The regulation of cyber warfare under contemporary international humanitarian law

Abstract

The purpose of this research paper is to establish whether International Humanitarian Law is applicable to armed conflicts that consist of a cyber element and if so, to what extent it would apply. This required an in-depth analysis into the prohibition on the use of force as well as the principles of International Humanitarian Law. The first step was to establish the current position regarding the prohibition on the use of force and International Humanitarian Law. Once this was clear, the next phase of the research was to apply these positions to cyber-attacks and situations of International armed conflict consisting of a cyber element. The Tallinn Manual 1.0 as well as 2.0, were utilised to a great extent in order to establish the position that the International experts, who composed these manuals, hold regarding the applicability of cyber-related conflict to customary international law. By applying cyber-attacks to the prohibition on the use of force it was found that where a cyber-attack reaches the level of damage that a kinetic attack can inflict, the attack will be prohibited by article 2(4). By applying armed conflicts consisting of a cyber-element to International Humanitarian Law, it was found that where such an armed conflict arises, International Humanitarian Law will apply. Contemporary International Humanitarian Law is shown to be applicable to cyber-related conflicts, however, due to the novelty of cyber space, certain uncertainties do exist on the scope of the application of International Humanitarian Law on cyber related conflicts. These uncertainties can possibly be clarified in the future through state practice and further research.