Author:

Abstract

Cyberoperations are an increasingly prevalent part of armed conflict, as evidenced by the recent cyber-based incidents in Ukraine. While much has been written about how the law of armed conflict (LOAC) applies to such operations, relatively little attention has been paid to the role of international human rights law (IHRL). This article seeks to contribute to filling this gap with a view to international armed conflict. In its first part, it will be demonstrated that essential parts of LOAC are premised on the idea that only operations having violent effects like death, injury or destruction are of a severity that would justify an obligation to distinguish between civilians and military objectives. As political, economic and social activities move into the non-physical sphere of cyberspace, this is assumption is no longer tenable. Yet, it is averred that simply applying the principle of distinction to all cyberoperations does not constitute a satisfying solution. The article hence turns to IHRL and finds that its focus on individual rights and accountability could compensate LOAC’s shortcomings. However, IHRL’s protective value is greatly circumscribed by its limited extraterritorial applicability. The novel conclusion offered in the final section is that the true source of the existing gap in legal protection against military cyberoperations is the possibility of affecting the enjoyment of immaterial goods and freedoms without having physical control over a person. This makes the norms of LOAC inadequate and IHRL inapplicable, leaving civilians caught up in situations of armed conflict vulnerable to severely harmful cyberoperations.

Keywords: international humanitarian law, cyberspace, international human rights law, armed conflict, cyberwarfare

How to Cite: Grote, T., 2023. Best of both worlds? The interplay between international human rights law and the law of armed conflict in cyberspace. LSE Law Review, 8(2), pp.179–226.