Difference between revisions of "Scenario 10: Legal review of cyber weapons"

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→‎Legal analysis: cite to TM2.0 added as per reviewers' comments
(→‎Legal analysis: cite to TM2.0 added as per reviewers' comments)
'''[L2]''' In the present scenario, the malware developed by State A would qualify as a “cyber weapon” due to its ability to produce physical destruction, which is an effect that qualifies as “violence against the adversary”.<ref>Art 49(1) [https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument AP I].</ref> State A would accordingly be under a duty to ensure that the use of this malware complies with its international obligations. This is so irrespective of whether State A is currently involved in any armed conflict or not. If State A has ratified Additional Protocol I, its duties would additionally extend to conducting a formal legal review, which would include the assessment of the malware’s compliance with all applicable rules of international law.
 
'''[L3]''' There is no indication that the malware’s employment would cause any injury to persons, thus rendering inapplicable the rules on superfluous injury or unnecessary suffering. Means and methods of cyber warfare will only in the rarest cases violate the principle of superfluous injury or unnecessary suffering.<ref>Cf. [https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 104, para 6 (proposing, in this regard, the example of remotely taking control of a target’s pacemaker device to stop his “heart and then reviving him multiple times before finally killing him”).</ref> By contrast, the fact that the malware does not distinguish between civilian and military infrastructure in order to reach its intended target raises questions of its compatibility with the prohibition of inherently indiscriminate means of warfare.
 
'''[L4]''' A weapon is considered indiscriminate by nature if it either cannot be directed at a specific military objective,<ref>Art 51(4)(b) [https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument AP I].</ref> or if its effects cannot be limited as required by IHL and it is thus of a nature to strike military objectives and civilian objects without distinction.<ref>Art 51(4)(c) [https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument AP I].</ref> State A’s malware appears to pass the first condition given that it is specifically designed to target the PLCs controlling military equipment, which would normally qualify as a military objective under IHL.<ref>See Art 52(2) [https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument AP 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 of advantage.”).</ref>
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