‘Objects’? The Legal Status of Computer Data under International Humanitarian Law

Abstract

This paper discusses whether computer data constitutes an ‘object’, in the meaning of this term under international humanitarian law (IHL). The paper begins by providing background on what is meant by ‘computer data’, explaining that the entirety of a computer’s functioning, and the content stored on it, depends on data, but that data itself is not tangible. The paper then describes the significance of any determination whether computer data constitutes an ‘object’ for the purposes of IHL, explaining the importance of the concept of ‘object’ in the application of rules relating to distinction, proportionality and precautions. At the same time, it recalls that there are rules of IHL that may protect computer data serving certain functions, the application of which is not dependent on whether data constitutes an ‘object’. The paper then proceeds to consider the meaning of the term ‘object’ as found in the First Additional Protocol to the Geneva Conventions (API). Recourse is made to the customary rules of treaty interpretation, enshrined in articles 31-33 of the Vienna Convention on the Law of Treaties, while focusing on both the English and French versions of API. The ordinary meaning of the term ‘object’ in its context in API solely connotes material things, thus excluding computer data. Moreover, recourse to the object and purpose of API, or to so-called ‘evolutionary’ interpretation, does not lead to a different conclusion. Considering the importance of customary international law for states non-parties to API, and for the purposes of non-international armed conflicts, the paper continues to address the question whether computer data constitutes an ‘object’ for the purposes of custom. The paper analyses the development of the term ‘object’ in legal discourse over the past century in determining what states intended this term to mean, and finds that here, too, states considered ‘objects’ in the context of IHL to be material things. It also explains that there is no apparent trend among states as to whether data constitutes an ‘object’, and the paucity of official statements on the part of states is far from the necessary volume for it to carry particular legal significance.