Hostile states, non-state actors and individuals have not only taken to the internet as a means of expressing themselves, but have also created a hotbed of conflict. Whilst Public International Law does not have any mechanism in place to handle cyberattacks, International Humanitarian Law may provide some important answers.
By Kirthi Jayakumar
The word ‘war’ invariably prompts images of a battlefront – guns pointed at the ready, men in uniform standing with grim expressions, tanks, bombs, grenades, trenches, death and destruction. While this sounds like a ubiquitous form of war – common throughout much of history – war itself has evolved with technology; not simply the weaponry and artillery of war, but the very battlefield itself. For there now exists a bloodless, weapon-less hub of warfare: the Internet.
States face a very real threat in the form of cyberattacks. With the world increasingly dependent on computers and computer networks at every level, and paperwork increasingly going digital, war has also shifted to the realm of cyberspace. Hostile states, non-state actors and individuals have not only taken to the internet as a means of expressing themselves, but have also created a hotbed of conflict. These entities have targeted the computer systems and databases of their ‘enemy’ countries, hacking into information for a variety of reasons. From Estonia in 2007 to Georgia the very next year – and, most recently, in 2010 in Iran – cyberattacks are definitely here to stay.
Cyberattacks are of many different kinds. While on the one hand they can cause physical damage that can be likened to that emanating from conventional weapons, it can also destroy a state’s operating systems – threatening aircraft/spacecraft and even nuclear power plants. Cyber attacks can single-handedly stultify websites and the functioning capacities of databases, which remain vulnerable to manipulation, thereby potentially damaging a country’s financial or military defence system. Cyberattacks need not necessarily have physical effects, although physical effects can stem as a consequence of the attack itself.
As things now stand, Public International Law (PIL) does not have any mechanism in place to handle cyberattacks. Save for Article 2(4) of the UN Charter and customary norms that prohibit the use of force, no legal rules prohibit anything besides armed force. Article 51 of the UN Charter permits self-defence only against an armed attack. Doubtless, therefore, cyberattacks fall through the holes in the net, as no one uses arms in a cyberattack (physically destroying computers don’t count.)
With cyberattacks falling beyond the ambit of Article 2(4) and Article 51 of the UN Charter, one must turn to International Humanitarian Law (IHL). Built on the principles of jus ad bellum, much of the content of IHL deals with a time when the world was faced by a massive force comprised of weapons and destructive anti-humanist policies. Consequently, the scope and ambit of IHL has been confined largely to grave armed attacks and the commission of what are now understood to be war crimes.
Cyberwar can significantly challenge many aspects of IHL – particularly the questions of distinction, proportionality, civilian protection, civilian objectives and the like. There is also an element of difficulty in estimating the very occurrence of ‘cyberwar’ in that there are huge variances in battlefield dynamics. Cyberwar does not create refugees, nor are there civilians and health personnel on field that need to be segregated from armed or enemy combatants in the strictest sense of the term. The Geneva Conventions and their Additional Protocols do not mention anything about cyber warfare.
Nevertheless, one cannot dismiss IHL as totally inapplicable in that they are not confined to situations that existed only when they were adopted. When one peruses its contents, it appears that it could have possibly envisaged a world where technology would evolve enough to significantly alter the interface and realm of war. Cyberwar has the potential to affect civilians and alter their lives by affecting their means of survival – and that outcome itself is enough to reinforce the relevance of IHL. The only difference lies in that cyber warfare is not kinetic, physical or overt like conventional war. This alone, however, is not enough to dismiss it as falling beyond the scope and ambit of IHL.
When computers and computer networks are deployed to extract, discover, alter, affect, disrupt or transfer data in any computer or database, through the manipulation of such systems or networks, a cyberattack is said to occur. The element of proportionality and distinction under IHL can and does play a role in this. Under IHL, it is necessary to distinguish between military targets and civilians and, in doing so, to be proportionate in the use of force and to be justified by an acceptable military gain. Though the means differ in cyberwar, they are capable of being subjected to these rules. The deployment of a cyberattack with a military objective is legal if it adheres to IHL.
This is not to mean, however, that this legal system fully suffices. Computer networks can cause impacts that are intangible and difficult to understand. One can, therefore, look at IHL as being useful in offering a beginning of sorts. The core value that civilians should be protected – and their livelihoods, environment and cultural property should not be targeted – is a principle that is as applicable to cyberwar as it is to conventional war. Treating this as a starting point, it is important to better understand the difference between both kinds of warfare and to begin pruning the law to address the specific challenges that cyber warfare poses. When you have no means to tackle an issue under a given regime, it is a wise idea to stretch the extant principles to cover the issues as best as possible in the interim. Evaluating IHL, meanwhile, will help reveal the drawbacks in the present legal system, thereby allowing future rectifications to be made.
Kirthi Jayakumar is a Lawyer, specialized in public international law and human rights. A graduate of the School of Excellence in Law, Chennai, Kirthi has diversified into research and writing on public international law and human rights. She has worked as a UN Volunteer, specializing in human rights research in Africa, India and Central Asia and the Middle East. She also runs a journal and consultancy that focuses on international law, called A38.