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! scope="col" style="background-color:#ffffaa;"| [[Military objectives]]
 
! scope="col" style="background-color:#ffffaa;"| [[Military objectives]]
 
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|[[File:Military objectives.svg|left|frameless|200x200px]]The principle of distinction, one of the foundational precepts of IHL, requires that the parties to an armed conflict must at all times distinguish between civilian objects and military objectives and may, accordingly, only direct their operations against military objectives.<ref>[https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=8A9E7E14C63C7F30C12563CD0051DC5C Art 48 AP I]; [https://www.icrc.org/en/doc/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf ICRC CIHL Study], rule 7.</ref> The customary definition of military objectives is found in Article 52(2) of Additional Protocol I:
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The principle of distinction, one of the foundational precepts of IHL, requires that the parties to an armed conflict must at all times distinguish between civilian objects and military objectives and may, accordingly, only direct their operations against military objectives.<ref>[https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=8A9E7E14C63C7F30C12563CD0051DC5C Art 48 AP I]; [https://www.icrc.org/en/doc/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf ICRC CIHL Study], rule 7.</ref> The customary definition of military objectives is found in Article 52(2) of Additional Protocol I:
   
 
<blockquote>In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.</blockquote>
 
<blockquote>In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.</blockquote>
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! scope="col" style="background-color:#ffffaa;"| [[Military objectives#Qualification of data as a military objective under IHL|Data as a military objective]]
 
! scope="col" style="background-color:#ffffaa;"| [[Military objectives#Qualification of data as a military objective under IHL|Data as a military objective]]
 
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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.
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|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>
 
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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