Applicability of the Additional Protocols to Computer Network Attacks

From Cybersecurity Wiki
Jump to: navigation, search

Full Title of Reference

Applicability of the Additional Protocols to Computer Network Attacks

Full Citation

Knut Dörmann, Applicability of the Additional Protocols to Computer Network Attacks (2004) Web

BibTeX

Categorization

Key Words

Civilian Participation, Computer Network Attack, Cyber Warfare, Geneva Conventions, International Humanitarian Law, Laws of War, State Affiliation

Synopsis

This piece explores whether international humanitarian law (IHL) in general applies to computer network attacks (CNA) and what specific prohibitions or limitations on the use of computer network attacks follow from international humanitarian law, in particular from the Additional Protocols. This contribution was presented during the International Expert Conference on Computer Network Attacks and the Applicability of International Humanitarian Law, Stockholm, 17-19.11.2004.

The core provisions of IHL are found in

In his contribution, Dörmann answers the following questions:

  • What prohibitions or limitations to CNA follow from rules giving special protection to certain objects?
  • What activities of civilians relating to CNA constitute direct participation in hostilities and cause them to lose their protection against direct attack?
  • Must the defender fulfil specific requirements in order to comply with its obligation to take precautions against attacks?
  • Do specific prohibitions of methods of warfare, such as the prohibition of perfidy or of improper use of protected emblems, signs and signals, apply to CNA and, if so, in which way?

Here are a few highlights:

Apprehension of CNA by IHL

The fact that a particular military activity constituting a method of warfare is not specifically regulated, does not mean that it can be used without restrictions. More recent forms of CNA, which do not involve the use of traditional weapons, can therefore be subject to IHL just as any new weapon or delivery system used in armed conflicts.

Definition: Whether CNA alone will ever be seen as amounting to an armed conflict will probably be determined in a definite manner only through future state practice. There are strong arguments in favour of the applicability of IHL in situations when a CNA is intended to or does result in physical injury to persons, or damage to objects that goes beyond the computer program or data attacked.

It should be noted that in accordance with Art. 49 (1) of AP I "Attacks" means acts of violence against the adversary, whether in offence or in defence". This excludes dissemination of propaganda, embargoes or other non-physical means of psychological, political or economic warfare. Based on that understanding and distinction, CNA through viruses, worms, logic bombs etc. that result in physical damage to persons, or damage to objects that goes beyond the computer program or data attacked can be qualified as "acts of violence" and thus as an attack in the sense of IHL.

Attribution: Dörmann also underlines that it is required that a CNA is undertaken by state organs or can otherwise be attributed to a State in accordance with international rules on State responsibility. This cannot be limited to acts committed by members of the State armed forces but must apply also to conduct of other persons acting on behalf or as agents of a State.

Obligtions on CNA ensuing from IHL

If one admits that CNA constitute an attack, AP I imposes:

  • the obligation to direct attacks only against "military objectives"; and not to attack civilians or civilian objects;
  • the prohibition of indiscriminate attacks, including attacks that may be expected to cause excessive incidental civilian casualties or damages;
  • the requirement to take the necessary precautions to ensure that the previous two rules are respected, in particular the requirement to minimise incidental civilian damage and the obligation to abstain from attacks if such damage is likely to be excessive to the value of the military objective to be attacked.

Activities of civilians relating to CNA

There is a strong likelihood that civilians will be involved in CNA often due to their specific technical expertise, which members of the armed forces may not necessarily have.

The question therefore arises what conduct would qualify as direct participation in hostilities and make these persons lose protection from attack. Unfortunately, the interpretation of the concept of direct participation is not entirely clear. Therefore, the ICRC decided in 2003 to start a process of clarification of that concept through both meetings of experts and independent research by the ICRC and selected experts.

It is generally considered that while executing CNA is widely considered as constituting direct participation in hostilities, maintenance work for computer networks, even of military nature, was not.

Additional Notes and Highlights

Expertise Required: Law - Low

Outline:

 1. Introductory remarks
 2. Do the rules giving effect to the principle of distinction apply to CNA and how should they be applied?
   a) The prohibition of indiscriminate attacks
   b) Does CNA allow the targeting of a broader range of objects?
   c) Precautions in attack
 3. What prohibitions or limitations to CNA follow from rules giving special protection to certain objects?
 4. What activities of civilians relating to CNA constitute direct participation in hostilities and cause them to lose their protection against direct attack?
 5. Must the defender fulfil specific requirements in order to comply with its obligation to take precautions against attacks?
 6. Do specific prohibitions of methods of warfare, such as the prohibition of perfidy or of improper use of protected emblems, signs and signals, apply to CNA and, if so, in which way?
 7. Conclusions