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France Speaks Out on IHL and Cyber Operations: Part II

Published on October 1, 2019        Author: 

In the first part of this post I discussed the position paper’s articulation of the views of France on the applicability of IHL to cyber operations, on the classification of armed conflicts, and on their geographical scope in the cyber context. In this part I will examine the position paper’s views on the concept of “attack,” on the conduct of hostilities and on data as an object.

The Meaning of the Term “Attack”

The issue of the meaning of the term “attack” has occupied center stage from the very inception of legal thinking about cyber operations during an armed conflict. It is a critical one because most key IHL “conduct of hostilities” rules are framed in terms of attacks – it is prohibited to direct “attacks” against civilians or civilian objects (distinction), an “attack” expected to cause collateral damage that is excessive to the anticipated military advantage is prohibited (proportionality), parties must take precautions in “attack” to minimize harm to civilians (precautions in attack), etc.  These prohibitions, limitations, and requirements beg the question of when a cyber operation qualifies as an “attack” such that the rules govern it.

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France Speaks Out on IHL and Cyber Operations: Part I

Published on September 30, 2019        Author: 

The French Ministry of the Armies (formerly the Ministry of Defense) has recently released Droit International Appliqué aux Opérations dans le Cyberspace (International Law Applicable to Operations in Cyberspace), the most comprehensive statement on the applicability of international law (IHL) to cyber operations by any State to date.  The position paper dealt definitively with many of the current unsettled issues at the forefront of governmental and scholarly discussions.

This two-part post builds on an earlier post at Just Security in which I examined the position paper’s treatment of the relationship between peacetime international law, including that set forth in the UN Charter regarding uses of force, and hostile cyber operations. The focus here, by contrast, is on France’s views as to how IHL applies in the cyber context. Key topics addressed in the paper include the applicability of IHL in cyberspace; classification and geography of cyber conflict; the meaning of the term “attack” in the cyber context; the legal nature of data during an armed conflict; and other significant IHL prohibitions, limitations, and requirements on cyber operations.

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