Scenario 12: Cyber operations against computer data

From International cyber law: interactive toolkit
Revision as of 09:37, 25 October 2019 by Kubomacak (talk | contribs) (integrating reviewer's comments)
(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)
Jump to navigation Jump to search
© pinkeyes. Lincensed from Shutterstock.

In the context of an armed conflict, one belligerent conducts a series of cyber operations against the datasets associated with the other belligerent. These include data used for military purposes, essential civilian datasets, and data serving the enemy’s propaganda. The analysis in this scenario considers the lawfulness of cyber operations designed to corrupt or delete various types of datasets under the law of armed conflict. It particularly focusses on the question whether data qualifies as an “object” for the purposes of the law of armed conflict and whether, as such, it comes within the definition of a military objective.

1 Scenario[edit | edit source]

1.1 Keywords[edit | edit source]

Computer data, distinction, international humanitarian law, military objectives, object, targeting

1.2 Facts[edit | edit source]

[F1] State A is involved in a non-international armed conflict against organized armed group G based in its territory. In addition to kinetic hostilities between the two belligerent parties, armed group G conducts a series of cyber operations as part of its military efforts (these are referred to below as incidents 1, 2, and 3):

  1. Armed group G conducts a cyber operation against data stored in the computer network at State A’s central military command. The operation results in the deletion or corruption of all data stored in the network, which contained the identity, location, physical condition, staffing, and battle readiness of State A’s warships and military aircraft.
  2. Armed group G conducts a cyber operation against data held by State A’s central registry office, a governmental authority maintaining digital records on all State A’s citizens concerning non-military purposes, including census taking, the provision of social benefits, voting, and taxation. The operation results in the deletion of all data held by the office.
  3. Armed group G conducts a cyber operation against data stored on the servers of State A’s main press agency. As a result of the operation, all data on the servers of the press agency are deleted and its websites are populated instead with videos and texts calling on the supporters of the regime to resign and defect to the insurgents’ side.

1.3 Examples[edit | edit source]

2 Legal analysis[edit | edit source]

For a general overview of the structure of analysis in this section, see Note on the structure of articles.

[L1] The legal analysis first considers whether the definition of military objectives under IHL applies to the situation described in the scenario. It then examines whether computer data qualifies as an “object” under IHL and whether operations against data must therefore be assessed with reference to the elements of that definition. The analysis outlines the two main approaches to that question and notes the extent to which the law is unsettled.

2.1 Cyber operations during armed conflicts and the legal definition of military objectives[edit | edit source]

Military objectives
Military objectives.svg
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.[1] The customary definition of military objectives is found in Article 52(2) of Additional Protocol I:

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.

The formal scope of application of the Protocol is limited to international armed conflicts (IACs).[2] However, an identical definition of military objectives is found in treaties applicable in non-international armed conflicts (NIACs).[3] Moreover, certain non-party States to the Protocol accept the customary nature of the definition.[4] Accordingly, the ICRC has characterized the definition of military objectives as a norm of customary international law applicable in both IACs and NIACs.[5]

Relevant rules of IHL apply to kinetic operations as well as to cyber operations.[6] However, the application of those rules in specific circumstances may pose novel challenges. This is because the rules governing targeting developed with physical operations in mind, and it is not always clear what their application to cyber operations entails.[7] For example, there is some disagreement on what types of acts amount to “attacks”[8] in the context of cyber operations, in particular when the operation in question is limited to the manipulation of data.[9] Nevertheless, even those operations that might not qualify as “attacks” under IHL may still only be directed against military objectives, as required by the principle of distinction.[10]

[L2] The central legal issue in the present scenario is whether the deletion or corruption of the specific types of data identified in incidents 1–3 would be lawful under IHL. The present scenario occurs in the context of a NIAC between State A’s government forces and organized armed group G. In accordance with the principle of distinction, only military objectives may be targeted during armed conflict. The definition of military objectives applies in the same manner in an IAC as in a NIAC, for the reasons detailed above. It would thus equally apply to cyber operations executed in the context of the armed conflict between State A and armed group G. Determining the lawfulness of these operations in the present scenario turns predominantly on the question whether data can be considered a military objective.

2.2 Qualification of data as a military objective under IHL[edit | edit source]

Data as a military objective
Data as a military objective.svg
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.[11] This view rests on a textual interpretation of the term “object” and finds further support in the 1987 ICRC commentary to the Additional Protocols.[12] Proponents of this position may also point out the methodological problem of discerning rules of international law on the basis of analogy[13] – a method sometimes employed by proponents of the contrary position, as noted below.[14] 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.[15]

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).[16] Accordingly, data is analogous to the former category of concrete things because it is likewise susceptible to being attacked and destroyed.[17] 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.[18] 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.

[L3] The incidents in this scenario serve to highlight the differences between the two main approaches described above.

[L4] Firstly, for those who hold the view that data are not an “object” for the purposes of IHL, there is little difference between all three incidents. According to that view, because data is not an object, cyber operations directed against the data are not governed by the IHL rules regulating targeting, which include the definition of military objectives. Consequently, for those who hold this view, the deleting or corrupting any of the three datasets would be lawful—at least as regards the IHL rule of distinction. In other words, none of the operations conducted by armed group G in incidents 1–3 would amount to a violation of the rule of distinction. Instead, the legality of the manipulation of the data would be considered in light of other rules applying to military operations in general, such as the duty to take “constant care” to “spare the civilian population, civilians and civilian objects”.[19]

[L5] On the second view, according to which data may be an “object” under IHL, the lawfulness of the relevant operations would have to be assessed with reference to the elements of the definition of military objectives. In this regard, the data targeted in incident 1 would likely qualify as a legitimate target of attack under IHL. This is because datasets stored in a military network and consisting of information on military assets belonging to the adversary are inherently military in nature. In addition, these datasets “contribute to the execution of the enemy’s operations or otherwise directly support the military activities of the enemy”.[20] As such, they make an effective contribution to the adversary’s military action by their nature, fulfilling the first prong of the definition under Article 52(2) AP I.[21]

[L6] By denying the government armed forces immediate access to the information about their own military assets, the insurgents impede the government’s military action, likely forcing State A’s armed forces to allocate resources towards the restoration of the lost information and away from the military operations. The destruction of the data would thus offer a definite military advantage “in the circumstances ruling at the time”, satisfying the second prong of the definition under Article 52(2) AP I.[22]

[L7] In contrast, the data targeted by the cyber operation in incident 2 would likely be a civilian object and therefore not liable to attack in accordance with IHL. Datasets used and kept for strictly non-military purposes only do not meet the definition of military objective: they do not make an effective contribution to military action by nature, location, purpose or use. As civilian objects, they are therefore are protected from attack during armed conflict. As noted, this analysis fosters the protection of essential civilian datasets and, consequently, it aligns with the object and purpose of the relevant legal norms.[23]

[L8] Incident 3 is the most complex of the analysed operations. Ordinarily, the activities of a civilian press agency, even if operated by the government in the context of an ongoing NIAC, do not contribute towards any belligerent’s military action. Exceptionally, specific media reports might effectively contribute to the enemy’s operational picture, and as such, depriving the enemy of them might offer a definite military advantage.[24] Accordingly, in these exceptional situations, the data containing such reports would qualify as a legitimate military objective. However, the deletion of all data belonging to a press agency and its replacement with the insurgents’ propaganda would most likely go beyond such a narrow goal and therefore, the cyber operation would appear to be a case of unlawful targeting of a protected civilian object.

[L9] However, it has been suggested that this prima facie conclusion is difficult to square with the fact that States frequently engage in psychological operations, which may include cyber operations of this kind.[25] On that basis, the view interpreting data as an “object” under IHL has been described as “over inclusive”.[26] Nevertheless, a possible response to such criticism is that through the longstanding, general, and unopposed practice of States, a permissive norm of customary law has emerged, which specifically permits psychological operations and dissemination of propaganda directed at the civilian population, as long as such operations do not violate any other applicable rule of IHL.[27] On the basis of this interpretation, the cyber operation against the data held by State A’s press agency in incident 3 qualifies as permitted under IHL, even if the starting point of the analysis is that data constitute an “object” for the purposes of IHL.

[L10] It must be stressed that the analysis above assumed that, in all three incidents, the data was deliberately targeted—i.e., its manipulation was the objective of the operation in question. However, there are at least two types of scenarios where the manipulation of data would be analysed differently, even if such manipulation was regarded as an “attack”. First, it may be that the target of the attack is not the data yet the operation foreseeably results in its incidental manipulation. Second, it may be that the operation in question is not a targeting operation because its objective is not the destruction or neutralization of a certain object but rather something else (for example, gaining access to a system or collecting intelligence about its weaknesses), yet the operation nevertheless foreseeably results in the incidental deletion or corruption of data. In both of these cases, whether the data qualifies as an “object” has no bearing on the permissibility of the attack under the rule of distinction. At the same time, if one takes the position that the data constitutes an “object”, the manipulation must be considered as collateral damage and will therefore have to be assessed and acted upon as the rules on precautions and proportionality require.

[L11] In sum, the law is unsettled as to the qualification of computer data under the targeting rules of IHL. Accordingly, States’ views aligning with one or the other of the approaches detailed above are needed in order to facilitate legal certainty in this area.[28] In the meantime, the following table serves to highlight the points of difference between the two dominant interpretive approaches:

Data ≠ object Data = object
Incident 1 (cyber operations against military datasets) Because data is not an “object” for the purposes of IHL, it does not need to fulfil the criteria of a military objective for an operation against it to be lawful under IHL. Accordingly, provided that other applicable rules of IHL are complied with, all of these cyber operations would be permissible under IHL. Permissible insofar as the dataset fulfils both prongs of the definition of military objectives
Incident 2 (cyber operations against essential civilian datasets) Prohibited due to the non-military character and use of the datasets in question
Incident 3 (cyber operations against non-essential civilian datasets) Prohibited due to the non-military character and use of the datasets in question unless justified under the customary exception for psychological operations and propaganda

3 Checklist[edit | edit source]

  • Does the situation qualify as either an international armed conflict or a non-international armed conflict?
  • Are the rules of targeting applicable to cyber operations?
  • Is data considered to qualify as an “object” for the purposes of IHL?
  • Does the cyber operation target datasets constituting military objectives only?
  • Does the cyber operation target essential civilian datasets?
  • Does the cyber operation target non-essential civilian datasets?
  • If the cyber operation is not targeted at the data, yet it foreseeably results in its manipulation, does the manipulation accord with the rules on precautions and proportionality?

4 Appendixes[edit | edit source]

4.1 See also[edit | edit source]

4.2 Notes and references[edit | edit source]

  1. Art 48 AP I; ICRC CIHL Study, rule 7.
  2. Art 1 AP I.
  3. See, eg, Amended Protocol II to the CCW, Article 2(6); Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 1(f).
  4. See, eg, Brian Egan, Legal Adviser, Department of State, “Remarks to the American Society of International Law: International Law, Legal Diplomacy, and the Counter-ISIL Campaign” (1 April 2016), 242 (“In particular, I’d like to spend a few minutes walking through some of the targeting rules that the United States regards as customary international law applicable to all parties in a NIAC: … Insofar as objects are concerned, military objectives are 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.”).
  5. ICRC CIHL Study, rule 8.
  6. Tallinn Manual 2.0, rule 80 (“Cyber operations executed in the context of an armed conflict are subject to the law of armed conflict.”).
  7. See William H Boothby, The Law of Targeting (OUP 2012) 387–88.
  8. Cf Art 49(1) AP I (defining “attacks” as “acts of violence against the adversary, whether in offence or in defence”).
  9. See, eg, William H Boothby, The Law of Targeting (OUP 2012) 384–87; Noam Lubell, ‘Lawful Targets in Cyber Operations: Does the Principle of Distinction Apply?’ (2013) 89 Int’l L Studies 252, 254–74; Marco Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014) 180–81; Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) 3.
  10. Art 48 AP I (“the Parties to the conflict ... shall direct their operations only against military objectives”). It should be noted that it is not universally accepted that the reference to “operations” in Article 48 reflects customary international law. See, eg, Noam Neuman, ‘Challenges in the Interpretation and Application of the Principle of Distinction During Ground Operations in Urban Areas’ (2018) 51 VJTL 807, 821 fn 44.
  11. 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, ‘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).
  12. 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), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987), 633–34 paras 2007–08.
  13. Cf, eg, Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, Dissenting Opinion of Judge Badawi Pasha, 211 (“in international law, recourse to analogy should only be had with reserve and circumspection”).
  14. But see, eg, Silja Vöneky, ‘Analogy in International Law’, in R Wolfrum (ed), 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”).
  15. Tallinn Manual 2.0, commentary to rule 100, para 6.
  16. Heather A Harrison Dinniss, ‘The Nature of Objects: Targeting Networks and the Challenge of Defining Cyber Military Objectives’ (2015) 48 IsrLR 39, 44; Kubo Mačák, ‘Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law’ (2015) 48 IsrLR 55, 67–68.
  17. Kubo Mačák, ‘Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law’ (2015) 48 IsrLR 55, 73.
  18. Kubo Mačák, ‘Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law’ (2015) 48 IsrLR 55, 77–80; see also 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”).
  19. Art 57(1) AP I.
  20. Tallinn Manual 2.0, commentary to rule 100, para 15.
  21. Yoram Dinstein (ed), The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) 110-11 [295-96].
  22. Yoram Dinstein (ed), The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) 106-09 [284-91].
  23. Kubo Mačák, ‘Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law’ (2015) 48 IsrLR 55, 77–80.
  24. Tallinn Manual 2.0, commentary to rule 100, para 29.
  25. Michael N. Schmitt, ‘International Cyber Norms: Reflections on the Path Ahead’ (2018) 111 Netherlands’ Military Law Review 12, 16–17.
  26. Michael Schmitt, ‘International Cyber Norms: Reflections on the Path Ahead’ (2018) 111 Netherlands’ Military Law Review 12, 17.
  27. For instance, it is impermissible to direct an attack against a media outlet such as a TV station merely on the basis that the outlet was used to spread propaganda. The destruction of the TV station in such circumstances would not offer the “concrete and direct” military advantage required by IHL for it to qualify as a military objective. Accordingly, attacking media outlets by reference to their propaganda purpose alone is contrary to IHL. See ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000) ILM 1257, para. 76.
  28. Cf. Michael N. Schmitt and Sean Watts, ‘The Decline of International Humanitarian Law Opinio Juris and the Law of Cyber Warfare’ (2015) 50 TexIntlLJ 189, 230–31 (arguing that States should commit to clear views on IHL regulation of cyber operations); Kubo Mačák, ‘From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers’ (2017) 30 LJIL 877, 896 (arguing that States should be more forthcoming in expressing opinions on the interpretation of existing international law to cyber issues).

4.3 Bibliography and further reading[edit | edit source]

4.4 Contributions[edit | edit source]

Previous: Scenario 11: Surveillance tools Next: Scenario 13: Armed conflict