International humanitarian law and the protection of the civilian population in cyberspace: towards a human dignity- oriented interpretation of the notion of cyber-attack under Article 49 of Additional Protocol I

The use of cyber-technologies in times of armed conflict poses serious interpretive challenges, such as what type of cyber operations amount to an ‘attack’ for the purposes of Article 49 of Additional Protocol I. The notion of attack is the cornerstone of the law of targeting, a set of rules that includes the principles of distinction, proportionality and precaution, aimed at limiting the amount of violence that belligerents can lawfully employ on the battlefield. The rationale of these rules is that of increasing the protection of the dignity of the civilian population, which constitutes the main objective of modern international humanitarian law (IHL). In light of these considerations, my article argues that the prevailing interpretation of the notion of attack in the cyber context is too restrictive and cannot adequately protect the civilian population from cyber operations taking place in armed conflict. Consequently, it argues for a human-dignity based interpretation of the notion of ‘violence’ that underlies the notion of attack in the cyber context, going beyond the mere causation of physical violence to include serious psychological violence and serious economic violence as necessary prerequisites to qualify a cyber operation as an ‘attack’.