Non-international armed conflict

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Definition[edit | edit source]

Non-international armed conflict
Non-international armed conflict.svg
The law of non-international armed conflict (NIAC) applies to all armed conflicts not of an international character.[1] As set forth by the ICTY Appeals Chamber in the Tadić case, NIACs are situations of “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.[2]

This definition rests on two factors—the intensity of the fighting and the organization of the non-State group.[3] First, the hostilities between the parties must reach a certain level of intensity, which may be indicated by, among other factors, the seriousness and frequency of attacks and military engagements, the extent of destruction, or the deployment of governmental armed forces.[4] Second, the non-State group must have some minimum level of organization, indicators of which may include the presence of a command or leadership structure, the ability to determine a unified military strategy and speak with one voice, the adherence to military discipline, as well as the capability to comply with IHL.[5]

These same criteria of intensity and organization apply in situations involving (or even limited to) cyber operations.[6] However, cyber operations alone will only rarely meet the requisite level of intensity to trigger a NIAC.[7]

Publicly available national positions that address this issue include: National position of Finland (2020) (2020), National position of France (2019) (2019), National position of Germany (2021) (2021), National position of Japan (2021) (2021).

National positions[edit | edit source]

Finland (2020)[edit | edit source]

"International humanitarian law only applies to cyber operations when such operations are part of, or amount to, an armed conflict. Most so far known cyberattacks have not been launched in the context of an armed conflict or met the threshold of armed conflict. At the same time, when cyber means are used in the context of a pre-existing armed conflict, as has been done in many current conflicts, there is no reason to deny the need for the protections that international humanitarian law provides. This includes that cyber means and methods of warfare must be used consistently with the principles of distinction, proportionality and precautions, as well as the specific rules flowing from these principles. When assessing the capacity of cyber means and methods to cause prohibited harm, their foreseeable direct and indirect effects shall be taken into account. Constant care shall be taken to ensure the protection of civilians and civilian objects, including essential civilian infrastructure, civilian services and civilian data.

The unique characteristics of cyberspace, such as interconnectedness and anonymity, may affect how international humanitarian law is interpreted and applied with regard to certain cyber means and methods warfare. The related problems can nevertheless mostly be solved on the basis of existing rules. New technologies do not render the existing rules of international humanitarian law meaningless or necessarily require new legal regulation. Furthermore, while international humanitarian law is lex specialis in an armed conflict, it does not override other areas of international law, such as human rights law, which may continue to apply throughout the conflict."[8]

France (2019)[edit | edit source]

Cyberoperations that constitute hostilities between two or more States may characterise the existence of international armed conflict (IAC). Likewise, prolonged cyberoperations by government armed forces against one or more armed groups or by several armed groups between themselves may constitute a non-international armed conflict (NIAC), where such groups show a minimum level of organisation and the effects of such operations reach a sufficient threshold of violence. They are generally military operations concurrent with conventional military operations: that is why it is not difficult to categorise an armed conflict situation. While an armed conflict consisting exclusively of digital activities cannot be ruled out in principle, it is based on the capacity of autonomous cyberoperations to reach the threshold of violence required to be categorised as such. Although virtual, cyberoperations still fall within the geographical scope of IHL, insofar as their effects must arise on the territory of the States party to the IAC and on the territory where the NIAC hostilities occur.[9]

Germany (2021)[edit | edit source]

"Germany reiterates its view that IHL applies to cyber activities in the context of armed conflict. The fact that cyberspace as a domain of warfare was unknown at the time when the core treaties of IHL were drafted does not exempt the conduct of hostilities in cyberspace from the application of IHL. As for any other military operation, IHL applies to cyber operations conducted in the context of an armed conflict independently of its qualification as lawful or unlawful from the perspective of the ius ad bellum.

An international armed conflict – a main prerequisite for the applicability of IHL in a concrete case – is characterized by armed hostilities between States. This may also encompass hostilities that are partially or totally conducted by using cyber means. Germany holds the view that cyber operations of a non-international character, e.g. of armed groups against a State, which reach a sufficient extent, duration, or intensity (as opposed to acts of limited impact) may be considered a non-international armed conflict and thereby also trigger the application of IHL.

At the same time, cyber actions can become part of an ongoing armed conflict. In order to fall within the ambit of IHL, the cyber operation must show a sufficient nexus with the armed conflict, i.e. the cyber operation must be conducted by a party to the conflict against its opponent and must contribute to its military effort.

Cyber operations between a non-State actor and a State alone may provoke a non-international armed conflict. However, this will only seldom be the case due to the level of intensity, impact and extent of hostilities required. Thus, activities such as a large-scale intrusion into foreign cyber systems, significant data theft, the blocking of internet services and the defacing of governmental channels or websites will usually not singularly and in themselves bring about a non-international armed conflict."[10]

"The basic principles governing the conduct of hostilities, including by cyber means, such as the principles of distinction, proportionality, precautions in attack and the prohibition of unnecessary suffering and superfluous injury, apply to cyber attacks in international as well as in non-international armed conflicts.

Germany defines a cyber attack in the context of IHL as an act or action initiated in or through cyberspace to cause harmful effects on communication, information or other electronic systems, on the information that is stored, processed or transmitted on these systems or on physical objects or persons. The occurrence of physical damage, injury or death to persons or damage or destruction to objects comparable to effects of conventional weapons is not required for an attack in the sense of art. 49 para. 1 Additional Protocol I to the Geneva Conventions. However, the mere intrusion into foreign networks and the copying of data does not constitute an attack under IHL."[11]

Japan (2021)[edit | edit source]

"International humanitarian law is also applicable to cyber operations.

In situations of armed conflict, the methods and means of warfare used by the parties to the conflict are subject to regulations under international humanitarian law. This extends to cyber operations implemented by the parties to the conflict. Several principles under international humanitarian law, including the principle of humanity, necessity, proportionality and distinction, are also applicable to acts in cyberspace. In paragraph 28(d) of the 2015 GGE report, those principles are referred to as "established international legal principles." This reference, considered together with the fact that this report affirms the applicability of existing international law, can be interpreted to affirm the applicability of those principles. Meanwhile, Article 49 of the Additional Protocol I to the Geneva Conventions stipulates: "'Attacks' means acts of violence against the adversary, whether in offence or in defence." The Government of Japan understands that cyber operations that may cause the destruction or neutralization of military targets, for example, may also constitute "attacks" under international humanitarian law, depending on the circumstances.

In principle, the existence of an "armed conflict" is a prerequisite for the application of international humanitarian law. Under the Geneva Conventions, there is no particular definition of an "armed conflict," and therefore, whether or not a certain incident constitutes an "armed conflict" needs to be decided on a case-by-case basis, taking into account a number of elements, such as the manner of the actual attack and the intent of each party to the incident, in a comprehensive manner. If the effects of cyber operations are taken into consideration, the conduct of cyber operations alone may reach the threshold of an "armed conflict."

As affirming the applicability of international humanitarian law to cyber operations contributes to the regulation of methods and means of warfare, the argument that doing so will lead to the militarization of cyberspace is groundless. For example, cyber operations during armed conflict that cause physical damage or loss of functionality to medical institutions may constitute a violation of international humanitarian law16 and therefore should be appropriately regulated. On the other hand, modes of combat in cyberspace are different from those in traditional domains. Therefore, how international humanitarian law regarding, for example, the scope of combatants applies to cyberspace should be further discussed." [12]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. Common Article 3 GCs.
  2. Prosecutor v Tadić (Decision on Jurisdiction) IT-94-1-AR72 (2 October 1995) [70].
  3. See also Prosecutor v Tadić (Trial Judgment) IT-94-1-T (7 May 1997) [562] (noting that the two criteria distinguish “an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law”).
  4. Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [177].
  5. Prosecutor v Limaj, Bala and Musliu (Trial Judgment) IT-03-66-T (30 November 2005) [129]; Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T (10 July 2008) [199]–[203].
  6. Cf. L Cameron et al, ‘Article 3: Conflicts Not of an International Character’ in ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 158 [436] (“In order to determine the existence of a non-international armed conflict involving cyber operations, the same criteria apply as with regard to kinetic violence.”).
  7. Tallinn Manual 2.0, commentary to rule 83, para 7; Yoram Dinstein, Non-International Armed Conflicts in International Law (CUP 2014) 35. For State views affirming this position, see, eg, French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’, 9 September 2019, 12; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 7.
  8. International law and cyberspace - Finland's national position
  9. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 12.
  10. Federal Government of Germany, On the Application of International Law in Cyberspace, March 2021, 7.
  11. Federal Government of Germany, On the Application of International Law in Cyberspace, March 2021, 8.
  12. Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 6-7

Bibliography and further reading[edit | edit source]