Technology and the Law of War attribution) is where the individual/non-state actor/criminal/terrorist actions are mistaken for those of a state and has the unintended effect of escalating the conflict because the targeted state ascribes the cyber operations as being by, or sanctioned by, the state.
14 above and beyond ‘spying’ which falls outside the laws of armed conflict.
information-war-outside-the-west/ [accessed on 15 May 2022]
15 Supra 5
Conclusion
18 Bickerton, I & Hagan, K, 2008, “The US and the unintended consequences of war: I want you for U.S. Army nearest recruiting station”, History Today Ltd, https://www. thefreelibrary.com/The+US+and+the+unintended+conseq uences+of+war%3a+I+want+you+for+U.S....-a0173229240 [accessd on 6 June 2022]
Kelton, M, Troath, F, & Rogers, Z. 2019, “Cyber threats go beyond hackers and scams but to democracy itself: As awareness of digital vulnerabilities grows, fostering resilience against exploitation across open societies is key.” The Interpreter, The Lowy Institue, 23 July 2019, https://www. lowyinstitute.org/the-interpreter/cyber-threats-go-beyondhackers-and-scams-democracy-itself [accessed on 6 June 2022]
Civilians or non-combatants must think deeply about the political, legal and operational consequences before taking up arms during armed conflict. Even where the cause is just. Even where the arms are a keyboard. The outcome of their individual involvement may be to make their own country (state) a party to the conflict. It may mean their own country (state) prosecutes them under domestic law for cybercrime. Attribution is fuzzy but not fuzzy enough to assume safety in the cloak of cyber. A state under attack may invite the individuals of other states to participate in hostilities (remotely or in person) but must do so alive to the consequent application of international humanitarian law to those individuals and their home.
Endnotes 1 Lovett, E. 2015, “The Law of Armed Conflict as it applies to CyberSpace”, Cyberpoint Speaker Series, Baltimore Maryland, 26 August 2015, https://youtu.be/sAaIIk7VecI [accessed on 6 June 2022] 2 Schmidt, M. 2022, “Russian cyber operations and Ukraine: the legal framework”, , Articles of War, Lieber Institute, West Point, 16 January 2022, https://lieber.westpoint.edu/russiancyber-operations-ukraine-legal-framework/ [accessed on 5 June 2022] 3 Kapetas, A. 2022, “Russia may be winning the Ukraine information war outside the West”, The Strategist, Australian Strategic Policy Institute, 8 April 2022, https://www. aspistrategist.org.au/russia-may-be-winning-the-ukraineinformation-war-outside-the-west/ [accessed on 15 May 2022] 4 Wikipedia contributors, 2022, “Anonymous (hacker group),”Wikipedia, The Free Encyclopedia, https:// en.wikipedia.org/w/index.php?title=Anonymous_(hacker_ group)&oldid=1091501907 [accessed 6 June 2022] 5 We are creating an IT army. We need digital talents. All operational tasks will be given here: https://t.me/ itarmyofurraine. There will be tasks for everyone. We continue to fight on the cyber front. The first task is on the channel for cyber specialists.” Per Ukraine’s Minister of Digital Transformation, Mykhailo Fedorov as quoted in Väljataga, A, ‘Cyber vigilantism in support of Ukraine: a legal analysis’, CCDOE, March 2022, https://ccdcoe.org/uploads/2022/04/ Cyber-vigilantism-in-support-of-Ukraine-pub.pdf [accessed on 5 June 2022] 6 Supra 2 7 Supra 5 8 United Nations General Assembly, 2021, Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, 14 July 2021, Chapter IV, p17 https://documentsdds-ny.un.org/doc/UNDOC/GEN/N21/075/86/PDF/N2107586. pdf?OpenElement [accessed on 23 May 22] 9 United Nations Charter, 24 October 1945, https://www. un.org/en/about-us/un-charter/full-text [accessed on 6 June 2022] 10 Supra 2 11 International Committee of the Red Cross, Geneva Conventions and their Commentaries, https://www.icrc.org/ en/war-and-law/treaties-customary-law/geneva-conventions [accessed on 6 June 2022] 12 International Committee of the Red Cross, Additional Protocols I & II https://www.icrc.org/en/doc/resources/ documents/misc/additional-protocols-1977.htm [accessed on 6 June 2022] 13 National Case Law, International Committee of the Red Cross https://casebook.icrc.org/glossary/national-case-law [accessed on 6 June 2022]
16 Smith, H, 2022, “Clausewitz’s definition of war and its limits’, Military Strategy Magazine, Volume 8 Issue 1. 17 International Committee of the Red Cross, Chemical and Biological Weapons, https://www.icrc.org/en/war-and-law/ weapons/chemical-biological-weapons [accessed on 6 June 2022]
19 Wikipedia contributors, 2022, ‘Petya and NotPetya’, Wikipedia, The Free Encyclopedia, 27 May 2022, 00:16 UTC, https://en.wikipedia.org/w/index.php?title=Petya_ and_NotPetya&oldid=1090033619 [accessed 6 June 2022] 20 Melzer, N, 2009, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross, 0990/002, May 2009, https://www.icrc.org/en/doc/assets/ files/other/icrc-002-0990.pdf [accessed on 6 June 2022] see also Singer, T, 2022, “Scenario 18: Legal status of cyber operators during armed conflict”, CCDOE Wiki, 15 February 2022, https://cyberlaw.ccdcoe.org/wiki/Scenario_18:_Legal_ status_of_cyber_operators_during_armed_conflict [accessed on 6 June 2022] 21 For further discussion on attribution in a cyber context see Hill, A, 2019 “The Ultimate Challenge: Attribution for Cyber Operations”, Wright Flyer Paper No. 70, Air University Press, Muir S. Fairchild Research Information Center, Maxwell Air Force Base, Alabama, December 2019, https:// www.airuniversity.af.edu/Portals/10/AUPress/Papers/ WF_70_HILL_THE_ULTIMATE_CHALLENGE_ATTRIBUTION_ FOR_CYBER_OPERATIONS.PDF [accessed on 6 June 22] or Carter, R and Enoizi, J 2021, “Mapping a path to cyber attribution consensus” The Geneva Association, IFTRIP March 2021, https://www.genevaassociation.org/sites/default/files/ research-topics-document-type/pdf_public/cyber-attribution_ web_final.pdf [accessed on 6 June 22] REFERENCES Bickerton, I & Hagan, K, 2008, “The US and the unintended consequences of war: I want you for U.S. Army nearest recruiting station”, History Today Ltd, https://www. thefreelibrary.com/The+US+and+the+unintended+conseq uences+of+war%3a+I+want+you+for+U.S....-a0173229240 [accessd on 6 June 2022] Carter, R and Enoizi, J 2021, “Mapping a path to cyber attribution consensus” The Geneva Association, IFTRIP March 2021, https://www.genevaassociation.org/sites/default/files/ research-topics-document-type/pdf_public/cyber-attribution_ web_final.pdf [accessed on 6 June 22] Dutton, P & Payne, M, 2022, “Attribution to Russia of malicious cyber activity against Ukraine”, Joint Media Release, Department of Foreign Affairs and Trade, Australian Government, 21 February 2022, https://www. internationalcybertech.gov.au/Attribution-to-Russia-ofmalicious-cyber-activity-against-Ukraine [accessd on 6 June 2022] European Commission, 2022 “Declaration for the Future of Internet”, 28 April 2022, https://digital-strategy.ec.europa. eu/en/library/declaration-future-internet [accessd on 6 June 2022] Greenberg, A, 2018 “The Untold Story of NotPetya, the Most Devastating Cyberattack in History: Crippled ports. Paralyzed corporations. Frozen government agencies. How a single piece of code crashed the world.” 22 August 2018, https:// www.wired.com/story/notpetya-cyberattack-ukraine-russiacode-crashed-the-world/ [accessed on 6 June 22] Hill, A, 2019 “The Ultimate Challenge: Attribution for Cyber Operations”, Wright Flyer Paper No. 70, Air University Press, Muir S. Fairchild Research Information Center, Maxwell Air Force Base, Alabama, December 2019, https://www. airuniversity.af.edu/Portals/10/AUPress/Papers/WF_70_HILL_ THE_ULTIMATE_CHALLENGE_ATTRIBUTION_FOR_CYBER_ OPERATIONS.PDF [accessed on 6 June 22]
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This article was originally published in the Law Institute Journal August 2022 and is republished with permission.
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