International Humanitarian Law and Cyber Warfare: Old Laws Vs. New Phenomena

By Jordan Hawthorne

Cyber WarfareWar. A term which traditionally conjures images of uniformed armies, guns, bombs, and other forms of conventional military warfare. Yet the 21st century has seen the rise of a new form of war, one divorced from these traditional methods and means: ‘cyber warfare’.

‘Cyber warfare’ refers to war that is waged not through military hostilities on the ground, but through virtual means and methods, within the domain of ‘cyberspace.’  Despite its unconventional nature, the international legal community agrees that international humanitarian law (‘IHL’) can apply to cyber warfare, provided that attacks are committed within the context of an armed conflict, (see the Tallinn Manual). However, the question of how to transpose and apply IHL rules to this modern phenomenon remains problematic.

One of the greatest challenges arising in the context of a cyber attack is the application of the principle of distinction. The principle of distinction is a cornerstone of IHL, one which requires that parties to a conflict differentiate between civilians/civilian objects, and combatants/military objectives at all times (the latter being legitimate targets in an armed attack, while the former cannot be attacked under any circumstances). Making such a distinction in cyberspace is however wrought with difficulty, due to characteristics of the forum, such as its interconnectivity. Cyberspace is a complex network of countless, interconnected computer systems, spanning across the globe. Civilian and military computer systems therefore may be, and often are, intertwined (with the latter sometimes even relying on the former). As a result, it is incredibly difficult to identify ‘legitimate’ targets, and to limit the effects of an attack to a pure military objective. Continue reading

UK Against an International Inquiry in Yemen

Air strike on Sanaa ©Reuters

Air strike on Sanaa ©Reuters

The United Kingdom (UK) is accused by several human rights organizations to have blocked a joint European Union (EU) proposal to establish an independent international inquiry into the war in Yemen. Instead, the EU submission that was submitted on Friday 23 September to the United Nations High Commissioner for Human Rights (OHCHR) asks the UN body to dispatch a mission “with assistance from relevant experts, to monitor and report on the situation … in Yemen”.

The proposal, which was submitted by Slovakia on behalf of the EU, was initiated by the Netherlands in an effort to bring together a European coalition requiring an inquiry to be set up and to examine civilian deaths in Yemen. According to the OHCHR, 3,980 civilians have been killed and 6,909 injured between 26 March 2015 and 22 September 2016. In a press release published on the same day, the OHCHR has expressed its will to see an international inquiry being set up: “In the light of the high civilian casualty numbers and the terrible suffering of the civilian population, we urge all parties to respect their obligations under international humanitarian law, including their obligation to respect the principles of distinction, proportionality and precaution. We reiterate our call for the setting up of an international and independent investigative body.”

The international investigation inquiry would have to review Saudi’s interventions in Yemen, as the armed coalition, led by Saudi Arabia, is accused of committing war crimes against civilians. UK Foreign Secretary General Boris Johnson has publicly rejected the need for such an inquiry or statements on any breach of international law. Responding to questions relating to a recent airstrike by the Saudi-led coalition which killed at least 19 civilians, including children, he replied that the UK was “using a very, very wide variety of information sources about what is happening to acquaint ourselves with the details”

But assertions from human rights organizations accuse the UK to protect its ally. Andrew Smith of Campaign Against Arms Trade said: “For 18 months now, UK arms have been central to the destruction of Yemen. The aid that is being given amounts to a small fraction of the damage that has been caused and pales in comparison to the £3.3bn worth of arms that have been licensed. Theresa May and Boris Johnson must end the arms sales and put a stop to the uncritical support that the UK provides for the Saudi regime.”

According to Amnesty International and Human Rights Watch reports, more than 70 “unlawful” coalition airstrikes – on homes, hospitals, markets, civilian factories and schools – some of which, they say, may amount to war crimes, and which have killed at least 913 civilians are documented. Human Rights Watch also claims that the Houthi armed group and forces allied to it, including those loyal to the former president, Ali Abdullah Saleh, have committed numerous violations and abuses of international human rights and humanitarian law.

Event: The War on Terror, Part II: International Law after Paris

Guest Lecture co-organized by the International Law department of the Graduate Institute of International and Development Studies and the Geneva Academy of International Humanitarian Law and Human Rights as part of the Geneva Academy Wednesdays (GAW) series.

Paris

Date: Wednesday 16 December I 17:30

Venue:
Auditorium A2 I Maison de la Paix (Chemin Eugène-Rigot 2 – 1202 Geneva, Switzerland)

Marko Milanović – Associate Professor at the University of Nottingham and Visiting Professor at the Geneva Academy – will explore the key legal issues and challenges arising from the recent attacks carried out around the world by the Islamic State’s followers. In particular, Professor Milanović will address:

  • The interplay between international humanitarian law (IHL), human rights law and terrorism;
  • The geographic and temporal scope of IHL;
  • The law on the use of force, in light of the recent strikes by France, UK and other countries on Syrian soil.

Antonio Coco and Patryk Labuda will serve as discussants, after which the floor will be opened up to comments and questions.

If you plan to attend, please register here.

Russia Opposes France Proposal on Limited Veto Power

Image1Yesterday, Ambassador Vitaly Churkin held a press conference assuming Russia’s presidency of the United Nations Security Council for September during which he commented on the UNSC reform and proposals on veto limitations. Commenting on the proposed initiative by France to limit UNSC permanent members veto powers, Churkin said it was a “populist” idea and that a compromise on a UNSC reform was nowhere in sight.

Ambassador Churkin has first addressed negotiations around the admission of new permanent members, introducing a third-category of long-term non-permanent members: “We want a historic compromise to be reached between the two main camps: Those who want to have new permanent members and those who don’t want to have permanent members, and advocate a reform with a new category of intermediate countries which will be elected for a longer period of time than the current two years for the current non-permanent members.” Continue reading

Event: Frits Kalshoven Competition on International Humanitarian Law 2015

ICRC Humanitarian ActionThe Netherlands Red Cross and Belgian Red Cross-Flanders invite you to attend the Finals of the Frits Kalshoven Competition on International Humanitarian Law 2015 on Friday afternoon 27 February 2015.

The Competition, which will take place for the 8th year, has as its objective to engage ambitious Law students in the implementation of the rules that apply during armed conflict. The theme of this year’s competition is “Warfare in densely populated areas”, a subject that has been in the news often recently.

The focus will be on realistic dilemmas surrounding use of explosive weapons and the protection of civilians.

After an intense week full of workshops, lectures, role plays and pleadings about international humanitarian law, two teams will compete in the grand finale of the Moot Court in front of a bench of reknown experts:

– Judge Alphons Orie (International Criminal Tribunal for the former Yugoslavia)

– Commodore Peter Heblij (Head Military Legal Service, Netherlands Ministry of Defence)

– Ms Mariya Chavdarova Nikolova (ICRC, Editor of International Review of the Red Cross)

The prize for Best Oralist will be awarded by Pieter de Jong Schouwenburg (Van Doorne Advocaten).

The Competition will take place at The Hague Crown Plaza (Van Stolkweg 1, 2585 JL Den Haag) on 27 February 2015.

You can register online until 20 February.

HRW: Israel displayed ‘callous indifference’ in deadly attacks on family homes in Gaza

A general view shows the destruction in part of Gaza City’s al-Tufah neighbourhood as the fragile ceasefire in the Gaza Strip entered a second day on August 6, 2014. Photo credit: MAHMUD HAMS/AFP/Getty Images

Human Rights Watch (HRW) today released a new report on the attacks perpetrated against houses full of civilians during Operation Protective Edge in July and August 2014, attacks which have allegedly amounted to war crimes. Families under the Rubble: Israeli attacks on inhabited homes  was elaborated following investigations on eight cases of residential family homes that were attacked without prior warning during Israeli latest operation in Gaza. These attacks cause the deaths of more than 100 civilians, of which 62 were children. In total, it is estimated that at least 18,000 homes were destroyed or rendered uninhabitable and that more that 1,500 Palestinian civilians, including 519 children, were killed during Operation Protective Edge. The report reveals a pattern of frequent Israeli attacks using large aerial bombs to level civilian homes, sometimes killing entire families.

While the report ackowledges that possible military targets were identified in some of the bombed areas, it argues that the devastation to civilian lives and property caused in all cases was clearly disproportionate to the military advantages gained by launching the attacks. Attacks where no military targets could have been clearly identified constitute a war crime. When evidence of possible military targets can be proven, under international law, the report states that they should have been cancelled or postponed as soon as it was evident that so many civilians were present in the house. Continue reading

Update of ICRC International Humanitarian Law Database

ICRC Humanitarian ActionToday, the International Committee of the Red Cross (ICRC) has made available on its online, free of charge Customary IHL database an update of State practice of 7 countries and 3 tribunals relating to armed conflicts and humanitarian issues such as the distinction between combatants and civilians, the use of nuclear, biological and chemical weapons, the protection of internally displaced persons, the protection of children and in particular child soldiers, the prohibition of sexual violence and slavery, the integration of international humanitarian law (IHL) into the training and operations of armed forces, and the prosecution of war crimes.

Practice up till the end of 2010 of the following countries has been included for this most recent update of the Database: Armenia, Brazil, Cuba, El Salvador, Georgia, Nepal and New Zealand. Case-law of the Extraordinary Chambers in the Courts of Cambodia, the International Criminal Court and the International Court of Justice dealing with questions of IHL has also been updated. New practice is marked in green throughout the database.

The purpose of the Customary IHL database is to make not only the rules of customary IHL but also the underlying State and international practice easily accessible by everyone interested in the interpretation and application of IHL. The information in the database is easily accessible by means of three search parameters: subject matter, type of practice and country, which can be used separately or can be combined in a powerful search engine.

The database will continue to be updated with practice from about 100 countries and a number of relevant international bodies. The next updates of both national and international practice are scheduled for June and July 2014.