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Military Objectives in Cyber Warfare

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Ethics and Policies for Cyber Operations

Part of the book series: Philosophical Studies Series ((PSSP,volume 124))

Abstract

This Chapter discusses the possible problems arising from the application of the principle of distinction under the law of armed conflict to cyber attacks. It first identifies when cyber attacks qualify as ‘attacks’ under the law of armed conflict and then examines the two elements of the definition of ‘military objective’ contained in Article 52(2) of the 1977 Protocol I additional to the 1949 Geneva Conventions on the Protection of Victims of War. The Chapter concludes that this definition is flexible enough to apply in the cyber context without significant problems and that none of the challenges that characterize cyber attacks hinders the application of the principle of distinction.

This Chapter is largely based, with some amendments and updates, on the author’s book, Roscini 2014a: 176–192.

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Notes

  1. 1.

    The Commentary subsequently rephrases the definition as ‘any movements, manœvres and other activities whatsoever carried out by the armed forces with a view to combat’ (Sandoz et al. 1987: para 2191). Inconsistently, the Commentary of Art 13 of Additional Protocol II defines ‘military operations’ more narrowly as ‘movements of attack or defence by the armed forces in action’ (ibid., para 4769).

  2. 2.

    Rule 30 of the Tallinn Manual for instance, defines a cyber attack as ‘a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction to objects’ (Tallinn Manual 2013: 106). The Manual includes ‘serious illness and severe mental suffering’ in the notion of ‘injury’ (Tallinn Manual 2013: 108).

  3. 3.

    On evolutionary interpretation in the cyber context, see Roscini 2014a: 20–24, 280–281.

  4. 4.

    Roscini 2014b. Denial of service (DoS) attacks, of which ‘flood attacks’ are an example, aim to inundate the targeted system with excessive calls, messages, enquiries or requests in order to overload it and force its shut down. Permanent DoS attacks are particularly serious attacks that damage the system and cause its replacement or reinstallation of hardware. When the DoS attack is carried out by a large number of computers organized in botnets, it is referred to as a ‘distributed denial of service’ (DDoS) attack.

  5. 5.

    For a discussion of the application of the principle of distinction to the targeting of individuals (as opposed to objects), see Roscini 2014a: 192–215.

  6. 6.

    Without referring to the notion of military objective, Art 2 of the 1907 Hague Convention IX Concerning Bombardment by Naval Forces in Time of War contains a list of objects that can be destroyed.

  7. 7.

    The list includes military forces; military works; military establishments or depots; factories constituting important and well-known centres engaged in the manufacture of arms, ammunition or distinctively military supplies; lines of communication or transportation used for military purposes. It is doubtful whether the list is exhaustive (Rogers 2004: 60).

  8. 8.

    See Arts 4, 19(2) of Geneva Convention I and Arts 4, 18(5) of Geneva Convention IV. The 1956 New Delhi Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the ICRC, proposed a list of military objectives, to be reviewed at intervals of no more than 10 years by a group of experts; however, even if an object had belonged to one of the listed categories, it would not have been a military objective if its total or partial destruction, in the circumstances ruling at the time, had offered no military advantage (Art 7). Another attempt to define the concept of ‘military objective’ was made by the Institute of International Law in 1969 (Annuaire de l’Institut de droit international (1969–II).359).

  9. 9.

    Hard targets can be attacked both by kinetic or cyber means, while software and data can be attacked only by cyber means (Rauscher and Korotkov 2011: 19).

  10. 10.

    Confusingly, the Commentary to Rule 38 of the Tallinn Manual makes the example of a cyber operation against a website that inspires ‘patriotic sentiments’ among the population as a case of non-effective contribution to military action (Tallinn Manual 2013:13); however, such an operation would not be an ‘attack’ in the sense of either Art 49(1) of Additional Protocol I or Rule 30 of the Manual itself.

  11. 11.

    It is however normally the software rather than the hardware that turns a computer into a military objective (Dinstein 2012: 263).

  12. 12.

    The three US Department of Defense’s internal networks, for instance, would be examples of networks that are military objectives by nature. In particular, the Secret Internet Protocol Router Network (SIPRNet), which is not connected to the internet, is used for classified information and to transmit military orders, while the Joint Worldwide Intelligence Communications System (JWICS) is used to communicate intelligence information to the military. On the three DoD networks, see Clarke and Knake 2010: 171–3.

  13. 13.

    According to the ICRC Commentary, purpose is ‘the intended future use of an object, while that of use is concerned with its present function’ (Sandoz et al. 1987: para 2022, emphasis in the original).

  14. 14.

    Jensen has for instance claimed that ‘Microsoft Corporation Headquarters in Washington State is a valid dual-use target, based on the support it provides to the U.S. war effort by facilitating U.S. military operations’ (Jensen 2002–2003: 1160). However, he eventually denies that it is a lawful military objective because of doubts with regard to the military advantage that can be gained from its destruction or neutralization (1167–6).

  15. 15.

    See Rule 39, Tallinn Manual. As has been observed, an ‘object becomes a military objective even if its military use is only marginal compared to its civilian use’ (Droege 2012: 563).

  16. 16.

    The provision only applies when doubt concerns the use of the object, not its nature, location or purpose (Boothby 2012: 71).

  17. 17.

    For critical comments of the US position and the documents in which it appears, see Bartolini 2006: 235–6.

  18. 18.

    It also appears that China sees cyber operations against financial systems, power generation, transmission facilities, and other NCIs as part of a conflict with another state (Owens et al. 2009: 333).

  19. 19.

    Al Arabiya News: 2012. Oil production, however, remained uninterrupted.

  20. 20.

    Responses to advance questions, Nomination of Lt Gen Keith Alexander for Commander, US Cyber Command, US Senate Committee on Armed Services, 15 April 2010, 13, http://armed-services.senate.gov/statemnt/2010/04%20April/Alexander%2004-15-10.pdf.

  21. 21.

    DeSaussure refers to the examples of the 1972 Christmas bombing of Hanoi or the never implemented bombing of a depot in the heart of Argentina during the Falklands war, which would have not helped the British reoccupy the islands (DeSaussure 1987: 513).

  22. 22.

    The list is reprinted in ICTY Final Report, 2000, para 39.

  23. 23.

    The ICTY Final Report on the NATO bombing campaign against Yugoslavia emphasized that, even if the RTS building in Belgrade was considered a military objective, broadcasting was interrupted only for a brief period and in any case Yugoslavia’s command and control network, of which the RTS building was allegedly a part, could not be disabled with a single strike (ICTY Final Report, 2000, para 78).

  24. 24.

    Resilience does not, however, mean invulnerability. For instance, 88 per cent of Egyptian internet access was shut down as a consequence of the withdrawal of 3500 Border Gateway Protocol (BGP) routes by Egyptian ISPs (Williams 2011).

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Authors and Affiliations

  1. International Law, Westminster Law School, London, UK

    Marco Roscini

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  1. Marco Roscini
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Correspondence to Marco Roscini .

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Editors and Affiliations

  1. Oxford Internet Institute , Oxford, United Kingdom

    Mariarosaria Taddeo

  2. NATO Cooperative Cyber Defence Centre of Excellence, Tallinn, Estonia

    Ludovica Glorioso

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Roscini, M. (2017). Military Objectives in Cyber Warfare. In: Taddeo, M., Glorioso, L. (eds) Ethics and Policies for Cyber Operations. Philosophical Studies Series, vol 124. Springer, Cham. https://doi.org/10.1007/978-3-319-45300-2_7

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