Table of Contents

Research Handbook on International Law and Cyberspace

Research Handbook on International Law and Cyberspace

Research Handbooks in International Law series

Edited by Nicholas Tsagourias and Russell Buchan

This timely Research Handbook contains an analysis of various legal questions concerning cyberspace and cyber activities and provides a critical account of their effectiveness. Expert contributors examine the application of fundamental international law principles to cyberspace such as sovereignty, jurisdiction, state responsibility, individual criminal responsibility, and intellectual property rights. In addition to this, they explore the application of international law rules to cyber terrorism, cyber espionage, cyber crime, cyber attacks and cyber war and discuss the cyber security policies of international and regional institutions.

Chapter 16: Is the principle of distinction still relevant in cyberwarfare?

Karine Bannelier-Christakis

Subjects: law - academic, internet and technology law, public international law, regulation and governance, terrorism and security law

Abstract

From the ICRC to the Tallinn Manual on International Law Applicable to Cyberwarfare, there seems to be a broad consensus that cyberwar, like any other method or means of warfare, is subject to the traditional rules of the law of armed conflict, including one of its ‘cardinal principles’, the principle of distinction. However, the transposition of the principle of distinction into cyberspace raises important legal questions. Indeed, the prohibition of direct attacks against civilians, which is the cornerstone of the principle of distinction, cannot be easily transposed to cyber-operations that are in part or completely dematerialized. It is thus necessary to review this principle carefully in order to assess whether it is strictly focused on the prohibition of ‘attacks’ against civilians or whether it could also be interpreted as prohibiting any kind of direct military cyber operations against them. The interconnectivity characterizing the cyberspace also challenges the protective status given by the principle of distinction. By blurring the distinction between civilians and the military, cyberwarfare makes the enforcement of the principle of distinction all the more challenging.

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