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

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A weapon is considered indiscriminate by nature if it either cannot be directed at a specific military objective,<ref>Art 51(4)(b) 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) 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) 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>
However, with respect to the second condition, it is clear that the effects of the malware are not limited solely to the intended military objective and, moreover, that these effects are not wholly under State A’s control. Once released, the malware can spread through civilian infrastructure and can be expected to temporarily impair the ordinary use of infected civilian host systems. Accordingly, State A must assess whether the safeguards built in the malware are sufficient to prevent reverberating harmful effects going beyond the control of the attacker.<ref>Cf. Tallinn Manual 2.0, commentary to rule 105, para. 4 (noting that malware that would inevitably and harmfully spread into civilian networks in a manner beyond the control of the attacker would violate this prohibition).</ref>
 
In this regard, States may consider including in the malware a “kill switch” which, if activated, immediately stops the malware from spreading further. The presence of an effective “kill switch” ensures that the attacker is capable of limiting the effects of the malware in particular circumstances. Accordingly, the malware would not qualify as an inherently indiscriminate cyber weapon.<ref>Cf. also Tallinn Manual 2.0, commentary to rule 105, para. 4 (“To the extent the effects of the means or method of warfare can be limited in particular circumstances, it does not violate [this prohibition].”).</ref> Of course, it would still be capable of being used in an indiscriminate manner, but that is an issue that must be considered in relation to each specific attack rather than during the ex ante legal review.
 
Overall, the assessment must take into account all relevant circumstances and the reasonable expectations of the deploying State.<ref>Tallinn Manual 2.0, commentary to rule 104, para. 5.<!--[ADD REF]--></ref> In this regard, the temporary effects on civilian infrastructure occasioned by the spread of the virus are likely insufficient to indicate the illegality of the malware. This is because mere inconvenience or annoyance is not considered as collateral damage to civilian objects in the proportionality calculus.<ref>Tallinn Manual 2.0, commentary to rule 105, para. 5.</ref> As long as the release and proliferation of the malware is not expected, or should not reasonably be expected, to cause damage to civilian and military systems without distinction, it would thus likely pass the second condition, too.<ref>See also Tallinn Manual 2.0, commentary to rule 105, para. 5 (considering that “Stuxnet-like malware that spreads widely into civilian systems, but only damages specific enemy technical equipment” would not violate this prohibition).</ref>
 
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