When is a cyber attack a war crime | Dorian Burkhalter

Geneva – On the day Russia launched its invasion of Ukraine, a cyber-attack on satellite internet service disrupted Ukraine’s military communications. The attack, which US officials attributed to Russia’s military espionage agency, crossed the Ukrainian border. It has cut off the internet for tens of thousands of people across Europe, from France to Ukraine. The internet was cut off a month after the attack on about 2,000 wind turbines in Germany.

The next day, a border control station between Ukraine and Romania was infected with a data-scanning malware, which delayed the processing of applications for refugees wishing to flee the country. The perpetrators of this attack are still unknown.

These are two of the thirty-five major cyber attacks on critical and civilian infrastructure in Ukraine that the Electronic Peace Foundation, the Geneva-based NGO, has announced on its website since the start of the war.

International Criminal Court investigates alleged war crimes in Ukraine, not cyber war

Although most of the attacks targeted military targets, public institutions and the media, civilians were also intentionally or unintentionally affected, said Bruno Halupo, chief technology officer of the organization and head of the cyber analysis department.

Attacks on civilians under international humanitarian law can amount to war crimes.

“We are monitoring the situation and gathering evidence so that if an investigation is done at some point, we will be able to provide evidence of what happened,” Halopo said. The NGO lists on its website a census of cyber attacks, provides accurate information about them and the social damage they have caused and identifies their nature.

“What we publish on our website is a small part of the information available to us,” he added. He said this information is available for possible future legal action. Furthermore, the Cyber ​​Peace Foundation compiles this evidence to determine whether countries respect the international treaties they have signed, and to identify loopholes in existing legislation.

International humanitarian law, also known as the law of war, imposes restrictions on the conduct of hostilities and seeks to protect civilians, health and medical personnel, wounded soldiers and prisoners of war.

It is forbidden to target civilians directly. It also prohibits the use of weapons whose effects cannot be limited to military targets. This means, in the real and real world, for example, not targeting a hospital or not bombing densely populated areas. But in the digital world, things are getting more complicated.

The law is not enough

Hof International Court Verification
The International Court of Justice investigates

It is very difficult to design malicious software that only harms specific systems, rather than a wide range of them, Hallowbo said. This is demonstrated by the penetration of the internet via satellite.

The current war between Russia and Ukraine, which has spilled over into cyberspace, is also blurring the line between civilians and soldiers.

On February 26, 2022, the Government of Ukraine invited the world’s amateur hackers to join its “IT Army” and launch attacks on Russian targets. Since the first days of the war, Anonymous, a worldwide group of hackers, has announced that it is waging an electronic war against Moscow.

Halobo suspects that many cyber warriors are already aware of what their participation in the conflict entails under international humanitarian law.

“These fighters may lose their legal protection through their active participation in this conflict, as they are civilians and treated as fighters without their knowledge,” he said. “They are vulnerable to retaliation by the state attacking them, and they are vulnerable to possible prosecution after the war.”

As the guardian of international humanitarian law, the ICRC pays close attention to the latest developments on the battlefield, secretly communicates with states to remind them of the rules in force, and determines whether the law should change.

“We are witnessing a reality in which cyber operations are becoming more common in armed conflicts,” said Tilman Rudenhuiser, Legal Adviser to the International Committee of the Red Cross. Civilians can go on with it.

International humanitarian law has crystallized in a world where cyberattacks do not yet exist. Are his rules still sufficient today?

Rudenheuser replies: “We can not establish new rules of armed conflict every time we witness technological development.”

However, some aspects of the law are still subject to interpretation. One of the oldest rules of international humanitarian law is the protection of civilian objects. For many years it was not legal to destroy or destroy civilian data, for example understood as secret documents kept in the paper archive record. But what does the law say if that data is stored digitally?

In this regard, Rudenheuser said: “The rules of international humanitarian law do not explicitly address data protection,” adding that legal experts and states have differing views on how to apply international humanitarian law in this case.

For the ICRC, it is important for states to interpret existing legislation in such a way as to ensure that civilians and civilian infrastructure enjoy the same level of protection they have enjoyed in the past. These electronic weapons are subject to the same controls as conventional means of warfare.

“If states conclude that data is indeed a target, it can be destroyed or erased during armed conflict without legal consequences,” Rudenhuiser explained. The issue will then become a real humanitarian concern, and we will have to think about creating new rules. “

But states must negotiate the creation of new rules of international law. Once a treaty has been established, it must be signed and ratified. It is a long and complex process, especially since the current rules of international humanitarian law are virtually binding on all states.

“It is important that these agreed rules are also respected with regard to cyber activities, because the vast majority of threats to civilians are effectively covered by the existing rules,” Rudenheuser said.

The position of the international community

Ge A battle between nations with impunity
A battle between nations with impunity

Knowing whether international law, including international humanitarian law, applies to cyberspace and how it applies has been the subject of much multilateral discussion at the United Nations over the past two decades.

In 2013, progress was made in this area when the Group of Governmental Scientists issued a report, which was adopted by consensus, confirming that states’ use of information technology is subject to international law. The question of how to implement the law remained open.

In 2019, a new working group was established at the United Nations, open to all 193 member states. The purpose of the group was to follow up on the findings of the group of government experts.

“The challenge was to bring everyone back to the table and re-establish consensus,” said Jörg Lauber, Switzerland’s ambassador to the United Nations in Geneva and former chair of the working group.

Lauber explained that his task was complicated by “increased political tension between the major powers” and by “attempts to reformulate the rules by a small group of countries.”

Eventually, the Working Group also came to the conclusion that international law applies to electronic warfare. But even he could not reach an agreement on how to implement it.

“There has been progress in essence, but it’s not a big leap,” Lauber said. However, the support is now much wider because everyone has the opportunity to participate in the conversation. ”

A new working group has been established at the United Nations for the period from 2021 to 2025.

Lauber concluded, “I hope they can go further … It is clear that there is a gap between all the member states that agree on the applicability of current international law, and what we are seeing happening in the field of cyber technology is becoming illegal. use.”

Are these war crimes?

Are these war crimes?

The prosecution of those accused of war crimes for atrocities committed on the actual battlefield is a long, arduous process that takes years. And cyberspace adds more complexity to this field.

It is very difficult to detect who is behind a cyber attack, as attacks can easily be launched by proxy servers or what is known as a proxy server.

“Finding out how the attack was planned, how it was carried out and who ordered it, and actually revealing the identities of the individuals behind it, is a process that sometimes takes years of investigation,” Halopo said. He added that information from the real world is usually needed to prove hypothetical effects, for example if the government is involved, the names of people who worked at a specific place and time should be known along with the need for photos and so on. on.

“You have to incorporate a lot of information that is not immediately available,” Halopo explained. It can be achieved at its best, that is, if you somehow know that you are only dealing with one attacker. ”

The current war between Russia and Ukraine, which has spilled over into cyberspace, is also blurring the line between civilians and soldiers.

During the war in Ukraine, nation states, as well as criminal groups and individuals, launched cyber attacks. “Then the responsibility of those people who took part in the attacks must then be determined, and then the matter will be very complicated,” Halobo predicted.

Halubo believes it is possible that the International Criminal Court may be interested in some cyber-attacks that have harmed civilians, such as the attack on a satellite Internet service, or the breach of border controls between Ukraine and Romania, as the court has already begun investigating alleged war crimes committed on the spot in Ukraine. . The International Criminal Court is not yet investigating cyber warfare.

He stated that despite the atrocities committed, the war in Ukraine may serve as a lesson on the need to strengthen accountability in cyberspace.

“This is the first conflict in which cyber attacks of this scale are used,” Halopo concluded. So I think, in terms of international humanitarian law, there needs to be a discussion to recognize the extent to which cyberspace is being used to harm people and to prevent inappropriate behavior.

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