by Yoseph Genene

(Photo Credit: Matt Murphy, Source the Economist)

Even though researchers have not yet come to a consensus on the matter of how conflict became a part of human civilization but theorize that we either carried it with us from “deep in our evolutionary history” or it appeared along with the construct of land settlement and ownership. About 10,000 years ago in eastern Africa, a resource-rich, fertile lagoon known as Nataruk was the setting for humanity’s earliest known violent conflict which resulted in the brutal killing of over two dozen prehistoric men, women, and children. This story was evidenced by black volcanic rock known as obsidian. This igneous rock was used to make weapons like spear tips or arrowheads. Researchers at the Leverhulme Center for Human Evolutionary Studies at the University of Cambridge discovered this event.

After a long history of civilization and enormous discoveries; now, humankind is capable of making bewildering weapons and attacks on each other that our ancestors never believed was possible. It is known that the advancement of technology has contributed to the lion`s share in the discovery and usage of these highly complicated weapons and attacks. One of these conflicts is Cyber Conflict. The special characteristics of cyberspace have led it to be described as a ‘fifth’ domain of warfare, alongside land, sea, air and outer space. As is the case in many areas of the law, technological advances generally outpace the generation of rules on particular social phenomena. International humanitarian law is no exception in this regard. Here we`ll try to see if there any possible way to apply a specific principle of IHL which is the principle of proportionality in cyber conflict briefly. 

Cyber-attacks in cyber conflicts are a specific category of cyber operations, and may be defined as ‘cyber operation[s], whether offensive or defensive, that are reasonably expected to cause injury or death to persons or damage or destruction to objects’. The technical difference between cyber-attacks and cyber operations is that attacks have hostile intent and are destructive in nature, while operations are non-destructive and typically involve activities such as intelligence gathering, surveillance, or other cyber exploitation or intrusion. Cyber-attacks may, therefore, include acquiring control over computer systems, transmitting viruses to destroy or alter data, planting logic bombs, inserting worms to overload networks, or sniffers to monitor or seize data. The common denominator of all cyber-attacks is the use of computer code to disrupt, deny, degrade, manipulate, or destroy adversary computer systems or data.

The potential humanitarian impact of some cyber conflicts on the civilian population is enormous. For instance, power plants might be targets or economic institutions and then like that can be used for both military and civilian purposes. It is therefore important to discuss the rules of IHL that govern such conflicts because one of the main objectives of this body of law is to protect the civilian population from the effects of warfare. According to common article 3 of the Geneva conventions, to apply IHL rules the factual requirement is the existence of armed conflict. In the Nuclear weapons case, the ICJ held that IHL applies to all forms of warfare, regardless of the weapons employed. Also, Marten`s clause is another justification that anything which is not explicitly prohibited by the relevant treaties is therefore permitted, ensuring the applicability of existing norms to new situations or technologies. Cyber operations that occur in the context of armed conflict are therefore subject to humanitarian law.

PoP as codified under Additional Protocol I Article 51(5(b) dictates that an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive concerning the concrete and direct military advantage anticipated is prohibited.

Some degree of collateral damage is allowable unless it is disproportionate to the anticipated military advantage. For instance, if a power plant is a target of a cyber-attack, an assessment must be made as to whether the harm to the civilian population caused by disruption of electrical service is not disproportionate to the military advantage that might ensure from attacking the power plant.