Lawful Targets in Cyber Operations: Does the Principle of Distinction Apply?

• Author: Noam Lubell
• Position: Reader in Law, School of Law, University of Essex, United Kingdom
• Pages: 252-275

International Law Studies 2013

252

M

Lawful Targets in Cyber Operations:

Does the Principle of Distinction Apply?

Noam Lubell*

I. INTRODUCTION

ost of the advanced and largest militaries in the world have, in recent

years, devoted significant attention and resources to the development of

the capacity to conduct—and defend against—cyber operations.

1

Indeed,

cyber operations feature prominently in discussions over future conflicts

and are expected to be an inherent and major component in the waging of

war. But cyber operations are not usually conducted with the aim of

straightforward material harm to a physical military object and their use

* Reader in Law, School of Law, University of Essex, United Kingdom. Thanks are

due to Marty Ehlenbach for research assistance and to Audrey Guinchard for comments.

1

. U.S. Department of Defense, Department of Defense Strategy for Operating in

Cyberspace (2011), available at http://www.defense.gov/news/d20110714cyber.pdf; HM

Government, Securing Britain in an Age of Uncertainty: UK Strategic De fence and Securi-

ty Review (2010), available at http://www.cabinetoffice.gov.uk/sites/default/files

/resources/strategic-defence-security-review.pdf; NATO Cooperative Cyber Defence

Centre of Excellence, http://www.ccdcoe.org/; Jim Wolf , China Cyber Capability Puts U.S.

Forces at Risk: Rep ort, REUTERS (Mar. 8, 2012, 12:11 AM), http://www.reuters.com

/article/2012/03/08/us-china-usa-cyberwar-idUSBRE8270AF20120308; Nick Hopkins,

Militarisation of Cyberspace: How the Global Power Struggle Moved Online, GUARDIAN (Apr. 16,

2012, 10:00 AM), http://www.guardian.co.uk/technology/2012/apr/16/militarisation-of-

cyberspace-power-struggle.

Lawful Targets in Cyber Operations Vol. 89

253

raises complex questions concerning the choice of targets. During armed

conflict, international law provides detailed rules on targeting, most of

which stem from the fundamental principle of distinction. At its most basic

understanding, this rule requires that all things and people military must be

distinguished from things and people civilian.

2

It governs questions of who

and what may be attacked. It also influences other rules on how attacks

may be carried out—prohibitions of indiscriminate attacks and concepts of

proportionality would in most cases become meaningless without the dis-

tinction between military and civilian.

3

The principle of distinction is one of

the foundations of the law of war. The International Court of Justice has

described it as part of "[t]he cardinal principles contained in the texts con-

stituting the fabric of humanitarian law.”

4

As such, this principle should

presumably hold true in any type of conflict. The cyber sphere, however,

presents unique challenges to our ability to adequately distinguish between

military and civilian and thereby adhere to this fundamental principle.

Moreover, the nature of cyber operations is such that it does not neatly fit

into the paradigm of hostilities around which the law of armed conflict

(LOAC) is constructed. In fact, it has even been debated whether the

LOAC rules on targeting would always apply to cyber operations, and

whether the need to distinguish between military and civilian and the pro-

hibition on attacking civilian targets are applicable to all forms of cyber op-

erations or not.

5

This article will examine these questions in the following

manner. Part II will address the question of the nature of cyber operations

2

. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating

to the Protection of Victims of International Armed Conflicts art. 48, June 8, 1977, 1125

U.N.T.S. 3 [hereinafter Additional Protocol I].

3

. Id., art. 51 (protection of the civilian population).

4

. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J.

226, ¶ 7 8 (July 8) [hereinafter Nuclear Weapons]. Note also the International Committee of

the Red Cross commentary on the rule, which states the rule of protection and distinction

is

the foundation on which the codification of the laws and customs of war rests: the civilian

population and civilian objects must be respected and protected in armed conflict, and for

this purpose they must be distinguished from combatants and military objectives. The en-

tire system established in The Hague in 1899 and 1907 and in Geneva from 1864 to 1977

is founded on this rule of customary law.

COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA

CONVENTIONS OF 12 AUGUST 1949, ¶ 1863 (Yves Sandoz, Christophe Swi narski & Bruno

Zimmermann eds., 1987) (footnotes omitted) [hereinafter COMMENTARY ON THE ADDI-

TIONAL PROTOCOLS].

5

. See infra pp. 254.