The Application of International Humanitarian Law to Cyber ​​Warfare: Still Interpretative Differences

Regarding new technologies and International Humanitarian Law, there are four issues that continue to concern the international community: cyber operations, autonomous weapon systems, the application of artificial intelligence in war contexts and related decision-making processes, and finally military operations in space. This is what emerges from the publication of the new edition, the sixth in chronological order, of the report that the International Committee of the Red Cross released on the current armed conflicts and the challenges they bring to International Humanitarian Law¹.

In particular, Chapter V of the document released last September is dedicated to the application of the new technologies in today's theaters of war.

The consideration of the broad impact that digital technologies now have on everyone's daily life, and how it is no longer possible to exclude their use for military applications, generates a whole series of concerns dating back to the possible ineffectiveness of the current regulatory framework in preventing and repressing illegal war conduct.

Let us look for example at the case of cyber operations in war and the question of the applicability of International Humanitarian Law to the digital dimension. We know well, in fact, that this right sets clear limits in terms of proportionality and necessity as well as prohibitions, especially with reference to attacks on so-called civilian targets.

But do these limits apply when the attack is unconventional in nature and not intended to have kinetic effects on a civilian target? For example, a cyber attack aimed at interrupting the operational continuity of the information system of a city hospital does not in itself have kinetic effects of physical damage on the civilian population, but it still translates into suffering and death for civilians.. Does international humanitarian law apply to this case? And is the attacker, that is, the computer technician who does not shoot bullets but sends data packets from a city coffee shop, a belligerent? Does the Geneva Convention apply to him?
And then, What is meant by attack in the digital dimension? Is a cyber attack comparable to a conventional armed attack?

International interpretations of these legal issues are not all in agreement. Italy has expressed very clear and guarantor positions, in line with its leading role at international level in the protection of the most vulnerable.

For example, our country's position on the relationship between cyber attacks and the use of force is clear, underlining the need for “to replicate in the digital dimension the system of protections and limitations that have been identified over the years with reference to 'analogue' war dynamics”² According to Italy, in fact, the general principles of humanitarian law must be applied - without ifs and buts - also to cyberspace in order to limit the conduct of belligerents in the protection of civilian objectives. And it is our country's belief that, by cyber attack, we must mean "any conduct whose size and effects can be equated to conventional armed attacks that cause injury and/or death of human beings, significant physical damage to property, or disruptions in the functioning of critical infrastructures"³.

In essence, the Italian position goes beyond the meaning that looks at the kinetic effects of material damage caused by the conduct, to include instead even the immaterial effects on the civilian population and on non-belligerents.

In conclusion, International Humanitarian Law is an instrument in the hands of politics.: its continuous improvement to ensure its adherence to new war scenarios and the use of new technologies, as well as its effective application always depend on how much the politics of the States want to make use of it. And this, if it is significantly valid for the aspects related to the use of force in the digital environment, takes on an even more important meaning in the aerospace sector where the countries holding innovative technologies are a minority niche. In this regard, consider the few countries that have adequate technology to have access to Space: the effective application of the Hague and Geneva Conventions to conflicts that have effects on the space environment will depend on them.

On the other hand But we must not demonize the application of new technologies to armed conflicts because their use – compared to the use of old-generation weapons and/or “analogue” weapons systems – greatly mitigates the risk of so-called “collateral damage” and ensures better tracking of facts and investigation of human responsibilities related to violations of International Humanitarian Law.

Horace Danilo Russo (Senior Security Manager)

_{¹https://www.icrc.org/sites/default/files/media_file/2024-10/4810_002_CH%...}

_{²https://www.esteri.it/mae/resource/doc/2021/11/italian_position_paper_on...}

_{³https://cri.it/wp-content/uploads/2024/02/Rapporto-volontario-nazionale-...}