Approaches Towards Applicability Of International Humanitarian Law On Cyber Attacks: A Critical Appraisal

Abstract

The recent decades have seen greater reliance of individuals as well as states on the computer networks. These networks are used for military and civilian purposes alike that ranges from online shopping to the regulation of radars, satellites and nuclear facilities and installations. For this reason, the computer network system of any country gets a special significance from military point of view during a conflict. The use of computer technology during an armed conflict to gain military advantage poses special challenges to the International Humanitarian Law (IHL) in terms of its applicability as it is qualitatively different from other means and methods of warfare. Many legal experts appreciate the fact that military operations conducted through cyber means during an armed conflict may cause harm of grievous nature.However, they differ over the interpretation and applicability of the relevant law. Schmidt (2014) has noted that there exist, at least, two approaches towards the applicability of IHL over cyber warfare that he calls the ‘permissive’ and the ‘restrictive’ approaches[1]. After appraising both these approaches, this article suggests that in order to apply the IHL to a cyber-operation during an armed conflict, it is the impact and consequences of such an operation over the civilian population that should play the decisive role.  The main argument it puts forth is that it is the protection of civilians that lies at heart of the IHL.