scholarly journals CYBER-ATTACK IN ESTONIA: A NEW CHALLENGE IN THE APPLICABILITY OF INTERNATIONAL HUMANITARIAN LAW

2021 ◽  
Vol 10 (1) ◽  
pp. 48
Author(s):  
Iradhati Zahra ◽  
Irawati Handayani ◽  
Diajeng Wulan Christianti
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Geneva Convention ◽  
Information Warfare ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Youth Group ◽  
Customary International Law ◽  
Physical Impact

<em>This article aimed to analyze the classification of armed conflict in Estonia's cyber-attack and how the existing IHL are answering this problem, and whether those regulations are enough for future cases of cyber-attack. This article uses the normative method by comparing the Geneva Convention 1949 and Additional Protocol I 1977 with Rule 30 Tallinn Manual 1.0 and some relevant literary works, using a descriptive-analytic to explain the object comprehensively. The result shows that Estonia's cyber-attack could be classified as an International Armed Conflict, which first started as a Non-International Armed Conflict by proving attribution from Russia to Nashi Youth Group following the Overall Control in Tadic Case. The distinction between information warfare and cyber-attack is related to the physical impact, which a threshold of a cyber-attack under Tallinn Manual 1.0. It means Rule 30 of Tallinn Manual 1.0 also answered Jus ad Bellum's threshold and Jus in Bello in terms of cyber-attack. Although, this article needs some improvements regarding the limitation of this issue only focused on the Material Scope of IHL. In addition, Rule 30 of Tallinn Manual 1.0 is not legally binding because it is not one source of international law. However, it is possible for the Rule 30 Tallinn Manual 1.0 to be a new norm and becoming customary international law in the future.</em>

scholarly journals THE BEGINNING OF THE INTERNATIONAL HUMANITARIAN LAW APPLICATION TO CYBER ATTACK: THE STATUS OF RULE 30 TALLINN MANUAL 1.0

2021 ◽  
Vol 5 (1) ◽  
pp. 98-113
Author(s):  
Iradhati Zahra ◽  
Diajeng Wulan Christianti
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Rapid Development ◽  
International Humanitarian Law ◽  
Ideal Condition ◽  
Cyber Warfare ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Moment Theory ◽  
Customary International Law

ABSTRACTTechnological development has given rise to new means and methods of warfare such as cyber-attack and can potentially have devastating humanitarian consequences. In times of armed conflict, International Humanitarian Law (IHL) limits certain use of weapons, however, it is questionable whether an armed conflict exists in the situation where cyber-attack is employed alone. In 2007, Estonia suffered severe damages due to cyber-attacks that were equal to the damages caused by kinetic weapons. Yet, there is a debate whether IHL applies in the Estonia case due to the shortage of a kinetic weapon. The Estonia case has generated NATO and other states to draft a cyber-warfare manual (Tallinn Manual 1.0) that, in its Rule 30, affirms the IHL applicability in the case of only cyber-attack. Due to the importance of this Rule, this article argues that Rule 30 shall be considered as a legally binding provision in the form of customary international law. This Rule has satisfied widely practiced and opinio juris elements although it is not as ideal as other customary norms. Taking into consideration the rapid development of technology, it is not necessary for Rule 30 to meet the ideal condition of customary law since, according to Grotian Moment Theory, the formation of a new customary international law can be accelerated in times of fundamental change as can be seen in the practice of customary air and space law. Keywords: Customary International Law, Cyber-Attack, Grotian Moment Theory, IHL, Tallinn Manual 1.0 ABSTRAKPerkembangan teknologi telah melahirkan cara dan metode berperang yang baru seperti serangan siber dan dapat berpotensi menimbulkan kehancuran umat manusia. Hukum Humaniter Internasional (HHI) membatasi penggunaan senjata tertentu saat perang, sayangnya penerapan hukum ini masih dipertanyakan dalam kasus yang hanya melibatkan serangan siber. Tahun 2007 Estonia menderita kerugian akibat dari serangan siber yang tingkat keparahannya dapat disamakan dengan serangan kinetis. Namun, fakta bahwa serangan tersebut tidak melibatkan senjata kinetis melahirkan perdebatan perihal penerapan HHI. Kasus Estonia telah mendorong NATO dan negara-negara lainya untuk merumuskan Manual tentang Perang Siber (Tallinn Manual 1.0) yang mengkonfirmasi penerapan HHI untuk kasus yang hanya melibatkan serangan siber. Pentingnya pengaturan dalam Pasal 30, artikel ini berpendapat bahwa pasal tersebut harus memiliki kekuatan hukum yang mengikat dalam bentuk aturan hukum kebiasaan internasional. Pasal 30 telah memenuhi unsur hukum kebiasaan internasional yakni praktek negara yang luas serta opinio juris. Sekalipun tidak dipenuhi secara sempurna seperti layaknya aturan hukum kebiasaan internasional yang lain. Dengan mempertimbangkan perkembangan teknologi yang pesat, Pasal 30 tidak perlu secara ideal memenuhi unsur norma hukum kebiasaan internasional, karena menurut Grotian Moment Theory pembentukan norma hukum kebiasaan internasional baru dapat dipercepat karena adanya perubahan yang fundamental. Hal ini dapat terlihat dari praktek hukum kebiasaan ruang angkasa. Kata Kunci: Hukum Kebiasaan Internasional, Hukum Humaniter Internasional, Serangan Siber, Tallinn Manual 1.0, Teori Grotian Moment

And Yet It Exists: In Defence of the ‘Equality of Belligerents’ Principle

2013 ◽  
Vol 26 (2) ◽  
pp. 449-472 ◽  
Author(s):  
VAIOS KOUTROULIS
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
Legal Basis ◽  
Jus In Bello ◽  
Customary International Law ◽  
International Court

AbstractThe equal application of international humanitarian law (jus in bello) to all parties to an international armed conflict is a cornerstone principle of jus in bello. In his article, Professor Mandel casts doubt on the legal basis of this principle. Reacting to this claim, this contribution demonstrates that the ‘equality of belligerents’ is a principle firmly grounded in both conventional and customary international law. Moreover, its legal force withstands the test of international jurisprudence, including the International Court of Justice's controversial Nuclear Weapons advisory opinion.

San Remo Manual on International Law Applicable to Armed Conflicts at Sea

1995 ◽  
Vol 35 (309) ◽  
pp. 595-637 ◽  
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Geneva Convention ◽  
Armed Conflicts ◽  
International Institute ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Naval Operations

The San Remo Manual was prepared during the period 1988–1994 by a group of legal and naval experts participating in their personal capacity in a series of Round Tables convened by the International Institute of Humanitarian Law. The purpose of the Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea. The Manual includes a few provisions which might be considered progressive developments in the law but most of its provisions are considered to state the law which is currently applicable. The Manual is viewed by the participants of the Round Tables as being in many respects a modern equivalent to the Oxford Manual on the Laws of Naval War Governing the Relations Between Belligerents adopted by the Institute of International Law in 1913. A contemporary manual was considered necessary because of developments in the law since 1913 which for the most part have not been incorporated into recent treaty law, the Second Geneva Convention of 1949 being essentially limited to the protection of the wounded, sick and shipwrecked at sea. In particular, there has not been a development for the law of armed conflict at sea similar to that for the law of armed conflict on land with the conclusion of Protocol I of 1977 additional to the Geneva Conventions of 1949. Although some of the provisions of Additional Protocol I affect naval operations, in particular those supplementing the protection given to medical vessels and aircraft in the Second Geneva Convention of 1949, Part IV of the Protocol, which protects civilians against the effects of hostilities, is applicable only to naval operations which affect civilians and civilian objects on land.

scholarly journals The Problem of Cyber Espionage in the International Humanitarian Law

2021 ◽  
pp. 70-80
Author(s):  
S. Yu. Garkusha-Bozhko
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Geneva Convention ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Practical Application ◽  
Additional Protocol ◽  
Cyber Espionage ◽  
The Hague

INTRODUCTION. The article analyses the problem of cyber espionage in the context of armed conflict in cyberspace. The relevance of this research, as part of the problem of international humanitarian law applying in cyberspace, is confirmed by the rapid development of cyber technologies that can be used during armed conflict, as well as the availability of the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations.MATERIALS AND METHODS. The main sources of this research are the provisions of the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, the rules of Additional Protocol I of June 08, 1977 to the Geneva Convention of August 12, 1949, the rules of the Hague Regulations on the Laws and Customs of War on Land of 1907, and the rules of custom- ary international humanitarian law. The methodology consists of the principles used in legal research, as well as general scientific and special methods of legal research (system and formal legal methods).RESEARCH RESULTS. The provisions of the Tallinn Manual on cyber espionage were examined for compliance with the relevant provisions of Additional Protocol I of June 08, 1977 to the Geneva Convention of August 12, 1949, the Hague Regulations on the Laws and Customs of War on Land of 1907, and the rules of customary international humanitarian law, as well as the problems that may arise in the process of possible practical application of this provision of the Tallinn Manual.DISCUSSION AND CONCLUSIONS. It is noted that the provisions of the Tallinn Manual 2.0 on cyber espionage are based on the relevant rules of international law. In fact, the relevant provision of the Tallinn Manual is completely copied from the relevant rules of IHL. However, based on the results of this research, the author comes to the conclusion that such blind copying does not take into account the specifics of cyberspace and leads to the following problems in the possible practical application of this provision of the Tallinn Manual: firstly, due to the anonymity of users, it will be difficult to distinguish between a cyber intelligence officer and a cyber spy in practice. Secondly, due to the difficulties in establishing clear state borders in cyberspace, including due to the use of blockchain and VPN technologies, in practice it is impossible to reliably establish whether secret information was collected on the territory of the enemy, which, in turn, leads to difficulties in qualifying such an act as cyber espionage. Finally, in the context of modern armed conflicts, espionage has ceased to be a phenomenon exclusively of international armed conflicts, and therefore it is likely that cyber espionage can be carried out not only in the context of an international armed conflict, but also in the context of a non-international armed conflict. Based on the results of this research, suggestions were made to develop state practice on this issue. It is desirable that States raise the discussion of the above issues at the UN General Assembly, which would help to identify the main trends in the development of such practices. Only And only after the practice of States on this issue becomes more obvious, the question of developing an appropriate international treaty, preferably within the UN, can be raised.

Automatic Cyber Defence and the Laws of War

2018 ◽  
Vol 60 (1) ◽  
pp. 203-237
Author(s):  
Nicholas Tsagourias ◽  
Russell Buchan
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Computer Hardware ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Armed Attack ◽  
Jus In Bello ◽  
Jus Ad Bellum

Automatic cyber defence describes computer operations to neutralise a cyber attack. Once a system detects that it is under cyber attack, it automatically launches offensive cyber operations that pursue the attacker back to its own network with the objective of rescuing stolen data or disabling or destroying the computer hardware and software that is responsible for hosting and distributing the attacking code. The aim of this article is to examine the legality of automatic cyber defence under the law regulating the use of force in international law (jus ad bellum) and under international humanitarian law (jus in bello). Thus, the first part of this article examines automatic cyber defence in the context of the jus ad bellum by considering the legal requirements of an armed attack, necessity, and proportionality. In the second part, it examines the jus in bello aspects of automatic cyber defence and, in particular, whether it triggers an international or a non-international armed conflict and, if so, whether it can comply with the principles of distinction and proportionality.

Binding Armed Opposition Groups

2006 ◽  
Vol 55 (2) ◽  
pp. 369-394 ◽  
Author(s):  
Sandesh Sivakumaran
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Third Parties ◽  
The State ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Internal Armed Conflict ◽  
Armed Opposition Groups

AbstractThis article considers how armed opposition groups fighting in an internal armed conflict are bound by the rules of international humanitarian law despite not being party to the relevant treaties. It assesses a number of explanations—customary international law, general principles of international humanitarian law, rules governing treaties and third parties and claims to succession—and argues that each has limited value. The ability of the state to legislate on behalf of all its individuals is considered the best explanation. This principle is explored and objections to it are countered. This article also examines the expressed commitment of armed opposition groups to the rules of international humanitarian law.

scholarly journals Freedom from Nuclear Weapons? IHRL And IHL Perspective vs the State-Centred Approach

2020 ◽  
pp. 137-153
Author(s):  
Julia Kapelańska-Pręgowska
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law

23 years after the ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, a general treaty prohibiting the use of nuclear weapons has been adopted. It may be anticipated that the TPNW will probably not enter into force very soon, and when it does, it will neither be universally accepted, nor will it significantly influence thepractice of the nuclear weapon States. It is therefore justified to analyse the problem under consideration, not from a State-oriented perspective, but from a human and environmentally centred one. The article argues not only that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law, but it would also violate international human rights law. The article further dwells upon the customary international law aspects of the problem under consideration.

Thresholds in Flux—the Standard for Ascertaining the Requirement of Organization for Armed Groups under International Humanitarian Law

2020 ◽  
Author(s):  
Yutaka Arai-Takahashi
Keyword(s):  
Armed Conflict ◽  
Geneva Convention ◽  
Prisoners Of War ◽  
Organizational Level ◽  
International Humanitarian Law ◽  
Threshold Condition ◽  
Special Importance ◽  
Humanitarian Law ◽  
Armed Groups ◽  
International Criminal Tribunals

Abstract The requirement of organization is supposed to be of special importance in international humanitarian law (IHL). In the situation of international armed conflict (IAC), this requirement is implicit as part of the collective conditions to be fulfilled by irregular/independent armed groups to enable their members to claim the prisoners of war status under Article 4 A(2) of the Third Geneva Convention. In a non-international armed conflict (NIAC), the eponymous requirement serves, alongside the requirement of intensity of violence, as the threshold condition for ascertaining the onset of a NIAC. While the requirement of organization has not caused much of disputes in IACs, the international criminal tribunals have shown a willingness to examine scrupulously if armed groups in NIACs are sufficiently organized. Still, this article argues that there is need for a nuanced assessment of the organizational level of an armed group in some specific phases of the ongoing armed conflict whose legal character switches (from an NIAC to an IAC, vice-versa, and from a NIAC to a law-enforcement model). It explores what rationales and argumentative model may be adduced to explain such varying standards for organization in different contexts.

scholarly journals International law protecting the environment during armed conflict: gaps and opportunities

2010 ◽  
Vol 92 (879) ◽  
pp. 569-592 ◽  
Author(s):  
Michael Bothe ◽  
Carl Bruch ◽  
Jordan Diamond ◽  
David Jensen
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Environmental Law ◽  
International Humanitarian Law ◽  
Environmental Damage ◽  
Humanitarian Law ◽  
International Environmental Law ◽  
Basic Principles ◽  
Principle Of Proportionality ◽  
Definition Of

AbstractThere are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

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