Three Papers Map Contentious Issues Related to the Application of International Law to Military Cyber Operations

22 June 2021

Three new Working Papers – researched by the Geneva Academy in the context of our research on disruptive military technologies – address some of the main issues of contention concerning the application of international law to military cyber operations. They focus on the rules of international humanitarian law (IHL) but also take into account other pertinent legal frameworks, most importantly international human rights law.

‘New (military) technologies have a profound impact on how wars are fought. While IHL is applicable to all technological developments in warfare, the speed, scale, and transformative impact of today’s technological advances require a constant (re-)assessment whether new means and methods of warfare are compatible with existing IHL rules’ explains Professor Gloria Gaggioli, Director of the Geneva Academy.

Laying the Ground for Further Research

The first paper Protecting Societies: Anchoring a New Protection Dimension in International Law in Times of Increased Cyber Threats takes a broader perspective on IHL in view of the possibilities of military cyber technologies to disrupt the fundamental functions of modern societies, with potentially severe ramifications for the continuity of civilian life during conflicts.

’Current IHL, with its focus on the physical effects of armed conflicts, seems ill-suited to sufficiently regulate military cyber conduct. In light of this, the paper proposes the recognition of an entirely new protection dimension for the law of armed conflict that adequately protects interconnected and digitalized civilian societies against the consequences of twenty-first century warfare. It argues that certain societal processes across economic, financial, scientific, cultural, and healthcare domains must be considered so essential as to require protection under IHL irrespective of physical aspects’ explains Henning Lahmann, former Associate Research Fellow at the Geneva Academy.

The second paper Protecting the Global Information Space in Times of Armed Conflict focuses on the legal implications of digital information warfare in the context of the laws of armed conflict. Based on a number of fictional scenarios, it inquires whether and what legal limits exist in relation to digital information operations during armed conflict and whether the framework of IHL adequately captures the humanitarian protection needs that arise from these types of military conduct.

’This paper concludes that while there are a number of rules that apply, they fail to address the specificities of the malicious use of information in armed conflict. Acknowledging the limits of existing law, it suggests furthering the debate by focusing on potential non-physical, systemic adversarial effects of military information operations that so far fall through the cracks of IHL. The potential impact on civilian populations warrants a fundamental reconsideration’ says Henning Lahmann.

Building on existing legal discussions concerning the status of ’data’ in the law of armed conflict, the third paper Protection of Data in Armed Conflict attempts to refocus the debate by clarifying the different ways the notion of ’data’ can be conceived, and how these differences require nuanced legal approaches. On that basis, the paper presents a novel way to conceptualise the protection of ’data’ in armed conflict.

’In light of persisting ambiguities of existing law, the targeting of content data continues to fall into a legal grey zone, with potentially wide-ranging ramifications both for the rights of individuals and the functioning of civilian societies. Therefore, a paradigm shift is proposed: instead of taking existing rules of IHL and applying them to ’data’, we should contemplate applying the principles of data protection, data security, and privacy frameworks to military cyber operations in armed conflict’ underlines Henning Lahmann.