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This is the position of Israel on international law applicable to cyber operations. The position<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref> has been presented on 8 December 2020 by Israeli Deputy Attorney General for International Law Dr. Roy Schöndorf, during the event hosted by the US Naval War College Stockton Center for International Law on "Disruptive Technology and International Law".<ref>[https://usnwc.edu/News-and-Events/Events/Disruptive-Technologies-and-International-Law US Naval War College’s Stockton Center for International Law, Disruptive Technologies and International Law]</ref>
 
This is the position of Israel on international law applicable to cyber operations. The position<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref> has been presented on 8 December 2020 by Israeli Deputy Attorney General for International Law Dr. Roy Schöndorf, during the event hosted by the US Naval War College Stockton Center for International Law on "Disruptive Technology and International Law".<ref>[https://usnwc.edu/News-and-Events/Events/Disruptive-Technologies-and-International-Law US Naval War College’s Stockton Center for International Law, Disruptive Technologies and International Law]</ref>
   
==[[Applicability of international law]]==
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==Applicability of international law==
<section begin=IL_2020 applicability/>
 
 
"Israel considers that international law is applicable to cyberspace, and this is a view that has become almost axiomatic for a vast majority of States. However, when seeking to apply particular legal rules to this domain, we are mindful of its unique features.
 
"Israel considers that international law is applicable to cyberspace, and this is a view that has become almost axiomatic for a vast majority of States. However, when seeking to apply particular legal rules to this domain, we are mindful of its unique features.
   
 
These unique features shape policy and affect the legal framework applicable to the cyber domain. I wish to shortly address some of them. First, cyber operations are conducted through a global network, passing through infrastructure located in multiple jurisdictions, and lack, in and of themselves, any meaningful physical manifestation. Second, much of the cyber infrastructure is held and controlled by the private sector and civilian components are a major part of the picture. Thus, regulation of the cyber domain may have various social and economic implications as well. Third, the cyber domain is highly dynamic, given the fast pace of technological developments and innovation. The development of international legal rules, on the other hand, is a more gradual process. This is understandable since these rules are designed to stand the test of time and are not easily amended.
 
These unique features shape policy and affect the legal framework applicable to the cyber domain. I wish to shortly address some of them. First, cyber operations are conducted through a global network, passing through infrastructure located in multiple jurisdictions, and lack, in and of themselves, any meaningful physical manifestation. Second, much of the cyber infrastructure is held and controlled by the private sector and civilian components are a major part of the picture. Thus, regulation of the cyber domain may have various social and economic implications as well. Third, the cyber domain is highly dynamic, given the fast pace of technological developments and innovation. The development of international legal rules, on the other hand, is a more gradual process. This is understandable since these rules are designed to stand the test of time and are not easily amended.
   
All these factors taken together suggest that an extra layer of caution must be exercised in determining how exactly international legal rules apply to cyber operations, and in evaluating whether and how additional rules should be developed. We, as government and military legal advisers, are tasked with the role of identifying the relevant rules, including those set by the law of armed conflict, and determining how they apply to a particular set of facts. In some cases, it will be possible to apply a certain rule as it is; while in other cases, the situation may be conceptually different, such that it might not be possible, feasible, or even desirable to draw from existing legal rules. This process obviously has to consider the behavior of States in the cyber domain, as international law is State-made."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 applicability/>
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All these factors taken together suggest that an extra layer of caution must be exercised in determining how exactly international legal rules apply to cyber operations, and in evaluating whether and how additional rules should be developed. We, as government and military legal advisers, are tasked with the role of identifying the relevant rules, including those set by the law of armed conflict, and determining how they apply to a particular set of facts. In some cases, it will be possible to apply a certain rule as it is; while in other cases, the situation may be conceptually different, such that it might not be possible, feasible, or even desirable to draw from existing legal rules. This process obviously has to consider the behavior of States in the cyber domain, as international law is State-made."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref>
   
== [[Self-defence|Self-defence, armed attack and use of force]]==
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==Self-defence, armed attack and use of force==
 
<section begin=IL_2020 self-defence, armed attack and use of force />
 
<section begin=IL_2020 self-defence, armed attack and use of force />
 
"First — and this has already been acknowledged by many others— the customary prohibition set out in Article 2(4) of the Charter of the United Nations, on “the threat or use of force” in international relations, is clearly applicable in the cyber domain.
 
"First — and this has already been acknowledged by many others— the customary prohibition set out in Article 2(4) of the Charter of the United Nations, on “the threat or use of force” in international relations, is clearly applicable in the cyber domain.
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Finally, the use of force in accordance with the right of self-defense, against an armed attack conducted through cyber means, may be carried out by either cyber or kinetic means; just as use of force in self-defense against a kinetic armed attack may be conducted by kinetic or cyber means."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 self-defence, armed attack and use of force />
 
Finally, the use of force in accordance with the right of self-defense, against an armed attack conducted through cyber means, may be carried out by either cyber or kinetic means; just as use of force in self-defense against a kinetic armed attack may be conducted by kinetic or cyber means."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 self-defence, armed attack and use of force />
   
==[[Sovereignty]]==
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==Sovereignty==
 
<section begin=IL_2020 sovereignty />
 
<section begin=IL_2020 sovereignty />
 
"To begin with, there are diverging views regarding whether sovereignty is merely a principle, from which legal rules are derived, or a binding rule of international law in itself, the violation of which could be considered an internationally wrongful act. This issue has many facets, and while I will not offer any definitive position for the time being, I would like to stress a number of important points.
 
"To begin with, there are diverging views regarding whether sovereignty is merely a principle, from which legal rules are derived, or a binding rule of international law in itself, the violation of which could be considered an internationally wrongful act. This issue has many facets, and while I will not offer any definitive position for the time being, I would like to stress a number of important points.
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These questions reflect an inherent tension between States’ legitimate interest and the concept of territorial sovereignty, as we understand it in the physical world. In practice, States occasionally do conduct cyber activities that transit through, and target, networks and computers located in other States, for example for national defense, cybersecurity, or law enforcement purposes. Under existing international law, it is not clear whether these types of actions are violations of the rule of territorial sovereignty, or perhaps that our understanding of territorial sovereignty in cyberspace is substantively different from its meaning in the physical world."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 sovereignty />
 
These questions reflect an inherent tension between States’ legitimate interest and the concept of territorial sovereignty, as we understand it in the physical world. In practice, States occasionally do conduct cyber activities that transit through, and target, networks and computers located in other States, for example for national defense, cybersecurity, or law enforcement purposes. Under existing international law, it is not clear whether these types of actions are violations of the rule of territorial sovereignty, or perhaps that our understanding of territorial sovereignty in cyberspace is substantively different from its meaning in the physical world."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 sovereignty />
   
==[[Prohibition of intervention]]==
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==Prohibition of intervention==
 
<section begin=IL_2020 prohibition of intervention />
 
<section begin=IL_2020 prohibition of intervention />
 
"Another matter closely related to the issue of sovereignty is that of non-intervention. Traditionally, this concept has been understood as having a high threshold. It has been taken to mean that State A cannot take actions to “coerce” State B in pursuing a course of action, or refraining from a course of action, in matters pertaining to State B’s core internal affairs, such as its economic or foreign policy choices. Its traditional application has focused on military intervention and support to armed groups seeking the overthrow of the regime in another State. This could presumably also relate to support given to armed groups in the cyber domain, such as providing information regarding cyber vulnerabilities of the State.
 
"Another matter closely related to the issue of sovereignty is that of non-intervention. Traditionally, this concept has been understood as having a high threshold. It has been taken to mean that State A cannot take actions to “coerce” State B in pursuing a course of action, or refraining from a course of action, in matters pertaining to State B’s core internal affairs, such as its economic or foreign policy choices. Its traditional application has focused on military intervention and support to armed groups seeking the overthrow of the regime in another State. This could presumably also relate to support given to armed groups in the cyber domain, such as providing information regarding cyber vulnerabilities of the State.
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A more recent issue that has come to the fore relates to interference in national elections. We concur with the various positions expressed in this regard, such as that which was presented by former U.S. State Department Legal Adviser Brian J. Egan, and more recently reiterated by U.S. Department of Defense General Counsel Paul C. Ney Jr., that a “cyber operation by a State that interferes with another country’s ability to hold an election or that manipulates another country’s election results would be a clear violation of the rule of non-intervention.”<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 prohibition of intervention />
 
A more recent issue that has come to the fore relates to interference in national elections. We concur with the various positions expressed in this regard, such as that which was presented by former U.S. State Department Legal Adviser Brian J. Egan, and more recently reiterated by U.S. Department of Defense General Counsel Paul C. Ney Jr., that a “cyber operation by a State that interferes with another country’s ability to hold an election or that manipulates another country’s election results would be a clear violation of the rule of non-intervention.”<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 prohibition of intervention />
   
==[[Due diligence]]==
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==Due diligence==
 
<section begin=IL_2020 due diligence />
 
<section begin=IL_2020 due diligence />
 
"The concept of due diligence means that States should take reasonable measures to avoid or minimize harm to other States, and seems to be useful in fields such as international environmental law. In the 2015 UN GGE Report, the concept was addressed as the basis for a voluntary, non-binding norm of responsible State behavior, providing that States should not allow their territory to be used for the commission of international wrongful acts. There was wisdom in mentioning it in the chapter covering norms of responsible State behavior, as it does not, at this point in time, translate into a binding rule of international law in the cyber context. This was the position expressed by other States as well."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref>
 
"The concept of due diligence means that States should take reasonable measures to avoid or minimize harm to other States, and seems to be useful in fields such as international environmental law. In the 2015 UN GGE Report, the concept was addressed as the basis for a voluntary, non-binding norm of responsible State behavior, providing that States should not allow their territory to be used for the commission of international wrongful acts. There was wisdom in mentioning it in the chapter covering norms of responsible State behavior, as it does not, at this point in time, translate into a binding rule of international law in the cyber context. This was the position expressed by other States as well."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref>
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The inherently different features of cyberspace—its decentralization and private characteristics—incentivize cooperation between States on a voluntary basis, such as with the case of national Computer Emergency Response Teams (CERTs). CERTs are already doing what could arguably fall into that category: exchanging information with one another, as well as cooperating with each other in mitigating incidents. However, we have not seen widespread State practice beyond this type of voluntary cooperation, and certainly not practice grounded in some overarching opinio juris, which would be indispensable for a customary rule of due diligence, or something similar to that, to form."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 due diligence />
 
The inherently different features of cyberspace—its decentralization and private characteristics—incentivize cooperation between States on a voluntary basis, such as with the case of national Computer Emergency Response Teams (CERTs). CERTs are already doing what could arguably fall into that category: exchanging information with one another, as well as cooperating with each other in mitigating incidents. However, we have not seen widespread State practice beyond this type of voluntary cooperation, and certainly not practice grounded in some overarching opinio juris, which would be indispensable for a customary rule of due diligence, or something similar to that, to form."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 due diligence />
   
==[[Attribution]]==
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==Attribution==
 
<section begin=IL_2020 attribution />
 
<section begin=IL_2020 attribution />
 
"The issue of attribution is also widely debated with respect to cyber operations. Some have suggested that there needs to be more legal certainty with respect to attribution, in order to avoid mistaken attribution, which can lead to conflict escalation. This is increasingly becoming more of a theoretical issue. Over time, the attribution capabilities of States have improved, and even States with lesser capabilities have been able to rely on solid information provided by other States and by the private sector. In any event, this is a technical matter—a factual one—and I would advise against over-regulating the issue.
 
"The issue of attribution is also widely debated with respect to cyber operations. Some have suggested that there needs to be more legal certainty with respect to attribution, in order to avoid mistaken attribution, which can lead to conflict escalation. This is increasingly becoming more of a theoretical issue. Over time, the attribution capabilities of States have improved, and even States with lesser capabilities have been able to rely on solid information provided by other States and by the private sector. In any event, this is a technical matter—a factual one—and I would advise against over-regulating the issue.
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That being said, there is also the question of public perceptions—because sometimes, when an offensive cyber operation is public, and the attribution is public, the government needs to communicate with its citizens, and with the international community at large, in order for its positions and actions to be understood. But there will be cases when a State will prefer not to disclose the attack, the attribution, or any ensuing actions taken—for diverse reasons such as national security and foreign relations. Either way, as a matter of international law, the choice whether or not to disclose the attribution information remains at the exclusive discretion of the State."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 attribution />
 
That being said, there is also the question of public perceptions—because sometimes, when an offensive cyber operation is public, and the attribution is public, the government needs to communicate with its citizens, and with the international community at large, in order for its positions and actions to be understood. But there will be cases when a State will prefer not to disclose the attack, the attribution, or any ensuing actions taken—for diverse reasons such as national security and foreign relations. Either way, as a matter of international law, the choice whether or not to disclose the attribution information remains at the exclusive discretion of the State."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 attribution />
   
==[[Countermeasures]]==
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==Countermeasures==
 
<section begin=IL_2020 countermeasures />
 
<section begin=IL_2020 countermeasures />
 
"With respect to the issue of countermeasures, I would like to echo the positions taken by the United Kingdom, the United States, and other States, to the effect that there is no absolute duty under international law to notify the responsible State in advance of a cyber-countermeasure. Prior notification is perhaps more realistic and practical in fields such as international trade, allowing the responsible State to reconsider its actions without frustrating the ability of the injured State to take the intended countermeasures. However, in the cyber domain, where the pace of events can be extremely
 
"With respect to the issue of countermeasures, I would like to echo the positions taken by the United Kingdom, the United States, and other States, to the effect that there is no absolute duty under international law to notify the responsible State in advance of a cyber-countermeasure. Prior notification is perhaps more realistic and practical in fields such as international trade, allowing the responsible State to reconsider its actions without frustrating the ability of the injured State to take the intended countermeasures. However, in the cyber domain, where the pace of events can be extremely
 
fast and the other side may thwart the action if it anticipates it, announcing a cyber-countermeasure in advance would often negate its utility and effectiveness, and in some instances undermine the interests of the injured State, as well as render the countermeasure obsolete."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 countermeasures />
 
fast and the other side may thwart the action if it anticipates it, announcing a cyber-countermeasure in advance would often negate its utility and effectiveness, and in some instances undermine the interests of the injured State, as well as render the countermeasure obsolete."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 countermeasures />
   
==[[International humanitarian law (jus in bello)|International humanitarian law (''jus in bello'')]]==
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==International humanitarian law (''jus in bello'')==
 
<section begin=IL_2020 IHL />
 
<section begin=IL_2020 IHL />
 
"I’ll start by stating the obvious: the law of armed conflict and its fundamental principles generally apply to cyber operations conducted in the context of an armed conflict. Indeed, ''“the right of belligerents to adopt means of injuring the enemy is not unlimited”'' even in the cyber domain.
 
"I’ll start by stating the obvious: the law of armed conflict and its fundamental principles generally apply to cyber operations conducted in the context of an armed conflict. Indeed, ''“the right of belligerents to adopt means of injuring the enemy is not unlimited”'' even in the cyber domain.
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Israel is a party to the four Geneva Conventions and other treaties governing particular aspects of conduct in armed conflict and is also bound by applicable customary law. Israel—like the United States and others—is not a party to the First and Second Additional Protocols to the four Geneva Conventions and is not bound by them as a matter of treaty law. However, we see the following as consistent with the relevant customary law and the Additional Protocols."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 IHL />
 
Israel is a party to the four Geneva Conventions and other treaties governing particular aspects of conduct in armed conflict and is also bound by applicable customary law. Israel—like the United States and others—is not a party to the First and Second Additional Protocols to the four Geneva Conventions and is not bound by them as a matter of treaty law. However, we see the following as consistent with the relevant customary law and the Additional Protocols."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 IHL />
   
==[[Conduct of hostilities]]==
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==Conduct of hostilities==
 
<section begin=IL_2020 conduct of hostilities />
 
<section begin=IL_2020 conduct of hostilities />
 
"One of the key issues, in the conduct of hostilities in particular, is how to define “attacks,” and in which circumstances cyber operations amount to attacks under LOAC. The concept of attack is central to targeting operations and only acts amounting to attacks are subject to the “targeting rules” relating to distinction, precautions, and proportionality.
 
"One of the key issues, in the conduct of hostilities in particular, is how to define “attacks,” and in which circumstances cyber operations amount to attacks under LOAC. The concept of attack is central to targeting operations and only acts amounting to attacks are subject to the “targeting rules” relating to distinction, precautions, and proportionality.
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Finally, the fact that a cyber operation is not an attack does not mean that no legal limitations apply thereto. Indeed, there are general obligations in LOAC that apply to all military operations regardless of being attacks or not. Central among those is the requirement to consider the danger posed to the civilian population in the conduct of military operations. It is widely accepted today that parties to conflicts cannot blatantly disregard such harmful effects to the civilian population in their military operations. But there are also more specific protections that may apply to actions other than attacks. For example, cyber operations affecting medical units are regulated and limited, inter alia, by the LOAC obligation to respect and protect medical units, which applies regardless of whether the act constitutes an attack or not."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 conduct of hostilities />
 
Finally, the fact that a cyber operation is not an attack does not mean that no legal limitations apply thereto. Indeed, there are general obligations in LOAC that apply to all military operations regardless of being attacks or not. Central among those is the requirement to consider the danger posed to the civilian population in the conduct of military operations. It is widely accepted today that parties to conflicts cannot blatantly disregard such harmful effects to the civilian population in their military operations. But there are also more specific protections that may apply to actions other than attacks. For example, cyber operations affecting medical units are regulated and limited, inter alia, by the LOAC obligation to respect and protect medical units, which applies regardless of whether the act constitutes an attack or not."<ref>[https://digital-commons.usnwc.edu/ils/vol97/iss1/21/ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.]</ref><section end=IL_2020 conduct of hostilities />
   
==[[Military objectives|Data as a military objective]]==
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==Data as a military objective==
 
<section begin=IL_2020 data as a military objective /><section begin=IL_2020 military objectives />
 
<section begin=IL_2020 data as a military objective /><section begin=IL_2020 military objectives />
 
"[..]another question which is especially relevant to the cyber domain is whether the term “object,” as it is understood in LOAC, encompasses computer data. This bears implications with regard to the implementation of the LOAC rules relating to distinction, precautions, and proportionality.
 
"[..]another question which is especially relevant to the cyber domain is whether the term “object,” as it is understood in LOAC, encompasses computer data. This bears implications with regard to the implementation of the LOAC rules relating to distinction, precautions, and proportionality.

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