6th European Conference - Academic Conferences

Alexandru Nitu
leading to human casualties or material damage. In the case of IHL, the motivation for the application
of the law is to limit the damage and provide care for the casualties. This would support an expansive
interpretation of when IHL begins to apply. If a cyber attack is directed against an enemy in order to
cause physical damage or loss of life, it can hardly be disputed that such an attack is in fact a method
of warfare and is subject to limitations under IHL. (Dörmann 2004)
3.2 The principle of distinction
Just as information warfare attacks may be difficult to encompass within the ‘use of force’ concept, it
may be also difficult to define their targets as military (and thus generally legitimate targets) or civilian
(generally forbidden). The dual-use nature of many telecommunications networks complicates the
questions of the applicability of IHL as a constraint on information warfare, because the intangible
damage that cyber attacks cause may not be the sort of injuries against which the humanitarian law of
war is designed to protect noncombatants. (Greenberg 1998)
The definition of the term “attack” is of decisive importance for the application of the various rules
giving effect to the principle of distinction and for most of the rules providing special protection for
certain objects. In accordance with Art. 49 (1) of AP I, ‘attacks’ means acts of violence against the
adversary, whether in offence or in defense (Protocol Additional to the Geneva Conventions 1977). If
the term ‘acts of violence’ denotes only physical force, the concept of ‘attacks’ excludes dissemination
of propaganda, embargoes or other non-physical means of psychological, political or economic
warfare. (Dörmann 2004)
Based on that understanding and distinction, cyber attacks 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. From this point of view, it is helpful to look at how the concept of attack is applied to other means
and methods of warfare. There is general agreement that, for example, the employment of biological
or chemical agents that does not cause a physical explosion, such as the use of asphyxiating or
poisonous gases, would constitute an attack (Dörmann 2004).
If one admits that employing a IW method constitute an attack, AP I imposes:
The obligation to direct attacks only against "military objectives" and not to attack civilians or
civilian objects; (Protocol Additional to the Geneva Conventions 1977, Art. 48, 51 (2), 52)
The prohibition of indiscriminate attacks, including attacks that may be expected to cause
excessive incidental civilian casualties or damages; (Protocol Additional to the Geneva
Conventions 1977, Art. 51 (4), (5))
The requirement to take the necessary precautions to ensure that the previous two rules are
respected, (Protocol Additional to the Geneva Conventions 1977, Art. 57) in particular the
requirement to minimize 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;
(Protocol Additional to the Geneva Conventions 1977, Art. 51 (5)(b), 57 (2)(a)(ii) and (iii))
These rules operate in exactly the same way whether the attack is carried out using traditional
weapons or IW techniques. Problems that arise in applying these rules are therefore not necessarily
unique to IW. They are more related to the interpretation of, for example, what constitutes a military
objective or which collateral damage would be excessive.
4. Legal perspectives on IW
The laws of war always faced two challenges. The first was that war's confrontational nature and
tremendously high stakes often frustrated efforts to set reasonable limits on behavior. Fortunately, the
international community has generated international conventions and war crimes tribunals to solve
this problem.
The laws of war also face a second challenge, which is how to adapt these laws to technological
change. This dynamic itself is as old as civilization, but it became more acute in the last one hundred
years, since technological progress has accelerated. The result is that weapons are developing much
faster than international law, and there is every reason to believe that this trend will continue to
accelerate in the future.
204