack under the term 'force' thereby allowing the victim states the right of self-defence under Article 51 of the Charter.
In this present article, the author will be supporting the other view which is the inclusion of cyber-crime under the current IHL regime with the help of existing laws & regulations and the available jurisprudence under International Law.
The preamble of the UN Charter undoubtedly envisages the purpose of the Charter which is to maintain peace and security between the nation-states. Hence, if the cyber-attack threatens the nation-state then it will not hold water if this attack will not be included under the purview of force? Further, Article 31 of the Vienna Convention on the Laws of Treaties (VCLT) also reiterates that a treaty should be interpreted in good faith in light of its terms and purpose(4). Henceforth, the interpretation of the word ‘Force’ as mentioned in Article 2(4) of the UN Charter should include cyber-operation also. It is also unambiguous that if the effect of ‘Force’ inflicted from any armed conflict is similar to effects resulting from kinetic warfare then such force fall under the prohibition of Article 2(4). The International Court of Justice has also advocated that the prohibition applies “to any use of force regardless of the weapons employed”(5).
The characterization of cyber-attack is quite a difficult task for the applicability of IHL. It is to be noted that not every cyber-operation conducted by individuals qualifies as armed conflict. Weakly associated and non-organized cyber-operations, merely sporadic cyber incidents capable of being controlled by domestic law enforcement do not qualify as armed conflict. Similarly, hackers or other similar groups that are organized entirely online cannot be termed as armed groups within the meaning of IHL. This is because crimes that are committed by such groups or organizations are not an act of war. Nevertheless, whether a terrorist attack qualifies as armed conflict would depend on the nature and duration of the attack. A single attack could be considered a criminal act but the act of multiple attacks coupled with other belligerent activities could justify the use of military force(6).
At this juncture when the applicability of IHL in Cyber Warfare is quite clear, the question arises as to whether IHL applies only to direct cyber-attack against the people, or should it also include an attack against the computer system? The answer to this question lies in the intensity of the attack and thereby varies from case to case basis.
Moreover, Cyber-Operation would constitute an attack within the meaning of Article 49(1) of Additional Protocol I (API)(7) which reflects Customary International Law. In this regard also there is a disagreement as to whether "destruction" should have complied or dysfunctional destruction would amount to destruction for the applicability of IHL. It is necessary to ensure not to unnecessary overstate every sort of attack, therefore a holistic approach in ascertaining an attack can invariably clear doubt on this aspect.
The Tallinn Manual(8) which is the manual on the law governing cyber warfare has further expanded the scope of “attack” in cyber-warfare by including that attacks also which are unlikely to result in death, injury, or destruction under the category of “armed-attack” if they aim to injure critical infrastructures(9).
Even after all these regulations and conventions, the applicability of IHL in Cyber-Warfare is seriously questioned because of the certain lacunas embedded under the existing jurisprudence.
C) ANALYZING THE ADEQUACY OF EXISTING International Humanitarian LAWS IN REGULATING CYBER WARFARE
There are two divergent opinions existing today with respect to the applicability of IHL in cyber-warfare. Some are of the view that existing laws are adequate and focus should only be on implementation, others advocate for the adoption of an altogether new legal framework. The present article conveys a different view with respect to this dilemma. Both opinions have certain lacunas in it. The second view has already been dealt with in the above paragraphs of this article. While talking about the first view, the present existing laws are attributed to many legal as well as practical lacunas.
Legal lacunas include the difficulty in applying the principle of distinction in differentiating between the combatants and militants during the cyber-attack, the difficulty of characterizing hackers as a “combatant” by using the criterion of the law of war, difficulty in establishing the requirements of organizations, and affiliations for combatant status among others, etc.(10). Moreover, existing laws are not enough in regulating the increasing rate of cyber espionage, cyber criminality, and cyber-terrorism. The recent example of this is the Russian Cyber Attack on Estonia in 2007, Georgia in 2008 and recently against Ukraine in 2014(11) where the attack has resulted in the loss of property, infrastructure, and human life. Due to the lacunas in existing laws, victim countries were not able to defend themselves as per the humanitarian laws.
Confusion persists regarding the threshold required to constitute cyber-attack as armed conflict. This threshold is difficult to calculate during cyber-attacks. The existing laws like customary international laws and additional protocol of Geneva Conventions are crafted by considering kinetic warfare. Henceforth, these laws are less suitable for non-kinetic warfare. As per the International Committee of Red Cross (hereinafter referred to as ICRC), “lack of satisfactory enforcement, adequate awareness, and willingness among the parties to the conflict to interpret the existing IHL in good faith and respect” is the underlying reason for the current lacunas in existing laws(12).
D) REVISITING IHL TO FILL THE VOIDS OF THE EXISTING LEGAL FRAMEWORK
The current existing legal framework under IHL to cater to cyber-warfare is embedded with certain loopholes as discussed in the above paragraphs of this article. But, this in no way leads to the conclusion that IHL cannot be applied against cyber-warfare. The ‘exploitation of the existing legal framework’ and the ‘adoption of new laws’ to rectify the challenge facing in the operation of cyber warfare can serve as a tool to handle this legal enigma(13).
Sincere exploitation of the existing laws by revisiting and flexibly interpreting the current IHL can accommodate means and methods of war such as cyber warfare. The issue regarding dual infrastructure(14) can at least be minimized by applying the principles of proportionality, necessity, and precautions(15) to rescue civilian infrastructures.
The ICRC can adopt guidelines regarding the characterization and acts comprising of cyber-warfare until any concrete law or treaty is made on the score. Furthermore, the technical and operational challenges should not impede the applicability of IHL because the law is designed to solve the legal problems, not the technical ones. The issue regarding the location and suspicion of the criminals under criminal law does not make the criminal law inapplicable, in the same way, any technical challenge in suspecting the location of the criminal in cyber-warfare does not make IHL inapplicable for cyber-warfare.
The adoption of new laws in the field of cyber-warfare can further help in filling the existing gaps in the legal framework. These laws include the-:
· Incorporation of standard guidelines to characterize how states can permissibly use computers to carry out attacks either independently through kinetic mode or cyber warfare,
· Laws protecting essential civilian’s data stream,
· Rules governing cyber espionage that currently is escalating into the full-scale war(16) and
· Ultimately, the establishment of a central monitoring body under the UN or UNHRC can serve as an icing on the cake in filling the voids of the existing legal framework of IHL.
Since the advent of human civilization, man is accustomed to war though the modes and methods have been drastically changed with time. Cyber-Warfare is one such mode of war that has replaced kinetic warfare and is a product of modern technology that has evolved in this 21st century. The applicability of the International Humanitarian Law (which was evolved to limit, settle and alleviate the effect of war) in Cyber Space is considered a difficult task because of the difference associated between traditional kinetic warfare and modern cyber-warfare.
Cyber Warfare is quite a new technological weapon in the field of warfare and employment of such a weapon should not be done without implementing adequate humanitarian guidelines. Though it is quite difficult to incorporate the concept of cyber warfare in IHL rules and statutes a comprehensive interpretation of the existing principles ensures its applicability in cyber-space warfare. However, it poses certain legal and practical challenges in an attempt to ensure its applicability within the existing IHL norms. There are some legal lacunas to which this applicability can be questioned but it is now decided that cyber warfare is an actor to decide under International Humanitarian Law(17). Steps should be taken in this regard to develop new rules so that legal loopholes can be filled and the updated laws can become robust and flexible enough to protect civilians from the effect of cyber-warfare. These steps are needed because the safety and security (from the cyber-crimes) of the future depends on how the current situation is tackled off.
This is because Cyber-Warfare in a contemporary world poses a serious threat under armed conflicts which can cause devastating and terrible enormous human suffering and destruction of civilian and military infrastructures even more badly than kinetic warfare. Therefore a need for today is to revisit and upgrade the humanitarian laws according to the frequently changing technological modes of warfare so that the future generations can be saved from the ravages of cyber-war.
1. Remarks on "Securing our nation's infrastructure". Obama, Barack. New York: White House Press, 2009.
2. ICRC, International humanitarian law and the challenges. Geneva, Switzerland: International Committee of Red Cross, 2007.
3. AA.India-China Cyber War: China Second Most Powerful Cyber-Power & India Could Face The Chinese Brunt. s.l. : The Eurasian Times, 2020.
4. Artice 31, The Vienna Convention on the Laws of Treaties.
5. ICJ, Legality of the Threat or Use of Nuclear Weapons. Brownlie, Ian. s.l. : International Law and the Use of Force by States, Oxford University Press, 1996.
6. The Militarization of Cyberspace: Why Less May Be Better, IEEE-Explore. Dunn Cavelty, Myriam. s.l. : 4th International Conference on Cyber, 2012.
7. International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.
8. Tallinn Manual on the International Law Applicable to Cyber Warfare. Schmitt, Michael N. s.l. : Cambridge University Press, 2013.
9. UNGA Resolution No. 58/199 of 30 January (2004), US Presidential Decision Directive 63, Critical Infrastructure Protection, 22 May (1998), Australian government, Cyber Security Strategy,(2009).
10. Cyber warfare and International Law. Melzer, Nils. s.l. : Center forBusiness and Human Rights, 2011.
11.[Online] [Cited: 06 October 2020.] http://securityaffairs.co/wordpress/18294/security/fireeyenation- state-driven-cyber-attacks.html.
12. Respecting International Humanitarian Law: Challenge and Response. Sanremo, Italy: International institute of humanitarian law, 2013. 36th round table on a current issue of international humanitarian law.
13. The challenges of cyber-warfare in the application of international humanitarian law (IHL): A critical examination of IHL rules in addressing those challenges. Genet, Addisu. 6, s.l. : International Journal of Law, November 2018, Vol. 4, pp. 83-88.
14. Dual Infrastructures broadly refers to Civilian Infrastructures and Private Infrastructure. The difference between the two is difficult to elicit in the cyber-warfare.
15. Basic principles of IHL. diakonia.se. [Online] [Cited: 7th October 2020.] https://www.diakonia.se/en/IHL/The-Law/International-Humanitarian-Law-1/Introduction-to-IHL/Principles-of-International-Law/#:~:text=The%20principle%20of%20proportionality%20limits,proportional%20to%20the%20military%20advantage.
16. Supra note at 11.
17. ‘Get off my Cloud: Cyber Warfare, International Humanitarian Law, and the Protection of. Droege, Cordula. 868, s.l. : International Society of Red Cross (ICRC), 2012, Vol. 94.
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