A group of experts, professionals and students gathered last Wednesday evening, 27 March, in Dublin to discuss IHL and Cyber Operations – where something old meets something new. The discussion was facilitated by Lt. Col. Jerry Lane, Irish Defence Forces but as always participants provided many lively and thought provoking comments throughout the evening.
The first issue addressed was the question of when can IHL apply? In a world with increased reliance on computers and networks in all aspects of life, when does a cyber attack cross that threshold from being a matter of criminal law to being an act of ‘cyber warfare’? And even if we can agree on this, can a body of law as old as IHL really be expected to cope with the rapidly evolving technology used in cyber operations? The general feeling in the room was that by and large, yes IHL is up to the task, especially if we consider the consequences of the attack. Art 49 (1), Additional Protocol I of the Geneva Conventions defines an attack as “act of violence” but does not explicitly provide for how that violence is instigated. The underlying principles of IHL remain constant – it is unlawful to target civilians or cause unnecessary suffering or to be disproportionate in the force used.
Cyber operations, however have created a fifth domain of warfare, the first four being land, sea, air and space and as such does present a number of ‘grey areas’ where the law may need to be developed further. The lack of a concrete geographical dimension for the mode of attack may raises interesting legal questions regarding jurisdiction, however it should also be borne in mind that the perpetrators, themselves are nonetheless not in cyber space!
Nonetheless, if we focus on the consequential force of the action the full body of IHL can be applied. Another area which raises potential controversy however, is the issue of attribution of attacks. As with the general debate sounding non state actors and the notion of direct participation in hostilities, questions remain.
If you would like more information about our IHL Dissemination Activities or how to register for future IHL Roundtable discussions please visit http://redcross.ie/our-work-overseas/international-humanitarian-law/ or email me on email@example.com