By Fizza Mehak Batool
War strategies have undergone a significant transformation, shifting from the conventional world to cyberspace.
In traditional wars, rival states used land, sea, and air as tools to counter their adversaries. But in the current context, states increasingly view space as a means, known as cyber warfare, that means the use of cyber operations to achieve military objectives.
The International humanitarian law (IHL) sets out the principles the states must follow during armed conflicts, in order to ensure humanitarian aspects and limit the effects on victims. However, IHL does not mention any provisions relating to the regulation of cyber warfare, which exists as a grey area in international law.
The IHL is based on several core principles, known as Jus in Bello, which aim to balance the military necessity of war with the humanitarian aspect. States that adhere to Article 51 of the United Nations Charter have the right to self-defense, but according to international humanitarian law, they must respect the principles of Jus in Bello.
The fundamental principle is Distinction, which mandates that the parties should distinguish between combatants and civilians, in order not to harm any civilians, only military objectives shall be achieved.
Meanwhile, the principle Proportionality emphasizes that, even during the pursuit of a military objective, civilians or their property must not be harmed. International humanitarian law prohibits huge numbers of casualties and allows only measures that are necessary from a military point of view.
Further, certain types of weapons and warfare are not permitted, so that unnecessary suffering shall be avoided and humanity maintained. Likewise, the principle of precautions in attack stipulates that the states involved in the conflict need to take required measures to prevent civilian harm during all military operations. Hence, the major purpose behind IHL is to reduce human suffering during a conventional conflict between states.
In contrast, the IHL doesn’t mention any provision regarding modern warfare, specifically Cyber Warfare, due to its characteristics, which include anonymity, deniability, global reach, and cascading effects. So Cyber Warfare challenges the principles of IHL.
Starting from the principle of distinction, as in cyberwarfare, distinguishing between a combatant and a civilian is not a straightforward task, because the civilian infrastructure, specifically power grids, internet routes, financial systems, and communication networks, are mostly entangled with the military ones. Therefore, it can harm both the military and civilian populations by causing devastating suffering to the civilian systems, like cutting off power systems can cause casualties to hospitals, homes, and essential services. Consequently, the principle of proportionality is challenged due the incidental harm to civilians. Hence, the unpredictable effects in cyberspace make it difficult to ensure that attacks are truly proportionate.
In addition,the nature of cyberwarfare is based on ambiguity, as it is difficult to assess the attacker, which undermines accountability and deterrence because of the misidentification of the true aggressor. Moreover, the use of certain weapons is prohibited in IHL, but it is difficult to enforce this principle in cyberwarfare.
Moreover, IHL foresees only the conflict between states, while the involvement of non-state actors, particularly hacking groups, brings another challenge to IHL. In addition, the absence of a legal understanding between the states to regulate the application of IHL in cyberwarfare creates another challenge to the field. Therefore, filling this legal vacuum by the international community, jurists, and scholars is a major task that should be filled in international law.
In a nutshell, the basic principles of IHL are still significant in this digital age, and their application to cyberwarfare is an important aspect. The features of cyberwarfare, global reach, changed technologies, anonymity, and devastating effects, challenge IHL.
However, the presence of blurred lines between civilian and military infrastructures and resources poses an imminent challenge to IHL. Therefore, addressing this grey zone in international law is not solely the responsibility of academicians, but it requires a multiphase approach, and a comprehensive dialogue between states, legal scholars, and technical experts, so that essential standards can be developed and existing rules reformed.
Furthermore, states need to frame a code of conduct to regulate the use of cyberwarfare and set a threshold for the casualties caused by it. Without such reforms, the digital arena can emerge as the biggest threat to the states in modern warfare times.
Fizza Mehak Batool – Research intern at the Balochistan Think Tank Network (BTTN), Quetta, Pakistan.
(The views expressed in this article belong only to the author and do not necessarily reflect the editorial policy or views of World Geostrategic Insights).