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Canadian Journal of Law and Technology

Authors

Giacomo Biggio

Abstract

The aim of International Humanitarian Law (‘‘IHL”) is to regulate the conduct of hostilities while, at the same time, balancing the two overarching concepts of military necessity and humanity. While the principle of military necessity allows a party to a conflict to exercise any amount of armed violence which is necessary for the accomplishment of a military purpose, the principle of humanity aims at minimizing the amount of physical violence caused to combatants and the civilian population. From the late 19th century onwards the principle of humanity has progressively eroded the domain of military necessity, influencing the creation and interpretation of IHL, in a process which is referred to as the ‘‘humanization” of IHL. A key area of IHL in which such process has taken place is the law of targeting, whose aim is to limit ‘‘attacks”, by prohibiting belligerents to direct them against civilians. In this context, the rise of cyber warfare capabilities establishes a tension between the violencecentered rationale of the law of targeting and the nature of cyber attacks, as their effects may have devastating consequences even without causing any form of physical violence. What kind of cyber operations should qualify as ‘attacks’ under the law of targeting? The answer to this question can reconfigure the delicate balance between military necessity and humanity, raising implications for the protection of the civilian population and the humanitarian aims of IHL. My contribution offers a critical evaluation of the relationship between the principle of humanity within the law of targeting and cyber warfare, and proposes a ‘‘human security” paradigm for the regulation of cyber attacks in armed conflict.

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