War-Like Activities in the Cyberspace: Applicability of the Law of Armed Conflicts

Abstract

The security of cyberspace high strategic interest has been particularly intensified since the States have become aware of the possibility of extending their military operations to that virtual space, which has thus become a “fifth domain of warfare”, adding to the terrestrial, maritime, air and space domains. This raises the question of whether current conventional and customary International Humanitarian Law applies to cyber-hostilities, that is, the military operations that the parties to an armed conflict conduct against the adversaries in and through cyberspace. Although the analysis of the application of the current jus in bello to the cyber operations obviously includes many other aspects, the present chapter addresses only two basic issues. The first one focuses on the requirements that, in the absence of conventional hostilities, should concur for the applicability of International Humanitarian Law to operations conducted by cyber means. This makes it necessary to differentiate between international and non-international armed conflicts. The second one is about when cyber operations would be equivalent to “attacks” in the sense of the jus in bello: acts of violence against the adversary, whether in offence or in defence, paying particular attention to the “violence” element of the definition.

Submitted: 26.11.16; Accepted: 20.12.16.