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4. Articles 51 and 52 of Additional Protocol I reflect the principle of distinction by setting forth protections for the civilian population and civilian objects respectively (Rules 32 to 40). It also undergirds various Articles that extend special protection to particular protected persons and objects,43 and is the basis from which the principle of proportionality and the requirement to take precautions in attack arise (Rules 51 to 58). 5. Certain operations directed against the civilian population are lawful.44 For instance, psychological operations such as dropping leaflets or making propaganda broadcasts are not prohibited even if civilians are the intended audience.45 In the context of cyber warfare, transmitting email messages to the enemy population urging capitulation would likewise comport with the law of armed conflict.46 Only when a cyber operation against civilians or civilian objects (or other protected persons and objects) rises to the level of an attack is it prohibited by the principle of distinction and those rules of the law of armed conflict that derive from the principle. Whether a particular cyber operation qualifies as an ‘attack’ is the subject of Rule 30. 6. Since the principle of distinction is intransgressible, any rationale or justification for an attack not permitted by the law of armed conflict is irrelevant in determining whether the principle has been violated.47 As an example, an attack against a civilian object would be unlawful even if it shortened the course of the conflict and thereby saved civilian lives. Similarly, cyber attacks against a civilian leader’s private property designed to pressure him into capitulation would be unlawful if the property qualified as a civilian object irrespective of whether the conflict would likely be shortened. 7. The principle of distinction, as used in this Rule, must not be confused with the obligation of combatants to distinguish themselves from the civilian population (Rule 26). 43 44 45
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Additional Protocol I, Arts. 53–6. ICRC Additional Protocols Commentary, para. 1875. AMW Manual, commentary accompanying Rule 13(b). Of course, this is only so long as the actions do not violate the prohibition on terrorizing the civilian population set forth in Rule 36. During the 2003 invasion of Iraq, ‘Thousands of Iraqi military officers received e-mails on the Iraqi Defense Ministry e-mail system just before the war started.’ They were told to place tanks and armoured vehicles in formation and abandon them, walk away, and go home. Richard A. Clarke and Robert K. Knake, Cyberwarfare: The Next Threat to National Security and What to Do About It 9–10 (2010). Of course, if a civilian is attacking a member of the armed forces for reasons unrelated to the conflict, the member of the armed forces may defend him or herself. This principle applies in the cyber context.