Attacking Data: Moving beyond the Interpretative Quagmire of the ‘Data as an Object’ Debate

Abstract

Abstract A key contemporary challenge for international lawyers is to determine how international humanitarian law (ihl) applies to cyber operations. This involves determining how ihl language – devised for the physical world – can be translated into usable concepts for the digital age. Often, this is done largely by balancing the ‘ordinary meaning’ of specific ihl concepts against the ‘object and purpose’ of ihl treaties. This, at least, has been the case in the debate on whether the concept of ‘objects’ include or exclude (digital) data. Contributors to this debate often emphasise this balancing act, but also seem guided by what they consider acceptable outcomes. Specifically, they argue that what is legal in the analogue, physical world should not be rendered illegal through digitisation and vice versa. This article argues that this approach is unhelpful as it leads to conflicting results. Instead, we argue that the addition of a contextual analysis could help move the debate forward.