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6. The fact that a cyber attack directed against a military objective (Rule 38) foreseeably causes incidental damage, destruction, injury, or death to civilians or civilian objects does not make those individuals and objects the ‘objects of attack’.50 Consider a cyber operation designed to down military aircraft by attacking a military air traffic control system. The aircraft are lawful objects of attack. However, civilians on the ground who are injured or killed when the aircraft crash would not qualify as objects of attack. Instead, any protection such persons enjoy would derive from the principle of proportionality and the requirement to take precautions in attack (Rules 51 to 58).
Rule 33 – Doubt as to status of persons In case of doubt as to whether a person is a civilian, that person shall be considered to be a civilian. 1. The International Group of Experts concluded that Rule 33 is reflective of customary international law and is applicable in international and non-international armed conflicts.51 The presumption of civilian status in cases of doubt is codified in Article 50(1) of Additional Protocol I. Some law of armed conflict manuals recognize this Rule.52 2. A number of Experts were unable to accept an interpretation of the Rule whereby the attacker alone bears the burden of disproving civilian status in cases of doubt. They noted that since a defender has an obligation to take passive precautions (Rule 59), such an outcome would be inappropriate. Subject to this interpretation, they accepted inclusion of Rule 33 in this Manual. 3. The precise threshold at which the doubt is sufficient to bring this Rule into operation is unsettled. On ratification of Additional Protocol I, a number of States Party made relevant statements concerning Article 50(1). The United Kingdom, for instance, observed that the Article applies only in cases of ‘substantial doubt still remaining’ after ‘assessment of the information from all sources which is reasonably available to them at the relevant time’.53 In contrast to substantial doubt, the concept 50 51
52 53
US Commander’s Handbook, para. 8.3.1. See, e.g., AMW Manual, commentary accompanying Rule 12(a); ICRC Customary IHL Study commentary accompanying Rule 6. UK Manual, para. 5.3.1; Canadian Manual, para. 429. UK Additional Protocol Ratification Statement, para. (h); UK Manual, para. 5.3.4 (as amended).