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.

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>

International humanitarian law and cyber operations during armed conflicts

2020 ◽  
Vol 102 (913) ◽  
pp. 481-492
Keyword(s):  
United Nations ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
List Type ◽  
Cyber Warfare ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Human Cost

Executive summary•Cyber operations have become a reality in contemporary armed conflict. The International Committee of the Red Cross (ICRC) is concerned by the potential human cost arising from the increasing use of cyber operations during armed conflicts.•In the ICRC's view, international humanitarian law (IHL) limits cyber operations during armed conflicts just as it limits the use of any other weapon, means or method of warfare in an armed conflict, whether new or old.•Affirming the applicability of IHL does not legitimize cyber warfare, just as it does not legitimize any other form of warfare. Any use of force by States – cyber or kinetic – remains governed by the Charter of the United Nations and the relevant rules of customary international law, in particular the prohibition against the use of force. International disputes must be settled by peaceful means, in cyberspace as in all other domains.•It is now critical for the international community to affirm the applicability of international humanitarian law to the use of cyber operations during armed conflicts. The ICRC also calls for discussions among governmental and other experts on how existing IHL rules apply and whether the existing law is adequate and sufficient. In this respect, the ICRC welcomes the intergovernmental discussions currently taking place in the framework of two United Nations General Assembly mandated processes.•Events of recent years have shown that cyber operations, whether during or outside armed conflict, can disrupt the operation of critical civilian infrastructure and hamper the delivery of essential services to the population. In the context of armed conflicts, civilian infrastructure is protected against cyber attacks by existing IHL principles and rules, in particular the principles of distinction, proportionality and precautions in attack. IHL also affords special protection to hospitals and objects indispensable to the survival of the civilian population, among others.•During armed conflicts, the employment of cyber tools that spread and cause damage indiscriminately is prohibited. From a technological perspective, some cyber tools can be designed and used to target and harm only specific objects and to not spread or cause harm indiscriminately. However, the interconnectivity that characterizes cyberspace means that whatever has an interface with the Internet can be targeted from anywhere in the world and that a cyber attack on a specific system may have repercussions on various other systems. As a result, there is a real risk that cyber tools are not designed or used – either deliberately or by mistake – in compliance with IHL.•States’ interpretation of existing IHL rules will determine the extent to which IHL protects against the effects of cyber operations. In particular, States should take clear positions about their commitment to interpret IHL so as to preserve civilian infrastructure from significant disruption and to protect civilian data. The availability of such positions will also influence the assessment of whether the existing rules are adequate or whether new rules may be needed. If States see a need to develop new rules, they should build on and strengthen the existing legal framework – including IHL.

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.

Cyberoperations and international humanitarian law

2016 ◽  
Vol 24 (1) ◽  
pp. 38-52 ◽  
Author(s):  
Kosmas Pipyros ◽  
Lilian Mitrou ◽  
Dimitris Gritzalis ◽  
Theodoros Apostolopoulos
Keyword(s):  
International Law ◽  
Evolutionary Process ◽  
Legal Framework ◽  
Cyber Attacks ◽  
International Humanitarian Law ◽  
Cyber Warfare ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Content Type ◽  
Fifth Dimension

Purpose – The increasing number of cyber attacks has transformed the “cyberspace” into a “battlefield”, bringing out “cyber warfare” as the “fifth dimension of war” and emphasizing the States’ need to effectively protect themselves against these attacks. The existing legal framework seem inadequate to deal effectively with cyber operations and, from a strictly legal standpoint, it indicates that addressing cyber attacks does not fall within the jurisdiction of just one legal branch. This is mainly because of the fact that the concept of cyber warfare itself is open to many different interpretations, ranging from cyber operations performed by the States within the context of armed conflict, under International Humanitarian Law, to illicit activities of all kinds performed by non-State actors including cybercriminals and terrorist groups. The paper initially presents major cyber-attack incidents and their impact on the States. On this basis, it examines the existing legal framework at the European and international levels. Furthermore, it approaches “cyber warfare” from the perspective of international law and focuses on two major issues relating to cyber operations, i.e. “jurisdiction” and “attribution”. The multi-layered process of attribution in combination with a variety of jurisdictional bases in international law makes the successful tackling of cyber attacks difficult. The paper aims to identify technical, legal and, last but not least, political difficulties and emphasize the complexity in applying international law rules in cyber operations. Design/methodology/approach – The paper focuses on the globalization of the “cyber warfare phenomenon” by observing its evolutionary process from the early stages of its appearance until today. It examines the scope, duration and intensity of major cyber-attacks throughout the years in relation to the reactions of the States that were the victims. Having this as the base of discussion, it expands further by exemplifying “cyber warfare” from the perspective of the existing European and International legal framework. The main aim of this part is to identify and analyze major obstacles that arise, for instance in terms of “jurisdiction” and “attribution” in applying international law rules to “cyber warfare”. Findings – The absence of a widely accepted legal framework to regulate jurisdictional issues of cyber warfare and the technical difficulties in identifying, with absolute certainty, the perpetrators of an attack, make the successful tackling of cyber attacks difficult. Originality/value – The paper fulfills the need to identify difficulties in applying international law rules in cyber warfare and constitutes the basis for the creation of a method that will attempt to categorize and rank cyber operations in terms of their intensity and seriousness.

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.

scholarly journals The Implications of Transnational Cyber Threats in International Humanitarian Law: Analysing the Distinction Between Cybercrime, Cyber Attack, and Cyber Warfare in the 21st Century

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34 ◽  
Author(s):  
Hemen Philip Faga
Keyword(s):  
International Law ◽  
21St Century ◽  
Information Age ◽  
Cyber Attacks ◽  
International Humanitarian Law ◽  
State Responsibility ◽  
Cyber Warfare ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Cyber Threats

AbstractThis paper is an attempt to draw distinctive lines between the concepts of cybercrime, cyber-attack, and cyber warfare in the current information age, in which it has become difficult to separate the activities of transnational criminals from acts of belligerents using cyberspace. The paper considers the implications of transnational cyber threats in international humanitarian law (IHL) with a particular focus on cyber-attacks by non-state actors, the principles of state responsibility, and the implications of targeting non-state perpetrators under IHL. It concludes that current international law constructs are inadequate to address the implications of transnational cyber threats; the author recommends consequential amendments to the laws of war in order to address the challenges posed by transnational cyber threats.

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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