Cognitive warfare in the biotechnological age: threats and challenges to international law

The use of cyber operations during armed conflicts and the question of how international humanitarian law (IHL) applies to such operations have developed significantly over the past two decades. In their different roles in the Legal Division of the International Committee of the Red Cross (ICRC), the authors of this article have followed these developments closely and have engaged in governmental and non-governmental expert discussions on the subject. In this article, we analyze pertinent humanitarian, legal and policy questions. We first show that the use of cyber operations during armed conflict has become a reality of armed conflicts and is likely to be more prominent in the future. This development raises a number of concerns in today's increasingly cyber-reliant societies, in which malicious cyber operations risk causing significant disruption and harm to humans. Secondly, we present a brief overview of multilateral discussions on the legal and normative framework regulating cyber operations during armed conflicts, looking in particular at various arguments around the applicability of IHL to cyber operations during armed conflict and the relationship between IHL and the UN Charter. We emphasize that in our view, there is no question that cyber operations during armed conflicts, or cyber warfare, are regulated by IHL – just as is any weapon, means or methods of warfare used by a belligerent in a conflict, whether new or old. Thirdly, we focus the main part of this article on how IHL applies to cyber operations. Analyzing the most recent legal positions of States and experts, we revisit some of the most salient debates of the past decade, such as which cyber operations amount to an “attack” as defined in IHL and whether civilian data enjoys similar protection to “civilian objects”. We also explore the IHL rules applicable to cyber operations other than attacks and the special protection regimes for certain actors and infrastructure, such as medical facilities and humanitarian organizations.

The Outer Space Treaty confirms that the principles of international law apply to the use and exploration of outer space. Given the development of technology, outer space is more frequently being used during the course of armed conflict, particularly through the use of sophisticated satellite technology, notwithstanding the ‘peaceful purposes’ provisions of that Treaty. Not only does this give rise to international law issues relating to the use of force, but it also requires an understanding of how and to what extent the international law principles of jus in bello – international humanitarian law – also apply to the conduct of these outer space activities. This paper examines a number of specific aspects of the jus in bello principles as they relate to the use of outer space. Although international humanitarian law does apply to activities in outer space, the principles may not be specific enough to provide appropriate regulation for the increasingly diverse ways in which outer space could be used during the course of armed conflict. There is therefore a growing need to reach a consensus on additional space law regulation directly applicable to the conduct of armed conflict which may involve the use of space technology.

This chapter re-examines the doctrinal formulation of the proportionality principle in the context of its emerging applications in cyber attacks. It describes the conceptual roots of the proportionality principle, particularly insofar as the jus ad bellum and jus in bello usages provide a useful contradistinction in the context of cyber operations. The chapter summarizes the normative contours of the modern lex lata related to proportionality, which is the necessary predicate for the application of its modern formulations to cyber attacks. Proportionality, like many other strands found in modern international humanitarian law (IHL), represents the precise fissure between the unyielding aspiration to protect civilians during conflicts and the stark realization that legal tenets never provide an impenetrable guarantee of protections. Proportionality therefore represents the logical end-state of two dominant historical developments. Keywords:cyber attacks; cyber operations; international humanitarian law (IHL); jus ad bellum ; jus in bello ; proportionality

Purpose – The increasing number of cyber attacks has transformed the “cyberspace” into a “battlefield”, bringing out “cyber warfare” as the “fifth dimension of war” and emphasizing the States’ need to effectively protect themselves against these attacks. The existing legal framework seem inadequate to deal effectively with cyber operations and, from a strictly legal standpoint, it indicates that addressing cyber attacks does not fall within the jurisdiction of just one legal branch. This is mainly because of the fact that the concept of cyber warfare itself is open to many different interpretations, ranging from cyber operations performed by the States within the context of armed conflict, under International Humanitarian Law, to illicit activities of all kinds performed by non-State actors including cybercriminals and terrorist groups. The paper initially presents major cyber-attack incidents and their impact on the States. On this basis, it examines the existing legal framework at the European and international levels. Furthermore, it approaches “cyber warfare” from the perspective of international law and focuses on two major issues relating to cyber operations, i.e. “jurisdiction” and “attribution”. The multi-layered process of attribution in combination with a variety of jurisdictional bases in international law makes the successful tackling of cyber attacks difficult. The paper aims to identify technical, legal and, last but not least, political difficulties and emphasize the complexity in applying international law rules in cyber operations. Design/methodology/approach – The paper focuses on the globalization of the “cyber warfare phenomenon” by observing its evolutionary process from the early stages of its appearance until today. It examines the scope, duration and intensity of major cyber-attacks throughout the years in relation to the reactions of the States that were the victims. Having this as the base of discussion, it expands further by exemplifying “cyber warfare” from the perspective of the existing European and International legal framework. The main aim of this part is to identify and analyze major obstacles that arise, for instance in terms of “jurisdiction” and “attribution” in applying international law rules to “cyber warfare”. Findings – The absence of a widely accepted legal framework to regulate jurisdictional issues of cyber warfare and the technical difficulties in identifying, with absolute certainty, the perpetrators of an attack, make the successful tackling of cyber attacks difficult. Originality/value – The paper fulfills the need to identify difficulties in applying international law rules in cyber warfare and constitutes the basis for the creation of a method that will attempt to categorize and rank cyber operations in terms of their intensity and seriousness.

This article explores the legal implications of cyber warfare through the dual lenses of jus ad bellum and jus in bello, emphasizing state responsibility and the applicability of international criminal law. As cyberspace becomes an increasingly contested domain of modern conflict, traditional legal frameworks struggle to address its unique attributes—particularly anonymity, asymmetry, and the civilian-military entanglement of digital infrastructure. The first section establishes the conceptual foundations of cyber warfare, detailing the evolution of conflict modalities and the relevance of classical international law doctrines. The second section examines the legal constraints on the use of force under jus ad bellum, analyzing state sovereignty,self-defense under Article 51 of the UN Charter, and due diligence obligations. It is argued that cyber operations targeting critical infrastructure may constitute breaches of jus cogens norms, thus attracting heightened scrutiny under customary law. The third section addresses jus in bello, applying the principles of proportionality, distinction, and the protection of non-combatants in cyber contexts. It highlights the vulnerabilities of civilian infrastructures—such as hospitals and power grids—and scrutinizes AI-based decision-making systems that challenge transparency and accountability. Particular attention is paid to the intersection between international humanitarian law and human rights protections, especially regarding digital identity and surveillance practices. The final section explores implementation challenges, including attribution difficulties, enforcement gaps, and the limitations of current treaty regimes. Using case studies such as Stuxnet, NotPetya, and the Ukraine power grid attacks, the paper advocates for the development of a binding international cyber warfare treaty, expansion of the Rome Statute, and inclusion of AIrelated offenses. The article concludes that without normative adaptation, both deterrence and justice mechanisms will remain inadequate in the digital theater of war.

Executive summary•Cyber operations have become a reality in contemporary armed conflict. The International Committee of the Red Cross (ICRC) is concerned by the potential human cost arising from the increasing use of cyber operations during armed conflicts.•In the ICRC's view, international humanitarian law (IHL) limits cyber operations during armed conflicts just as it limits the use of any other weapon, means or method of warfare in an armed conflict, whether new or old.•Affirming the applicability of IHL does not legitimize cyber warfare, just as it does not legitimize any other form of warfare. Any use of force by States – cyber or kinetic – remains governed by the Charter of the United Nations and the relevant rules of customary international law, in particular the prohibition against the use of force. International disputes must be settled by peaceful means, in cyberspace as in all other domains.•It is now critical for the international community to affirm the applicability of international humanitarian law to the use of cyber operations during armed conflicts. The ICRC also calls for discussions among governmental and other experts on how existing IHL rules apply and whether the existing law is adequate and sufficient. In this respect, the ICRC welcomes the intergovernmental discussions currently taking place in the framework of two United Nations General Assembly mandated processes.•Events of recent years have shown that cyber operations, whether during or outside armed conflict, can disrupt the operation of critical civilian infrastructure and hamper the delivery of essential services to the population. In the context of armed conflicts, civilian infrastructure is protected against cyber attacks by existing IHL principles and rules, in particular the principles of distinction, proportionality and precautions in attack. IHL also affords special protection to hospitals and objects indispensable to the survival of the civilian population, among others.•During armed conflicts, the employment of cyber tools that spread and cause damage indiscriminately is prohibited. From a technological perspective, some cyber tools can be designed and used to target and harm only specific objects and to not spread or cause harm indiscriminately. However, the interconnectivity that characterizes cyberspace means that whatever has an interface with the Internet can be targeted from anywhere in the world and that a cyber attack on a specific system may have repercussions on various other systems. As a result, there is a real risk that cyber tools are not designed or used – either deliberately or by mistake – in compliance with IHL.•States’ interpretation of existing IHL rules will determine the extent to which IHL protects against the effects of cyber operations. In particular, States should take clear positions about their commitment to interpret IHL so as to preserve civilian infrastructure from significant disruption and to protect civilian data. The availability of such positions will also influence the assessment of whether the existing rules are adequate or whether new rules may be needed. If States see a need to develop new rules, they should build on and strengthen the existing legal framework – including IHL.

Once upon a time, in that by-gone era known as modernity, we had some clarity: boys were boys; girls were girls; the private sphere was distinct from the public sphere; war was distinct from peace; wars were fought between states and against combatants, as distinct from civilians. Wars were regulated exclusively by the jus in bello. Well, that world is no more. We have gradually come to admit that in the DNA of the human condition, war and peace are the twining strands of the helix; that it is becoming ever harder to sustain those comforting distinctions. Accordingly, we have come to adjust our laws. Part of this adjustment involves the co-application of International Humanitarian Law (IHL) and Human Rights Law (IHR). A comprehensive discussion of this issue, involves three main points: (1) the justification for the co-application of both IHL and IHR in situations of armed-conflict in general, and of belligerent occupation in particular; (2) difficulties this co-application generates; and (3) development of modalities for co-application. Point 3 thus, moves from the question of whether both legal regimes apply (point 1) to the question of how to apply them, given the difficulties this co-application entails (point 2). Given time constraints, and particularly given the need to counter-argue the position presented by Michael Dennis, my discussion focuses only on points (1) and (2). Point 3 may well deserve a separate panel. Allow me to begin with the first point. IHR APPLIES EXTRATERRITORIALLY This application extends to situations of armed-conflict in general and to situations of occupation in particular: an occupying power, to the extent that it exercises potential or actual effective control over an occupied territory, bears responsibility for the HR of the inhabitants of the territory under both IHL--as the lex specialis--and IHR, which complements IHL either to fill gaps or for interpretation purposes. This is generally the case, and particularly so in cases of long-term occupations, as IHL, having envisaged a temporary--not a prolonged and certainly not an indefinite--occupation, is clearly insufficient. (1) This position rests on three interrelated grounds: (2) (a) the principle of the universality of IHR; (b) the interpretation of the term jurisdiction in HR treaties, an interpretation informed by the principle of universality, and which substitutes the test of effective control for the concept of territory; and (c) overwhelming practice and jurisprudence of diverse international and other bodies, including the Supreme Court of Israel (HCJ). I shall elaborate briefly on each point. The Principle of Universality There has been a paradigmatic shift in the drive of international law from focusing primarily on the interests of the sovereign state in its security to focusing on human rights of individuals and minorities. (3) This new focus is not a lofty vision of some utopian law professors tending to prefer fantasy to actual thought. Rather, it derives from post cold-war political realities which include a new understanding of security itself. It is none other than the US that takes the lead in arguing for the legality of humanitarian intervention, that is, for expanding the jus ad bellum rules to authorize the use of force in the light of human rights and humanitarian considerations: the latter, thus, have become an aspect of security and are no longer perceived as a distinct branch of law standing in dialectical opposition to the use of force. It does seem somewhat curious that force used with these considerations in mind should be exempt from the application of the very norms it is supposedly being exercised to protect. The principle of the universality of HR has infiltrated the hitherto distinct discourses not only of the jus ad bellum, but also of the jus in bello, appropriately re-named IHL: whereas traditionally IHL provided the rules governing the conduct of parties to an international conflict, today it has expanded to cover non-international armed conflicts, further blurring the distinction between war and peace. …

The security of cyberspace high strategic interest has been particularly intensified since the States have become aware of the possibility of extending their military operations to that virtual space, which has thus become a “fifth domain of warfare”, adding to the terrestrial, maritime, air and space domains. This raises the question of whether current conventional and customary International Humanitarian Law applies to cyber-hostilities, that is, the military operations that the parties to an armed conflict conduct against the adversaries in and through cyberspace. Although the analysis of the application of the current jus in bello to the cyber operations obviously includes many other aspects, the present chapter addresses only two basic issues. The first one focuses on the requirements that, in the absence of conventional hostilities, should concur for the applicability of International Humanitarian Law to operations conducted by cyber means. This makes it necessary to differentiate between international and non-international armed conflicts. The second one is about when cyber operations would be equivalent to “attacks” in the sense of the jus in bello: acts of violence against the adversary, whether in offence or in defence, paying particular attention to the “violence” element of the definition.

O August 7, 2008, Georgian forces launched attacks into South Ossetia, including against Russian troops who were in the breakaway region as “peacekeepers.” The jus ad bellum issues surrounding the conflict remain controversial.1 However, it is incontrovertible that once Georgian and Russian forces became embroiled in hostilities against each other, an international armed conflict subject to the jus in bello (international humanitarian law (IHL) or the law of armed conflict) had begun. During the conflict, numerous defacement and denial of service cyber operations were directed against Georgian entities.2 The cyber targets included the websites of the President; Parliament; Foreign Affairs, Defence and Education ministries; domestic and foreign media; banks; and private Internet servers and blogs. For instance, defacement of the Ministry of Foreign Affairs website included the posting of a collage of photos of Adolf Hitler and Georgian President Mikheil Saakashvili. Similarly, the site of the National Bank of Georgia was replaced with one depicting twentieth-century dictators together with Saakashvili. On average, each operation lasted two hours. Although no physical damage or injuries were reported, the disruption of services proved severe. In particular, the Georgian government found itself unable to broadcast information about the

The Facilitative Function of Jus in Bello

The purpose of this Chapter is to establish when the law of armed conflict applies to cyber operations. As conventional jus in bello does not provide a general definition of ‘armed conflict’ but merely distinguishes between different types of armed conflicts to which different sets of rules apply, these types of conflict are addressed in turn. First, the Chapter focuses on international armed conflicts and distinguishes between several scenarios that might lead to the application of the jus in bello to cyber operations. In particular, both cyber operations in the context of an existing traditional armed conflict and standalone cyber operations are discussed in order to establish whether international humanitarian law applies to them. The Chapter also deals with cyber operations in the context of belligerent occupation. Cyber operations in and as non-international armed conflicts are then examined, before turning to cyber operations as internal disturbances and tensions.

From a positivist perspective this paper aims at analyzing the Islamic Law of War (ILW) during armed hostilities. Extensive work has already been delivered by many scholars in the field with respect to the evolution of the ILW. This study will, in particular, address the principles of distinction and proportionality (which are also found in the traditions of International Humanitarian Law (IHL), i.e. jus in bello) from the outlook of the primary sources of Islamic law, i.e. the Qur’an and the Sunnah. The latter provide the basis for understanding state conduct during peace and war times, i.e. the so-called siyar. This paper tries to categorize firstly the territorial and temporal jurisdiction of ILW, secondly its subjects and finally the conduct of hostilities in order to give a clearer picture of certain principles present within the Qur’anic experience but whose juristic interpretations have blurred the straightforwardness by which the Prophet has spread the message. Without entering into the debate of the origins of IHL and ILW, this structure will facilitate an understanding of past and ongoing conflicts with perpetrators and victims from Islamic and Western origins. It will attempt to encourage the essential dialogue among the responsible actors for the sake of regulating the protection of civilians and avoiding unnecessary suffering on both sides of the divide.

The intriguing relationship between jus ad bellum and jus in bello has provoked perennial academic debates. This article examines this issue from Chinese perspectives and offers a cultural critique of the well-entrenched norm of the ad bellum/in bello separation in international humanitarian law. Based on its distinctive traditional perception of the world order and the meaning of war, China embraces a holistic understanding of the ad bellum/in bello relationship. This relationship is construed as essentially harmonized. The cardinal moral principle underpinning it is that a just war should be conducted in a just way. The ad bellum/in bello separation in international humanitarian law has a Western origin, and the rationale behind it intimates Western sensitivity to the European just war tradition in which jus in bello was parasitic on jus ad bellum. It is assumed that jus ad bellum and jus in bello are irreconcilably in conflict once they come into contact with one another. This assumption is followed by a widely-held belief that any attempt to reconnect the two concepts would bring nothing but the subordination of jus in bello to jus ad bellum as experienced in European just war and, consequently, the collapse of the former. Chinese perspectives nevertheless evidence that this conventional line of thinking, hampering scholars from thinking beyond the sealed ad bellum/in bello separation, is not sound. A proposal for a more constructive solution should be taken into consideration.

This chapter examines the application of the jus in bello, or international humanitarian law (IHL), to information operations, specifically computer network attacks (CNA). Discussion centres on the use of CNA in the context of an international armed conflict, although the conclusions would apply equally to a non-international armed conflict for those customary rules of IHL which extend into that form of conflict. It begins by addressing the threshold issue of whether IHL applies at all to CNA. Concluding it does, the chapter goes on to explore the key aspects of IHL relevant to CNA operations, especially the rules which prohibit the use of indiscriminate weapons and those governing targeting. Of particular note is the discussion of the notion of “attack” in the CNA context. Ultimately, it is concluded that CNA presents a particular problem for application of the traditional IHL.

This article scrutinizes the phrase 'all necessary means to protect civilians under threat of attack', contained in the United Nations (UN) Security Council Resolution 1973 (2011) authorizing military force in the Libyan Arab Jamahiriya (Libya). It assesses both the meaning of this phrase and the legal regime pursuant to the resolution. That regime challenges the teleological separation but concurrent application of the law on the use of force (the jus ad bellum), and the law applicable in international and non-international armed conflict [the jus in bello or international humanitarian law (IHL)]. Security Council Resolution 1973, and its understanding of the term 'civilian', should be read in accordance with other international law norms; prima facie conflict of the resolution with IHL on the issue of targeting can be resolved. The resolution was however ambiguous on when force can be used. It is suggested that Resolution 1973 required a demonstrable risk of indiscriminate attack to civilians, per se necessity and jus ad bellum proportionality, the latter exceeding IHL's concept of proportionality because of the specificity of the resolution's aim. In examining the concurrent application of the jus ad bellum and the jus in bello in the context of specific interventions in Libya, the criticism that some states contributing coalition forces overstretched their mandate is corroborated. A combination of the resolution's ambiguity and political considerations lie at the heart of that overstretch. In developing international law for analogous situations, the intervention is likely to exacerbate existing quarrels over future council action to protect civilians. Language: en