Cyber Warfare: Implications for Non-international Armed Conflicts

• Author: Robin Geiss
• Position: Professor at the Faculty of Law, University of Potsdam, Potsdam, Germany
• Pages: 627-645

Cyber Warfare and Non-international Armed Conflicts Vol. 89

627

C

Cyber Warfare: Implications for

Non-international

Armed Conflicts

Robin Geiss*

I. INTRODUCTION

yberspace is considered by many to be a new warfighting domain.

1

Le-

gal discussions concerning warfare in this domain have primarily focused

on the level of the ius ad bellum

2

and international armed conflicts.

3

With the

exception of action on cybercrime, especially the 2001 European Conven-

tion on Cybercrime and tentative attempts to design a similar instrument

* Professor at the Faculty of Law, University of Potsdam, Potsdam, Germany.

1

. U.S. DEPARTMENT OF DEFENSE, QUADRENNIAL DEFENSE REVIEW REPORT 37

(2010) [hereinafter QUADRENNIAL DEFENSE REVIEW REPORT].

2

. Matthew C. Waxman, Cyber-Attacks and th e Use of Force: Back to the Future of Article

2(4), 36 YALE JOURNAL OF INTERNATIONAL LAW 421 (2011); HEATHER H. DINNISS,

CYBER WARFARE AND THE LAWS OF WAR 37 (2012); Duncan B. Hollis, An e-SOS for Cy-

berspace, 52 HARVARD INTERNATIONAL LAW JOURNAL 373 (2011); Marco Roscini, World

Wide Warfare: Jus ad Bellum and the Use of Cyber Force, 14 MAX PLANCK UNITED NATIONS

YEARBOOK 85 (2010).

3

. Michael N. Schmitt, Wired Warfare: Computer Network Attack and Jus in Bello, 84 IN-

TERNATIONAL REVIEW OF THE RED CROSS 365 ( 2002); Sean Watts, Combatant Status and

Computer Network Attack, 50 VIRGINIA JOURNAL OF INTERNATIONAL LAW 392 (2010).

International Law Studies 2013

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on the global level,

4

the focus of contemporary discussions has primarily

been on inter-State issues and State-sponsored cyber operations. Converse-

ly, the relevance of cyber warfare in non-international armed conflicts and

the corresponding legal challenges arising under the laws of armed conflict

have only rarely been addressed.

5

One reason is certainly the notion that non-international armed conflict

today encompasses such a wide range of rather different scenarios,

6

ranging

from low-intensity armed conflicts between organized armed groups in

failed-State scenarios like Somalia

7

to traditional types of civil war like the

ongoing armed conflict in Syria to “internationalized” scenarios like the

armed conflict in Afghanistan,

8

that the relevance of cyber warfare in a par-

ticular conflict varies widely. Quite clearly, in many non-international

armed conflict scenarios sophisticated cyber weaponry is without signifi-

cant military relevance. Nevertheless, when parties to a non-international

armed conflict rely on cyber infrastructure and cyber operations to further

their strategic aims, cyber operations will also become increasingly relevant.

The Syrian government, for example, has repeatedly shut off the Internet

4

. Marco Gercke, Ten Years [after the] Convention on Cybe rcrime: Achievements and Failures of

the Council of Europe’s I nstrument in the Fight against Internet-Related Crimes, 12 COMPUTER LAW

REVIEW INTERNATIONAL 142 (2011); UNITED NATIONS OFFICE ON DRUGS AND CRIME,

THE GLOBALIZATION OF CRIME 218 (2010) [hereinafter GLOBALIZATION OF CRIME];

Susan W. Brenner, Cybercrime, Cyberterrorism and Cyberwarfare, 77 REVUE INTERNATIONALE

DE DROIT PENALE 454 (2006).

5

. Rather the focus has been on potential terrorist attacks by non-State actors. See, e.g.,

Kelly A. Gable, Cyber-Apocalypse Now: Securing the Internet Against Cyberterrorism and Using

Universal Jurisdiction as a Deterrent, 43 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 59

(2010).

6

. Sylvain Vité, Typology of Armed Conflicts in International H umanitarian Law: Legal Con-

cepts and Actual Situations, 91 INTERNATIONAL REVIEW OF THE RED CROSS 75 (2009);

Marko Milanovic & Vidan Hadzi-Vidanovic, A Taxonomy of Armed Conflict, in RESEARCH

HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW (Nigel D. White &

Christian Henderson eds., forthcoming 2013); SANDESH SIVAKUMARAN, THE LAW OF

NON-INTERNATIONAL ARMED CONFLICT (2012).

7

. Robin Geiss, Armed Violence in Fragile States: Low-intensity Conflicts, Spillover Conflicts,

and Sporadic Law Enforcement Operations by Third Parties, 91 INTERNATIONAL REVIEW OF THE

RED CROSS 134 (2009).

8

. Robin Geiss & Michael Siegrist, Has the Armed Conflict in A fghanistan Affected the Rules

on t he Conduct of Hostilities?, 93 INTERNATIONAL REVIEW OF THE RED CROSS 11, 13–14

(2011).