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Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law

  • Kubo Mačák (a1)
Abstract

This article presents the case for a progressive interpretation of the notion of military objectives in international humanitarian law (IHL), bringing computer data within the scope of this concept. The advent of cyber military operations has presented a dilemma as to the proper understanding of data in IHL. The emerging orthodoxy, represented by the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare, advances the argument that the intangible nature of data renders it ineligible to be an object for the purposes of the rules on targeting in IHL. This article, on the contrary, argues that because of its susceptibility to alteration and destruction, the better view is that data is an object within the meaning of this term under IHL and thus it may qualify as a military objective. The article supports this conclusion by means of a textual, systematic and teleological interpretation of the definition of military objectives found in treaty and customary law. The upshot of the analysis presented here is that data that does not meet the criteria for qualification as a military objective must be considered a civilian object, with profound implications for the protection of civilian datasets in times of armed conflict.

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1 See, eg, Schulman, Mark R, ‘Discrimination in the Law of Information Warfare’ (1999) 37 Columbia Journal of Transnational Law 939, 964 (reversible attacks rendering systems inoperable); Lin, Herbert, ‘Cyber Conflict and International Humanitarian Law’ (2012) 886 International Review of the Red Cross 515, 519 (attacks against critical military data containing deployment timetables); Schmitt, Michael N, ‘The Law of Cyber Warfare: Quo Vadis?’ (2014) 25 Stanford Law & Policy Review 269, 297 (attacks causing the deletion of state-maintained digitised records).

2 See, eg, McKinnon v Government of the USA and Another [2008] UKHL 59, per Lord Brown of Eaton-under-Heywood, [13]; ‘Military Blamed after Planes Vanish from Europe Air-Traffic Control Screens’, The Guardian, 13 June 2014 (both discussed below in Section 5.1.3); Max Fisher, ‘Syrian Hackers Claim AP Hack that Tipped Stock Market by $136 Billion. Is it Terrorism?’, Washington Post, 23 April 2013 (discussed below in Section 5.2).

3 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226 (Nuclear Weapons), [78].

4 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I or AP I), art 48; Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005, revised 2009) (ICRC Study), r 7.

5 AP I, ibid.

6 Schmitt, Michael N (ed), Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge University Press 2013) (Tallinn Manual).

7 The analysis put forward in this article is largely in agreement with that presented in this volume by Dinniss, Heather Harrison (‘The Nature of Objects: Targeting Networks and the Challenge of Defining Cyber Military Objectives’ (2015) 48(1) Israel Law Review 39, Sections 1 and 2). One difference relates to the scope of the concept of data. While Dinniss limits her analysis to ‘operational-level data’ or ‘code’, I argue that even what she designates as ‘content-level data’ should in principle be considered as an ‘object’ for the purposes of IHL. As will be seen in Section 5 of the present article, to do otherwise means to exclude from the ambit of IHL both data that should be seen as military objectives (such as weapons logs or military logistics data) and data of a clearly civilian character (such as private stock exchange or government taxation datasets). The broad understanding of the notion of ‘object’ proposed in this article would encompass these types of data as well.

8 Tallinn Manual (n 6) 9.

9 ibid 5; see also ibid 6–7 (cautioning that although the rules were agreed on by the experts on a consensual basis, the text of the commentary accompanying the individual rules did not always command the support of all the participants).

10 ibid 134–37.

11 ibid 124 and 113, respectively.

12 See also ibid 106, r 30 (stating that cyber attacks may either cause ‘injury or death to persons’ or ‘damage or destruction to objects’) (emphases added).

13 ibid 126 para 2 (‘As used in this Manual, the term ‘military objectives’ refers only to those objects meeting the definition set forth in this Rule') (emphasis added). Nevertheless, this use is not entirely consistent throughout the Manual: see, eg, ibid 123 para 4 (acknowledging that an attack ‘against a military objective, including combatants, might cause terror’) (emphasis added).

14 See, eg, Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, para 5.27 (‘The term “military objective” includes combatant members of the enemy armed forces’) (emphasis added); Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029 (1983) 27 (‘Considered as military objectives are 1) Persons … 2) Objects … 3) Places’) (emphasis added); Russia, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, para 1 (‘military objectives include units of armed forces (personnel, weapons and military equipment), except for medical units and medical transports’) (emphasis added); United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, para 5.4.1 (‘The term “military objective” includes combatant members of the enemy armed forces’) (emphasis added); United States, JP I-04, ‘Legal Support of Military Operations’, 17 August 2011, https://www.fas.org/irp/doddir/dod/jp1_04.pdf, II-2 (‘Military objectives are combatants and ... objects’) (emphasis added). The military manuals referred to throughout this article are cited in the ICRC Customary IHL Database, ‘Practice Relating to Rule 8: Definition of Military Objectives’, http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule8_SectionA.

15 Tallinn Manual (n 6) 125–26 para 1.

16 ICRC Study (n 4) r 8 (considering the definition from art 52(2) AP I (n 4) to constitute a norm of customary international law applicable in both international and non-international armed conflicts); Sassòli, Marco and Cameron, Lindsey, ‘The Protection of Civilian Objects: Current State of the Law and Issues de lege ferenda’ in Ronzitti, Natalino and Venturini, Gabriella (eds), The Law of Air Warfare: Contemporary Issues (Eleven International 2006) 4950 (concluding, on a close analysis of state practice including that of states which had not ratified AP I, that the definition provided in art 52(2) AP I is of a customary nature); Tallinn Manual (n 6) 126 para 1 and references cited therein (accepting the customary character of the definition and citing national military manuals and various compilations of international law applicable to armed conflicts).

17 AP I (n 4) art 52(2) (emphasis added).

18 Tallinn Manual (n 6) 125 (emphasis added).

19 ibid 126 para 4 fn 81, citing Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross 1987) (ICRC Commentary), 633–34 paras 2007–08.

20 Tallinn Manual (n 6) 127 para 5 (footnote omitted).

21 Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS 331 (VCLT), art 31(1) (‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’).

22 Tallinn Manual (n 6) 127 fn 82.

23 See ibid 127 para 5. In addition to the textual method of interpretation, art 31 VCLT also endorses the contextual (or systematic) method, and the teleological (or functional) method. All three are applied to the present subject matter in Section 5 below. For a general discussion of the methods of interpretation embodied in art 31 see, eg, Villiger, Mark E, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009) 425–41.

24 Tallinn Manual (n 6) 108–09 para 10, 127 para 5; see also text at nn 161–169 below (considering the implications of this position).

25 Tallinn Manual (n 6) 127 para 5; see also AP I (n 4) art 48; see further Section 5 of this article (construing the term ‘object’ in light of the object and purpose of AP I).

26 Tallinn Manual (n 6) 127 para 5.

27 cf ibid 127 para 5; see also Schmitt (n 1) 272 (admitting that in order for law to remain effective over time, it must be responsive to context, but emphasising the role played by the states in the process).

28 Tallinn Manual (n 6) 5 (‘The Rules set forth in the Tallinn Manual accordingly reflect consensus among the Experts as to the applicable lex lata, that is, the law currently governing cyber conflict. It does not set forth lex ferenda, best practice, or preferred policy’).

29 See, eg, Michael N Schmitt, ‘“Attack” as a Term of Art in International Law: The Cyber Operations Context Attack’ (2012) 4th International Conference on Cyber Conflict 283, 293 (‘Admittedly, the conclusions reached in this article regarding the meaning of “attack” in international humanitarian law may seem unsatisfactory. Non-destructive attacks and those that do not place individuals or objects at physical risk can have severe consequences. Yet, the interpretation advanced in this article represents the extant law, that is, the lex lata. Assertions to the contrary are, in the author's estimation, merely lex ferenda’) (italics in original); Michael N Schmitt, ‘Cyber Operations and the Jus in Bello: Key Issues’ in Pedrozo, Raul A and Wollschlaeger, Daria P (eds), International Law Studies: Vol 87 – International Law and the Changing Character of War (US Naval War College 2011) 104 (‘Both approaches have merit, the former in its fidelity to received understandings of IHL, the latter in that it would respond to concerns that the traditional understanding is under-inclusive since it admits of highly disruptive cyber operations to which IHL would not apply. As it stands, though, the former represents lex lata, the latter lex ferenda’) (italics in original).

30 cf Tallinn Manual (n 6) 5–6 (stating that where relevant state practice and opinio juris were lacking, the experts were ‘hesitant’ to lay down the exact scope and application of a given principle of law vis-à-vis the novel situation in cyberspace); see also Schmitt (n 1) 295 (reporting, with regard to the closely related term ‘attack’, that the experts ‘opined that, there being no State practice on the issue, the current law limits the term to physical harm caused to persons and tangible objects’) (emphasis added).

31 cf Higgins, Rosalyn, Problems and Process: International Law and How We Use It (Oxford University Press 1995) 10 (stating that the understanding of international law as process put forward by the author makes the distinction between lex lata and lex ferenda less important).

32 See, eg, Chesterman, Simon, Just War or Just Peace?: Humanitarian Intervention and International Law (Oxford University Press 2002) 1.

33 UK Government, ‘Chemical Weapon Use by Syrian Regime: UK Government Legal Position’, 29 August 2013, paras 2 and 4, https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legal-position.

34 See, eg, Robert Booth, ‘Syria: Legal Doubt Cast on British Government's Case for Intervention’, The Guardian, 29 August 2013 (‘[Dapo Akande] said there is “very little evidence of state support for this view. Indeed most states have explicitly rejected this view.”’).

35 US, ‘Proclamation with Respect to Natural Resources of the Subsoil and Sea Bed of the Continental Shelf’, reproduced in (1946) 40 American Journal of International Law Supplement 45.

36 Byers, Michael, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge University Press 1999) 91.

37 ibid 91.

38 Nicholas Watt, Rowena Mason and Nick Hopkins, ‘Blow to Cameron's authority as MPs Rule Out British Assault on Syria’, The Guardian, 30 August 2013 (reporting that the UK Parliament voted against military engagement in Syria).

39 UK Government (n 33) para 4.

40 See Higgins (n 31) 10.

41 Guglielmo Verdirame, ‘The Law and Strategy of Humanitarian Intervention’, EJIL: Talk!, 30 August 2013, http://www.ejiltalk.org/the-law-and-strategy-of-humanitarian-intervention (‘The legal assessment of the intervention in Syria thus turns on a question that – in the first instance at least – strategists rather than lawyers are better placed to address: is there a military option that can improve conditions for people in Syria? Put in other terms: is there an achievable humanitarian purpose?’).

42 See Cassese, Antonio and Weiler, Joseph (eds), Change and Stability in International Law-Making (De Gruyter 1988) 6692 (discussion of the relevance of the distinction between lex lata and lex ferenda in international law).

43 See references in n 30 above and accompanying text.

44 Tallinn Manual (n 6) 5.

45 ibid 84 et seq, r 23 (‘Characterization as non-international armed conflict’).

46 See ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, Appeals Chamber, 2 October 1995, [70] (‘[A non-international] armed conflict exists whenever there is ... protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’) (emphasis added), as applied in ICTY, Prosecutor v Tadić, Judgment, IT-94-1-T, Trial Chamber II, 7 May 1997, [562]; ICTY, Prosecutor v Limaj, Bala and Musliu, Judgment, IT-03-66-T, Trial Chamber II, 30 November 2005, [88]–[170]; ICTY, Prosecutor v Haradinaj, Balaj and Brahimaj, Judgment, IT-04-84-T, Trial Chamber I, 3 April 2008, [37]–[60] (especially at [49]: ‘The criterion of protracted armed violence refers more to the intensity of the conflict rather than its duration’) (emphasis added).

47 Tallinn Manual (n 6) 84 para 1, 87 para 6.

48 ibid 89 para 13.

49 cf ibid 89 para 13 (discussing the spectrum of autonomy with regard to ‘virtually’ organised groups).

50 ibid 89 para 13.

51 ibid 89 para 13. See also ibid para 14 fn 50 and accompanying text (adding the proviso that – at least in Additional Protocol II conflicts – the group would need to have the means to implement IHL). It is noteworthy that Cordula Droege, who participated in the work of the expert group as the representative of the ICRC without a vote, reached a different conclusion. For her, the requirement of having the means to implement IHL is practically incapable of being fulfilled by a ‘virtual’ group. She thus concludes that such a group could not have the command and disciplinary structure necessary to constitute a party to the conflict: Droege, Cordula, ‘Get Off My Cloud: Cyber Warfare, International Humanitarian Law, and the Protection of Civilians’ (2012) 94 International Review of the Red Cross 533, 550–51.

52 See n 46 above.

53 See Tallinn Manual (n 6) 127 para 5.

54 cf ibid 88–90 paras 11–15.

55 See VCLT (n 21) art 31(3)(b).

56 See further Villiger (n 23) 429–32.

57 AP I (n 4) art 52(2), second sentence.

58 Tallinn Manual (n 6) 126 para 3.

59 ibid 125, r 38, second sentence.

60 See, eg, Bothe, Michael, Partsch, Karl Josef and Solf, Waldemar A, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (Martinus Nijhoff 1982) 277; ICRC Commentary (n 19) 635 para 2017; Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, Cambridge University Press 2010) 8485;Solis, Gary D, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press 2010) 519; see also Bothe, Partsch and Solf, ibid 285 fn 17 (attributing the reluctance on the part of the drafters to state clearly that persons may be targeted to the prevailing sentiment that doing so would not be appropriate in a humanitarian instrument). The structure of the Tallinn Manual also respects this dichotomy: Part 4 entitled ‘Conduct of Hostilities’ covers rules on attacks in a general section (Section 2, ‘Attacks Generally’), two specific sections concerning ‘Attacks against Persons’ (Section 3) and ‘Attacks against Objects’ (Section 4), respectively: see Tallinn Manual (n 6) rr 30–40. See also text at nn 12–14 above.

61 See, especially, AP I (n 4) arts 43 and 50, as well as Geneva Convention relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135, art 4A, which distinguishes between persons who are combatants and the residual category of civilians.

62 See ICRC, Customary IHL Database, ‘Practice Relating to Rule 8: Definition of Military Objectives’, section A.III, http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule8.

63 See, eg, Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029 (1983) 27; Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense Nationale (1995) Fascicule I, 12–13; Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola (1992) 18; Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police (1997) Précis No. 2, 11.

64 Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, ibid 27.

65 Bothe, Partsch and Solf (n 60) 307 (emphasis added).

66 The understanding of areas of land as potential military objectives is shared by the Manual: see Tallinn Manual (n 6) 128 para 7. See, however, n 13 above (noting that the Manual, at least in some places, seemed to have excluded combatants from the scope of the notion of military objectives).

67 AP I (n 4) art 52(2).

68 See text at n 17 above for the full text of the provision.

69 VCLT (n 21) art 1; see also Meron, Theodor, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’ (1996) 90 American Journal of International Law 238, 246 (observing that the VCLT rules on treaty interpretation do not apply to customary law outside the treaty context).

70 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) Merits [1986] ICJ Rep 14 (Nicaragua), [177]; see also VCLT (n 21) art 38.

71 North Sea Continental Shelf cases (Federal Republic of Germany v Netherlands and Denmark) Merits [1969] ICJ Rep 3 (North Sea), [72].

72 See also n 16 above (listing the authorities confirming the customary law status of the definition found in art 52(2) AP I (n 4)).

73 Nicaragua (n 70) [178].

74 North Sea (n 71) dissenting opinion of Judge Tanaka, [55].

75 Tallinn Manual (n 6) 126 para 1.

76 ibid 5.

77 ibid 127 para 5 fn 82 (citing art 31(1) VCLT as authority for the proposition that ‘[d]ata is intangible and therefore [does not] fall within the “ordinary meaning” of the term object’) (internal quotation marks retained).

78 Villiger (n 23) 435.

79 Although art 31(1) VCLT (n 21) requires in addition that the interpretation be conducted in good faith, this principle pertains primarily to the parties to the treaty, requiring them to act honestly, fairly and reasonably when they engage in treaty interpretation: Villiger (n 23) 425–26. It would thus not be appropriate to apply it to an independent academic undertaking of the present kind.

80 Tallinn Manual (n 6) 127 para 5.

81 ICRC Commentary (n 19) 634 para 2008.

82 Tim Berners-Lee, ‘Information Management: A Proposal’, Internal Memo, CERN, March 1989, http://cds.cern.ch/record/1405411/files/ARCH-WWW-4-010.pdf.

83 ICRC Commentary (n 19) 951 para 3347 fn 16 (emphasis added).

84 ibid 1154 para 3970 (emphasis added).

85 ibid 634 para 2010. The dichotomy is even more apparent in Marco Sassòli's entry on military objectives in the Max Planck Encyclopaedia of Public International Law: Marco Sassòli, ‘Military Objectives’ in Wolfrum, Rüdiger (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2008) para 9 (‘Only a material, tangible thing can be a military objective in the sense of a legitimate target for attacks. Immaterial objectives, such as victory, or notional targets, such as civilian morale, cannot be attacked, but only achieved or affected through attacking tangible things’ (emphasis added)).

86 cf Hague Rules of Air Warfare (drafted December 1922 – February 1923), art 24(1) (in this first definition of a military objective, the term used in place of an ‘object’ was, somewhat tautologically, ‘objective’, which may further explain the authors' need to distinguish objects from goals or aims).

87 See also Sassòli (n 85) para 9 (‘Contrary to World War II, it is today generally accepted that under existing law those things must be military objectives and that civilian objects may not be attacked for the purpose of shattering civilian morale’).

88 cf AP I (n 4) art 52(2) (‘military objectives are limited to those objects ... whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’ (emphasis added)).

89 Accord Dinniss, Heather Harrison, Cyber Warfare and the Laws of War (Cambridge University Press 2012) 184–85; see also Dinniss (n 7) Section 2 (developing this point and providing further historical context).

90 Sands, Philippe and Commission, Jeffery, ‘Treaty, Custom and Time: Interpretation/Application?’ in Fitzmaurice, Malgosia, Elias, Olufemi and Merkouris, Panos (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On (Martinus Nijhoff 2010) 41.

91 Fitzmaurice, Sir Gerald, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’ (1957) 33 British Year Book of International Law 203, 212 (emphasis added).

92 ibid 225.

93 ibid 225.

94 See, eg, Maltass v Maltass (1844) 1 Rob Ecc 67, 73, cited in Sinclair, Ian McTaggart, ‘The Principles of Treaty Interpretation and their Application by the English Courts’ (1963) 12 International and Comparative Law Quarterly 508, 545 fn 28:

If it be contended that, at the time of concluding the treaties, neither party thought of British subjects domiciled in Smyrna, that may perhaps be true, for little indeed was known or thought of domicile, in the legal sense of the term, in those early times; but if the words of the treaty are sufficient to cover the case, and if the object of the treaties was to apply to all British merchants, then the application to a state of circumstances not particularly contemplated, but within the general scope of the treaties, would not limit their construction.

It was suggested in later writing that in proposing the principle of contemporaneity, Fitzmaurice placed too much importance on Judge Huber's ruling in Island of Palmas Arbitration (1928) 2 RIAA 829, in which Huber was, however, analysing the acquisition of title to territory. In that context, the application of the principle of contemporaneity is more appropriate, but it is questionable whether it can be extrapolated as a general principle of treaty interpretation valid for all cases. See McLachlan, Campbell, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 International & Comparative Law Quarterly 279, 289 fn 53.

95 McLachlan, ibid 292; see further Yearbook of the International Law Commission 1964, vol I, 33–40 (recording the discussion of the draft Article 56 which had resulted in the rejection of the proposed text by the members of the ILC for fear that it ‘might lead to misunderstanding’).

96 Fitzmaurice (n 91) 203.

97 Thirlway, Hugh, ‘The Law and Procedure of the International Court of Justice 1960–1989: Part One’ (1989) 60(1) British Year Book of International Law 1, 4.

98 Thirlway, Hugh, ‘The Law and Procedure of the International Court of Justice 1960–1989: Part Three’ (1991) 62(1) British Year Book of International Law 1, 57.

99 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) Judgment [2009] ICJ Rep 213, [66] (‘[W]here the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration”, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning’).

100 See Section 5.2 below for a detailed analysis of the object and purpose of AP I in respect of the analysed provision.

101 Tyrer v United Kingdom (1978) 2 EHRR 1, para 31; The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999) Inter-Am Ct HR, Advisory Opinion of 1 October 1999, (Ser A) No 16, [114]; UN Human Rights Committee, Roger Judge v Canada, Communication No 829/1998, UN Doc CCPR/C/78/D/829/1998 (2003), para 10.3.

102 cf The Right to Information on Consular Assistance, ibid [114] (‘international human rights law ... has made great headway thanks to an evolutive interpretation of international instruments of protection’) (emphasis added); see also Jacquement, Stephane, ‘The Cross-Fertilization of International Humanitarian Law and International Refugee Law’ (2001) 83 International Review of the Red Cross 651, 658 (arguing that human rights or the humanitarian nature of a treaty necessitates a more dynamic approach to interpretation).

103 AP I (n 4) art 1(2) (‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience’).

104 Nuclear Weapons (n 3) [78].

105 Chetail, Vincent, ‘The Contribution of the International Court of Justice to International Humanitarian Law’ (2003) 85 International Review of the Red Cross 235, 259.

106 HCJ 769/02 Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006) [2006], para 28 (‘[N]ew reality at times requires new interpretation. Rules developed against the background of a reality which has changed must take on a dynamic interpretation which adapts them, in the framework of accepted interpretational rules, to the new reality’) (emphasis added).

107 cf Ben-Naftali, Orna and Michaeli, Keren, ‘Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02’ (2007) 101 American Journal of International Law 459, 465 (criticising the result to which the use of evolutive interpretation had led the court, but accepting its applicability within the framework of AP I); see further Wong, Meagan S, ‘Targeted Killings and the International Legal Framework: with Particular Reference to the US Operation against Osama Bin Laden’ (2012) 11 Chinese Journal of International Law 127, 149–51 (demonstrating that the Court's use of evolutive interpretation brought about a result that may be seen as merging the protection under IHL and under human rights law).

108 See VCLT (n 21) art 33.

109 AP I (n 4) art 52(2), Arabic version, http://www1.umn.edu/humanrts/arab/b094.html.

111 AP I (n 4) art 52(2), Russian version, http://www1.umn.edu/humanrts/russian/instree/Ry5pagc.html.

112 AP I (n 4) art 52(2), French version, http://www1.umn.edu/humanrts/instree/french/y5pagcf.htm.

113 AP I (n 4) art 52(2), Spanish version, http://www1.umn.edu/humanrts/instree/Sgenevaconvprotocol1.html.

114 See, eg, ‘bien’, Grand Dictionnaire Hachette-Oxford (4th edn, Oxford University Press 2007) 92.

115 See, eg, Canada, Code Civil du Québec, art 899 (‘Les biens, tant corporels qu'incorporels, se divisent en immeubles et meubles’) (in French) (emphasis added). I am grateful to Adam Mauntah and Jessica Joly for drawing my attention to this example.

116 Tallinn Manual (n 6) 245 para 3 (emphasis added) (discussing the nature of data in the context of r 90 concerning the confiscation and requisition of property under the law of occupation).

117 ibid (‘A minority of the Experts was of the view that data can qualify as property’) (emphasis added).

118 cf VCLT (n 21) art 23(1) (‘When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail’) (emphasis added), and art 23(3) (‘The terms of the treaty are presumed to have the same meaning in each authentic text’) (emphasis added).

119 Villiger (n 23) 426 (‘the ordinary meaning of a term is not to be determined in the abstract but in the context of the treaty’).

120 See text at nn 85–89 above.

121 See generally Bothe, Partsch and Solf (n 60) 274–80.

122 ibid 285 (‘So far as the term “military objectives” pertains to objects ... [a]s used in Section I of Part IV, it generally means the target of attacks’).

123 AP I (n 4) art 52(2).

124 Schmitt (2011) (n 29) 92–96.

125 Schmitt (n 1) 298.

126 ‘Data’, Oxford English Dictionary, http://www.oxforddictionaries.com/definition/american_english/data.

127 Symantec, ‘W32.Stuxnet Dossier, version 1.4’, February 2011, 2 and 7, http://www.symantec.com/content/en/us/enterprise/media/security_response/whitepapers/w32_stuxnet_dossier.pdf; ESET, ‘Stuxnet under the Microscope’, revision 1.31 (undated), 19, http://www.eset.com/us/resources/white-papers/Stuxnet_Under_the_Microscope.pdf.

128 Lubell, Noam, ‘Lawful Targets in Cyber Operations: Does the Principle of Distinction Apply?’ (2012) 89 International Law Studies 252, 260 ff; see also AP I (n 4) art 49 and Tallinn Manual (n 6) 106, r 30.

129 Lubell, ibid 263–64.

130 See also ICRC, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’, October 2011, 36, http://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-102-en.pdf (defining ‘cyber operations’ as ‘operations against or via a computer or a computer system through a data stream [with the aim] to infiltrate a system and collect, export, destroy, change, or encrypt data or to trigger, alter or otherwise manipulate processes controlled by the infiltrated computer system’); US Joint Chiefs of Staff, ‘Information Operations’, Joint Publication 3–13,13 February 2006, GL-5, http://www.information-retrieval.info/docs/jp3_13.pdf (defining ‘computer network attack’ as ‘[a]ctions taken through the use of computer networks to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves’) (emphasis added). These references confirm that both the NGO tasked with the guardianship of IHL and the leading state in the area of cyber warfare adopt the same view of computer data as an object susceptible to destruction by cyber operations as that embraced in the present article. It should be noted that the definition has since been revoked in the new version of the US joint publication. However, press reports following the release of classified documents by the whistleblower, Edward Snowden, indicate that the same conception of offensive cyber operations was integrated in a US presidential directive: see further US Joint Chiefs of Staff, ‘Information Operations’, Joint Publication 3–13, 27 November 2012, GL-3, http://www.dtic.mil/doctrine/new_pubs/jp3_13.pdf (confirming the removal of the definition of ‘computer network attack’); Barton Gellman and Ellen Nakashima, ‘U.S. Spy Agencies Mounted 231 Offensive Cyber-Operations in 2011, Documents Show’, Washington Post, 30 August 2013 (reporting a presidential directive issued in October 2012, which defines ‘offensive cyber-operations as activities intended “to manipulate, disrupt, deny, degrade, or destroy information resident in computers or computer networks, or the computers and networks themselves”’).

131 Schmitt (n 1) 298.

132 Schmitt (2011) (n 29) 96.

133 Otherwise IHL would not apply at all.

134 AP I (n 4) arts 51(5)(b), 57(2)(a)(ii), 57(2)(b); ICRC Study (n 4) r 14.

135 See further Dinniss (n 89) 185–93 (detailing how the fulfilment of these conditions may be assessed with regard to objects understood in the sense advocated in this article).

136 cf ICRC Commentary (n 19) 603 para 1880 (‘the term “attack” means “combat action”’); Bothe, Partsch and Solf (n 60) 289 (‘[t]he term “acts of violence” denotes physical force’).

137 Schmitt (2012) (n 29) 291.

138 In light of the same author's prescription regarding the need for state practice and opinio juris to support a novel interpretation (see n 29 above), it is somewhat surprising that here this method of induction is seen as satisfactory without any state practice and/or opinio juris being advanced in favour of the proposed redefinition. Nonetheless, the present writer agrees with the tenor of the argument in Schmitt's piece; in fact, it could be argued that it shows that an interpretation may be convincing even in the face of the lack of corresponding state practice.

139 Schmitt (2012) (n 29) 291.

140 cf McKinnon v Government of the USA (n 2) Lord Brown of Eaton-under-Heywood, [13] (summarising that the appellant in the case allegedly deleted logs from computers at US Naval Weapons Station Earle, which had contained data on identity, location, physical condition, staffing and battle readiness of US Navy ships).

141 Herbert Lin, ‘Cyber Conflict and International Humanitarian Law’ (2012) 886 International Review of the Red Cross 515, 519.

142 ‘Military Blamed after Planes Vanish from Europe Air-Traffic Control Screens’, The Guardian, 13 June 2014 (reporting the claim of the Slovak authorities that an ‘electronic warfare exercise’ run by NATO caused dozens of aircrafts to disappear from the air-traffic control radar system).

143 David Francis, ‘The Coming Cyber Attack that Could Ruin Your Life’, The Fiscal Times, 11 March 2013 (warning that changed data may be deadly when doctors prescribe unnecessary drugs or order irrelevant procedures on its basis).

144 Bothe, Partsch and Solf (n 60) 288 (‘[the term “attacks”] applies to those aspects of military operations which most directly affect the safety of the civilian population and the integrity of civilian objects’) (emphases added), cited with approval in Schmitt (2012) (n 29) 291 fn 36.

145 The experts, apparently aware of some of the undesirable consequences of this position, built in a patchwork of solutions for the protection of some ostensibly civilian uses of data. With respect to the above-mentioned example of personal medical records, r 71 prohibits the making of medical data ‘the object of attack’. This is an apparent contradiction with the interpretation of data as a non-object, interference with which is not considered an attack for the purposes of IHL. The Manual seems to tacitly acknowledge as much but it just states pragmatically (and without any further explanation or citation) that ‘[p]ersonal medical data required for the treatment of individual patients is likewise protected from alteration, deletion, or any other act by cyber means that would negatively affect their care, regardless of whether such acts amount to a cyber attack’: see Tallinn Manual (n 6) 206 (emphasis added). The outcome is to be commended, but the process of reasoning used is, unfortunately, strained and self-contradictory.

146 See Tallinn Manual, ibid 108–09 para 10.

147 Villiger (n 23) 427–28.

148 North Sea (n 71) dissenting opinion of Judge Tanaka, [55]; see also text at nn 73–77 above.

149 See text at n 71 above (asserting that art 52(2) AP I (n 4) is such a rule).

151 VCLT (n 21) art 18.

152 Villiger (n 23) 427.

153 AP I (n 4) title (‘Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)’).

154 AP I (n 4) Preamble, para 3 (‘Believing it necessary ... to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application’).

155 ICRC Commentary (n 19) 1064 para 3685 (‘[It] may be hoped for ... that the possibility of making reservations will facilitate the universal acceptance of the Protocol without adversely affecting its object and purpose, which is to improve the protection provided by the Conventions to the victims of international armed conflicts’) (emphasis added).

156 See, eg, Rauch, Elmar, The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed Conflicts and the United Nations Convention on the Law of the Sea (Duncker & Humblot 1984) 58; Dungel, Joakim and Ghadiri, Shannon, ‘The Temporal Scope of Command Responsibility Revisited: Why Commanders Have a Duty to Prevent Crimes Committed after the Cessation of Effective Control’ (2010) 17(1) UC Davis Journal of International Law & Policy 1, 17.

157 See, eg, ICTY, Prosecutor v Blagojević and Jokić, Judgment, IT-02-60-A, Appeals Chamber, 9 May 2007, [281]; ICTY, Prosecutor v Orić, Judgment, IT-03-68-A, Appeals Chamber, 3 July 2008, [19].

158 See AP I (n 4) title of Part IV (‘Civilian Population’).

159 See also Frits Kalshoven, ‘Bombardment: From “Brussels 1874” to “Sarajevo 2003”’ in Kalshoven, Frits (ed), Reflections on the Law of War (Martinus Nijhoff 2007) 448; Frits Kalshoven, ‘Belligerent Reprisals Revisited’ in Kalshoven, ibid 777 (‘general protection of the civilian population ... is one of the major “objects and purposes” of the Protocol’).

160 VCLT (n 21) art 31(1); see further Villiger (n 23) 427–28.

161 Tallinn Manual (n 6) 127 para 5.

162 ibid 108–09 para 10.

163 Droege (n 51) 561 and references in fns 89–92.

164 Fisher (n 2).

165 See, eg, Schmitt (n 1) 297 (highlighting the importance of digital records for the functioning of modern-day governments with regard to census taking, the provision of social benefits, voting and taxation).

166 See Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, Martens Nouveau Recueil (ser 3) 461 (entered into force 26 January 1910), art 22; Respect for Human Rights in Armed Conflicts, UNGA Res 2444 (XXIII), 19 December 1968, UN Doc A/7433 (1968), para 1(a); see also AP I (n 4) art 35(1) (restating the principle using a slightly different formulation). In his seminal work on the law of targeting, Professor Boothby describes this principle as ‘one of the most fundamental customary principles of the law of armed conflict’: Boothby, William H, The Law of Targeting (Oxford University Press 2012) 58.

167 cf ICRC Commentary (n 19) 404 para 1418 (noting that the distinction between military objectives and civilian objects in art 52(2) AP I (n 4) serves ‘precisely’ the goal of preventing unnecessary suffering).

168 The use of the word ‘anything’ is deliberate here as persons may certainly qualify as military objectives: see text at nn 60–62 above.

169 See also Tallinn Manual (n 6) 127 para 5 (rejecting the position of the minority of experts according to whom the view of the majority contradicts the principle of protection of the civilian population from the effects of hostilities as it makes IHL inapplicable to acts of deletion of valuable civilian datasets).

170 ibid 130 para 13.

171 ibid (emphasis added).

172 cf ibid 108–09 para 10 (stating that the majority view among the experts was that a cyber operation would qualify as an attack only if it interfered with the functionality of an object to the extent that its restoration would require the replacement of physical components); see also text at nn 161–163 above.

173 Bothe, Partsch and Solf (n 60) 326 (emphasis added).

174 See, eg, Herbert, Frank, The Great Dune Trilogy (Gollancz 1979) 6465 (describing the ‘hunter-seeker’, a floating remote-controlled device used to kill the target by injection of a lethal poison).

175 Humanitarian Policy and Conflict Research, ‘Manual on International Law Applicable to Air and Missile Warfare’, Bern, 15 May 2009, r 22(a), http://ihlresearch.org/amw/HPCR%20Manual.pdf.

Earlier versions of this article were presented at the Law School Research Seminar at the University of Exeter on 20 November 2013 and at the 8th Annual Minerva/ICRC Conference, ‘Military Objectives and Objects of War: An Uneasy Relationship’, 24–25 November 2013, Minerva Center for Human Rights, The Hebrew University of Jerusalem, Israel. I am grateful to the participants for their helpful comments. I would like to express a special word of thanks to the following friends and colleagues who have read and commented on earlier drafts: Ana Beduschi, Jarrod Hepburn, Annika Jones, Mike Sanderson, Aurel Sari, Michael Schmitt and Noam Zamir. Finally, I would like to thank the anonymous reviewers for their valuable comments and suggestions. Any errors or omissions are, of course, entirely mine. All internet resources were last accessed on 15 July 2014.

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Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
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