Cyber Warfare and the “Humanization” of International Humanitarian Law

Cyber Warfare and the “Humanization” of International Humanitarian Law

Steven Kleemann
Copyright: © 2021 |Pages: 11
DOI: 10.4018/IJCWT.2021040101
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Cyber warfare is a timely and relevant issue and one of the most controversial in international humanitarian law (IHL). The aim of IHL is to set rules and limits in terms of means and methods of warfare. In this context, a key question arises: Has digital warfare rules or limits, and if so, how are these applicable? Traditional principles, developed over a long period, are facing a new dimension of challenges due to the rise of cyber warfare. This paper argues that to overcome this new issue, it is critical that new humanity-oriented approaches is developed with regard to cyber warfare. The challenge is to establish a legal regime for cyber-attacks, successfully addressing human rights norms and standards. While clarifying this from a legal perspective, the authors can redesign the sensitive equilibrium between humanity and military necessity, weighing the humanitarian aims of IHL and the protection of civilians—in combination with international human rights law and other relevant legal regimes—in a different manner than before.
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The Humanization Of International Humanitarian Law

In contrast with human rights law, IHL condones or at least allows the killing and injuring of human beings not even directly participating in an armed conflict – “civilian victims of lawful collateral damage.” (Meron, 2000:240) Besides that, deprivation of personal freedoms without a judgement, wide-scale restrictions of freedom of expression and assembly is possible (Meron, 2000:240). All this is acceptable during armed conflict as long as “the rules of the game” are followed. The law of armed conflict (LOAC) regulates the dimensions of a struggle of life and death between opponents who are deemed equivalent as they are mainly both states (Meron, 2000:240). International Human Rights Law (IHRL) however, applies in the relationship between unequal parties (states and individuals), and its aim is to protect the physical integrity and human dignity (Meron, 2000:240). It becomes apparent that the two regimes IHL and IHRL are different, and the ‘humanization’ of the law of war can, in some way, be considered a contradiction in terms. Two overarching principles are held in the balance: military necessity and humanity.

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