International Humanitarian Law and the Conduct of Cyber Hostilities: Quo Vadis?

Abstract

War and international humanitarian law (IHL) exist and evolve in a synergistic relationship. On the one hand, treaty and customary law norms can proactively shape warfare. But on the other, changes in the nature of warfare often determine IHL’s path forward, for if IHL is to remain effective, it must remain responsive to the context in which it is to be applied. This article offers tentative reflections on how future conflict may affect the evolution of IHL’s conduct of hostilities rules as applied to ‘cyber capabilities’. It concludes that current and future cyber capabilities and vulnerabilities are driving the positions of States and the wider international community regarding cyber operations during armed conflict. In particular, it predicts movement in the direction of interpreting IHL rules restrictively, that is, in a manner that provides enhanced protection for the civilian population, sometimes at the expense of military advantage.