The Future of International Humanitarian Law

I just returned from a debate competition on International Humanitarian Law (IHL), held in Bali, a few days ago. While in my opinion, the competition is marred with this and that, the competition raises a few issues contemporary to IHL, which worth further discussion.

I actually divide the development of IHL into three periods:

  • The emergence of International Armed Conflict (IAC), which was the main cause of the establishment of IHL. First regulated on the Hague Conventions and the 1949 Geneva Conventions, the Additional Protocol I (1977) later supplemented it.
  • The emergence of Non-International Armed Conflict (NIAC), which gained prominence during the second half of the 20th century, especially after World War II. First regulated by the Common Article 3 of the 1949 Geneva Conventions, the Additional Protocol II (1977) later supplemented it.
  • In the third period, non-traditional means and methods of warfare are put into question.

In the past, any means and methods of warfare are used to ‘attack’, i.e. to do violent attack both in offense or defense, to either render incapable or kill an adversary. Guns, rifles, bombs, and those kinds of weapons are conventional means of warfare (not to confuse with ‘conventional weapons’). Meanwhile, we are facing different kinds of warfare now.

One of such warfare is cyber warfare. Cyber warfare creates a new debate in discourses of IHL, because there are no explicit provisions of IHL regulate such warfare. There are various definitions of cyber warfare, including hacking, virus attacks, up to combat drones and sensor-powered weapons. Cyber attacks raise questions due to various reasons.

To begin with, the nature of the cause. Whoever causes cyber warfare is not quite clear. It ranges from individuals, groups, up to (allegedly) states. In most cases, the perpetrator is unknown, with no positive identification is possible. While tracking IP address has been offered to solve this problem, it does not solve the problem of individual vs state actors. In conventional armed conflict, combatants (IAC) or belligerents (NIAC) bear certain criteria, to be elaborated in the next point.

Now, answering the criteria. To qualify as either combatant (IAC) or belligerent (NIAC), there are criteria to fulfilled. The four main criteria for either parties are: having chain of command, bearing distinctive emblem (e.g. uniform), carrying arms openly, respect and obey the laws of war (an additional requirement for belligerents is the requirement for recognition). Whoever commits cyber warfare (or consequently, violations of IHL therefore) will be hard to determined, let alone categorized. It will be close to impossible to say that someone perpetrates cyber warfare and can be called belligerent/combatant.

One interesting case will be the Syria Electronic Army, a ‘group’ that hacked some of the world’s most important websites, including Associated Press and FIFA (the world association football federation). While the group claims to be an ‘army’, it will still be difficult to determine whether this group qualifies as combatant or not.

Thirdly, a question of guilt. One of the concerns of cyber warfare is on the question of guilt: due to the indirect nature of the attack, there may be some decreased amount of guilt from the perpetrator, thus allowing the perpetrator to possibly commit violations of IHL. In this case, the perpetrator has the possibility to distant him/herself from the attacks.

Fourthly, the indirect nature of the attack. One of the key concepts in IHL is ‘direct participation in hostilities’, signifying that both parties of the conflict should conduct any attack directly (i.e. face-to-face). In cyber warfare, no such conduct of hostilities is possible. Perpetrators can sit behind the comfort of their desk and commit such attack.

To conclude, cyber warfare is merely one contemporary issue that IHL is yet to settle. While there are still no clear consensus on the relations between such conflict with IHL, certain provisions should be made to stay true to the main ideal of IHL: to make conflict more humane, by limiting things that cannot be done during armed conflict.

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