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Application of IHL to Computer Network Attacks


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Discussing various views on applying International Humanitarian Law to Computer Network Attacks for Yerevan International Conference on IHL held at RAU - Russian-Armenian (Slavonic) University, November 2012 and used for a class on International Humanitarian Law at Yerevan State University within MA in Human Rights and Democratization for Eastern Partnership countries

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Application of IHL to Computer Network Attacks

  1. 1. Application of IHL to Computer Network Attacks KOSTIANTYN IAKOVLIEV (UKRAINE) Yerevan State University Center for European Studies MA in Human Rights & Democratization
  2. 2. • • • • • • • • • • OUTLINE Definitions Can International Humanitarian Law apply to Computer Network Attacks (CNAs)? Main issues when applying International Humanitarian Law to CNAS Principle of distinction Attacks only against military objects The prohibition of indiscriminate attacks Combatant status Recent examples of using CNAs in warfare Our suggestions for creating an international treaty on CNAs Sources
  3. 3. Definitions: • • Kinetic (usual) attacks are used to destroy the opponent's infrastructure through traditional means of warfare. Computer network attacks (CNAs) are used to disrupt or destroy information within the opponent's computer networks themselves but can also lead to results similar to those achieved by kinetic attacks.
  4. 4. Can International Humanitarian Law apply to Computer Network Attacks (CNAs)? • • • Core provisions: 1977 Additional Protocols I and II to the Geneva Conventions and customary international law. Martens Clause: whenever a situation is not covered by an international agreement, “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of public conscience". Article 38 of the Statute of the International Court of Justice also demonstrates the fallacy of any contention of inapplicability based on the absence of specific lex
  5. 5. Main issues when applying International Humanitarian Law to CNAs • • • • the principle of distinction; attacks only against military objectives; the prohibition of indiscriminate attacks; combatant status
  6. 6. Principle of distinction • General rule of IHL In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to a conflict are required at all times to distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly must direct their operations only against military objectives (Art. 48 AP I) Specificity of this rule in case of CNAs It is unclear whether hackers are part of armed forces or not. •
  7. 7. • Military objects General rule of IHL AP I (Art. 52) comprises two conditions that must be simultaneously met for an military object: first, it must make an effective contribution to the military action of the adversary and secondly, in the circumstances ruling at the time, its attack must offer a definite military advantage to the attacker. Specificity of this rule in case of CNAs Either network being affected must meet the two conditions above or the object that the network is controlling. A network attacked may also be necessary for the survival of the civilian population (like dams, dykes, nuclear electrical generating stations) •
  8. 8. Indiscriminate attacks • General rule of IHL The prohibition of indiscriminate attacks is defined in Article 51(4) of AP l as one which is either not carefully aimed at a specific military objective (through carelessness or use of weapons that are by nature not capable of being so directed) or because the effects of an attack on a military objective are uncontrollable and unpredictable. • Specificity of this rule in case of CNAs Civilian and military computer networks are in practice highly interconnected, and thus CNAs not always man be aimed accurately at the intended target without creating a host of unforeseen and unforeseeable effects at the same time.
  9. 9. Combatant status • General rule of IHL The Geneva Conventions present rules for protecting civilians and those hors de combat, such as soldiers that have been wounded or are sick and unable to fight. These Conventions also spell out specific guidelines for protecting those hors de combat in land, naval, and air warfare. Specificity of this rule in case of CNAs If incorporated into the armed forces, personnel associated with CNAs has all the rights and liabilities of combatants: they can be attacked like any other combatant and should endeavour to be in uniform if captured in order to be entitled to POW status, but the situation of technicians that act for the army but are not incorporated into it is more problematic as they may be considered civilians who would have no POW status if captured and could be prosecuted for the mere fact of taking part in the hostilities (their conduct does not seem to be comparable to the situation of civilians described in Art. 4 (4) of Geneva Convention III of 1949, which are entitled to POW status) and would also be subject to attack. •
  10. 10. Recent examples of using CNAs in warfare • • Recently, the United States has created new bodies within their government organization to deal specifically with CNAs that may pose a threat to national security in addition to existing mechanisms of defense against kinetic attacks. China’s Cyber Warfare Doctrine considers operations against computer networks fundamental to the country's military and national development strategy
  11. 11. Recent examples of using CNAs in warfare continued • • • In 2009, a cyber attack called GhostNet that targeted foreign embassies, government agencies and offices used by the Dalai Lama, was traced to IP-addresses on an island in the South China Sea where the People's Liberation Army has an intelligence base. In January 2010, Google Inc. said it had been hit by an attack originating in China, and said the cyber-spies had sought to steal emails from Chinese government critics. In 2011, the U. S. government accused military and intelligence services of Russia and China of conducting a sustained campaign to steal American commercial and military secrets through cyber espionage
  12. 12. Our suggestions for creating an international treaty on CNAs • • • • Defining CNAs that can trigger application of IHL Establishing rules for CNAs to be used in disputed situations (e. g., interconnected networks that are both military objectives and necessary for survival of population) Outlining combatant status of personnel responsible for CNAs Reaffirming the need to discriminate between civilian population and military personnel
  13. 13. Sources: Dilanian, K. (2011, August 12). Russia and China accused of cyber-spying campaign to steal U.S. secrets. Los Angeles Times. Retrieved from Dörmann, K. (2001, May 19). Computer network attack and international humanitarian law. ICRC Resource Centre. Retrieved November 22, 2012, from Hathaway, O. A., Crootof, R., Levitz, P., Nix, H., Nowlan, A., Perdue, W., & Spiegel, J. (2011). The Law Of Cyber Attack. California Law Review, 2012, 76. Lewis, A. (2010, April 25). A Note on the Laws of War in Cyberspace. Center for Strategic and International Studies. Retrieved December 16, 2012, from Schmitt, M. N. (2002). Wired warfare: Computer network attack and jus in bello. International Review of the Red Cross, 84(846), 365–399. doi:10.1017/S1560775500097741 Watts, S. (2010). Combatant Status and Computer Network Attacks. Virginia Journal of International Law, 50(2), 391–447. Wolf, J. (2012, March 8). China cyber capability endangers U.S. forces: report. Reuters. Washington. Retrieved from created with the help of Zotero 3.0.11 for Firefox
  14. 14. first presented on 5th Yerevan International Conference on International Humanitarian Law Russian - Armenian (Slavonic) University, November 22-24, 2012
  15. 15. Conference Topic: The means and methods of warfare in contemporary armed conflicts: IHL perspectives Section: Cyber warfare and IHL Chairperson: Sergey Sayapin, ICRC, Legal Adviser
  16. 16. Thank you for attention! Kostiantyn Iakovliev (Ukraine) MA in Human Rights and Democratization, Yerevan State University, 2012 +KostiantynIakovliev/ iakovliev