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|[[File:Data as a military objective.svg|left|frameless|200x200px]]The definition of military objectives and the prohibition of attacks on civilian objects are limited to “objects”. If the target of a cyber operation is not an “object”, then actions against it are not constrained by the rules of IHL that govern targeting. It is therefore of crucial importance '''whether data may qualify as an “object” and therefore be''' either '''a military objective''' subject to attack or a civilian object protected from attack, particularly with respect to cyber operations that do not result in a physical effect. If data does not qualify as an “object”, civilian datasets would enjoy little if any protection in times of armed conflict.
 
|[[File:Data as a military objective.svg|left|frameless|200x200px]]The definition of military objectives and the prohibition of attacks on civilian objects are limited to “objects”. If the target of a cyber operation is not an “object”, then actions against it are not constrained by the rules of IHL that govern targeting. It is therefore of crucial importance '''whether data may qualify as an “object” and therefore be''' either '''a military objective''' subject to attack or a civilian object protected from attack, particularly with respect to cyber operations that do not result in a physical effect. If data does not qualify as an “object”, civilian datasets would enjoy little if any protection in times of armed conflict.
   
Two main views have emerged in this regard. Some experts consider the notion “object” to be limited to something with physical properties that is visible and tangible in the real world.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 100, paras 5–6 (noting that the majority of experts considered that due to it being intangible, data does not fall within the ordinary meaning of the term object, which is “something visible and tangible”) (internal quotation marks deleted); but see Michael N Schmitt, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=83 The Notion of ‘Objects’ during Cyber Operations: A Riposte in Defence of Interpretive and Applicative Precision]’ (2015) 48 IsrLR 81, 93 (noting that although the “visible and tangible” criterion influenced the Tallinn Manual experts’ deliberations, it was not dispositive).</ref> This view rests on a textual interpretation of the term “object” and finds further support in the 1987 ICRC commentary to the Additional Protocols.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 100, para 5 (“An ‘object’ is characterised in the ICRC Additional Protocols 1987 Commentary as something ‘visible and tangible’.”), citing Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), <i>[http://www.loc.gov/rr/frd/Military_Law/pdf/Commentary_GC_Protocols.pdf Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949]</i> (ICRC 1987), 633–34 paras 2007–08.</ref> Proponents of this position may also point out the methodological problem of discerning rules of international law on the basis of analogy<ref>Cf, eg, ''Reparation for Injuries Suffered in the Service of the United Nations'' (Advisory Opinion) [1949] ICJ Rep 174, [https://www.icj-cij.org/files/case-related/4/004-19490411-ADV-01-04-EN.pdf Dissenting Opinion of Judge Badawi Pasha], 211 (“in international law, recourse to analogy should only be had with reserve and circumspection”).</ref> – a method sometimes employed by proponents of the contrary position, as noted below.<ref>But see, eg, Silja Vöneky, ‘Analogy in International Law’, in R Wolfrum (ed), ''[http://www.mpepil.com Max Planck Encyclopedia of Public International Law]'' (OUP 2008) (updated February 2008), para 24 (“Reasoning by analogy ... as a method of treating similar cases legally in the same way promotes the coherent interpretation of international law, and hence leads to more predictability and stability of the international legal order”).</ref> According to this view, cyber operations against data do not fall within the ambit of the relevant rules of IHL unless the operation in question results in some physical effect and/or a loss of functionality of the target system or network.<ref>[https://0-doi-org.lib.exeter.ac.uk/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 100, para 6.</ref>
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Two main views have emerged in this regard. Some experts consider the notion “object” to be limited to something with physical properties that is visible and tangible in the real world.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 100, paras 5–6 (noting that the majority of experts considered that due to it being intangible, data does not fall within the ordinary meaning of the term object, which is “something visible and tangible”) (internal quotation marks deleted); but see Michael N Schmitt, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=83 The Notion of ‘Objects’ during Cyber Operations: A Riposte in Defence of Interpretive and Applicative Precision]’ (2015) 48 IsrLR 81, 93 (noting that although the “visible and tangible” criterion influenced the Tallinn Manual experts’ deliberations, it was not dispositive).</ref> This view rests on a textual interpretation of the term “object” and finds further support in the 1987 ICRC commentary to the Additional Protocols.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 100, para 5 (“An ‘object’ is characterised in the ICRC Additional Protocols 1987 Commentary as something ‘visible and tangible’.”), citing Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), <i>[http://www.loc.gov/rr/frd/Military_Law/pdf/Commentary_GC_Protocols.pdf Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949]</i> (ICRC 1987), 633–34 paras 2007–08.</ref> According to this view, cyber operations against data do not fall within the ambit of the relevant rules of IHL unless the operation in question results in some physical effect and/or a loss of functionality of the target system or network.<ref>[https://0-doi-org.lib.exeter.ac.uk/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 100, para 6.</ref>
   
 
Alternatively, other experts view data as falling within the notion of “object” under IHL. They consider that the remarks on visibility and tangibility in the ICRC commentary were meant to distinguish between concrete things (for instance, a bridge) and abstract notions (for instance, civilian morale).<ref>Heather A Harrison Dinniss, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=41 The Nature of Objects: Targeting Networks and the Challenge of Defining Cyber Military Objectives]’ (2015) 48 IsrLR 39, 44; Kubo Mačák, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=57 Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law]’ (2015) 48 IsrLR 55, 67–68.</ref> Accordingly, data is analogous to the former category of concrete things because it is likewise susceptible to being attacked and destroyed.<ref>Kubo Mačák, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=57 Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law]’ (2015) 48 IsrLR 55, 73.</ref> As a result, data will be either a military objective or a civilian object; if the latter, it remains protected from attack and from excessive incidental harm, in accordance with IHL’s central value of protection of civilians and civilian objects.<ref>Kubo Mačák, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=57 Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law]’ (2015) 48 IsrLR 55, 77–80; see also [https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], rule 100, para 7 (criticizing the majority position for “running counter to the principle … that the civilian population enjoys general protection from the effects of hostilities”).</ref> According to this view, cyber operations against data do trigger the IHL rules of distinction and military objectives and any cyber operation against data that constitutes an attack may only be directed against data that meets the definition of military objective.
 
Alternatively, other experts view data as falling within the notion of “object” under IHL. They consider that the remarks on visibility and tangibility in the ICRC commentary were meant to distinguish between concrete things (for instance, a bridge) and abstract notions (for instance, civilian morale).<ref>Heather A Harrison Dinniss, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=41 The Nature of Objects: Targeting Networks and the Challenge of Defining Cyber Military Objectives]’ (2015) 48 IsrLR 39, 44; Kubo Mačák, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=57 Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law]’ (2015) 48 IsrLR 55, 67–68.</ref> Accordingly, data is analogous to the former category of concrete things because it is likewise susceptible to being attacked and destroyed.<ref>Kubo Mačák, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=57 Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law]’ (2015) 48 IsrLR 55, 73.</ref> As a result, data will be either a military objective or a civilian object; if the latter, it remains protected from attack and from excessive incidental harm, in accordance with IHL’s central value of protection of civilians and civilian objects.<ref>Kubo Mačák, ‘[https://heinonline.org/HOL/P?h=hein.journals/israel48&i=57 Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law]’ (2015) 48 IsrLR 55, 77–80; see also [https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], rule 100, para 7 (criticizing the majority position for “running counter to the principle … that the civilian population enjoys general protection from the effects of hostilities”).</ref> According to this view, cyber operations against data do trigger the IHL rules of distinction and military objectives and any cyber operation against data that constitutes an attack may only be directed against data that meets the definition of military objective.

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