International Humanitarian Law (IHL, aka the Law of Armed Conflict) is not intended to outlaw conflict. It is meant to regulate conflict in order to reduce its impact on civilians and to return to a state of peace as rapidly as possible. Those who use IHL to attempt to outlaw conflict place this vital body of law at its greatest peril; if the law is too expansive, or applied disingenuously, states may ignore it altogether. Expanding interpretation of IHL to prohibit non-violent activities is an erroneous and ill-advised application of the law.
Ido Kilovaty’s interpretation of IHL as applied to cyberspace (Violence in Cyberspace: Are Disruptive Cyberspace Operations Legal under International Humanitarian Law?) is particularly troubling because it drastically inflates the activities IHL applies to, so much so that even law abiding states might dismiss it. More worrisome is that it promotes a policy that will lead states to inflict greater physical violence, at greater cost to civilians, when less dangerous forms of competition and conflict might have been available.
Kilovaty’s legal argument rests on novel interpretations of the terms ‘attack’ and ‘act of violence.’ Citing the Vienna Convention on the Law of Treaties’ (VCLT) rule of interpretation “that terms within a treaty shall be understood by their ‘ordinary meaning,’” he expands the use of the term ‘violence’ to include acts like “physical or moral constraint.” While modern, colloquial use of the expression ‘act of violence’ may include emotional and psychological harms, those harms have never been prohibited as a matter of law under IHL. Avoiding all civilian harm is aspirational; avoiding the intentional killing of civilians is a requirement.
Consider a supply convoy in a combat zone. Such convoys can involve tens of vehicles, move slowly, and often stop frequently. Another driver on the same road can expect a short trip to take hours if not become entirely futile. Using Kilovaty’s interpretation of violence, the physically constraining traffic caused by such a convoy would render the convoy illegal under IHL.
Regarding the VCLT, Kilovaty ignores the part of the rule of interpretation that is inconvenient to his analysis. The entire rule reads, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose (emphasis added).” If analyzed in their proper context, it is clear that the term ‘attack’ as used in the United Nations Charter and Additional Protocol I of the Geneva Convention (AP I) exclusively refers to armed attacks. When a cyberspace operation’s effects are similar to those caused by kinetic operations it is reasonable and appropriate to apply IHL. When a cyberspace operation merely results in anything from the temporary disruption of internet service to the permanent disabling of a computer network without physical destruction, IHL does not and should not apply. For the Law of Armed Conflict to apply there must be a use of arms, or at least the manifestation of effects akin to those created by arms.
The point is well raised that cyber effects that lead to death, injury or destruction should be considered attacks. Kilovaty raises Nils Melzer’s example of disabling a state’s air defense system through cyberspace; an action that most certainly would be labeled an attack. This easy case cannot be the foundation for a general rule that disruptive cyberspace operations should be considered under the same standards as bullets, bombs, and missiles.
The real question is what order or level of disruptive cyberspace effects, absent physical manifestation, will be assigned to the initiator of a cyber operation. It’s reasonable to hold an initiator responsible for deaths resulting from a disabled air traffic control system while planes are in the air. But what about an air traffic control system that’s disabled for months through a cyberspace operation? Should initiators also be held responsible for the additional deaths that result from increased road travel, and those who fail to get their life saving organs delivered to the hospitals on time, and the despondent pilot who commits suicide after being laid off two months into the crisis? Pulling at that Palsgrafian thread very well could unravel all of cyberspace operations, but it is the harder questions of proximate cause that should form the line between what is and is not an attack in cyberspace for the purposes of applying IHL.
As a matter of international policy, national leaders and promoters of international law should consider the consequences of declaring cyberspace operations equivalent to what has been traditionally known as an attack or act of violence. Failure to do so has the perverse effect of likely increasing the amount of physical violence. This is a direct result of the relative permanence and simplicity associated with traditional kinetic action, vice the technical complexity and potentially temporary nature of cyberspace operations. By treating non-violent cyberspace operations under the same legal paradigm as traditional kinetic operations, States will default to what is time-tested and already abundant- missiles, bombs, and bullets. Consider for example the military commander who must stop her adversary from crossing a draw bridge. She could engage in a cyber operation that keeps the bridge in an upright position until such time as she lowers it back down either for her own military purpose or to restore its use to the local population. Alternatively, she could bomb the bridge as a valid military objective denying use of the bridge to both the adversary and the local population in perpetuity.
This is not to say that there are no options. Instead of creating burdens on the use of cyberspace operations, the better course of action might be to create policies that encourage the use of relatively peaceful cyberspace operations while simultaneously seeking to decrease the conduct of deadly kinetic activities. That will best serve the interest of preventing innocent civilians from the calamities of war.
The views expressed are in the authors’ personal capacity and are not intended to reflect official positions of any component of the US Government.
Image: Dept of Defense