Cyber Military Operations under International Humanitarian Law: Interpreting the Concept of “Attack” and Challenges in Protecting Civilians

Abstract

Abstract

Background Given the growing use of information and communication technology across many essential industries, threats associated with military operations have emerged in cyberspace, thereby resulting in various debates concerning the extent to which International Humanitarian Law applies to such threats. Methods The paper adopts an analytical and inductive approach based on traditional and customary IHL provisions, as well as reports from specialized organizations. In this regard, this study explores the legal framework for these threats and assesses the applicability of the IHL provisions to operations carried out during non-international armed conflicts and those occurring outside such contexts. The study also sheds light on the different interpretations of the concept of “attack” within the context of the IHL and assesses the degree of protection afforded to civilians and their objects in light of the distinctive features of cyberspace. Results The paper demonstrates that even though IHL provides a fundamental framework for such operations, its application to cyber operations is constrained by structural challenges, given the specificity of its infrastructure and the uncertainty surrounding civilian digital data. These challenges impede the practical application of the principles of distinction, proportionality, and precaution. Conclusions The study concludes that the concept of “attack” needs to be reinterpreted considering the indirect harm inflicted on civilians resulting from cyber operations. It also manifests the need to raise the scope of legal protection encompassing fundamental civilian digital data, and confirms the possibility of developing a specialized international legal framework that governs cyber operations whether through the creation of an additional protocol or a treaty specific for such operations. Finally, the study further affirms the necessity to establish a neutral international mechanism that can conduct fact-finding tasks, investigate violations, and assign liabilities so as to promote better adherence to humanitarian principles in contemporary armed conflicts.