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Protecting societies – Anchoring a new protection dimension in international law during armed conflict: An agenda for discussion

EJIL: Talk! (Blog of the European Journal of International Law)
Robin Geiss, Henning Christian Lahmann (2021)
Ethics and social responsibility; Information technology and systems
international humanitarian law, law of armed conflict, society protection, cyber operations, cyber attacks, cybersecurity
Adversarial military cyber operations carried out during armed conflict can affect the functioning of civilian societies in unprecedented ways, challenging the protected reach of international humanitarian law (IHL). In light of this, the article argues for the recognition of new protection needs to shield critical societal processes from cyber threats in conflict situations. Although experts and states generally agree that cyber operations are subject to IHL, the digital transformation has added novel vulnerabilities that do not easily map onto the law’s traditional rationale of providing baseline protection against the ramifications of kinetic warfare, such as to minimise death, injury, and destruction among the civilian population. Today’s military cyber capabilities have the potential to severely impact essential societal processes across economic, financial, scientific, cultural, and healthcare domains as well as public information spaces. While such consequences may be more diffuse and intangible, in an interconnected world they can affect entire societies and cause systemic disruption on a major scale. Recognising this paradigm shift, the article calls for a more comprehensive understanding of what protection of the civilian population in twenty-first century warfare entails. It submits that certain societal processes and functions must be considered assets so essential as to require legal protection under IHL irrespective of possible physical aspects. In order to meaningfully expand IHL’s traditionally narrow focus on objects, kinetic warfare, and physical destruction, the article intends to initiate a discussion about adding the protection of essential societal processes as a new protection dimension to the law of armed conflict.