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

1. Application of IHL to
Computer Network Attacks
KOSTIANTYN IAKOVLIEV
(UKRAINE)
Yerevan State University
Center for European Studies
MA in Human Rights & Democratization

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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. Definitions:
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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. Can International Humanitarian Law
apply to Computer Network Attacks
(CNAs)?
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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. Main issues when applying
International Humanitarian Law to
CNAs
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the principle of
distinction;
attacks only against
military objectives;
the prohibition of
indiscriminate
attacks;
combatant status

6. Principle of distinction
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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.
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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)
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8. Indiscriminate attacks
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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.
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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. Combatant status
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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.
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10. Recent examples of using CNAs
in warfare
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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. Recent examples of using CNAs
in warfare continued
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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. Our suggestions for creating an
international treaty on CNAs
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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. Sources:
Dilanian, K. (2011, August 12). Russia and China accused of cyber-spying campaign to steal U.S.
secrets. Los Angeles Times. Retrieved from http://articles.latimes.com/2011/aug/12/business/la-ficyber-china-20110813
Dörmann, K. (2001, May 19). Computer network attack and international humanitarian law. ICRC
Resource Centre. Retrieved November 22, 2012, from
http://www.icrc.org/eng/resources/documents/misc/5p2alj.htm
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 http://csis.org/publication/note-lawswar-cyberspace
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 http://www.reuters.com/article/2012/03/08/us-china-usa-cyberwaridUSBRE82712820120308
created with the help of Zotero 3.0.11 for Firefox

14. first presented on
5th Yerevan
International
Conference on
International
Humanitarian Law
https://www.facebook.com/groups/218931458229648/
Russian - Armenian
(Slavonic) University,
November 22-24, 2012

15. Conference Topic:
The means and
methods of warfare in
contemporary armed
conflicts: IHL
perspectives
Section:
Cyber warfare and
IHL
https://www.facebook.com/groups/218931458229648/
Chairperson:
Sergey Sayapin,
ICRC, Legal Adviser

16. Thank you for attention!
Kostiantyn Iakovliev
(Ukraine)
MA in Human Rights and
Democratization,
Yerevan State University,
2012
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