The Principle of Distinction and Cyber War in International Armed Conflicts
Author: Dinstein, Yoram
Source: Journal of Conflict and Security Law, Volume 17, Number 2, 8 July 2012 , pp. 261-277(17)
Publisher: Oxford University Press
Abstract:Computer Network Attacks (CNAs) do not automatically come within the framework of the definition of attack in conformity with the law of armed conflict (LOAC). Consequently, some so-called CNAs (especially, those used only as means of intelligence gathering) do not qualify as attacks in the sense of LOAC. Only CNAs entailing violence do. CNAs constituting attacks in the LOAC sense are governed by the same rules that apply to kinetic attacks. In particular, they are subject to the application of the cardinal principle of distinction between combatants/military objectives and civilians/civilian objects. Consequently, deliberate attacks against civilians/civilian objects are prohibited, and so are indiscriminate attacks. An important extrapolation of the principle of distinction is the principle of proportionality, wherebywhen lawful targets are attackedcollateral damage to civilians/civilian objects must not be expected to be excessive compared with the military advantage anticipated. This is a complex construct, applying to CNAs as much as to other attacks. Feasible precautions must be taken prior to any attack, including a CNA. When a civilian is engaged in any form in a CNA, the act constitutes direct participation in hostilities and the actor loses civilian protection from attack.
Document Type: Research article
Publication date: 2012-07-08
- The Journal of Conflict and Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The Journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.