HILAC Lecture “Cyber Warfare & Law and Armed Conflict”

Published 8 April 2015

On 31 March 2015, Brigadier-General Prof. Paul Ducheine, Professor in the Law of Cyber Warfare at the University of Amsterdam and in Cyber Operations at the Netherlands Defence Academy, provided the first Hague Initiative for Law and Armed Conflict (HILAC) Lecture of the year, focusing on “Cyber Warfare & Law and Armed Conflict”. The lecture was organized by the T.M.C. Asser Instituut, in cooperation with the Amsterdam Center for International Law and Het Nederlandse Rode Kruis.

The lecture was moderated by Jeroen van den Boogaard, Assistant Professor of Military Law at the Netherlands Defence Academy and Lecturer at the Amsterdam Center for International Law.

Prof. Paul Ducheine delivered a comprehensive presentation, explaining the concept of “cyberspace” and its consequent cyber security threats which increased with the continuous development of a “digital area”. He acknowledged that, for the first time in history, the phenomenon called “cyber warfare” was noticed during the attacks in cyber space directed against Estonia (2007). Other incidents in cyber space followed, against Georgia (2008), Iran (2011) or Gaza - II (2012) and they triggered States’ responses by means of countermeasures. Prof. Ducheine further explained the four countermeasures paradigms set up by States to counter cyber insecurity. They include Information and Communication Technology (ICT) protection via antivirus software, law enforcement measures if the violation of a private space continues, intelligence services’ involvement in the wake of some specific malicious activities and, as a last resort, military engagement.

In the final part of the lecture, Prof. Ducheine focused on the legal bases of cyber warfare. In the context of jus ad bellum, concepts such as the “use of force”, “principle of non-intervention” and “self-defence” were explained, in order tounderstand when States can legally resort to the use of force in cyber space. As regards jus in bello applicable to cyber warfare, Prof. Ducheine highlighted some of the Law of Armed Conflict (LOAC) issues including, among others, the international and non-international armed conflict threshold, the definition of “damage” and, in particular, “collateral damage” as well as the distinction between military and civilian objectives.

In order to better explain the international law applicable to cyber warfare, Prof. Ducheine relied on the Tallinn Manual on the International Law applicable to Cyber Warfare, prepared by an international group of experts at the invitation of NATO Cooperative Cyber Defence Centre of Excellence.