View source for Scenario 12: Cyber operations against computer data

== Legal analysis ==
''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.
=== Cyber operations during armed conflicts and the legal definition of military objectives ===
{{#lst:Military objectives|Definition}}
'''[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 conflicts. 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 an object, and thus qualify as a military objective.

=== Qualification of data as an object under IHL ===
{{#lst:Military objectives|Data}}
'''[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 is 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 of any of the three datasets would be lawful — at least with regards to 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.<ref>Art 57(1) [https://ihl-databases.icrc.org/ihl/INTRO/470 AP I].</ref> 

'''[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”.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 100, para 15.</ref> 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.<ref>Yoram Dinstein (ed), ''[https://doi.org/10.1017/CBO9781316389591 The Conduct of Hostilities under the Law of International Armed Conflict]'' (3rd edn, CUP 2016) 110-11 [295-96].</ref>

'''[L6]''' By denying the government's 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 information lost and away from 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.<ref>Yoram Dinstein (ed), ''[https://doi.org/10.1017/CBO9781316389591 The Conduct of Hostilities under the Law of International Armed Conflict]'' (3rd edn, CUP 2016) 106-09 [284-91].</ref>

'''[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 their nature, location, purpose, or use. As civilian objects, they are therefore 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.<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.</ref>

'''[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.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 100, para 29. See also the national position of France, stating that ‘[i]n cyberspace, ICT equipment or systems and the data, processes or flows which constitute a service may be a military objective […] a propaganda centre may be a lawful military objective and the target of a cyberattack if it disseminates instructions linked to the conduct of hostilities’ (Ministry of Defense of France, [https://documents.unoda.org/wp-content/uploads/2021/12/French-position-on-international-law-applied-to-cyberspace.pdf International Law Applied to Operations in Cyberspace] (9 September 2019) 13-14.</ref> Accordingly, in these exceptional situations, the data containing such reports would qualify as a legitimate military objective. However, the deletion of <i>all</i> 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.<ref>Michael N. Schmitt, ‘[https://puc.overheid.nl/mrt/doc/PUC_248137_11/ International Cyber Norms: Reflections on the Path Ahead]’ (2018) 111 Netherlands’ Military Law Review 12, 16–17.</ref> On that basis, the view interpreting data as an “object” under IHL has been described as “over inclusive”.<ref>Michael Schmitt, ‘[https://puc.overheid.nl/mrt/doc/PUC_248137_11/ International Cyber Norms: Reflections on the Path Ahead]’ (2018) 111 Netherlands’ Military Law Review 12, 17.</ref> 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.<ref>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, [https://www.icty.org/x/file/Press/nato061300.pdf 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.</ref> 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 data constitutes an “object”, the manipulation must be considered as incidental 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.<ref>Cf. Michael N. Schmitt and Sean Watts, ‘[https://heinonline.org/HOL/P?h=hein.journals/tilj50&i=217 The Decline of International Humanitarian Law <i>Opinio Juris</i> 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, ‘[https://doi.org/10.1017/S0922156517000358 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). </ref> In the meantime, the following table serves to highlight the points of difference between the two dominant interpretive approaches:
{| class="wikitable mw-collapsible"
!
!Data ≠ object
!Data = object
|-
|'''Incident 1 (cyber operations against military datasets)'''
| rowspan="3" |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 <u>unless</u> justified under the customary exception for psychological operations and propaganda
|}