Abstract
A recent spate of governmental shutdowns of the civilian internet in a broad range of violent contexts, from uprisings in Hong Kong and Iraq to armed conflicts in Ethiopia, Kashmir, Myanmar, and Yemen, suggests civilian internet blackouts are the ‘new normal.’ Given the vital and expanding role of internet connectivity in modern society, and the emergence of artificial intelligence, internet shutdowns raise important questions regarding their legality under intentional law. This article considers whether the existing international humanitarian law provides adequate protection for civilian internet connectivity and infrastructure during armed conflicts. Concluding that current safeguards are insufficient, this article proposes a new legal paradigm with special protections for physical internet infrastructure and the right of civilian access, while advocating the adoption of emblems (such as the Red Cross or Blue Shield) in the digital world to protect vital humanitarian communications.
Highlights
What would happen if the internet was destroyed or inaccessible for a day, week, month, or longer? This dire hypothetical is a reality for millions of people around the world
This paper aims to provide an analytic framework for policymakers, military commanders, and their legal advisors to determine whether activities that impact civilian internet access are lawful under the current international law, in addition to identifying opportunities to advance international legal protections
Under the International Telecommunications Union (ITU) Constitution, states parties can “stop the transmission of any private telegram which may appear dangerous to the security of the State or contrary to their laws, [or] to public order” and can “cut off any other private telecommunications which may appear dangerous” with a right “to suspend the international telecommunication service.”[117] enacted before internet use became ubiquitous, the ITU Constitution remains in effect today
Summary
What would happen if the internet was destroyed or inaccessible for a day, week, month, or longer? This dire hypothetical is a reality for millions of people around the world. In February 2020, Myanmar became embroiled in civil conflict against the Muslim Rohingya minority’s Arakan Army and imposed a three-month-long internet blackout in Rakhine State, justifying the action as necessary due to “security requirements.”[10] These recent shutdowns almost certainly will not be the last time that a government severs the civilian population’s access to the internet during armed conflict. While international human rights law (IHRL) establishes that internet access must be maintained at all times, the Law of Armed Conflict (LOAC) would, according to most scholars, apply lex specialis, superseding IHRL, and thereby permitting attacks on the internet as a civilian object if military commanders deem it necessary and proportionate. IMPORTANCE AND VULNERABILITY OF CIVILIAN INTERNET ACCESS DURING ARMED CONFLICT
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